Showing papers in "Law & Policy in 1981"
TL;DR: In this article, a new scale was proposed to measure normative orientations toward discretion in legal institutions, and the results of administering this scale to samples of Iowa and California judges suggest that the measure is fairly reliable, and an argument is made in favor of its validity.
Abstract: This article addresses the state of research which uses role concepts to explain the process of making decisions in legal institutions. After identifying several important limitations of previous research, a new scale—measuring normative orientations toward discretion—is proposed. The results of administering this scale to samples of Iowa and California judges suggest that the measure is fairly reliable, and an argument is made in favor of its validity. The article concludes with some observations on the importance of measurement in research on the legal process.
30 citations
TL;DR: In this paper, the authors analyzed the role of crime rates and fear of violence in motivating citizens to buy and keep handguns and found that crime rates are significant only in the equation explaining gun ownership by women.
Abstract: In a recent paper, Bordua and Lizotte (1979) analyze determinants of firearm ownership using cross-sectional data for Illinois counties. Noting that firearms may be purchased for the purpose of sport, self-protection, or crime, they present clear evidence of sporting demand and limited evidence of defensive motives in the pattern of gun ownership. Crime rates are significant only in the equation explaining gun ownership by women (1979: 161). The purpose of the present article is to supplement the findings of Bordua and Lizotte and earlier empirical studies by focusing on the demand for handguns alone. In particular, the article analyzes the role of crime rates and fear of violence in motivating citizens to buy and keep handguns. For this purpose, aggregate time-series and cross-sectional data on handgun sales were collected and analyzed. Because handguns are durable pieces of equipment, it is necessary to use a model that distinguishes the stock of handguns at any one time from the rate of handgun purchases. Language: en
23 citations
TL;DR: In this article, the authors suggest that the informal workgroup is the most appropriate concept from organization theory to explain both participant behavior occurring in criminal trial courts and trial court outputs, and use the informal group framework to structure the findings generated by previous studies of trial courts.
Abstract: This article has two purposes: (1) to suggest that the informal workgroup is the most appropriate concept from organization theory to explain both participant behavior occurring in criminal trial courts and trial court outputs; and (2) to use the informal workgroup framework to structure the findings generated by previous studies of trial courts. The informal workgroup proves to be a useful way to account for the disjuncture between the adversarial expectations and regularized individual behavior patterns researchers find in criminal trial courts. Furthermore, this concept provides a vehicle to explain the development of uniformities in output such as a classification of criminals, the categorization of crime, and sentencing yardsticks. The conclusion discusses the implications of the informal workgroup for efforts aimed at court reform.
21 citations
TL;DR: This paper studied the impact of losing lawsuits on public policy and found that losing lawsuits can produce positive policy change from the consumer's perspective, while the final judicial decision may not be the most significant event in litigation stimulating policy change.
Abstract: Social scientists have reported extensively on the impact of Supreme Court decisions overturning public policy, but not on those sustaining it. This article stresses the need to study the impact of litigation, including the impact of losing lawsuits. Presenting data on the impact of San Antonio Independent School District v. Rodriguez, the article demonstrates how a losing lawsuit can produce positive policy change from the consumer's perspective. After comparing the policy aftermath of Rodriguez with that of two winning school-finance cases, I suggest that the final judicial decision may not be the most significant event in litigation stimulating policy change.
20 citations
TL;DR: In this paper, the authors examine non-jury trials for political/terrorist offenses in Northern Ireland and trace the origins of the current troubles; the breakdown of the jury system; the work of the royal commission, chaired by Lord Justice Diplock; and the establishment of courts, known as diplock Courts, in which a single judge tries cases using modified rules of evidence and lowered standards for the admission of confessions.
Abstract: This article examines nonjury trials for political/terrorist offenses in Northern Ireland. It traces the origins of the current troubles; the breakdown of the jury system; the work of the royal commission, chaired by Lord Justice Diplock; and the establishment of courts, known as Diplock Courts, in which a single judge tries cases using modified rules of evidence and lowered standards for the admission of confessions. Finally, the article evaluates the work of the Diplock Courts, and suggests their wider relevance to future policy-making. In doing so, it touches upon a fundamental role of governing through courts—the maintenance of the ability to govern, particularly in a society that has neither political nor judicial consensus.
10 citations
TL;DR: For over 2000 years, laws have allowed husbands to beat their wives as mentioned in this paper, and until the last century, American law conformed to this tradition, giving husbands life-and-death authority over wives.
Abstract: For over 2000 years, laws have allowed husbands to beat their wives. Until the last century, American law conformed to this tradition. This article traces the roots of American law to English and Roman law, the latter giving husbands life-and-death authority over wives. In the nineteenth century American state courts permitted husbands to beat their wives for misconduct. Pioneering women in the temperance, abolitionist, and women's rights movements first attacked the common law ofwife-beating and restrictive divorce policies. By the 1870s, wife-beating became outlawed. Earlier in the nineteenth century, legislatures had expanded the grounds for divorce, opening an avenue of escape for physically abused wives. But the law still gives limited protection to assaulted spouses, who are more often wives than husbands.
9 citations
TL;DR: The relationship between persistent demands for "access to justice" and the relatively low yield of court-oriented social reform strategies is examined in this paper, where it is shown that the importance of the right to participate may be inversely related to its utilization.
Abstract: This article examines the relationship between persistent demands for “access to justice” and the relatively low yield of court-oriented social reform strategies. Access to justice has a symbolic attraction which is impossible to deny. Access may not insure justice or social reform, but it is an important political resource from which strategic bargaining advantages may flow. But the importance of the right to participate may be inversely related to its utilization. Beyond a certain level, expanded access may be costly. Its deterrent qualities may be diminished, and the legal system, when overloaded, may be unable to insure delivery of justice.
9 citations
5 citations
TL;DR: The authors found that socialization to a professional identity can resemble "cooling out" in the ways it reconciles some to accept any employment in lieu of seeking employment more in tune with their personal goals.
Abstract: This article is concerned with the ways the law school experience eases entry into a stratified market thereby further compromising adversariness in the American legal process. It identifies some dimensions of legal education, broadly construed, which tend to acclimatize some students to existing realities of the job market. Interpreting interview data gathered from first-year students at the University of Wisconsin—Madison Law School, it suggests that socialization to a professional identity can resemble “cooling out” in the ways it reconciles some to accept any employment in lieu of seeking employment more in tune with their personal goals. Such acclimatization thwarts adversariness because, in accepting the dictates of a stratified market, these lawyers are channeled to serve some interests and people to the disadvantage of others.
5 citations
TL;DR: In this article, an experimental design was employed to ascertain which of several factors including local bias, delay, availability of modem rules of procedure, and quality of state judges had an effect on an attorney's choice of forum in diversity cases.
Abstract: There has been a long-standing debate concerning the status of diversity jurisdiction. Its champions wish to retain the availability of choice for attorneys, while others argue that perhaps the traditional justification is no longer valid and therefore the need for diversity jurisdiction is reduced. This research attempts to determine whether the traditional justification for diversity jurisdiction is still valid, and whether other factors motivate attorneys' choice of forum. An experimental design was employed to ascertain which of several factors including local bias, delay, availability of modem rules of procedure, and quality of state judges had an effect on an attorney's choice of forum in diversity cases.
3 citations
TL;DR: In this article, a change from the Warren Supreme Court to the Burger Supreme Court was investigated, and it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.
Abstract: This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.
TL;DR: Using time-series regression in a quasi-experimental design, this article examined the effects of reapportionment on expenditures in three policy areas within eight states and found that the implementation of the one man, one vote ruling had little significant effect on the distribution of state expenditures believed beneficial to urban interests.
Abstract: While there is little question that court-ordered reapportionment has changed the composition of state legislative personnel, it is still unclear whether reapportionment has had any significant impact on public policies. Evidence to date has been both contradictory and methodologically suspect. Using time-series regression in a quasi-experimental design, we examine the effects of reapportionment on expenditures in three policy areas within eight states—four control (states well apportioned before 1964) and four experimental (states egregiously malapportioned before 1964). Contrary to recent time-series analyses on this topic, we find that the implementation of the “one man, one vote” ruling had little significant effect on the distribution of state expenditures believed beneficial to urban interests.
TL;DR: In this article, the success rate of the Federal Rules of Civil Procedure is evaluated in the light of 42 years of experience under them and of alternative modes of adjucating civil disputes.
Abstract: The success rate of the Federal Rules of Civil Procedure is evaluated in the light of 42 years of experience under them and of alternative modes of adjucating civil disputes. The intentions of the rules' framers are explored as are hypotheses as to why they have been only partially successful. On the basis of this analysis, the author argues that adversary presentation and prosecution must be modified in the direction of a system of direct inquiry by the court and of active judicial management of disputes to settlement or trial.
TL;DR: In this article, two measures of effective communications between message source and message recipient were developed, incorporating two dimensions of comprehension difficulty: message structure and the familiarity of the reader with constitutional language.
Abstract: The true significance of policy articulations by appellate courts lies in the behavioral responses of relevant parties below. Actions consistent with the intent of appellate sources is dependant on effective communication between message source and message recipient. Limiting focus to the U.S. Supreme Court as an appellate source, two measures of effective communications are developed. These measures incorporate two dimensions of comprehension difficulty: message structure and the familiarity of the reader with constitutional language. The article also suggests 13 hypotheses pertaining to relative communicative success or failure, several of which are tested briefly.
TL;DR: The uncanny resilience of parens patriae despite legislative and judicial attempts to restrict its use in involuntary commitment proceedings of the mentally ill is examined in this article, where it is pointed out that legislatures and to some extent the courts have focused on the procedural strategy, while neglecting the more substantive issue of behavioral criteria.
Abstract: This article examines the uncanny resiliency of an ancient doctrine called parens patriae despite legislative and judicial attempts to restrict its use in involuntary commitment proceedings of the mentally ill. Attempts by the legislature and courts to reduce parens patriae rationales, which are heavily promoted by the medical profession, have emphasized police power rationales and have followed two general strategies. One strategy sets up a number of procedural steps that provide monitoring of individual rights at critical junctures during the commitment process. The second strategy attempts to establish multiple criteria that must be met before any commitment decision can by made. It is pointed out that legislatures, and to some extent the courts, have focused on the procedural strategy, while neglecting the more substantive issue of behavioral criteria. It is argued that the lack of attention to the second strategy, specifically in relation to clear definitions and rigorous criteria, have created the impetus for the medical-psychiatric profession to continue its dominance in involuntary commitment proceedings under the guise of parens patriae.
Abstract: This article analyzes the revolution in Constitutional Law concerning sex discrimination that has been brought about by the Burger Court. It provides an overview of both the doctrinal changes and the policy changes that have composed this legal revolution. It identifies certain policy areas that have troubled the Burger Court during this process and attempts to explain why some policy problems have proved more intractable than others. It concludes with a modest suggestion for dealing with those problems.
TL;DR: This article analyzed the impact of the Burger Court's series of Miranda v Arizona rulings on prosecuting attorneys from countries with a population of 100,000 or more and found that prosecutors perceive that the Court has changed the degree with which police must comply with Miranda and that prosecutors approve of this, but that prosecutors are not more likely to prosecute in cases where police committed alleged violations.
Abstract: Beginning in 1971, the Burger Court issued a series of rulings which chipped away at the Miranda v Arizona ruling This article analyzes the impact of this series of rulings on prosecuting attorneys from countries with a population of 100,000 or more The results indicate that prosecutors perceive that the Court has changed the degree with which police must comply with Miranda and that prosecutors approve of this, but that prosecutors are not more likely to prosecute in cases where police committed alleged violations than they had been before 1971 This seems due to the fact that prosecutors take their cues more from local courts, which reportedly requires strict compliance with Miranda, than from the Supreme Court
TL;DR: In this paper, the authors argue that instead of viewing the criminal justice process as determined by judicial or prosecutorial discretion, it should be seen as the outcome of exchange transactions that are designed to adjust resource constraints between case inflows and outflows.
