bluuebunny/crossref_metadata_2025 huggingface dataset:
Community Participation and the Function of Rules: The Case of Urban Zoning Boards
Authors: STEELE ERIC H.
Published: January 2008

Data from a case study of piecemeal zoning change suggest that the decisions of citizen zoning boards of appeal are neither lawless nor ineffective–the majority of requests that come before them are for bulk and dimension variances which typically do not threaten the land use status quo and are usually granted unless there is local opposition. When substantial changes of land use are involved two factors are influential in determining the outcome of zoning cases–the consistency or clash between the proposed land use and that of the neighborhood surrounding the site, particularly in single‐family residential areas; and the expression of opinion (positive or negative) by the residents of the community.

Despite criticism of zoning boards as defective and illegitimate legal institutions and calls for their abolition, they remain popular and extremely resistant to change because they have come to play important dispute settling and community maintenance functions in the urban environment in addition to their explicit rule enforcement functions. These broader community functions of zoning can only be understood in terms of a participatory model of legal process where legal rules are understood as functioning to identify situations as much as they are norms to be enforced.
Seats, Votes, and Gerrymandering: Estimating Representation and Bias in State Legislative Redistricting
Authors: BROWNING ROBERT X. , KING GARY
Published: January 2008

The Davis V. Bandemer case focused much attention on the problem of using statistical evidence to demonstrate the existence of political gerrymandering. In this paper, we evaluate the uses and limitations of measures of the seat‐votes relationship in the Bandemer case. We outline a statistical method we have developed that can be used to estimate bias and the form of representation in legislative redistricting. We apply this method to Indiana state House and Senate elections for the period 1972 to 1984 and demonstrate a maximum bias of 6.2% toward the Republicans in the House and a 2.8% bias in the Senate.
Political Trust and Judicial Retention Elections
Authors: ASPIN LARRY T. , HALL WILLIAM K.
Published: January 2008

Retention elections are that part of the merit selection plan designed to hold judges accountable to the public. While more than one scholar has concluded that votes cast in a retention election are often not informed evaluations of the judge's qualifications and/or conduct on the bench, the few existing systematic empirical studies have failed to explain why people vote for or against retention. This study fills part of this void by testing the hypothesis that political trust is a major cue in judicial retention voting. In contrast to most previous work which was either limited to the appellate level or to elections in a single state, the data set consists of 1,864 retention elections held from 1964 through 1984 for major trial court judges. The national trends in political trust in the last two decades are found to be reflected in the trends in the mean vote for retention.
The Denial of Visitation Rights: A Preliminary Look at its Incidence, Correlates, Antecedents and Consequences
Authors: PEARSON JESSICA , THOENNES NANCY
Published: January 2008

The issue of visitation denial has inspired considerable debate and legislative activity. This article presents empirical evidence on the scope of the problem and the relationship between visitation and child support payment behaviors. Visitation denial is shown to be a problem, although reported levels of denial fall below both levels of non‐contact by absent parents and non‐payment of child support noted in previous research. Visitation difficulties appear to become established fairly early on in the separation/divorce process and fail to deviate over time. Although non‐payment of child support cases do not always involve a visitation problem, the two phenomena are related with visitation problem cases being more likely to involve non‐payment of child support. The data do not permit a deciphering of causal order in cases that involve both types of non‐compliance. However, both phenomena appear to stem from conflict patterns between the parents which are detectable at early stages of the divorce process. These findings inspire several recommendations, including interventions with divorcing parents aimed at enhancing their communication skills and reducing levels of anger and hostility and the need to develop mechanisms in which visitation and child support grievances can be jointly aired.
Urban Land‐Use and Building Control in The Netherlands: Flexible Decisions in a Rigid System
Authors: NIEMEIJER BERT
Published: January 2008

In the Netherlands, the system of rules concerning land‐use and building at first sight seems rigid. A closer look, however, discloses a remarkable amount of flexibility partly authorized by ‘hidden’ legal possibilities. In assessing applications for building permits officials generally rely primarily not on the rules of building ordinances but on professional norms of good construction practice. A case‐study of land‐use planning shows a decision‐process characterized by coalition‐building which produces plans that are constantly changed to meet shifting external political and economic constraints. Such practices tend to endanger the normative goals of legal certainty and public accountability. To characterize the decision‐processes involved as ‘rule‐application’ or ‘rule‐enforcement’ is not adequate. Firstly, because it tends to reduce the complex working of a rule to the imposition of pre‐existing legal standards. Secondly, because the structure of the actors and their relationships is far more complex than a dichotomy of the ‘regulator’ and ‘the regulated’ suggests.
Market‐Oriented Regulation of Environmental Problems in the Netherlands
Authors: HUPPES GJALT , KAGAN ROBERT A.
Published: January 2008

