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1. When marital institutions break down: Impact and adaptation among the Enga of Papua New Guinea

   https://doi.org/10.1017/ehs.2021.13  

   Wiessner, Polly; Pupu, Nitze (January 2021, Evolutionary Human Sciences)

   null (Ed.)

   Abstract Institutions to regulate marriage and sexual mores are nearly universal across human societies to assure production and reproduction and weave the fabric of society. The stakeholders are many. What happens when marital traditions break down in times of rapid change? Taking a long-term perspective, we will first look at developments in marital institutions that occurred after the arrival of the sweet potato (ca. 400 BP) among the Enga of Papua New Guinea. Next, we will document changes in recent marital practices of 402 Enga women collected in 2007. With data from 270 public forums in customary courts applying restorative justice between 2008 and 2019, we will consider (a) the impact of the breakdown of marital institutions and (b) responses to adapt norms to new practices. In the absence of regulation by ‘traditional’ institutions, individuals pursue their own interests and passions with negative outcomes for families and communities. Communities, non-governmental organisations, churches and government throughout Papua New Guinea are seeking to adapt norms to new conditions. We consider both norm change resulting from community action via customary courts and what communities strive to preserve. Cultural institutions and accompanying norms are important factors in assuring production and reproduction; however, they can instill attitudes that inhibit adaptation. 

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2. Cooperation, domination: Twin functions of third‐party punishment

   https://doi.org/10.1111/spc3.12992  

   Wylie, Jordan; Gantman, Ana (July 2024, Social and Personality Psychology Compass)

   Abstract Rules serve many important functions in society. One such function is to codify, and make public and enforceable, a society's desired prescriptions and proscriptions. This codification means that rules come with predefined punishments administered by third parties. We argue that when we look at how third parties punish rule violations, we see that rules and their punishments often serve dual functions. They support and help to maintain cooperation as it is usually theorized, but they also facilitate the domination of marginalized others. We begin by reviewing literature on rules and third‐party punishment, arguing that a great deal of punishment research has neglected to consider the unique power of codified rules. We also argue that by focusing on codified rules, it becomes clear that the enforcement of such rules via third‐party punishment is often used to exert control, punish retributively, and oppress outgroup members. By challenging idealized theory of rules as facilitators of social harmony, we highlight their role in satisfying personal punishment motives, and facilitating discrimination in a way that is uniquely justifiable to those who enforce them. 

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3. Learning from regulatory failure: How Ostrom’s restorative justice design principle helps naïve groups create wiser enforcement systems to overcome the tragedy of the commons

   https://doi.org/10.1371/journal.pone.0307832  

   DeCaro, Daniel A; DeCaro, Marci S; Janssen, Marco A; Lee, Allen; Graci, Alanea; Flener, Devin (August 2024, PLOS ONE)

   Munteanu, Ionela (Ed.)

   Rule enforcement is critical in democratic, self-governing societies. Many political disputes occur when citizens do not understand the fundamental rationales for enforcement (e.g., COVID-19 pandemic). We examined how naïve groups learn and develop wise enforcement systems. Based on theories from behavioral economics, political science, psychology, and education, we predicted that groups need to experience failure of an enforcement system, but be guided on restorative justice principles to collectively learn from this failure. Undergraduate students (N= 288) from a Midwestern U.S. metropolitan university self-governed a simulated common-pool resource with real financial payoffs. Groups began with one of three conditions designed to create different experiences with enforcement and regulatory failure: (a) no enforcement (no communication or peer sanctioning), (b) lax enforcement (communication with peer-sanctioning), or (c) regulatory abuse (peer sanctioning without communication). Half then received facilitated guidance on restorative justice principles (e.g., discuss whether/why to use sanctions). To examine cooperation, we measured how well participants maintained the resource. To examine group learning, we created a novel coding system, which tracked groups’ constitutional decisions about conservation agreements and enforcement, conceptual understanding, and the enforcement systems they created. The no-enforcement and lax-enforcement conditions quickly yielded moderate cooperation via voluntary agreements. However, such agreements prevented groups from discovering how and why to use enforcement (peer sanctioning) to improve performance. Initial exposure to regulatory failure had different effects depending on facilitation. Unfacilitated groups fixated on initial misconceptions, causing them to abandon or create less sophisticated enforcement systems, hindering cooperation. Facilitated groups learned from prior failure—discovering principles of wise enforcement (e.g., collective efficiency, self-restraint)—and created more sophisticated enforcement systems (e.g., coordinated sanctions) that improved cooperation. Guidance on restorative justice principles and experience with regulatory abuse may be necessary preconditions for naïve individuals to understand and develop wiser collective enforcement systems. 

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4. Closing Open Government: Grassroots Policy Conversion of China’s Open Government Information Regulation and Its Aftermath

   https://doi.org/10.1177/00104140211024314  

   Kim, Jieun; Stern, Rachel E.; Liebman, Benjamin L.; Wu, Xiaohan (January 2021, Comparative Political Studies)

   How and when do opportunities for political participation through courts change under authoritarianism? Although China is better known for tight political control than for political expression, the 2008 Open Government Information (OGI) regulation ushered in a surge of political-legal activism. We draw on an original dataset of 57,095 OGI lawsuits, supplemented by interview data and government documents, to show how a feedback loop between judges and court users shaped possibilities for political activism and complaint between 2008 and 2019. Existing work suggests that authoritarian leaders crack down on legal action when they feel politically threatened. In contrast, we find that courts minted, defined, and popularized new legal labels to cut off access to justice for the super-active litigants whose lawsuits had come to dominate the OGI docket. This study underscores the power of procedural rules and frontline judges in shaping possibilities for political participation under authoritarianism. 

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5. Law Enforcement Privilege

   https://doi.org/10.36644/mlr.123.8.law  

   Wexler, Rebecca (January 2025, Michigan Law Review)

   You can’t question a secret you haven’t been told. The criminal legal system depends on fair and open proceedings to expose and regulate unlawful and unconstitutional police conduct through the courts. If police can use claims of secrecy to systematically thwart criminal defendants’ access to evidence, judicial review will fail. And yet that is exactly what is happening under a common-law doctrine called the “law enforcement privilege.” The privilege empowers police and prosecutors to rely on the results of secret investigative methods while withholding information from the defense about how those methods work. It risks perpetuating unconstitutional conduct, enabling wrongful convictions, and rendering Fourth Amendment, Sixth Amendment, Brady, and statutory discovery laws moot. At the same time, it has a non-frivolous policy rationale. If all police investigative methods were public information, then more people committing crimes could evade detection.How can a better balance be struck? This Article argues that current law enforcement privilege doctrine creates a dangerously boundless police secrecy power because of a subtle conceptual collapse: The policy rationale itself is mistakenly used as the test for assessing claims of privilege. The Article recommends that courts instead evaluate privilege claims by reference to the marginal risk of leaking posed by in-court disclosure. Specifically, judges should demand to know what conditions law enforcement previously imposed on access to the information. The answer to that question can be adjudicated publicly without jeopardizing a legitimate privilege claim and will help judges detect mistaken, exaggerated, pretextual, or fraudulent claims to the privilege. Further, even when law enforcement has taken care with the information, if a court-ordered protective order can match or exceed the safeguards that law enforcement itself previously maintained, then judges should default to ordering disclosure. The Article concludes by suggesting a theory of the role of confidentiality in privilege law. 

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