Abstract: The article argues that instead of viewing the criminal justice process as determined by judicial or prosecutorial discretion, it should be seen as the outcome of exchange transactions that are designed to adjust resource constraints between case inflows and outflows. These exchanges, over which judges and prosecutors have only little control in the aggregate, generate changes in the criminal justice system in an unplanned or “invisible hand” fashion. They alter the sentence level, affect the standard of proof and the rules of evidence, and transform the function of trials. Several of the analytical conclusions are confirmed by an empirical investigation.
TL;DR: This paper examined the decisional consistency of U.S. Supreme Court justices with lower collegial court experience in a twofold effort to expose the potential policy implications of consistent or inconsistent behavior and to show the value of longitudinal analysis of individual rather than aggregate decisional patterns.
Abstract: This article examines the decisional consistency of U.S. Supreme Court justices with lower collegial court experience in a twofold effort to expose the potential policy implications of consistent or inconsistent behavior and to show the value of longitudinal analysis of individual rather than aggregate decisional patterns. The results show a fairly high level of consistent behavior but with marked differences across the case subjects. The article concludes with an assessment of the implications for justice selection processes and Supreme Court decision-making theory.
TL;DR: The authors examines issues in the presentation of factual evidence in school finance litigation, focusing specifically on statistical measures of dispersion which have been included in Berne and Steifel's framework for analyzing distributional equity.
Abstract: This article examines issues in the presentation of factual evidence in school finance litigation. It focuses specifically on statistical measures of dispersion which have been included in Berne and Steifel's framework for analyzing distributional equity. It identifies the methodological issues that must be recognized when these measures are used in litigation, and the properties/characteristics of individual measures that may lead courts to different determinations about “equity” in school finance.
TL;DR: Analyzing 100 years of state appellate court decisions on a legal rule called the “locality rule,” the author presents four distinct judicial interpretations of the rule that have distinctive policy implications for law and medicine pertaining to the setting of standards for professional competency in medicine.
Abstract: This article analyzes a significant, but little researched, form of legal involvement in the medical profession—state appellate court opinions. Analyzing 100 years of state appellate court decisions on a legal rule called the “locality rule,” the author presents four distinct judicial interpretations of the rule. Each has distinctive policy implications for law and medicine pertaining to the setting of standards for professional competency in medicine. Three of the judicial interpretations provide for increasing amounts of judicial deference to the professional autonomy of the medical community. A fourth interpretation within the last decade, however, upholds a judicial prerogative for establishing standards of professional competency. The author concludes that the fourth interpretation is not an aberration and signals a change in the relationship between law and medicine for the future.
TL;DR: In this article, the authors examine police perceptions of their own influence and the influence of the judges, attorneys, victims, and defendants in the felony case disposition process and conclude that there appear to be substantial benefits from greater police participation in the negotiated disposition of criminal cases.
Abstract: This study examines police perceptions of their own influence and the influence of the judges, attorneys, victims, and defendants in the felony case disposition process. The findings suggest that while police perceive their own influence as relatively low, it is enhanced by their direct participation in plea discussions both in their own view and that of the observers. The study concludes that there appear to be substantial benefits from greater police participation in the negotiated disposition of criminal cases.
TL;DR: In this paper, a review of research derived from child and animal studies suggests there is no basis for favoring mothers over fathers in awarding child custody, and that the outcome of actual court awards favor mothers, presumably because this is viewed by judges as being in the best interests of the child.
Abstract: Current statutes and case decisions formally declare that fathers and mothers should be treated equally in child custody dispute awards. Outcomes of actual court awards, however, favor mothers, presumably because this is viewed by judges as being in the best interests of the child. A review of research derived from child and animal studies suggests there is no basis for favoring mothers over fathers in awarding child custody.