Two functioning regulatory tax programs in The Netherlands indicate certain conditions under which such frequently‐advocated but infrequently‐adopted regulatory strategies can be successfully implemented. A flat fee on oxygen‐demanding substances in industrial effluents, introduced in 1970, has been very successful, stimulating a 90% reduction in pollution and a search for cost‐effective abatement measures. However, a recently‐enacted law aimed at agricultural pollution, using a combination of direct controls and taxes on polluting inputs, has led to resistance and is not likely to be very successful. Based on these programs, regulatory taxes seem more likely to be politically and technically feasible when (a) emissions can be monitored economically; (b) the relation between emissions and environmental harm is relatively uniform and predictable; (c) implementing agencies have the technical competence and strong political and economic incentives to monitor and tax strictly; (d) the regulatory taxes apply uniformly to all sources of pollution; (e) economic efficiency is strongly valued in environmental policymaking.
The Initiative Process and its Declining Agenda‐setting Value
Authors: BERG LARRY L. , HOLMAN C. B.
Published: January 2008

California adopted the initiative process in 1911 as a means to allow the electorate to enact laws or amend the state constitution without acting through representatives. The process was instituted in reaction to an unresponsive legislature dominated heavily by well‐financed and professional special interest groups.

Since 1978, however, there has been a clear trend toward the “professionalization” of the initiative process in California. What was once a valuable agenda‐setting mechanism for citizens has increasingly become a tool of professional special interest groups. A survey of expenditures made in solely the qualification phase of statewide initiatives over time shows a growing dichotomy between those initiatives that qualify for the ballot and those that fail to qualify. Not only are dramatically more funds spent on behalf of successful qualification efforts, but these funds also are more likely to be spent on enlisting professional signature‐gathering services. The era of the “popular initiative” is coming to a close unless steps are taken to reduce the professionalization of its agenda‐setting function.
The Political Styles and Organizational Strategies of American Prosecutors: Examples from Nine Courthouse Communities*
Authors: FLEMMING ROY B.
Published: January 2008

This paper focuses on the relationship between the political styles and organizational strategies of prosecutors in nine medium‐sized courthouse communities in the United States. Three political styles are identified and a choice model developed that rests on the prosecutors' satisfaction or dissatisfaction with the status of their offices and on their view regarding the expected value of conflict. In turn these styles lead to different organizational strategies in which bureaucratization and office culture, given the mediating effects of office size and staff loyalty, are used as policy tools to achieve prosecutor goals.
Criminal Justice Reform, Monetary Incentives, and Policy Evaluation*
Authors: HEUMANN MILTON , CHURCH THOMAS W.
Published: January 2008

Innovation in criminal justice frequently fails, or is perceived as having failed. In this paper we look at a highly imaginative, quintessential 1980's innovation–the use of financial incentives to encourage prosecutors to process more quickly their oldest cases and their cases involving defendants incarcerated pre‐trial. Measured by conventional “bottom line” criteria the incentive scheme can be labeled a failure. But measured both by the limited actual success at least one office achieved, and by the general effectiveness of the incentives as motivators for three out of the four offices studied, a somewhat more positive assessment of the efficacy of incentives can be fashioned.
The Contexts of Regulation: The Impact Upon Health and Safety Inspectorates in Britain
Authors: HUTTER BRIDGET M. , MANNING P. K.
Published: January 2008

It is argued that the systematic study of regulation should include an analysis of the structural contexts within which agencies with enforcement authority are embedded. At least four contexts affect indirectly and directly the process of regulation: the political, the economic, the scholarly and the media. The period of the mid‐ ‘eighties in Britain is characterized and trends in that period are described. The decline in resources, a political and scholarly environment of “de‐regulation” and increased media interests in aspects of regulation in general, it is argued, shape regulation in Great Britain. The authors use records, field and interview data from an on‐going research program on health and safety regulation in England and the structure and operations of the Health and Safety Executive (HSE) at the Centre for Socio‐legal Studies, Oxford, to a) examine structural changes in the organization(s) of which the HSE is constituted b) identify stresses and conflicts within the HSE c) record resultant patterns of morale and performance and d) describe efforts at achieving rationalization and formalization. It is concluded that in the context of declining resources and pressures to appear efficient, potentially divisive stresses and conflicts in regulatory bodies, if the HSE is at all representative, will continue and will underlie changes and developments that can be expected to emerge.
The Police and CMHCs: The Transition from Penal to Therapeutic Control
Authors: RUANE JANET M. , CERULO KAREN A.
Published: January 2008

