Civil Wrongs Research Articles

Jurisdiction Over Cross-Border Wrongs On The Internet

The internet presents challenges for private international law. One challenge relates to jurisdiction, which is traditionally based on territory. Transactions on the internet span many borders. When cross-border wrongs are committed they may lead to transnational litigation. This article examines the circumstances in which a court can exercise jurisdiction over a foreign defendant alleged to have committed a civil wrong over the internet. Section I examines the background to jurisdiction and the internet and sets the scope of the topic. Section n gives a brief summary of the internet and its applications. Section HI examines jurisdictional rules in civil wrongs cases.The focus is on two sets of rules commonly applied around the globe: the service abroad provisions and the special jurisdiction provisions. Section IV aims to apply those jurisdictional rules to cases of wrongs committed on the internet. It advances general principles, applicable in cases of cross-border wrongs committed on the internet, relating to the place where a wrong is committed and the place where damage is suffered. Defamation has its own peculiarities and is discussed separately. The issue of whether a court can grant an injunction against a foreign defendant in respect of foreign conduct is explored. The article concludes (in Section V) that existing jurisdictional rules need not be amended in light of the internet, and offers general statements about how jurisdictional rules apply to wrongs committed on the internet.

FIXING THE BOUNDARIES OF THE CONCEPT OF CRIME: THE CHALLENGE FOR HUMAN RIGHTS

In England and Wales, as elsewhere, criminal law stands in sharp contrast to other systems of social control. Criminal offences and their related penalties are clearly distinguishable from civil wrongs and their associated (civil) sanctions. And because the term ‘civil law’ refers not only to the domain of torts, but also encompasses administrative law, criminal penalties are, in addition, distinguished from the administrative or regulatory sanctions. This ‘distinction between criminal and civil justice has been such a basic feature of the common law’1that it shapes not only substantive law but also the organization of the courts into civil, criminal and sometimes administrative chambers or divisions. More importantly, the distinction between civil and criminal sanctions will lead to the application of different procedural rules: civil proceedings, used for the imposition of civil sanctions, are less stringent that their criminal counterpart applied when the offender faces a criminal sanction. This more gentle approach can be detected in both the burden and standard of proof.

The Suitability of IRB Liability

The biomedical research oversight system in the United States delegates most responsibilities to local review entities known as institutional review boards (IRBs). The IRBs are charged with responsibility for safeguarding the welfare of research participants and ensuring that clinical studies involving human subjects comply with federal regulations. During the past three decades, the United States has experienced a dramatic proliferation of biomedical research studies. Contemporary critics often voice serious concerns about the adequacy of the regulations as a mechanism to insure the safety of study participants. Several lawsuits in recent years have named IRBs and IRB members as defendants, and these may portend a future fraught with litigation against IRBs. Such litigation poses new challenges for the IRB oversight system, including difficulty in recruiting IRB members, increased research costs, and potential over-deterrence that may adversely affect IRB deliberations and decision-making. Frequent litigation, therefore, could have profound implications for the research community that should be considered and addressed proactively. This article argues that retroactive review can be a useful adjunct to prospective oversight, but that it should be limited in scope. First, we recommend that all claims against IRBs be brought before the FDA or HHS for mandatory administrative review prior to the commencement of litigation. Such review would serve a useful gate-keeping role by filtering out or deterring frivolous actions and resolving some claims quickly, privately, and efficiently. Second, for cases that advance to the courthouse, we recommend that IRB members be given qualified immunity similar to that available for peer reviewers under The Health Care Quality Improvement Act of 1986 (HCQIA). IRB members should be immune from liability for civil damages so long as they had a good faith belief that the challenged decision protected the welfare of human subjects and so long as they complied with all federal regulatory requirements concerning protocol review. These safeguards should promote both the welfare of human subjects and the integrity of the oversight system.

