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This case study of criminal process in a middle-sized western city in the United States employs quantitative data, interviews, and library research to explore the politics of criminal process and its impact on the operative policies of the criminal courts from I964 through 1980. The research reveals significant policy change but a very elusive relationship between politics and policy. Judges and prosecutors preserve a significant measure of autonomy for dealing with the bulk of their caseload by giving up much of their independence in those cases that are inescapably politicized. Both judges and prosecutors use this partial political insulation to advance their own versions of criminological wisdom. On the other hand, they are constrained by the prevailing ethos and by institutional limitations to operate well within conventional definitions of crime and criminality—even when those conventional views run counter to their own practical experience.
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An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
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Pornography is notoriously hard to define, yet like the Supreme Court all of us think we know it when we see it. Even if we cannot define pornography, we can say if something is or is not pornographic. How do we do this? More precisely, what is it that we think we know, when we think that something is or is not pornographic? We make these experiential determinations by reference to what I call our “traditional conception” of pornography. This conception is not based on definitions of pornography, for we have none. Rather, the traditional conception consists of broadly stated and widely believed inductive generalizations, which are in turn based on a multitude of common and shared experiences with pornographic materials. Recently—in the last ten years or so—that traditional conception of pornography has begun to change. But it is changing slowly. It still dominates our sense of what is and is not pornographic and our arguments about the value of pornography.
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The Attorney General's Commission on Pornography was asked by the president of the United States to “review the available empirical evidence on the relationship between exposure to pornographic materials and antisocial behavior [and to explore] possible roles and initiatives that the Department of Justice and agencies of local, State, and federal government could pursue in controlling, consistent with constitutional guarantees, the production and distribution of pornography” (at 216). The Commission undertook this review during several public meetings held across the country in 1986 and, as a result of the review, concluded that there is a causal relationship between exposure to many forms of pornography and several harmful effects including increased levels of violence against women. The Commission called for stricter enforcement of existing obscenity laws and serious consideration of additional legal measures. These measures include amending the federal obscenity laws to prohibit the transmission of obscene material through the telephone and eliminating the “utterly without redeeming value” clause found in some state obscenity statutes. In all, the Commission made 92 recommendations involving changes in existing federal, state, and local obscenity laws. Without exception, the recommendations for legal changes call for greater restrictions on sexually explicit material and more stringent enforcement of current obscenity law.
As the very title of John Mackie's The Cement of the Universe reminds us, causation permeates and holds together our lives, our language, and our laws. Causal claims are part of our everyday discourse, causal assumptions undergird many of our actions, and causal relationships lie at the heart of that large body of laws presupposing such a relationship between the immediate regulatory target and some more foundational governmental concern. Not unexpectedly, the omnipresence of causal relationships and the pervasiveness of our concern with them have generated multiple conceptions of what it is for something to be the cause of something else. Insofar as these various conceptions are cabined within the domains in which they have been developed, and for which they are most useful, little harm comes from mutually coexisting but different conceptions of causation. Yet the inevitable and desirable leakage among disciplines, and among professional, political, and public domains, has as an unfortunate byproduct an increased risk of conceptual confusion as strikingly different conceptions of causation are misleadingly referred to under the same rubric in the same domain.
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According to the general wisdom, legislatures lack both the power to “entrench” their enactments against alteration by their successors and the power to “retroactively” undo the efforts of their predecessors. The author argues that, rather than being in conflict, these principles share a common theme. Legislatures operate as agents of the people under constitutionally defined mandates that are limited in time as well as scope. Actions that transcend—either forward or backward in time—the temporal delegation of authority conferred by periodic elections do not bind the electorate. In the first half of the article the author suggests that an understanding of the rationale behind the entrenchment prohibition can help shed light on a diverse group of issues including congressional power to prescribe internal rules of operation, constitutional amendment procedures, and legislative impairment of contracts. In the second half of the article the author takes issue with the traditional objection to retroactivity grounded on vested rights and unfulfilled expectations. In its place he proposes a theory of retroactivity embodied in republican principles concerning the temporal relationship between the people and their legislative agents.
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This is a report of data drawn from a study of personal injury actions in the Superior Court of Alameda County, California, and in the federal district court for Northern California, for the period 1880–1900. Tort actions, in this period, were relatively uncommon compared to the number of accidents. The most frequent type of action was against common carriers—railroads and street railways. Malpractice actions were rare. Most fired cases were settled or dropped out before full trial and jury verdict. Though plaintiffs won damages in most jury cases, the overall finding is that the system provided little compensation for most victims of accidents. Tort law and practice disfavored passengers less than employees or “trespassers.” Three types of barrier blocked the path to compensation: legal doctrines which made recovery difficult; an accident-compensation system which, especially for workers, discouraged enforcement of claims; and the legal culture, which was a culture of low expectations.
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