The deinstitutionalization of chronic mental patients and the establishment of Community Mental Health Centers creates a new role for the police—i.e. agents of therapeutic control. In this new role, police must move beyond their traditional behaviors as agents of penal control, and play an active part in initiating patients to psychiatric treatment. Social scientists and mental health professionals recognize the need for police training in this area. Yet, little research has been devoted to the penal‐therapeutic transition per se. This paper examines the social structural factors necessary for such a transition, and it illustrates the methods by which CMHC professionals can manipulate their social control environments so as to fulfill these social structural “requirements”. We also discuss some non‐structural barriers to police acting as agents of therapeutic control and the prospects for overcoming them.
Sources of Stigma: Analyzing the Psychology of Affirmative Action
Authors: NACOSTE RUPERT BARNES
Published: January 2008

Numerous speculations exist about the psychological implications of affirmative action. One of the notions most prevalent among policy analysts is that affirmative action is stigmatizing and consequently is psychologically harmful to beneficiaries. In this article, the policy‐analytic vision which leads to this conclusion is shown to have strong parallels with a particular interpretation of the formal social psychological framework known as Equity Theory. Flaws in both the policy analytic and the equity theory visions are highlighted through a reconceptualization of the policy in terms of the theory of Procedural Justice. The general argument is that psychological reactions to affirmative action are linked to the actual structure and perceived fairness of the procedures used to implement the policy. A review of the psychological research on the outcomes of affirmative action based on equity theory and procedural justice shows that psychological responses to the policy depend on the nature of policy‐procedures. Since affirmative action procedures do vary and also seem to have legal bearing, it is argued that in order to develop an understanding of the psychology of the policy that is both valid, and relevant to policy design, a procedural justice conceptualization is necessary.
The Law and Economics of Organ Procurement*
Authors: HYLTON KEITH N.
Published: January 2008

This paper presents an economic analysis of the organ procurement system in the U.S. and examines proposals to alleviate the shortage of transplantable organs. The paper's principal conclusions are: (1) Although non‐market solutions deserve the highest priority, demand increases fueled by improvements in transplant technology will probably make some market‐based solution necessary in the future. (2) Quality deterioration and coercion will not necessarily be worrisome problems under a market‐based procurement system.
Innovation, Policy Strategies and Law
Authors: ARUP CHRISTOPHER
Published: January 2008

The paper considers how implementation strategies for the promotion of innovation implicate the forms of law in Western economies. Pursuing the example of computer software production, it traces the tension in the form of the law between liberalism and corporatism, property and administration, and rule and discretion. It examines developments in the law relating to copyright, proprietary information, trade practices, foreign investment, and government sponsorship and enterprise.
Amicus Curiae and the Public Interest: A Search for a Standard1
Authors: DALY NANCY
Published: January 2008

Despite the widespread and influential presence of an increasingly partisan amicus curiae brief, the role of the “friend of the court” brief remains controversial. Changing rules of access and diverging recommendations for its behavior are associated with two distinct views of jurisprudence. A traditional understanding of adversarial proceedings emphasizes the individual interests of the litigants, and correspondingly excludes consideration of non‐parties and the general public. An alternative to the traditional, individual‐based, liberal jurisprudence (and its skepticism toward public interest arguments) is a recognition of the need to integrate individual and public interests and to find a coherence between them.

The skeptical view of the public interest can be avoided by adopting a post‐empiricist view, which recognizes a plurality of interpretations of the public interest. The amicus curiae role, if given wide access, can serve as a tool of inclusive pluralism, which recognizes a diversity of views regarding the public interest and the impact of legal decisions on the public.
Encouraging Tax Compliance With Positive Incentives: A Conceptual Framework and Research Directions*
Authors: SMITH KENT W. , STALANS LORETTA J.
Published: January 2008

Drawing on learning and social psychological research, we identify the processes by which positive incentives induce compliance with regulatory laws, using tax as a specific example. We evaluate the likely effects of various positive incentives on four different dimensions of compliance decisions: instrumental consequences, normative considerations, internalized motivation, and allegiance to authority. Linking incentives specifically to compliant behavior invokes a cost/benefit analysis, lowers intrinsic motivation and allegiance to authority, and requires authorities to monitor citizens and to distinguish between compliant and noncompliant behaviors. The alternative is to present the incentives as an attempt by the enforcement authorities to cooperate with the citizens. This method is less likely to invoke cost/benefit calculations; requires less intervention by authorities; and increases intrinsic motivation, consideration of normative issues, and allegiance to authorities. Prior research suggests that respectful treatment and praise may be more effective incentives for inducing long‐lasting compliance than are materialistic incentives because people have a strong tendency to reciprocate actions they receive from authorities. Our analysis leads to proposals for program implementation and evaluation and raises some theoretical questions that need additional research.
Hidden Enterprise and Property Rights Reform in Socialist Hungary*
Authors: SELENY ANNA
Published: January 2008

The particular historical trajectories of economic reform in East European socialist systems were important causal factors in their transformation, and often account for the different paths now open to each. Taking the case of Hungary, this article argues that socialist reforms, even when justifiably assessed as ineffective attempts at improved efficiency, interacted with an expanding second economy to alter in a gradual but profound manner the state‐imposed relationship between the political and economic realms. This process of incremental social and ideological change “politicized” the economy and partially “privatized” the public sector, albeit often in informal ways. The turning‐point was a 1982 reform of property‐rights which legalized much of the second economy and opened up newly‐legitimate channels for its cooperation with the state sector. By formalizing the previously informal relationship of mutual dependence between the state and the second economy, these statutes engendered new economic and political contradictions and possibilities in the system, as the enfranchisement of previously‐excluded groups led to further concessions on the part of the state. The legalization of the second economy, the public campaign to legitimize the private sector, and the creation of new private partnership forms constituted a significant difference between the legacy of Hungarian socialism and other East European varieties.
Privatization in Poland: Politics, Society, and the Law*
Authors: CZYNCZYK ANDRZEJ ARTUR
Published: January 2008

The paper presents the beginning and the initial results of the process of privatization in Poland. Starting from the summer of 1990 it examines the political debate on the Privatization Act and corresponding social reaction. It shows how the society answers such important questions as: who, and on what principles, is to take over the hitherto state‐owned property? The next question is on the content of the “social contract on privatization”: the legal starting point and the first empirical results. It appears that the most visible social effect was the growth in the inequalities between workers and the elites of the society. The role of workers in the process of transformation is also of special interest. Finally, the paper examines the role of privatization law, which on the one hand presents a compromise between the ruling class and the society and on the other hand has been replaced by current privatization policy.
Partnerships in the Development and Implementation of Canadian Air Quality Regulation
Authors: BAAR ELLEN
Published: January 2008

This case study focuses on how the Canadian Council of Ministers of the Environment combined consultative processes with federal provincial negotiations to develop a policy for reducing emissions of nitrogen oxides, and volatile organic compounds. The paper argues that the relationship among the parties was not characterized by the reciprocity required for a partnership, and that the process employed was insensitive to inequalities in regulatory capacity. As a result, too little attention was devoted to the question of how regulatory capacities can be continuously improved.
The Psychology of Routine Discretion: Accident Screening by British Factory Inspectors*
Authors: LLOYD‐BOSTOCK SALLY
Published: January 2008

It is well recognized that discretion over the day to day enforcement of law is often exercised routinely by “repeat players.” However, the psychology of repetitive, routine decision making has not received particular attention. An empirical study of factory inspectors' discretion in screening accidents for investigation was conducted, using interviews with inspectors and analysis of records. The paper analyzes the selection decision as a process of categorization that attends simultaneously to characteristics of the accident, the legal and organizational context, and normal responses within the agency, in a way that maximizes cognitive economy. The paper suggests that, with experience, skill at routine decision making comes to be exercised towards the “automatic” end of a continuum from ‘automatic’ (non‐conscious) to (consciously) “controlled” processing of information. Since data are available on accidents not selected as well as those selected, the implications of inspectors' decision strategies can be examined.
What are Tort Awards Really Like? The Untold Story from the State Courts*
Authors: OSTROM BRIAN , ROTTMAN DAVID , HANSON ROGER
Published: January 2008

The popular press frequently reports exorbitant money damage awards by juries. These stories cause paroxysms in the business community because juries are viewed as favoring plaintiffs over corporations. A growing body of literature has examined aspects of this complex issue, but within a limited framework. Prior studies, which are based on data from the early 1980s or before, tend to focus on federal court cases, primarily product liability and medical malpractice torts, only jury verdicts, and single jurisdictions when state courts are included.

The objective of this article is to contribute to the literature by examining all tort cases reaching either a bench or a jury trial verdict during a sample period in 1989 in twenty‐seven general jurisdiction trial courts. Research is organized around three basic questions. What do torts look like? Do particular types of plaintiffs/defendants gain a higher percent of favorable verdicts? When plaintiffs are awarded money damages, what is the importance of litigant status, while controlling for other factors, in influencing the size of the awards?

The article begins by describing the landscape of torts ‐ the typical configurations of the contending litigants, the composition of torts by area of law, the types of trials, verdict patterns, and the average size of awards. Basic contours of the landscape reflect the elemental facts that individuals generally are plaintiffs in these cases and the opposite tendency of corporations, insurance companies, and governments to appear as defendants.

Next a model is outlined and tested to determine how strongly different possible determinants shape the size of tort awards in the twenty‐seven state trial courts. Does the size of the award depend on the configuration of the parties after taking into account the type of tort, the type of trial, the length of disposition time, and the state in which the court is located? The results indicate that the group of variables representing the various pairing of litigants accounts for most of the explained variation in award size. These findings support the notion that the status of the litigants is an important factor in influencing awards. Because the variables representing some of the individual states are also significant, the evidence also suggests no single, uniform pattern applies across all the courts. Instead, the state context shapes the basic parameters of plaintiff and defendant success.
Mandatory Child Abuse Reporting Laws: Issues and Implications for Policy
Authors: KALICHMAN SETH C. , BROSIG CHERYL L.
Published: January 2008

Child maltreatment has been deemed a national emergency, with more than 2.5 million cases of abuse and neglect reported each year. Social policies designed to address child maltreatment include state statutes requiring professionals to report suspected child maltreatment to authorities. Mandatory reporting laws, while of potential benefit in the identification of abused and neglected children, can often result in higher or lower rates of reporting of abuse. The present paper reviews the functions of mandatory reporting statutes in professional contexts. Factors related to both low and high rates of reporting are discussed. In addition, suggestions for social policy are reviewed.
Mandated Reporting Revisited: Roe v. Superior Court*
Authors: DEED MARTHA L.
Published: January 2008

Historically, psychotherapists have been concerned about the impact of mandated reporting requirements on their work with patients. This paper explores policy and professional issues regarding mandated child abuse reporting in the light o/Roe v. Superior Court (1991). Ethical and informed consent conflicts receive particular attention. Other recent court decisions which weigh psychotherapist‐patient privilege against exceptions to that privilege in child abuse cases are discussed to suggest the probability that understanding child protection laws may be beyond the knowledge of most practicing psychotherapists and their patients. Possible next steps in social policy are proposed.
Court Orders and County Correctional Expenditures: Power of the Purse?*
Authors: WELSH WAYNE N.
Published: January 2008

Despite much speculation that court orders against correctional facilities have adversely impacted government finances, little empirical investigation has been conducted. Counties, already experiencing severe fiscal crisis, may increasingly allocate more of their budget toward local jails to comply with court‐ordered improvements. This hypothesis was tested by examining time series data, case histories, and interviews with government, corrections, and justice officials in three counties. In addition, cross‐sectional data from two constructed samples of matched counties compared expenditures in counties under and not under court order. Results suggested that judges were sometimes persistent in seeking reform, even ordering direct expenditures on jails. However, statistical investigation revealed that the effects of judicial intervention were relatively strong in some cases, but weak in others. The effects of court orders on correctional policy are heterogeneous, and the judicial “power of the purse” is limited by various legal and pragmatic constraints.
Above the Boundaries: Ozone Depletion, Equity, and Climate Change*
Authors: AMAN ALFRED C.
Published: January 2008

This introduction examines the global legislative process as it applies to environmental agreements. It argues that this process should be seen as consisting of at least two phases. Phase one seeks to create a broad legislative framework designed to facilitate debate emanating from three different perspectives: science, equity, and economics. Phase one also seeks to attract as many countries as possible to the negotiating process. Phase two then tries to reconcile at least some of the conflicts inherent in these three different starting points.
Subsistence Emissions and Luxury Emissions
Authors: SHUE HENRY
Published: January 2008

In order to decide whether a comprehensive treaty covering all greenhouse gases is the best next step after UNCED, one needs to distinguish among the four questions about the international justice of such international arrangements: (1) What is a fair allocation of the costs of preventing the global warming that is still avoidable?; (2) What is a fair allocation of the costs of coping with the social consequences of the global warming that will not in fact be avoided?; (3) What background allocation of wealth would allow international bargaining (about issues like 1 and 2) to be a fair process?; and (4) What is a fair allocation of emissions of greenhouse gases (over the long‐term and during the transition to the long‐term allocation)? In answering each question we must specify from whom any transfers should come and to whom any transfers should go. As the grounds for the answers we usually face a choice between fault‐based principles and no‐fault principles.
Regulation and In‐Company Environmental Management in the Netherlands*
Authors: AALDERS MARIUS
Published: January 2008

This paper addresses the relationship between preventive systems of social control and regulation of the behavior of public bodies and private organizations. Illustrated with material on new developments in self‐regulation concerning environmental management in companies in the Netherlands, the author argues that a combination of stimulated (or “regulated”) self‐regulation and stringent enforcement policies is feasible and should lead to company compliance with environmental regulation. The article discusses the assertion that to reduce the social distance between government and individual citizen, between regulator and regulated, a mixture of policy instruments is needed, ergo: by involving societal groups of interested people in policy formation and self‐regulation, enhancing the creation of normative systems (involvement “by association”) on the one hand and the availability of adequate law enforcement procedures on the other, corporations, through responsive government regulation, could promote an adequate and successful preventive system of social control.
The Professionalization of Public Accounting: A Social Dilemma Perspective
Authors: BRICKER ROBERT , BAILEY ANDREW , GRANT JULIA , TURNER JOANNE
Published: January 2008

This study uses a social dilemma model of auditing and a model of cooperative regulatory enforcement to provide a framework within which the evolution of self‐regulation in the U.S. accounting profession is studied. From a social dilemma perspective, individual public accounting firms are best off, in a single period sense, by providing a low quality audit product, which is defined in terms of the degree of auditor acquiescence to managers' accounting method discretion. However, firms' collective welfare is maximized by high quality auditing. The cooperative regulatory model employed is premised on the existence of a plausible government threat of punishments and invasive regulations, which motivates self‐regulation in an industry. We argue that prior to enactment of the securities acts, public accounting firms faced a social dilemma in which there were limited incentives for high quality auditing either voluntarily or through the establishment of self‐regulation. The securities acts provided a plausible threat to which the accounting industry responded by implementing self‐regulation in order to avoid invasive and costly government regulation. After the emergence of the accounting profession, there occurred a long period of cooperative regulation with the SEC. Management discretion over accounting methods increased during this time period and audit quality correspondingly decreased, suggesting possible inefficient capture of the SEC. Evidence of an evolution towards a tripartite form of regulation appeared in the 1970s when the SEC and public accounting began to be critically reviewed by Congress. From this time to the present, new regulatory threats have motivated a series of self‐regulatory responses by public accounting to improve audit quality.
Regulatory Assessment of Investments by Telephone and Electric Utilities*
Authors: NIX JOAN , GABEL DAVID
Published: January 2008

A utility's investments are included in the rate base if the expenditures can pass the “prudent” or “used and useful” tests. Regulators have a difficult time applying these tests to telephone companies because little is known about the demand for new services. Under current regulatory procedures, telephone companies face an incentive system which rewards the firm for successful entry into new markets, but because of the lack of information about the demand for new services, the cost of failures is absorbed by customers of existing services.

We propose a rate‐making standard that would insure that existing subscribers of telecommunications services will not subsidize the new services that are being introduced by local exchange telephone companies.
Reflexive Adaptation of Business to Regulation and Regulation to Business
Authors: KANE EDWARD J.
Published: January 2008

Regulatory change is driven by competitive struggle. Regulatees struggle with each other for customers and with regulators to lessen the burden of the rules being enforced. Regulators compete for regulatees and for the confidence of customers and the general public.

Competition among regulators is imperfect. Along with better rules, new entrants must offer reputational capital, financial strength, and recognized enforcement powers. These entry requirements have supported a secular expansion of government suppliers relative to private suppliers. Principal‐agent conflicts inherent in representative democracy establish incentives for this expanding sector to produce regulatory services of poor quality. Finding ways to make top government regulators economically accountable for acts of misregulation is a critical problem.
Business Response to Regulation: An Economist's Perspective
Authors: FENN PAUL
Published: January 2008

This chapter presents an economist's perspective on the interrelationship of the compliance and enforcement decisions of business and regulators in the context of regulations governing occupational health. Assuming profit‐maximizing firms and harm‐minimizing enforcement agencies, it is argued that a degree of preventive activity would be undertaken by businesses even in the absence of regulation. However, if employees are not fully informed about the risks of the workplace, it is likely that the profit‐maximizing level of prevention will be less than socially optimal, and consequently there will be a need for regulation. An enforcement agency which attempts to minimize harm through inducing compliance with regulatory standards will be faced with similar informational difficulties to individual employees, and this suggests some scope for cooperative gains with individual firms through negotiated compliance, rather than prosecution.
Business Adaptation to Regulation: What Do We Know and What Do We Need to Know?
Authors: MACAULAY STEWART
Published: January 2008

There is, predictably, a gap between the normative model and empirical pictures of regulation drawn from many societies. We may get an approximation of the goals of much regulation, but often regulatory policy is not carried out exactly as legislated. Agencies pursue enforcement strategies in light of their priorities and resources. They engage in soft law enforcement and bargain with the targets of regulation. Regulated businesses have many tactics available to blunt or evade regulation. We can fashion plausible normative arguments both for and against these common empirical pictures. To a great extent, however, these normative positions rest on unexamined empirical assumptions. Future research might profitably focus on the roles played by those individuals who act for business associations and cope with regulation. Attention should be paid particularly to the roles played by business lawyers in such coping. James Gould Cozzens' novel, Guard of Honor, suggests how lawyers comply narrowly, evade, cover up and otherwise divert the impact of regulation, all in the service of what they see as the greater good. Cozzens' story suggests important empirical and normative questions for future consideration.
Did the Tax Reform Act of 1986 Improve Compliance? Three Studies of Pre‐ and Post‐TRA Compliance Attitudes*
Authors: KINSEY KARYL A. , GRASMICK HAROLD G.
Published: January 2008