Restitution and the Definition of a Pirate: The Case of Sologrus de Nigro

This study reconstructs two fifteenth-century lawsuits introduced by merchants attacked by the Genoese pirate Sologrus de Nigro, who was active in the Mediterranean between 1397 and 1401. Both actions sought compensation in civil damages, or restitution, from parties the litigants regarded as responsible for de Nigro's actions, in the first case the commune of Genoa and in the second the Order of Knights Hospitallers. Neither suit appears to have been successful. This article argues that these outcomes derived from distinctions recognized throughout the medieval Mediterranean between unlicensed pirates like de Nigro and corsairs, who interrupted shipping with the sanction of European territorial states. It suggests that restitution represented a source of tension between commercial agents and political authority in fifteenth-century Europe.

White Interests and Civil Rights Realism: Rodrigo's Bittersweet Epiphany

1. See Richard Delgado, Rodrigo's Chronicle, 101 YALE L.J. 1357 (1992) [hereinafter Delgado, Rodrigo's Chronicle], introducing my interlocutor and alter ego, Rodrigo. The son of an African-American serviceman and Italian mother, Rodrigo was born in United States but raised in Italy when his father was assigned to a U.S. outpost there. Rodrigo graduated from high school at base school, then attended an Italian university and law school on government scholarships, graduating second in his class. When reader meets him, he has returned to United States to investigate graduate law (LL.M.) programs. At suggestion of his sister, famed U.S. civil rights lawyer Geneva Crenshaw, see DERRICK BELL, AND WE ARE NOT SAVED 7 (1992), he seeks out the professor for career advice. Despite their age difference, two become good friends, discussing affirmative action and decline of West (Delgado, Rodrigo's Chronicle, supra), law and economics (Richard Delgado, Rodrigo's Second Chronicle: The Economics and Politics of Race, 91 MICH. L. REV. 1183 (1993)), love (Richard Delgado, Rodrigo's Third Chronicle: Care, Competition, and Redemptive Tragedy of Race, 81 CAL. L. REV. 387 (1993)), legal rules (Richard Delgado, Rodrigo's Fourth Chronicle: Neutrality and Stasis in Antidiscrimination Law, 45 STAN. L. REV. 1133 (1993)), critique of normativity (Richard Delgado, Rodrigo's Fifth Chronicle: Civitas, Civil Wrongs, and Politics of Denial, 45 STAN. L. REV. 1581 (1993)), relations between men and women (Richard Delgado, Rodrigo's Sixth Chronicle: Intersections, Essences, and Dilemma of Social Reform, 68 N.Y.U. L. REV. 639 (1993)), Enlightenment political theory (Richard Delgado, Rodrigo's Seventh Chronicle: Race, Democracy, and State, 41 UCLA L. REV. 721 (1994)), black crime (Richard Delgado, Rodrigo's Eighth Chronicle: Black Crime, White Fears On Social Construction of Threat, 80 VA. L. REV. 503 (1994)), narrative jurisprudence (Richard Delgado, Rodrigo's Final Chronicle: Cultural Power, Law Reviews, and Attack on Narrative Jurisprudence, 68 S. CAL. L. REV. 545 (1995) (final chronicle in first cycle and final chapter of RICHARD DELGADO, THE RODRIGO CHRONICLES (1995))), rule of law (Richard Delgado, Rodrigo's Ninth Chronicle: Race, Legal Instrumentalism, and Rule of Law, 143 U. PA. L. REV. 379 (1994)), affirmative action (Richard Delgado, Rodrigo's Tenth Chronicle: Merit and Affirmative Action, 83 GEO. L.J. 1711 (1995) [hereinafter Delgado, Rodrigo's Tenth Chronicle]), clinical theory (Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy

We Do This At Common Law But That In Equity

This article argues that lawyers are not doing enough to eradicate the needless differences in terminology used, and the substantive inconsistencies, between common law and equity. In developing this argument, three categories within English private law are recognized. First, where common law and equity co‐exist coherently, and where the historical labels of common law and equity remain useful terminology. Second, where common law and equity co‐exist coherently but there is nothing to be gained by adherence to those labels which could, and should, be excised at a stroke. And third, where common law and equity do not co‐exist coherently and a change in the law, albeit often only a small change, is needed to produce a principled product. As a general illustration of what the third category comprises, and what fusion requires, one wide‐ranging and practically very important area within the third category is focused on, namely monetary remedies for civil wrongs.

Criminal Prosecution for HMO Treatment Denial

When people deliberately do things that are almost certain to cause death, and someone then dies, prosecutions for homicide are normally appropriate. However, the administrative conduct of HMOs seems to be an exception. Unwarranted delays and denials of medical treatment are not prosecuted even in cases where the HMO's responsible personnel must have foreseen that their actions would probably lead to death or grievous harm. This article considers the basis for this exception, analyzing the existing criminal law of omissions and surrounding policy considerations. HMOs are subject to powerful market incentives. In the eyes of a rational HMO executive, the company's clientele can be divided into two groups, the net-positive and the subscribers. The net-positives are the people who will probably pay more in future premiums than they will cost the HMO in future medical services. The net-negative group contains those who will probably cost the HMO more in future medical services than they will ever pay in future premiums (e.g., the seriously and chronically ill). From the HMO's economic perspective, any money spent to extend the lives of net-negative patients is merely prolonging an already losing proposition. Most large HMOs are traded on national stock exchanges and their financial results are closely scrutinized by securities analysts and others. This public market activity means HMO executives are under steady pressure to keep medical costs down and profits up. At the same time, individual medical decisions are necessarily discretionary and never exact. Therefore, a quiet and low-key bias against treatment authorizations to net-negative subscribers might be relatively hard to detect but potentially very lucrative. Given the normal economic incentives, it is no surprise that older and chronically ill people (the net-negatives) do much worse under HMOs than under traditional insurance plans. One study found, for example, that elderly, chronically ill patients in HMOs were nearly twice as likely to decline in physical health over time as those with traditional medical insurance. To state the problem bluntly, there is a potentially lethal economic flaw in the HMO concept. The market does not reward HMO executives for saving lives at stockholder expense. Criminal sanctions may work better than civil damages to motivate HMOs to authorize the medical treatments their subscribers are contractually entitled to. Whereas the burden of civil damage awards can be shifted, in the form of higher premiums and reduced medical expenditures, the criminal sanction of imprisonment cannot. The only way to prevent HMOs from shifting the penalties of wrongful denials back to subscribers and patients may be to impose a cost that the HMO's personnel cannot shift. This is, of course, the classic function of the criminal law--to impose costs on bad behavior that harm-doers cannot shift. Unlike civil damage actions, moreover, criminal prosecutions are already permitted by ERISA. Under the prevailing categories and definitions of the criminal law, prosecutions for wrongful HMO treatment denials would seem a straightforward application of the principle that, when death is foreseeable, lethal behavior is a crime.

The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the ICTY

A report to the Prosecutor of the ICTY concludes that there was no sufficient reason to institute proceedings against persons responsible for the NATO bombing campaign against Yugoslavia. The following rules of international humanitarian law were analysed in the report: protection of the environment in times of armed conflict; prohibition on attacking civilian objects; and the limitation of admissible collateral damage according to the proportionality principle. In relation to the protection of the environment, the report is too restrictive as it combines the test provided for by Protocol I Additional to the Geneva Conventions with a proportionality test. In relation to the protection of civilian objects, or the definition of military targets, the report practically sticks to the traditional assumption that traffic and communications infrastructure always constitutes a military objective. It fails, despite some lip service to the contrary, to ask the necessary critical question as to the real contribution of that infrastructure to the military effort of Yugoslavia. The proportionality principle requires a balancing of military advantage and civilian damage. The report's view concerning the value system which has to inspire this balancing process is highly questionable, in particular taking into account the humanitarian purpose of the entire operation.

Slaves to the Bottle: Smith's Civil Damage Liquor Law

Slaves to the Bottle: Smith's Civil Damage Liquor Law

Of Taxpayer Rights, Wrongs, and a Proposed Remedy

Since 1988, Congress has enacted three bills of rights. Each of these bills has contained a series of amendments and additions to the procedural provisions of the Internal Revenue Code. Many of the new provisions have been prompted by anecdotes about taxpayers injured by the Internal Revenue Service (IRS). The article points out that, because anecdotes are rarely representative, and sometimes are inaccurate, the resulting legislation is more symbolic than effective. In fact, many of the so-called are actually duties imposed on the IRS without remedies for their violation. In addition, the bills have added costs to all tax controversies without regard to the usefulness of the new procedures to taxpayers. Although horror story anecdotes of taxpayer abuses are not a representative basis for legislation, there are some taxpayers actually victimized by IRS agents. The article argues that taxpayers harmed by inappropriate IRS activity need more than symbolism. bill of rights legislation is unhelpful because it generally does not provide suitable remedies to injured taxpayers. Congress is currently considering Taxpayer Bill of Rights 2000, but that legislation does not address this issue. The article proposes instead a civil damage remedy to compensate taxpayers who suffer material harm resulting from IRS personnel violation of applicable laws or rules.

The Incident at Cavalese and Strategic Compensation

Penny wise, pound foolish.—Benjamin Franklin, Poor Richard’s AlmanackIn 1953 the United States ratified the North Atlantic Treaty Organization’s Status of Forces Agreement of 1951 (SOFA), which set forth “conditions and terms which will control the status of forces sent by one state, party to the Agreement, into the territory of another state, party to the Agreement.” The drafters foresaw that the presence and training of foreign military forces within and between their territories would probably, if not inevitably, cause injury to civilians, giving rise to claims that, if not settled quickly and satisfactorily, could spark incidents disruptive to their cooperation in mutual defense. To this end, the SOFA established ajurisdictional regime designed to minimize the political friction these incidents threatened to generate, by providing prompt and manifestly fair settlement procedures. The SOFA’s jurisdictional framework protects nationals of a foreign military force from the criminal processes of the alienjurisdiction in which they reside and train, yet permits injured citizens of the host state to pursue civil damages for the tortious acts of foreign forces without fear that their claims might receive prejudicial treatment in the foreign state’s local courts.

Federalism's 'Old Deal': What is Right and Wrong With Conservative Judicial Activism

In an article based on his Fall, 1999 Reuschlein Distinguished Lecture at Villanova Law School, Professor Shane argues that the Supreme Court is leading a misguided project of conservative judicial activism aimed at curtailing Congress's commercial regulatory powers, in the interest of preserving state autonomy. This activist initiative has recently been defended by Fourth Circuit Chief Judge J. Harvie Wilkinson, in Brzonkala v. Virginia Polytechnic Institute, which overturned the civil damages remedy enacted as part of the Violence Against Women Act. Professor Shane argues, however, that the federal courts have not shown any compelling institutional need with regard to federalism that justifies inventing new limitations on congressional authority. No less than Congress have the States amassed political and economic power unimagined by the Framers. Nor did the Supreme Court in Lopez v. United States formulate a workable and coherent legal doctrine for limiting Congress's Commerce Clause authority that relates in any sensible way to the values of federalism. Judge Wilkinson's defense contends that Lopez-style activism is necessary to avoid judicial abdication of the courts' interpretive authority regarding the Constitution, and that it is better than Lochner-style activism because it does not disable state legislative authorities from dealing with social problems. Shane argues that Wilkinson misconstrues the nature of the courts' interpretive authority and ignores the importance of empowering the national legislative authority to deal with national problems. Wilkinson argues also that Lopez-style activism is better than Lochner-style activism because it does not advance the agenda of a particular constituency, such as big business. Shane responds that the current cases do advance the agenda of an ideological, rather than economic constituency, and that the majority Fourth Circuit opinion in Brzonkala is a culture wars barrage that violates appropriate norms of judicial temperament. Shane concludes that Congress is better viewed as a partner, rather than as a threat, if states and localities are to preserve effective autonomy during the era of globalization.

‘Ready to Kill but not to Die’

In a speech given recently in Canada, Vaclav Havel, the president of the Czech Republic, claimed that NATO's campaign in Kosovo was the first in history to be fought entirely for humanitarian purposes. NATO, he argued, had no economic, political, or strategic interest in Kosovo and was acting purely for altruistic reasons. This made the campaign a 'just war.' Even if Havel's argument about NATO's purpose is correct, his conclusion is not. The theory of 'just war' generally accepted in Western countries recognizes that to be just a war must not only be fought by a legitimate authority and for a just cause; it must also be fought as a last resort after all reasonable alternatives have been exhausted, and it must be fought by ethical means. A war fought for a righteous cause but pursued by immoral methods cannot be considered just.(f.1) If the methods used by NATO against Yugoslavia breached the moral conventions for the conduct of war, then NATO's justification for its campaign falls apart. This suggests that those who portray themselves as humanitarian crusaders may be blinded by the righteousness of their cause to the immorality of their methods.The conduct of war is traditionally assumed to be ruled by two principles: discrimination and proportionality. Under the first principle, it is unethical to target non-combatants, although it is acknowledged that they may be killed as an unintentional result of attacks on military targets ('collateral damage' in modern parlance). But the acceptability of collateral damage is limited by the principle of proportionality. It is unethical to attack a military target when the likely damage to civilians is disproportionate to the value of the target. Along with these two principles, combatants are expected to follow certain rules of behaviour with regard to one another -- prisoners are to be well treated, flags of surrender and truce are to be respected, and so on. These rules are guided by an unwritten code of honour, which in the Western world is based on the mediaeval code of chivalry. The honourable warrior's desire for victory is tempered by a wish to avoid sullying his reputation and conscience. Means are as important as ends. Honourable soldiers defend the innocent, respect their enemies, and fight openly where their courage can be seen by all. In practice, this chivalric code is rarely; if ever, observed today; nonetheless it remains an ideal to which soldiers are meant to aspire. And for good reason because the soldier's sense of honour is the prime restraint on war. As John Keegan has said: 'There is no substitute for honour as a means of enforcing decency on the battlefield, never has been, never will be.'(f.2) Without codes of honour, Michael Ignatieff writes, 'war is not war -- it is no more than slaughter.'(f.3)The main characteristic of NATO's conduct of the war in Kosovo was a desire to avoid friendly casualties. Thus NATO leaders refused to commit land forces to combat. Instead, they focused on a massive air campaign involving nearly 1,000 aircraft, as well as unmanned cruise missiles. Furthermore, in the initial stages of the campaign, NATO airplanes avoided the most dangerous targets by focusing on 'strategic' political and economic targets far from Kosovo rather than on 'fielded forces.' They also chose to fly at high altitudes to avoid enemy air defence systems. The plane that destroyed an Albanian refugee convoy, for instance, was reported to be flying at an altitude of 15,000 feet, which was apparently the standard operating height for most aircraft. At that height it was hardly surprising that the pilot could not identify his target properly. The weapons that were perhaps most suited to attacking military targets in Kosovo were the Apache helicopters that were sent to Albania, but they were never used. As one senior NATO diplomat noted half way through the campaign, they would not be put into combat until NATO was certain that they would not be shot down: 'We don't throw our treasures away. …

Joint tortfeasance and assistance liability

There is a real need to clarify the scope of the doctrine of joint tortfeasance, in view of the constant attempts by plaintifs to widen liability in the search, for the deepest pockets. Part of this clarification involves a reaction to the growing use of ‘accessory liability’ terminology in the civil IUMI generally. There Lire those who argue that whatever the limits of joint tortfeasance liability, the law implicitly accepts liability for ‘facilitators’ us secondary parties to all civil wrongs. The aim of this paper is to clarify the doctrine of joint tortfeasance, to distinguish the liability of those who cause or conspire from those who merely facilitate, and to deny the existence of a wide concept of secondary civil liability.

