Showing papers on "Majority opinion published in 2003"

Media, Public Opinion, and Foreign Policy

Abstract: This article examines relationships between media content, public opinion, and foreign policy in the United States and the United Kingdom. The investigation proceeds in two stages. First, an agenda-setting analysis demonstrates a strong connection between the salience of foreign affairs in the media and the salience of foreign affairs for the public. Second, two potential effects of varying issue salience on foreign policymaking are examined:(1) issue priming and (2) policymakers’ reactions to issue salience. Analyses rely on a combination of U.S. and U.K. commercial polling data and the American National Election Study. Results point to the importance of mass media and issue salience in the relationship between public opinion and foreign policy. There is a considerable body of work in the United States on both the relationship between public opinion and foreign policy and on the nature of public opinion on foreign affairs. While early research suggested that the effects of public opinion on foreign policy were slight, recent studies indicate that public opinion often has a measurable impact on U.S. foreign policy (e.g., Hartley and Russett 1992; Hill 1998; Sobel 2001; Wlezien 1996). Similarly, while initial studies indicated that public opinion was volatile and incoherent (Almond 1950; Converse 1964; Miller 1967), work since the 1970s supports the conclusion that public opinion on foreign affairs is often stable, sensibly structured, and rational (Caspary 1970; Mueller 1973; Page and Shapiro 1992; Wittkopf 1990). Although we have a reasonable understanding of the nature of public opinion about foreign affairs, we know much less about the sources of this opinion. Holsti’s (1996) chapter on the “Sources of Foreign Policy Attitudes”—emblematic of the majority of enquiries on the matter—focuses on partisanship, ideology, and demographics. These attributes account for a considerable amount of cross-sectional variance in foreign policy attitudes, but they tell us little about how and why these attitudes might change over time.

Measuring Attitudes toward the United States Supreme Court

Abstract: It is conventional in research on the legitimacy of the U.S. Supreme Court to rely on a survey question asking about confidence in the leaders of the Court to indicate something about the esteem with which that institution is regarded by the American people. The purpose of this article is to investigate the validity of this measure. Based on a nationally representative survey conducted in 2001, we compare confidence with several different measures of Court legitimacy. Our findings indicate that the confidence replies seem to reflect both short-term and long-term judgments about the Court, with the greater influence coming from satisfaction with how the Court is performing at the moment. We suggest a new set of indicators for measuring the legitimacy of the Court and offer some evidence on the structure of the variance in these items.

