Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

On the Relevance of Neuroscience to Criminal Responsibility

Various authors debate the question of whether neuroscience is relevant to criminal responsibility. However, a plethora of different techniques and technologies, each with their own abilities and drawbacks, lurks beneath the label “neuroscience”; and in criminal law responsibility is not a single, unitary and generic concept, but it is rather a syndrome of at least six different concepts. Consequently, there are at least six different responsibility questions that the criminal law asks—at least one for each responsibility concept—and, I will suggest, a multitude of ways in which the techniques and technologies that comprise neuroscience might help us to address those diverse questions. In a way, on my account neuroscience is relevant to criminal responsibility in many ways, but I hesitate to state my position like this because doing so obscures two points which I would rather highlight: one, neither neuroscience nor criminal responsibility are as unified as that; and two, the criminal law asks many different responsibility questions and not just one generic question.     

Exploring gender differences in dating violence/harassment prevention programming in middle schools: results from a randomized experiment

In this study, we randomly assigned 123 sixth and seventh grade classrooms from seven middle schools in the greater Cleveland area to one of two five-session curricula addressing gender violence/sexual harassment (GV/SH) or to a no-treatment control group. A baseline survey and two follow-up surveys were administered immediately after the treatment (Wave 2) and about six months post-treatment (Wave 3). In an earlier paper, we demonstrated the effectiveness of two approaches to youth GV/SH prevention programming (a fact-based, law and justice curriculum and an interaction-based curriculum). In this paper, we explored whether these largely positive findings remain for both girls and boys, including whether girls experience higher levels of GV/SH than boys. Most of our statistical models proved to be non-statistically significant. However, in 2 of our 48 victimization/perpetration (any violence, sexual violence and non-sexual violence) models (across two post-intervention follow-up points), we observed that the interventions reduced peer (male or female, non-dating partner) sexual violence victimization and reduced peer perpetration, but another outcome model indicated that the interventions increased dating perpetration. These mixed findings will need to be explored further in future research. Regarding our primary research question, we observed no statistically significant differences for the treatment multiplied by gender interaction terms for any of the perpetration or victimization outcome models, suggesting that the treatment had similar effects on girls and boys. However, we did observe that boys are more involved in violence than girls: both as victims and perpetrators. Boys experienced significantly more of three types of victimization from peers and dating partners compared to what girls experienced at the hands of their peers and dating partners. As perpetrators, boys committed more sexual victimization against peers (immediately post-intervention only) and more sexual victimization against dating partners than girls. The implications of these results are discussed.     

What Lies Beneath: Exploring Links Between Asylum Policy and Hate Crime in the UK

This paper explores the link between increasing incidents of hate crime and the asylum policy of successive British governments with its central emphasis on deterrence. The constant problematisation of asylum seekers in the media and political discourse ensures that ‘anti-immigrant’ prejudice becomes mainstreamed as a common-sense response. The victims are not only the asylum seekers hoping for a better life but democratic society itself with its inherent values of pluralism and tolerance debased and destabilised.     

Governing Health and Social Security in the Twenty-First Century: Active Citizenship Through the Right to Participate

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this article is thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity.