Questions of Law

Kevin Lewis

June 30, 2010

Supreme Court Litigants and Strategic Framing

Justin Wedeking
American Journal of Political Science, July 2010, Pages 617-631

Although litigants invest a huge amount of resources in crafting legal briefs for submission to the Supreme Court, few studies examine whether and how briefs influence Court decisions. This article asks whether legal participants are strategic when deciding how to frame a case brief and whether such frames influence the likelihood of receiving a favorable outcome. To explore these questions, a theory of strategic framing is developed and litigants' basic framing strategies are hypothesized based on Riker's theory of rhetoric and heresthetic as well as the strategic approach to judicial politics. Using 110 salient cases from the 1979-89 terms, I propose and develop a measure of a typology of issue frames and provide empirical evidence that supports a strategic account of how parties frame cases.


Federal Court Unity and Media Coverage of Racial Integration Cases

Michael Salamone
University of California Working Paper, March 2010

Numerous legal scholars and practitioners, included Earl Warren (Klarman 2004), Charles Evan Hughes (1928), and Learned Hand (1958), have expressed concern that dissenting judicial opinions may damage public opinion of the court and stir resistance to the court majority's rulings. Though the topic has received little empirical testing overall, a recent study confirms the plausibility of this assertion (Zink, Spriggs, and Scott 2009). However, this potential effect is rendered meaningless if the news media do not convey the courts divisiveness in the first place. Thus, one must ask, how much news coverage do court decisions get? To what degree is the court's unity or disunity highlighted in these stories? Are dissents associated with more or less media coverage of a case? To begin answering these questions, I present a test case on the local newspaper coverage school desegregation busing cases in the United States Courts of Appeals from 1965 to 1989. By using this case study in this venue, the issue can be held constant across numerous cases in various regions decided with differing levels of unity. The results indicate that these cases are frequently covered, that they do often mention the court's vote on the ruling, particular when that vote is divided, and that divided opinions are indeed more likely to receive attention from the news media than unanimous opinions are.


Trial by Battle

Peter Leeson
George Mason University Working Paper, April 2010

For over a century England's judicial system decided land disputes by ordering disputants' legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle. This paper investigates the law and economics of trial by battle. In a feudal world where high transaction costs confounded the Coase theorem, I argue that trial by battle allocated disputed property rights efficiently. It did this by allocating contested property to the higher bidder in an all-pay auction. Trial by battle's "auctions" permitted rent seeking. But they encouraged less rent seeking than the obvious alternative: a first-price ascending-bid auction.


Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes

Jane Goodman-Delahunty, Pär Anders Granhag, Maria Hartwig & Elizabeth Loftus
Psychology, Public Policy, and Law, May 2010, Pages 133-157

Lawyers' litigation forecasts play an integral role in the justice system. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of their perceptions and predictions of case outcomes. The study investigated the realism in predictions by a sample of attorneys (n = 481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions, and calibration did not increase with years of legal experience. Female lawyers were slightly better calibrated than their male counterparts and showed evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers were asked to generate reasons why they might not achieve their stated goals. This manipulation did not improve calibration.


Alcohol and Drug Mitigation in Capital Murder Trials: Implications for Sentencing Decisions

Beth Bjerregaard, Dwayne Smith, Sondra Fogel & Wilson Palacios
Justice Quarterly, August 2010, Pages 517-537

Analyses of the impact on sentencing when alcohol and drug-related mitigation is used in the sentencing phases of capital murder trials is virtually absent from the existing literature. The present study addresses this by exploring the effect of having mitigation with alcohol and drug themes accepted in a large sample (n = 804) of capital murder trials in North Carolina. Logistic regression analyses that include a number of relevant control variables reveal no substantive impacts of having alcohol mitigation accepted by capital murder juries, but drug mitigators that were either accepted or rejected by juries were associated with an increased risk of receiving a death sentence. Possible reasons for the results and their implications are discussed and suggestions are made for further study of the effects of alcohol/drug mitigation in capital trials.


Parole release decisions: Impact of victim input on a representative sample of inmates

Joel Caplan
Journal of Criminal Justice, May-June 2010, Pages 291-300

Positive and negative input, in both verbal and written forms, was studied for a representative sample of 820 parole-eligible adult inmates in New Jersey to determine the extent to which victim participation and the provisions of victim input policies affect contemporary parole release practices. Victim input was not found to be a significant predictor of parole release. Measures of institutional behavior, crime severity, and criminal history were significant. Verbal input had a greater affect than written input. In the short-term, parole administrators should develop guidelines to clarify procedures and create a more uniform and transparent application of victim input. In the long-term, the receipt of victim input should be used to identify victims who have not yet found closure so that appropriate support services can be provided prior to most inmates' eventual releases from prison.


Expert testimony and the effects of a biological approach, psychopathy, and juror attitudes in cases of insanity

Jariel Rendell, Matthew Huss & Maren Jensen
Behavioral Sciences & the Law, May/June 2010, Pages 411-425

Amid growing psychological controversy and legal interest surrounding the uses of PCL-R and biological evidence in the legal system, this mock jury study assessed the effects of PCL-R and biological evidence on outcomes in an insanity defense case. A sample of 428 undergraduates read a trial transcript of an insanity defense murder case. Three variables of interest were manipulated: rebuttal illness (no mental illness, personality disorder, or psychopathy), evidentiary basis (biological or psychological), and evidentiary strength (moderately strong or moderately weak). Consistent with the hypotheses, biological evidence was more persuasive than psychological evidence, and the rebuttal was slightly more successful when the prosecution labeled the defendant as a psychopath than when they described him simply as not mentally ill.


Crafting the Neoliberal State: Workfare, Prisonfare, and Social Insecurity

Loïc Wacquant
Sociological Forum, June 2010, Pages 197-220

In Punishing the Poor, I show that the ascent of the penal state in the United States and other advanced societies over the past quarter-century is a response to rising social insecurity, not criminal insecurity; that changes in welfare and justice policies are interlinked, as restrictive "workfare" and expansive "prisonfare" are coupled into a single organizational contraption to discipline the precarious fractions of the postindustrial working class; and that a diligent carceral system is not a deviation from, but a constituent component of, the neoliberal Leviathan. In this article, I draw out the theoretical implications of this diagnosis of the emerging government of social insecurity. I deploy Bourdieu's concept of "bureaucratic field" to revise Piven and Cloward's classic thesis on the regulation of poverty via public assistance, and contrast the model of penalization as technique for the management of urban marginality to Michel Foucault's vision of the "disciplinary society," David Garland's account of the "culture of control," and David Harvey's characterization of neoliberal politics. Against the thin economic conception of neoliberalism as market rule, I propose a thick sociological specification entailing supervisory workfare, a proactive penal state, and the cultural trope of "individual responsibility." This suggests that we must theorize the prison not as a technical implement for law enforcement, but as a core political capacity whose selective and aggressive deployment in the lower regions of social space violates the ideals of democratic citizenship.


"That's Not Who I Am:" How Offenders Commit Violent Acts and Reject Authentically Violent Selves

Andy Hochstetler, Heith Copes & Patrick Williams
Justice Quarterly, August 2010, Pages 492-516

Participation in contemporary street cultures often exposes individuals to a world characterized by violence. The participants in this study admitted to frequent experience with violence and regular use of it. Many viewed violence as an appropriate response to some situations, though they often worked to avoid negative connotations of such behavior, especially ascriptions of an "authentically" violent self. Using an interactionist framework, we explore the processes by which offenders who engage in violent crimes resist being labeled as authentically violent. Drawing from data from semi-structured interviews with 30 offenders who engaged in carjackings, we analyze contrastive statements they employed to resist a violent self-concept and label. Offenders differentiated their own violent behaviors, as situational and excusable, from behaviors that characterize authentically violent others. Understanding these processes sheds light on criminal identities and gives insights into attempts to change offender behavior by altering self-conceptions.


Retirement and Death in Office of U.S. Supreme Court Justices

Ross Stolzenberg & James Lindgren
Demography, May 2010, Pages 269-298

We construct demographic models of retirement and death in office of U.S. Supreme Court justices, a group that has gained demographic notice, evaded demographic analysis, and is said to diverge from expected retirement patterns. Models build on prior multistate labor force status studies, and data permit an unusually clear distinction between voluntary and "induced" retirement. Using data on every justice from 1789 through 2006, with robust, cluster-corrected, discrete-time, censored, event-history methods, we (1) estimate retirement effects of pension eligibility, age, health, and tenure on the timing of justices' retirements and deaths in office, (2) resolve decades of debate over the politicized departure hypothesis that justices tend to alter the timing of their retirements for the political benefit or detriment of the incumbent president, (3) reconsider the nature of rationality in retirement decisions, and (4) consider the relevance of organizational conditions as well as personal circumstances to retirement decisions. Methodological issues are addressed.


