Provocateurs

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values.     

Being Superwoman: Low Income Mothers Surviving Problem Drinking and Intimate Partner Violence

We elucidate ways mothers think about behavior change related to heavy drinking and violent relationships. A purposive sample of 32 women, predominantly black and low income, were identified as engaging in both problem drinking on the AUDIT and experiencing severe partner violence on the Conflict Tactic Scale. Narratives from audiotaped Motivational Interviewing sessions conducted in an urban emergency department were transcribed, inductively coded and examined through the lens of feminist standpoint theory. Our analysis suggests motherhood is a powerful motivator for positive change, but multiple barriers combine to prevent self-protection and modification of adverse behaviors among this vulnerable population. Interventions to help low-income mothers dealing with relationship violence and substance abuse should also address the structural violence and substantive barriers these mothers face. Further work should examine the power of personal narratives related to being a good mother on women’s ability to improve life circumstances for themselves and their children.     

The effects of treatment exposure on prison misconduct for female prisoners with substance use,mental health,and co-occurring disorders

Inmates with mental health and co-occurring mental health and substance use disorders present difficult challenges for correctional institutions and treatment providers. The complex nature of co-occurring disorders further exacerbates these difficulties and is associated with poor treatment compliance and increased likelihood of engaging in institutional misconduct. The current study examines whether exposure to prison-based treatment reduces involvement in prison misconduct among a sample of female prison inmates controlling for disorder types (i.e. mental health disorder only, substance use disorder only, and co-occurring mental and substance use disorders). Findings revealed that with exposure of more than 181?days of treatment, the odds of misconduct involvement among females with co-occurring disorders more than doubled compared to receiving no treatment. This finding is at odds with treatment retention literature that suggests that a minimum period of time in treatment is needed to affect post-treatment success. Possible explanations for these findings and policy implications are discussed.     

Edward Banfield on the Promise of Politics and the Limits of Federalism

Edward Banfield is generally considered to be a conservative,but this assumption is problematic. This essay examines hisviews on federalism and local politics in an attempt to betterunderstand his orientation. While he holds views on federalismand localism that are not liberal, by post-Second World WarAmerican standards, his lack of interest in constitutional rules,acceptance of national expansion, and lack of enthusiasm aboutlocal government put him at odds with mainstream conservatism.Ultimately, Banfield's suggestion that politics (local and national)can improve the character of human beings places him outsideboth conservatism and liberalism, and within an older tradition.     

Some Sound and Fury from Kaplow and Shavell

Law and Philosophy -     

INTRAFAMILIAL COMMUNICATIONS

Although testimonial privileges undermine the general rule that all relevant evidence is admissible at trial, legislatures and courts have recognized certain privileges primarily to protect. In these cases, the courts and legislatures have balanced the competing interests of full disclosure, on one hand, and the preservation of valued relationship, on the other, and have found that the latter outweighs the former. The attorney-clint privilege, for example, exists to encourage truthful communications between attorney and client so that the client may obtain complete and accurate legal advice. Likewise, the marital privilege protects confidences between spouses to preserve the institution of marriage. The parent-child relationship, while certainly valuable to society, has not been afforded the same protection. This note argues that a parent-child privilege should exist. Basic constitutional principles, as well as comparative and social policy arguments, support the recognition of a parent-child privilege .     

The Spiritual Components of Restorative Justice

The concept of spirituality in restorative justice practice is recognized as important but is often fuzzy and vaguely understood. This study did a content analysis of restorative justice texts and found nine distinct components of spirituality: transformation, connectedness/belonging, common human bond, repentance, forgiveness, making right a wrong, balance/harmony, rituals, and unexplained spiritual phenomenon. The conceptual clarification of the relationship between spirituality and restorative justice gives mediators/facilitators of restorative justice dialogue more tools to deepen their interactions with victims, offenders, and community members. Furthermore, delineation of these nine components offers researchers a framework for the development of instruments or tools that can be used to assess participants' experiences in restorative justice dialogues.     

The Roles of Local Government Managers in Theory and Practice: A Centennial Perspective

The standard narrative to explain the evolution of roles filled by city managers suggests that managers originally served as administrative technicians who carried out the policy directives of city councils, but, over time, they became more involved in policy advice and community leadership. This article documents enduring involvement in policy and the recent expansion of community leadership, analyzing definitions of the manager's roles offered by practitioners and scholars since the beginning of the city manager profession 100 years ago. In addition, measurements of the manager's role performance at various points in time are examined, along with trends in the preparation of managers and the context in which they work. Ignoring the evidence that the policy role is integral to professional management can lead to unfounded questions about the legitimacy of city and county managers and impairs our understanding of the council‐manager form of government and political–administrative relations.