Fear of Reversal as an Explanation of Lower Court Compliance

Abstract: Lower courts in the United States are generally responsive to specific precedents and trends in the decisionmaking of their judicial superiors. In this article, we ask why. We test one popular explanation that compliance can be attributed to judges' fear of having their decisions reversed-through an analysis of search and seizure cases decided in the U.S. Courts of Appeals between 1961 and 1990. Since the Supreme Court cannot reverse a decision unless it agrees to review it, we ask whether circuit judges are more likely to decide as the Supreme Court would be expected to when they face cases that are otherwise more likely to be reviewed by the Court. Finding that they are not, we conclude that fear of reversal cannot account for widespread circuit court compliance in these cases, nor, presumably, more generally. More broadly, our findings point to the importance of factors apart from supervisors and the threat of sanctions in determining subordinates' compliance. Like others who sit atop government hierarchies, U.S. Supreme Court justices would seem to have a problem: they must rely on subordinates to see that their policies take effect, but they have only a limited set of tools with which to induce compliance. Not surprisingly, scholars have found abundant evidence of evasive or even defiant behavior by their subordinates, lower court judges (e.g., Peltason 1961; Romans 1974). Yet there is considerably more evidence of judges' acting, in Songer, Segal, and Cameron's (1994) language, as faithful agents of their higher court principals. For the most part, lower court judges tend to follow specific higher court precedents, and their decisions generally track ideological trends in the higher court (Romans 1974; Baum 1980; Gruhl 1980; Johnson 1987; Songer 1987; Songer & Sheehan 1990; Songer & Haire 1992; Songer, Segal, & Cameron 1994; Benesh 2002). It is far from obvious why lower court judges act this way. In this study, we attempt to determine whether widespread compliance can be attributed to lower court judges' aversion to having their decisions reversed by a higher court. To be clear: We do not ask whether fear of reversal has any effect. Rather, we ask whether its effect is strong enough and pervasive enough to explain substantial amounts of compliance.1 Compliance is a difficult concept to pin down theoretically or empirically, and scholars have attempted to measure it in various ways. We use the term somewhat loosely to refer to decisionmaking behavior by the lower court that furthers, or at least does not undermine, the higher court's efforts to determine legal policy in its jurisdiction. Taking a broad view, two different types of behavior fit this description. One is the faithful application of existing higher court precedents; the other is deciding cases as the higher court would be expected to. These behaviors can diverge where the current members of the higher court are inclined to repudiate its precedents. But far more often they will lead to the same result, for what the higher court has done before will typically be the best guide to what it is likely to do next. For this reason, it is reasonable to believe that findings for one type of behavior can be generalized to the other. In this article, we focus on the latter type of behavior, comparing the actual decisions of U.S. courts of appeals judges to the decisions that the U.S. Supreme Court would be expected to make in their place. Our findings suggest that fear of reversal does not play a major role in this behavior. The Puzzle Cases often offer judges chances to shape public policy. Even when they do not, judges' sympathies may lie with one party or the other. In the many cases where the attitudes of lower court judges match those of the higher court majority, compliance is no mystery. But there are also many cases where the attitudes do not match. In these cases, why might lower court judges choose to weight the views of their superiors more heavily than their own? …

Jurisprudential regimes and Supreme Court decisionmaking: The Lemon regime and establishment clause cases

Abstract: In this research note, we apply the construct of jurisprudential regimes as described in our recent article in American Political Science Review to the area of Establishment Clause jurisprudence. We hypothesize that Lemon v. Kurtzman represented a jurisprudential regime in the Supreme Court's decisionmaking in this area of law. Our analysis shows that the predictors of the Court's decisions in the two periods differed in ways that are very consistent with the types of changes one would expect the hypothesized regime shift to produce. Introduction In a recent article (Richards & Kritzer 2002), we proposed a new way of conceptualizing the role of law for use in modeling Supreme Court decisionmaking. We suggested that it is incorrect to think of law at the Supreme Court level as operating through the traditional mechanisms of plain meaning, precedent, or intent of the drafters. Given the Court's discretionary docket, the cases decided by the Court are precisely those that cannot be decided through the relatively mechanistic processes that Segal and Spaeth (1993, 2002) label the "legal model." We posit that the influence of law is to be found in what we label "jurisprudential regimes," which we define as "a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area" (Richards & Kritzer 2002:308). The manifestation of jurisprudential regimes appears in the way that specific variables influence the justices' decisions. We propose that the way to test for the presence of regimes is to look for changes in how variables influence justices in a particular jurisprudential area. In our earlier article, we tested this theory by examining Supreme Court decisions in the area of free expression. We hypothesized that the 1972 companion cases Chicago Police Department v. Mosley (408 U.S. 92) and Grayned v. Rockford (408 U.S. 104) demarcated a regime change that is reflected in a central distinction between regulation that is content-neutral and regulation that is content-based. Our statistical analysis provided strong support for our theory as applied in this area of Supreme Court jurisprudence. A central question we left for future research is whether the pattern we found for free expression cases can be found for other jurisprudential areas. In this research note, we extend our analysis to the Supreme Court's decisionmaking concerning the Establishment Clause. Establishment Clause Jurisprudence Modern Establishment Clause jurisprudence dates from Everson v. Board of Education (330 U.S. 1, 1947) when the Supreme Court, in a case involving reimbursing parents of schoolchildren for the costs of transportation to school even if the school involved was a parochial school, extended, by incorporation through the Fourteenth Amendment, the Establishment Clause strictures on Congress to the states. In Everson, Justice Black, even while upholding the aid involved in the case using a "child benefit" argument, enunciated what became known as the "no aid" test reflecting a "wall of separation between Church and State" (Levy 1994:152-54). Over the next fifteen years, the Court decided two Establishment Clause cases dealing with voluntary religious instruction during school hours, first striking down programs held in public school buildings (McCollum v. Board of Education, 333 U.S. 203, 1948) and then upholding off-premises programs using so-called released time arrangements (Zorach v. Clauson, 343 U.S. 306, 1952). In a set of three cases (McGowan v. Maryland, 366 U.S. 420, 1961; Two Guys v. McGinley, 366 U.S. 582, 1961; and Gallagher v. Crown Kosher Supermarket, 366 U.S. 617, 1961), the Court dealt with state laws forbidding various kinds of commercial activities on Sunday (so-called blue laws), with the Court rejecting the challenges to these laws in all the three cases. The school prayer cases in 1962 (Engel v. …

