Boundaries of Legitimacy: Sex, Violence, Citizenship, and Community in a Local Sexual Economy

Studies of prostitution have overlooked the role of law in constituting the identities and sexual practices of women in the sex trade and defining the boundary between legitimate and illegitimate violence in the sexual economy. Drawing on field work with sex trade participants in a northwestern United States city, this paper explores how the cultural logic of modern liberal law shapes women's identities and interpretations of their actions. In positioning women in the sex trade as "sexual outlaws" to be managed and subjected to the full scope of legal authority, the law simultaneously limits women's citizenship and withdraws its protection. Moreover, in restricting women's ca-pacity to invoke fundamental legal rights, the law effectively sanctions "private" or extralegal forms of discipline and creates a space for violence. Given the paradoxical position these women hold as sexual outlaws on the one hand and frequent victims of physical and sexual assault on the other, I explore how they negotiate consent and resist violence.     

Moral theories of torts: Their scope and limits: Part I

One approach to legal theory is to provide some sort of rational reconstruction of all or of a large body of the common law. For philosophers of law this has usually meant trying to rationalize a body of law under one or another principle of justice. This paper explores the efforts of the leading tort theorists to provide a moral basis — for the law of torts. The paper is divided into two parts. In the first part I consider and reject the view that tort law is best understood as falling either within the ambit of the principle of retributive justice, a comprehensive theory of moral responsibility, or an ideal of fairness inherent in the idea that one should impose on others only those risks others impose on one. The second part of the paper distinguishes among various conceptions of corrective or compensatory justice and considers arguments — including previous arguments by the author himself — to the effect that tort law is best understood as rooted in principles of corrective justice. This paper argues that although the use of principles of justice may render defensible many (but by no means all) of the claims to repair and to liability recognized in torts, it cannot explain why we have adopted a tort system as the approach to vindicating those claims. Some other principle — probably not one of justice — is needed to explain why it is that the victims claims to repair is satisfied by having his losses shifted to his injurer — rather than through some other means of doing so. The paper concludes that the law of torts cannot be understood — in the sense of being given a rational reconstruction — under any one principle of morality.     

Critical Issues in Relocation Cases: A Custody Evaluator's Response to Parkinson and Cashmore (2015) and Thompson (2015)

Parkinson and Cashmore ( 2015 ) and Thompson ( 2015 ) have written comprehensive articles outlining suggested reforms to the family law system in relocation cases. This brief article, from a child custody evaluator's perspective as opposed to researchers' and legal scholars' perspectives, highlights areas of agreement, in hope of leading to increased consensus, as well as areas of disagreement, furthering the discussion and debate of critical issues in relocation matters. Rather than an either/or approach to relocation presumptions, this article will identify a both/and perspective on presumptions for these cases. It will also focus on suggestions for evaluators in an effort to help guide ways that evaluations can be most helpful to the court.     

隋唐时期汉黎女性权利之比较

隋唐时期的律条尤其是《唐律疏议》体现了中国传统法律文化的特征。在三从四德的宗法家族文化中,处于从属地位的汉族女性通过身份的变换取得了相应的法律权利;同时期,在黎族传统婚姻习惯法的作用下,黎族女性在婚姻家庭中的权利虽有所变化,但与汉族女性相比却拥有较多的自由的权利,且黎族女性一直是处于崇高并被人尊重的地位。汉黎女性权利虽有着很大的不同,但在促进社会和谐发展方面却殊途同归,都是通过女性让渡权利这条路径来实现,这也许正是社会和谐发展的必然规律。     

Comment on Francis van Loon,stephane delrue,and wim van wambeke, “sociological research on litigation: perspectives and examples”

The sociology of law has a long-standing tradition and indeed produced a vast literature in the area of litigation. Meanwhile, a complementary perspective has been presented which we discuss with the following four perspectives: the relationship between legal economists and legal sociologists; the project of Van Loon, Delrue, and Van Wambeke; an overview of law and economics research with respect to the legal process; and the question of whether both approaches are complementary.     