The effects of gender, family status, and race on sentencing decisions

Tina Freiburger
Behavioral Sciences & the Law, May/June 2010, Pages 378-395

This study sought to determine the effects of family role, gender, and race on judges' sentencing decisions. To assess these effects, factorial surveys were sent to 360 Court of Common Plea judges who presided over criminal court cases in the state. Survey administration resulted in a 51% response rate. The findings indicate that defendants who were depicted as performing caretaker roles had a significantly decreased likelihood of incarceration. Further analysis found that the reduction in likelihood of incarceration for being a caretaker was larger for males than for females. Examination of the interaction of familial role with race found that familial role equally reduced the likelihood of incarceration for black and white females. Familial responsibility, however, resulted in a significantly greater decrease in likelihood of incarceration for black men than for white men.


Evaluating Awareness of Registered Sex Offenders in the Neighborhood

Sarah Craun
Crime & Delinquency, July 2010, Pages 414-435

The goal of sex offender registration is to protect residents from recidivistic sexual offenders by providing public information about local offenders. This study determines what percentage of residents living near registered sex offenders are aware of the offenders and the predictors of awareness. The investigational group includes randomly selected residents, who completed surveys, living within one-tenth of a mile of registered sex offenders. A control group-those without sex offenders nearby-is included to see if residents believe offenders to be in every neighborhood. Significantly more investigational group respondents report that a sex offender lives in the neighborhood (31% vs. 2%). Hierarchical linear modeling confirms both individual and neighborhood predictors of awareness.


An Examination of Alarm System Deterrence and Rational Choice Theory: The Need to Increase Risk

Henri Brub
Journal of Applied Security Research, July 2010, Pages 326-381

A growing body of evidence is indicating that burglary prevention can be achieved through the strategic application of target hardening measures developed under rational choice theory. Many of these measures are supported by scientific research and include information suggesting that alarm systems act as a deterrent. However, the application of alarm systems as a stand-alone deterrent measure is only supported by rational choice theory if the risk of apprehension is increased. During the last decade, advances in technology have resulted in a significant change in the fundamental nature of burglary. Burglary is an increasingly profitable business, to which alarm systems may no longer pose a significant risk of apprehension. Complicating matters further, practices are being implemented by the alarm industry to reduce burden of false alarms on police services. I will, through literature review, and data analysis, examine two seemingly separate issues, the changing nature of burglary and false alarm verification. These issues will be inextricably linked and contrary to rational choice theory shown to be reducing the risk of apprehension resulting from alarm response. Additionally, it will be shown that the alarm industry's singular focus on alarms as a deterrent may be impairing the application of other effective situational security measures. The use of alarm systems as a stand-alone security strategy are being impacted negatively and more complex solutions are supported under rational choice theory. When combined as part of an overall security strategy including effective false alarm verification technology, alarm systems can play a vital role in increasing the risk of apprehension.


No Free Lunch, No Free Proof: The Indiscriminate Admission of Evidence is a Serious Flaw in International Criminal Trials

Peter Murphy
Journal of International Criminal Justice, May 2010, Pages 539-573

This article suggests that the judicious use of some exclusionary rules of evidence in the common law tradition would make international criminal trials fairer, shorter, and more efficient. The civil law assumptions that rules of evidence (1) are of relevance only to jury trials; and (2) hinder the search for the truth, are incorrect. On the contrary, the present system of ‘free proof' in the context of international criminal law represents a judicial failure to exercise due discretion by indiscriminately admitting any material claimed by the parties to be ‘evidence', regardless of its provenance or apparent reliability and even without inquiry as to possible perjury or fabrication. In addition to making trials much longer and more complex than they need be, such ‘evidential debris' poisons the record and ultimately makes it more difficult for judges to assess the weight of the evidence and arrive at the truth. The author suggests draft rules, whose adoption would contribute to correcting a serious flaw in international criminal trials.


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