Public Reaction to Supreme Court Decisions

Abstract: 1. The high-wire act: the Supreme Court and public opinion 2. Placing the cases in legal and political context 3. Media attention and public awareness 4. Changing hearts and minds? Examining the legitimation hypothesis 5. Public support for the Supreme Court 6. Conclusion: balancing independence and support.

Support For A Supreme Court Affirmative Action Decision A Story in Black and White

Abstract: Unlike other policy-making institutions that actively attempt to shape public opinion, the Supreme Court is largely dependent upon others to disseminate its policy pronouncements to the public. One consequence: How the media frame the Court’s actions can affect public support for Court policies. This article presents the results of an experiment designed to take soundings on the effect of different media frames on White and Black support for a controversial affirmative action ruling. Using stimuli we created based on coverage of the Adarand v. Pena (1995) decision in the Black press and the mainstream press, we find that media framing has a significant effect on agreement with the Court’s policy among White subjects. For Blacks, the impact of the media framing is moderated by ideological predispositions. In addition, both White and Black support for the Court’s ruling is influenced by the media portrayal of Justice Clarence Thomas.

The minority slowness effect: Subtle inhibitions in the expression of views not shared by others.

Abstract: Five studies revealed that people who hold the minority opinion express that opinion less quickly than people who hold the majority opinion. The difference in speed in the expression of the minority and majority opinions grew as the difference in the size of the minority and majority grew. Also, those with the minority view were particularly slow when they assumed the majority to be large, whereas the opposite was true for those with the majority view. The minority slowness effect was not found to be linked to attitude strength, nor was it influenced by anticipated public disclosure of the attitude. The effect is discussed in the context of implicit conformity pressures and the limited buffering effect of false consensus assumptions.

The Supreme Court, the Solicitor General, and the Separation of Powers

Abstract: Supreme Court justices attempt to rule as closely as possible to their policy preferences, but their decisions are not unconstrained. Rather, justices pay attention to the preferences of other actors—including those external to the Court. Whereas most scholars focus on the relationship between the Court and Congress, this article focuses on the relationship between the Court and the executive. Specifically, it argues that justices seek information about how the administration wants them to act because, like Congress, it can sanction the Court for making decisions that diverge from administration policies. Certainly this information can be gathered in a number of ways, but this article argues that when not readily available, justices can obtain it by inviting the solicitor general to appear before the Court as amicus curiae. The findings provide the first systematic evidence that justices actively seek information about the preferences of other actors during their decision-making process.