Part 11: Trespass to the person

One of the most important civil actions which are included in the bundle of civil wrongs known as ‘torts’, is that of ‘trespass to the person’. Any person who alleges that his or her person has been touched without his or her consent or other lawful justification could sue for trespass to the person. Unlike an action for negligence, an action for trespass is actionable without proof of harm being suffered. A doctor might decide that a person needed to have a blood transfusion and thereby save their life — if the transfusion was given without the consent of the mentally competent woman then she could sue for trespass to the person even if she would have died without the transfusion. The fact that the woman benefited from the treatment is not a valid defence for the doctor (Malette v Schumann, 1990).

Anchoring in the courtroom: The effects of caps on punitive damages.

Responding to the perception that civil damage awards are out of control, courts and legislatures have pursued tort reform efforts largely aimed at reigning in damage awards by juries. One proposed method for reigning in civil juries is to limit, or cap, the amount that can be awarded for punitive damages. Despite significant controversy over damage awards and the civil litigation system, there has been little research focusing on the process by which juries determine damages. In particular, there is a paucity of research on the possible effects of placing caps on punitive damages. The present research examines punitive damage caps and reveals an anchoring effect of the caps on both compensatory and punitive damages. A second experiment replicates this effect and examines the moderating effect of bifurcating the compensatory and punitive damage decisions.

Céline and the Politics of Difference (review)

L'Esprit Créateur self-portrayal as paranoid or hysteric, while Jennifer Forrest analyzes Bardamu's trip to the U.S. in search of the ideal, passive woman who would not threaten his gender fantasies and underlying misogyny. Scullion's "Choreographing Sexual Difference" asserts that the diatribes and ballets of Bagatelles, along with Celine's obsessive focus on the beautiful yet contorted moves of the ballerina, reveal the author's inability to deal with otherness except through rejection, scopophilia, or mastery. Furthermore, Celine's resurrection of ballet imagery after the war accentuates "things beautiful" while diverting attention from "authorial accountability" (142). In another vein, Pascal Ifri concentrates on Mort à crédit and its picture of France's lower middle classes, disadvantaged by industrialization. Other contributors address style and moral responsibility. Andrea Loselle examines Celine's claim that his later novels resemble the medieval and early modern chroniclers Froissart, Monluc, and the Cardinal de Retz. This aesthetic self-justification actually masks ongoing racial stereotyping after the war, when Céline vaunts his "frank speech" as a shift from decadent GaIIoRoman elements in French culture toward Germanic expressive purity (190). Charles Krance spans the prewar and postwar through a critique of Sartre who, though he gave La Nausée an epigraph from Celine's anti-Semitic play L'Eglise, hastily condemned the writer during the Purge. Philip Watts' "Postmodern Céline" aptly concludes the volume. Although Tel Quel praised the innovative, liberating aspects of Célinian style, Watts insists that the accompanying ideology cannot be so easily dismissed, given the affinity between Celine's polemical images of decimated Berlin in Nord and Maurice Bardèche's similar attempt, with reference to the civilian damage inflicted by Allied bombardments, to mitigate French collaboration and facilitate Holocaust denial. The volume, which has an excellent index, ranges impressively through Celine's works, from L'Eglise to Entretiens avec le professeur Y, from Voyage au bout de la nuit through the postwar novels, with special reference to the pamphlets. Celine's career is reevaluated comprehensively through the nexus of his race- or gender-based constructions of identity. Scullion, Solomon, and Spear's admirable and original collection emphasizes the ideology driving Celine's emotional subway and will be of interest to the broader critical community as well as to Celine's scholars. Van Kelly University of Kansas Jean-Michel Rabaté. The Ghosts of Modernity. Gainesville, FL: UP of Florida, 1996. Pp. xxii + 258. $49.95. As a sophisticated theorist who is also a meticulous scholar, editor, and translator, JeanMichel Rabaté holds a unique position among Modernist critics. His work on Joyce and Pound alone would earn him pride of place in the academy, but Rabaté is also an authority on Samuel Beckett and Herman Brach, on Mallarmé and Thomas Bernhard, and, most recently—witness the final chapter of this book, "Uncoupling Modernism"—he has turned his attention to Gertrude Stein, Laura Riding, and H.D. Ghosts of Modernity is a fully revised and expanded English version of Rabaté's La Pénulti ème est morte: Spectrographies de la modernité (1993). If Spectographies and the author's related French studies have not yet won Rabaté the audience he deserves in the U.S., it is probably because his intricate Lacanian and Dcrridean analyses are highly specific; they avoid all cooptation into an "authoritative" metanarrative about the Modern (or Postmodern) condition; then too, they assume at least some knowledge of the authors to be discussed. But for the English edition , Rabaté has provided the reader with an explicit theoretical framework for "rereading modernity "—a framework that has been implicit all along. Rabaté's is basically a theory of reading, deeply informed by the writings of his masters 90 Summer 1999 Book Reviews Lacan, Derrida, and especially Barthes, to whom one of the best essays in the book is devoted. He deplores the "resistance to theory" on the part of many current cultural studies, which subordinates critical analysis to an obsession with contemporary race, class, and gender inequities. Specifically, he wants to show that the much talked about "repudiation of history" on the part of poststructuralist theory is a red herring, that indeed it is possible to be a theorist...