The Tax Reform Act of 1986 rewrote the federal income tax code, bringing it closer to policy professionals' vision of what constitutes an equitable and efficient income tax. Research on tax compliance suggests the law might have affected taxpayer compliance in three ways: by reducing opportunities to overstate deductions, by changing perceptions of fairness, and by altering tax liabilities. Changes in taxpayer perceptions, attitudes, and noncompliance intentions were examined in three bodies of survey data, each containing pre‐and post‐reform data from independent samples of the same population. The results show an improved normative climate for taxpayer compliance and point to both the feasibility and the importance of examining the effects of substantive tax policies on taxpayer perceptions, attitudes, and behavioral intentions.
The Shortage of Transplantable Organs: An Analysis and a Proposal
Authors: SPURR STEPHEN J.
Published: January 2008

During the last decade there have been enormous advances in the transplantation of vital organs ‐ in particular, the kidney, lung, heart, liver and pancreas. Unfortunately, efforts to provide the benefits of these operations to patients have been severely hindered by limitations in the supply of organs ‐limitations which, in the view of the author, are a consequence of regulation prohibiting the use of market incentives to increase the supply. We conclude that the law should be changed to allow the use of incentives to induce the donation of both present and future interests in cadaver organs.
Contextualizing the Different Voice: Women, Occupational Goals, and Legal Education*
Authors: GRANFIELD ROBERT
Published: January 2008

Essentialist views reporting the existence of distinct gender differences have received much criticism. Despite these critiques, there is little empirical research on the limitations of these approaches in institutions such as law schools. While studies of legal education have been informed by gender difference theory, few have sought to contextualize difference. This study examines gender difference among students attending Harvard Law School. Using survey and interview data, this study demonstrates that difference is mediated by such variables as occupational goals, social class, and race. Implications of differences among women are discussed as they relate to reforms in legal education.
Tort Reform and Manufacturer Payout ‐ An Early Look at the California Experience*
Authors: GRADDY ELIZABETH
Published: January 2008

Manufacturers actively lobbied in the 1980s for legislative intervention in the tort system that would ease the burden on defendants in products liability cases. In response, all states enacted some type of general tort reform. California eliminated joint and several liability for noneconomic damages with the approval by voters in 1986 of Proposition 51. This paper evaluates the effectiveness of the California reform on manufacturer outcomes in products liability cases. The results suggest that manufacturers are paying a lower proportion of plaintiff awards than they would have in the absence of Proposition 51.
Two Sides to Every Story: Complainants' and Doctors' Perspectives in Disputes about Medical Care in a General Practice Setting
Authors: ALLSOP JUDITH
Published: January 2008

The paper examines 110 complaints about general practitioners adjudicated by a health authority. This was a 10 percent subset of complaints received. Complainants' letters were analyzed in order to identify the issues complained about, who complained, what they wanted and how they structured their accounts. The most common single cause of complaint was the lack of a home visit but a third involved issues of diagnosis and treatment. Most people complained to get an investigation rather than for personal redress. Very few considered suing. Doctors, in their response to complaints adopted a number of defence strategies. In a minority of cases they stepped outside the bounds of professional behavior. In the light of impending changes in complaints systems in the U.K., it is argued that a forum for the expression of conflicting accounts remains.
The Quest for Recompense: Claimants' Experience of Medical Negligence Compensation in Victoria, Australia*
Authors: MCMAHON MARILYN , ROBERTS GAIL , DALY JEANNE , EVANS MERILYN , LOWY CATHY , COVENTRY GARRY
Published: January 2008

This paper reports a study investigating the experiences of people who perceived that they had suffered a health or medical care injury in Victoria, Australia. A particular focus was their experience with the process of seeking compensation. The research strategy involved a preliminary questionnaire and in‐depth interviewing of the participants and, where possible, their families. We describe the type of injury reported by the participants, experiences with health care providers and lawyers and attitudes to the current system of compensation. The severity of injury sustained by these participants was often severe, involving permanent incapacity and psychological distress. We conclude that the quest for recompense is fraught with difficulties for claimants. The present system of compensation neither provides adequate financial compensation nor ‐ even where claimants are successful ‐ acknowledgement of the legitimacy of their claim.
Colleague or Viral Vector? The Legal Construction of the HIV‐Positive Worker*
Authors: WILSON PETRA
Published: January 2008