The Hysterical Attorney: The Legal Advocate Within Lacanian Discourse Theory

In this essay, I apply Jacques Lacan'sfour discourses to the legal profession. A lawyer –i.e. a legal expert – engages in the Master'sdiscourse when he writes the law; he engages in theUniversity discourse when he interprets or attempts tojustify the law. In contrast, an attorney – i.e. a legal advisor – engages in the Analyst'sdiscourse when she counsel's her client; she engagesin the Hysteric's discourse when she represents herclient. From a Lacanian perspective, the two lawyer'sdiscourses are masculine, while the two attorney'sdiscourses are feminine. I divergefrom Lacan's view that the Analyst's is the mostradical discourse. The insight gained throughanalysis can only challenge and change the law iftranslated through the Hysteric's discourse. Consequently, despite dominant sexual stereotypes tothe contrary, to be an effective advocate should takeon a radically hysteric femininity.     

"民工荒"问题的法学思考

农民工的权益保障一直是法学、经济学和社会学所共同关注的热点问题.以"民工荒"问题在我国引起的强烈反响为契机,分析造成该问题的原因,得出我国相关法律制度建设的滞后是一个重要根源.尝试从法律视角对这一现象进行分析与思考,希望在理论上得到解决这一困惑的钥匙,并引起更多的人关注这一问题.     

The Impact of Supreme Court Activity on the Judicial Agenda

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.     

Women's Rights, the European Court, and Supranational Constitutionalism

This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.     

Reshaping informed consent in the biobanking context

In my article, I discuss the role of informed consent in the context of biobanking. I argue that the basic issue in understanding the role of the consent is one of identifying the interests at stake and determining which of these interests we intend to promote. The definition of the informational content represents only a consequential step. For this purpose, I analyse the legal status of human biological materials from three different perspectives: "material", "informational" and "relational". Informed consent produces different effects on each of these perspectives. From the material perspective, consent can influence the allocation of property rights over human tissue; from the informational point of view, consent is the legal instrument that permits control over personal data; while from the "relational" perspective, it is possible through consent to ensure that the person's personal beliefs are respected. The crucial point is that the legal effects that informed consent has on the three perspectives overlap. Therefore, in order to understand the role of informed consent holistically, in this article I analyse how these perspectives relate to each other. This analysis shows that the relationship between the perspectives can vary depending on the interests that we intend to promote. If we intend to promote the freedom of research, then the material dimension can prevail, whilst if we focus our attention on the interests of individuals then the informational and the relational dimensions will prevail. The challenge is to find a good balance between these two extremes.     

Law, Space, and Place: Reframing Comparative Law and Legal Anthropology

In her book Mapping Marriage Law in Spanish Gitano Communities (2006) , Susan Drummond challenges the disciplinary perspectives of comparative law and legal anthropology in her study of Gitano marriage practices. By reframing the way in which the "local" or "locale" is viewed—through an ethnographic study of Gitanos—she displaces the traditional boundaries ascribed to comparative law, with its focus on taxonomy and structure, and with legal anthropology's approach to culture. Her study not only elucidates how national and transnational law intersect, but highlights the complex interconnections between local law and the larger systems of law that attempt to regulate it. This detailed interdisciplinary depiction of the spatial and temporal dimensions of law demonstrates the importance of taking account of scale, projection, and representation that requires both comparative law and legal anthropology to rethink the nature of space and place and their relationship with law from both their macro- and microperspectives.     

A Typological Reading of Prevailing Legal Theories

A classic debate in the history of philosophy is that between rationalists and empiricists concerning the “true” source of human knowledge. In legal philosophy this debate has been reflected in the classic opposition between natural law and legal positivist perspectives. Even the currently predominant inclusivist perspectives on the nature of law, such as inclusive legal positivism and inclusive legal non‐positivism, are not immune to such a dichotomy. In this paper I attempt to present an understanding of specific cognitive characteristics of prevailing legal theories from the perspective of the theory of psychological types as developed by Carl G. Jung.     