From ‘Cultures of Fear and Terror’ to the Normalization of Violence

This article critically examines the widespread usage of such constructs as ‘culture of terror’ and ‘culture of fear’ to characterize settings in which state power is based on the intimidation of civilians. ‘Cultures of fear and terror’, it is argued, are at once inflationary and reductive tropes which obscure the political agency and cultural resources that are called upon to end regimes of coercion. As an alternative, it is suggested that state-authorized aggression is neither equivalent to culture nor a characteristic of a cultural group, but a historically specific means and rationale for disciplining particular categories of people. Ethnographic evidence from the rural Philippines is presented in support of a more practice-oriented approach toward conceptualizing what scholars now term ‘civil wrongs’.

The constitution and criminal procedure: first principles

Akhil Amar examines the role of search warrants, the status of the exclusionary rule, self-incrimination theory and practice, and a host of Sixth Amendment trial-related rights. Through a close and original analysis of constitutional text, history, structure, and precedent - leavened with a healthy measure of common sense - he challenges conventional wisdom on a broad range of topics. He argues that the exclusion of reliable evidence in criminal trials is wrong in principle and in practice and that unlawfully seized evidence and fruits of immunized testimony should be constitutionally admissible in criminal trials. Deterrence of government misconduct should in general occur through civil damage suits and administrative sanctions rather than through criminal exclusion. Although addressed to lawyers, judges, and law students, this bold book ultimately targets a much broader audience of policymakers and citizens who seek to understand the principles of this controversial area of constitutional law.

Reducing variability in civil jury awards.

The purpose of the present study was to test several procedures that could be adopted for reducing unwanted variability in civil damage awards. Four methods for providing guidance to jurors (and judges) about the distribution of awards in comparable cases were compared to each other, to a no-guidance control, and to the capping of awards at a specified maximum, which has been the most commonly legislated “solution.” The findings of this study suggest several alternative solutions that are better able than caps to solve the problem of unwanted variability in awards.