Many people affected by HIV suffer discrimination in the workplace, both in seeking jobs and at the hands of their employers and colleagues, this article considers critically the way in which the law can and does protect people affected in this way. It begins with an overview of the legal provisions in both statute and common law in England and Wales which may be applied to cases of discrimination on the basis of HIV infection. The practical implications of those provisions are then considered with reference to five cases of workplace discrimination related to the author by people so affected. The article ends with a consideration of the future possibilities for effective laws to combat HIV discrimination.
Regulatory Styles, Motivational Postures and Nursing Home Compliance*
Authors: BRAITHWAITE VALERIE , BRAITHWAITE JOHN , GIBSON DIANE , MAKKAI TONI
Published: January 2008

Using Kagan and Scholz (1984) typology of regulatory noncompliance, this study examined the perceptions of regulators and of regulatees toward the regulatory encounter to predict subsequent compliance with nursing home quality of care standards. Appraisals of both regulators and regulatees were not driven by motivational analyses of each other's actions, but rather by assessments of performance and social group identity. The regulators saw nursing homes in terms of one evaluative dimension ranging from responsible and not in need of intervention through to irresponsible and needing intervention. The corresponding reactions of nursing home managers involved seeing the regulators as cooperative and sympathetic through to police‐like and coercive. On both sides of the regulatory encounter, criticism and reactions to criticism swamped nuanced analyses of motivational underpinnings and rational decision models in explaining compliance. The motivational complexity underlying the Kagan and Scholz typology was, however, apparent in the self‐reported motivational postures of managers toward the regulatory process. The postures of managerial accommodation and capture to the regulatory culture were associated with compliance. Over time, resisters to the new regulatory regime became more compliant, particularly those whom inspectors judged as best left alone to adjust. In contrast were managers whose response to the regulatory process was disengagement. Their organizations experienced deterioration in compliance. The study fails to find that certain kinds of regulatory strategies such as deterrence, education and persuasion work better than others across the sample or with specific groups. Extant models focus excessively on how to play the regulatory game without recognizing the potential for players dropping out of the game. Understanding reasons for disengagement and processes for reengagement are fundamental to the application of behavioral decision theory models to the regulatory context.
Maltreatment‐Related Fatalities: Issues of Policy and Prevention*
Authors: LEVINE MURRAY , FREEMAN JENNIFER , COMPAAN CHERYL
Published: January 2008

Maltreatment‐related child fatalities, despite their relatively infrequent occurrence, constitute a serious social problem. Based on a review of national and unpublished state and local child fatality review team reports, we ascertained some risk factors that set parameters for prevention programs. Children under age four, and in particular those under age two, are at highest risk for maltreatment‐related fatalities. Neglect‐related deaths occur almost as often as abuse‐related ones. Unrelieved crying and toilet training problems are “triggers” for assaults on young children. Males are frequently involved in abuse‐related fatalities. People in their mid‐twenties, rather than teenage parents are the most frequent perpetrators. About a third of maltreatment‐related fatalities were known to child protective services. Implications of these findings, as well as the problem of predicting infrequently occurring events, are discussed in relation to programs of prevention.
The Savings and Loan Debacle of the 1980s: White‐Collar Crime or Risky Business?*
Authors: BLACK WILLIAM K. , CALAVITA KITTY , PONTELL HENRY N.
Published: January 2008

This paper examines the role of white‐collar crime in the savings and loan crisis. Noting economists' assertions that crime was only a minor ingredient in the crisis, we compare the explanatory power of this “minimal fraud” model to that of its “material fraud” alternative. Bringing together evidence from every major study of thrifts in the 1980s, we argue that only the material fraud hypothesis can make sense of these data. This study demonstrates the utility of deductive reasoning in distinguishing between white‐collar crime and ordinary business transactions, thereby potentially contributing to prosecutorial efforts, and helping resolve long‐standing methodological dilemmas confronting white‐collar criminologists.
Employing the Mental Health System to Control Sex Offenders After Penal Incarceration*
Authors: ALEXANDER RUDOLPH
Published: January 2008

In the 1930s, several states provided civil commitment in mental institutions for certain sex offenders. Civil commitment of these sex offenders abated after most states repealed their statutes in the 1960s. In the 1980s, however, these statutes returned, as outraged citizens deplored the offenses of repeated sex offenders. The author of this essay examines civil commitment statutes for sex offenders in Washington and Minnesota, two of the leading states in this area, as well as recent rulings from each state's Supreme Court upholding the constitutionality of these statutes. Particularly, the author focuses on the psychiatric or mental health discussions by the justices in the majority in both state rulings. Furthermore, the author criticizes the legislatively defined mental abnormality statutes that sanction these commitments, proposes use of the ordinary civil commitment statutes for individuals who are seriously mentally ill, and concludes that sex offenders who do not meet the criteria for traditional civil commitment should be handled by the criminal justice system.