反思法治文化：标准、困境与路径

如果说权力的配置是法治的核心,那么对权力具有深远影响的法律文化也在以＂看不见的传承＂方式影响中国法治格局。法律文化多元是一种现实存在,而法治文化的标准则为这样的存在设定了目标。中国历史上铸就的人治传统、礼法文化、法律工具化形成的传统法律文化形成了法治文化构建的传统障碍;对传统资源的过分批判和抛弃及社会信仰危机弥漫社会无形中扮演了法治文化构建的现实困境：面对传统障碍和现实困境,法治文化路径选择从社会主体意识整合的视角出发,即从文化多元、法治意识及社会主体意识方面探究中国法治文化建设的出路。     

What Is Forensic Psychology,Anyway?

The issue of how forensic psychology is defined has taken on a new urgency in the context of an application to have forensic psychology designated a specialty by the American Psychological Association. To provide a historical perspective, I briefly review early attempts to apply psychological concepts to legal issues, beginning with the McNaughten trial in England in 1843. I then review current conceptualizations of forensic psychology, which have either a broad focus on all psychology–law interactions or focus more narrowly on clinical applications to the legal system. Potential advantages and disadvantages of each conceptualization are briefly discussed. After touching upon the major differences in the cultures of psychology and of law, I discuss three law-related areas of contemporary controversy: use of clinically based evidence in the courtroom, recovered memories of child abuse, and the use of the criteria-based content analysis technique to evaluate children's claims of sexual abuse. Issues concerning the education and training of psychology–law scholars and practitioners are briefly surveyed. I conclude that a broad conceptualization of forensic psychology is important in terms of relevant ethical standards, but that a more narrow distinction that differentiates between clinicians and researchers or legal scholars also is useful.     

Social and social scientific perspectives in judicial interpretations of the constitution

It has been traditional to demarcateMuller v. Oregon as the first Supreme Court case to benefit from a social science perspective andBrown v. Board of Education of Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions,Dred Scott v. Sandford andPlessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article.     

Fictions of Origin: Law,Abjection, Difference

This article seeks to offer a critique of what it terms ‘Law-as-Logos’ (the Western conceptualisation of ideal Law in terms of pure ‘Presence’) from a perspective that combines some of the insights of contemporary psychoanalytic, deconstructive and feminist theory with recent developments in critical legal studies. The essay seeks to offer a re-theorisation of law, not as ‘Logos’ but as ‘difference’. The law, it will be argued, exists only as that arbitrary point of demarcation between the space of the sacred and the space of the abject and, to re-orient psychoanalytic readings of abjection towards a Derridean understanding of differance, the law may be articulated as the ‘trace’ that makes ‘presence’ possible whilst at the same time threatening its total erasure. Law-as-difference thus becomes maddening in its capacity to establish and erase boundaries and the second part of the essay examines this phenomenon particularly in the context of the relation between law-as-difference and the textuality of a Law that requires to be ‘put into writing’. It argues, in conclusion, that a theorisation of law-as-difference raises inevitably the question of the relation of ‘woman’ to the law and it ends with a re-positioning of the figure of Antigone as a means of interrogating the relation of the ‘feminine’ within the Western symbolic economy to the scandalous impurity of law-as-difference.¹ P. Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfield and Nicolson, 1990), 268     

Verba and Voluntas – Conflict of Laws in Interpretation of Contracts

This paper aims to describe an existing legal practice of contractual interpretation in Estonian legal order. In order to investigate the semiotic essence of contractual interpretation and its limits, this paper narrows its focus on a notion “conflict of laws” (as developed by Roberta Kevelson). By conflict of law is meant a depiction of incompatibility or conflict of co-existing legal practices, the conflict, which is both internal and external to Estonian legal system. From the inner perspective of Estonian legal order, the conflict of law is subsequently reduced to the conflict in law, and being analyzed on the grounds of contract law, the conflict of legal rules, in fact becomes a issue of contractual interpretation. It is claimed in this paper that there has been a fundamental incompatibility between objective and subjective approaches to interpretation of contracts. As later as 19th century, with the development of systematic legal science, an apparent confusion of objective and subjective approaches was becoming transformed into an open and growing system of law, based on a fusion of both methods. This paper lays theoretical grounds for a practical test, which could measure the exact level of legal integrity between different elements of legal system.     

Introduction 15th annual conference of the european association of law and economics, utrecht, the netherlands, september 1998

This issue of the International Review of Law and Economics contains a selection of papers presented at the 15^th Annual Conference of the European Association of Law and Economics (EALE). It was the first time that the annual conference of the EALE was held in the Netherlands. It took place at Utrecht, in September 1998.Approximately 40 papers were presented at the conference. Many of these papers were submitted to this issue of the International Review of Law and Economics, and we were obliged to face the difficult task of selection. In this task we were helped by anonymous referees, who deserve much credit for their delicate task. The issue opens with the text of the invited lecture by Chief Judge Richard Posner on “Employment Discrimination: Age Discrimination and Sexual Harassment.” After this lecture, seven refereed papers are published. They cover a wide range of topics and include theoretical and empirical approaches.The first two articles are empirical studies. In their article “The Dynamics of Pretrial Negotiation in France: Is there a Deadline Effect in the French Legal System?,” Bruno Deffains and Myriam Doriat provide empirical evidence on pretrial negotiation in France with the primary goal being to determine whether there is a deadline effect. Theoretical and experimental studies generally show that in pretrial litigation most claims are settled just before the negotiation deadline, i.e., at the door of the court. Using data on civil law conflicts in France, the authors demonstrate that although the out-of-court settlement rate is relatively low, a deadline effect exists in the French legal system. The article complements the theoretical and experimental literature in the field of pretrial negotiation and provides additional insights into the functioning of the legal system.The article “Modeling Crime and the Law Enforcement System” by Frank van Tulder and Abraham van der Torre presents a macroeconomic model of the Dutch criminal justice system. The empirical estimations show that demographic, social, and economic factors and the results of the law enforcement system influence the number of crimes. It is found that a rise in the clear-up rate reduces the crime rate, whereas the average term of imprisonment has a negative impact on violence. A growth in the number of young men, divorced persons, unemployed, drug addicts, and motor vehicles—each per capita—and a rise in income inequalities have a boosting effect on one or more types of crime.The third article by Michael Faure and Paul Fenn is concerned with the costs and benefits of making liability for accidents retroactive, given the availability of liability insurance. The authors distinguish between the injurer’s perceived risk that the standard of care applied by the courts will differ from his chosen level of care, where this perceived risk is based on precedent or current practice, and the genuine uncertainty that the standard of care may change in the future as a result of unknown developments in the technology of care. While the injurer’s probability distribution over liability may be the same in each of these cases, he may be far less confident about the reliability of the probability distribution as a guide to choice in the latter case. In principle, the risk of liability arising from an unknown standard of care could be transferred to a liability insurer through the purchase of occurrence coverage. However, in addition to the usual source of difficulty for insurance markets as a result of information asymmetry, insurers also may have distaste for ambiguity. The authors show that this could in some circumstances lead to market failure in the provision of occurrence policies. These welfare losses from inefficient risk sharing as a consequence of retroactivity must, therefore, be set against the potential welfare gains from improved incentives for injurers to seek out information on care technology, as well as the concerns over distributive justice.In their article “Unitary States and Peripheral Regions: A Model of Heterogeneous Spatial Clubs” Jean-Michel Josselin and Alain Marciano develop an analytical framework for understanding the limits of constitutional unity. Their microeconomic model of unitary states deals with two kinds of heterogeneity. First, preference distance or physical distance account for decreasing net benefits from expansion. Second, heterogeneity may involve a discontinuity in the spatial pattern of preferences: “Peripheral behaviors” threaten unity. The authors integrate such behaviors into the model and draw some lessons as to the nature of an optimal constitutional area, discussing in particular the status of peripheral regions.The fifth article by Benito Arrunada, entitled “The Provision of Non-Audit Services by Auditors: Let the Market Evolve and Decide,” searches for and defines efficient regulation of the provision of non-audit services by auditors to their audit clients. From an examination of the particular problems posed by these services, it is concluded that they reduce total costs, increase technical competence, and stimulate more intense competition. Furthermore, they do not necessarily damage auditor independence or the quality of non-audit services. This assessment leads to recommending that legislative policy should aim at facilitating the development and use of the safeguards provided by the free action of market forces. Particular emphasis is placed on the role played by fee income diversification and the enhancement, through disclosure rules, of market incentives to diversify. A rule of mandatory disclosure of client diversification is examined to facilitate the task of the market with regard to achieving the optimal degree of auditor independence.In the next article, Antony Dnes applies the economic analysis of law to examine recent proposals in England and Wales for the reform of the law affecting financial settlement following divorce. Two specific measures have been proposed to reduce judicial discretion: a mathematical formula (such as a rebuttable presumption to divide equally the whole pool of assets during divorce) to be applied in the absence of agreement between the parties, or the enforcement of prenuptial agreements. The author concludes that these measures should be welfare improving but would need to be forward looking and applied to marriages, rather than divorces.The last article by Niva Elkin-Koren and Eli Salzberger provides a look at the changing world of law with the emergence of cyberspace from the perspective of the economic approach to law. The authors argue that the Chicago paradigm cannot be of much help to analyze law in and of cyberspace. While cyberspace reduces the traditional causes of monopolies, it introduces new types of monopolies that are the consequence of control over technologies rather than of price and demand curves. Second, the strict correlation between markets and states does not exist in cyberspace. The authors equally point at the weaknesses of transaction cost analysis. The Coaseian analysis assumes a given state of technology and overlooks the correlation and reciprocity between technological developments and legal rules. The authors consider neoinstitutional law and economics as the most suitable framework for examining the changing world of cyberspace, but they suggest some refinements. Cyberspace invites a reassessment of the borders between markets and hierarchies and poses special challenges to the paradigmatic assumption of rational behavior.     

Applications of economic analysis to marital law: concerning a proposal to reform the discretionary approach to the division of marital assets in England and Wales

In this paper, I apply the economic analysis of law to examine recent proposals in England and Wales for the reform of the law affecting financial settlement after divorce. The starting point is an examination of the wide discretion currently afforded to the courts and the impact this has on incentives for divorcing parties and their legal representatives. Two specific reforming measures have been proposed to reduce this judicial discretion. First, a mathematical formula, such as a rebuttable presumption to divide equally the whole pool of assets upon divorce—a form of community property—could be used. It would be applied in the absence of agreement between the parties dividing assets, as in many countries in continental Europe. Second, legal enforceability could be accorded to prenuptial agreements, again after a continental pattern. Broadly, I conclude that changing to community property and enforceable agreements should be welfare improving but would need to be forward looking and applied to marriages, rather than divorces.     

The Practice of Law With LGBT‐Parent Families

In this article, I examine how a history of legal conflict has produced a constantly evolving professional identity for lawyers representing lesbian/gay/bisexual/transgender (LGBT) clients on family matters. Drawing on in‐depth interviews with 21 lawyers, I describe variation across areas of specialization, advertising, clientele, and access to professional networks. In addition, I focus on how sociopolitical and legal context shapes professional identity and practice for these lawyers, demonstrating the importance of practice location for this group of lawyers. Although interviews were conducted prior to national marriage recognition, these findings provide insight into the future development of the LGBT family law profession post‐Obergefell.