The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations

Abstract: The study attempts to provide a comprehensive analysis of the role of the International Court of Justice (ICJ) as the principal judicial organ of the United Nations (UN). It considers the contributions of the ICJ towards the UN system and concludes that, although the ICJ's contribution has been significant, many practical and theoretical issues regarding its role remain unsettled. The study proceeds as follows. The first chapter sets out the history of international adjudication and the relationship between international adjudicatory mechanisms and political international organisations. It also includes a review of the legal basis and extent of the relationship between the ICJ and the UN. The second and third chapters aim to throw light upon the advisory role of the ICJ and the manner in which the Court, through this jurisdiction, plays a role in interpreting and developing the institutional law of the UN. The fourth chapter addresses the Court's role in facilitating the realisation of the purposes and principles of the UN through its contentious jurisdiction. This chapter discusses the basis of the contentious jurisdiction of the Court, then examines the practice of the Court in achieving these purposes and principles. The fifth chapter examines the role of the ICJ as a "constitutional court" in the UN framework and its competence to review the legality of acts of the UN organs. The sixth chapter evaluates the Court's role as a court of appeal in respect of the judgments of administrative tribunals established within the framework of the UN and its specialised agencies, particularly in the light of General Assembly Resolution 50/54 (1995). By way of conclusion, the Court's role within the UN system is evaluated and a number of recommendations are made with a view to enhancing the role of the Court to enable it to address new challenges.

Herd behavior and the quality of opinions

Abstract: This paper analyzes a decentralized decision model by adding some inertia in the social leaning process. Before making a decision, an agent can observe the group opinion in a society. Social learning can result in a variety of equilibrium behavioral patterns. For insufficient ranges of quality (precision) of opinions, the chosen stationary state is unique and globally accessible, in which all agents adopt the superior action. Sufficient quality of opinions gives rise to multiple stationary states. One of them will be characterized by inefficient herding. The confidence in the majority opinion then has serious welfare consequences.

Supreme Court Decisions on Electoral Rules after Mexico's 1994 Judicial Reform: An Empowered Court

Abstract: In 1994 Mexico's ruling party granted new powers of judicial review and increased independence to the Mexican Supreme Court. Would these reforms enable the Court to overcome decades of judicial subordination? I examine all Mexican Supreme Court decisions addressing the constitutionality of electoral rules – rules that are inherently contentious because they determine the chances for obtaining power – during Zedillo's sexenio. These cases, culminating with a 1998 ruling counter to a key PRI political interest, demonstrate a fundamental change in Mexico's institutional power balance. This study also demonstrates the utility of electoral cases to evaluate Court power within and across countries.

The supreme court in american politics

Abstract: ▪ Abstract The Supreme Court's role in American politics is a product of its interventions in public policy making and the impact of those interventions on government and society. The Court's frequent and substantial interventions during the past half century are especially striking, and their extent and their beneficiaries cannot be explained fully by major theories of the Court's behavior. The Court's rulings often receive negative responses from other policy makers, but even more noteworthy is the degree to which judges and administrators carry out the Court's policies and legislators leave those policies standing and the Court unscathed. Scholars who emphasize the Court's limited ability to change society make a strong case, but it is not clear to what extent the Court's limitations are unique to the judiciary and to what extent they reflect the limited powers of government in general.

Framing Supreme Court Decisions The Mainstream Versus the Black Press

Abstract: The Supreme Court regularly makes decisions with profound policy implications, but it largely leaves it to others to shape public opinion regarding those policies. The media play an important role ...

The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua

Abstract: A majority of the contentious cases brought to the International Court of Justice in recent years have involved questions of the legality of the use of force. This is a dramatic change in the subject matter of the Court's cases; Is it a dangerous development for the Court? In the Nicaragua case the USA argued strongly that such disputes were non-justiciable, but the Court summarily rejected its arguments. The first part of this article considers how far defendant states have subsequently challenged admissibility and jurisdiction in cases involving the use of force. Despite the rejection of the US arguments in the Nicaragua case, several states have reverted to these; this article considers whether their use by states which are not members of the Security Council may be more acceptable than by the USA. The second part of this article focuses on provisional measures. It discusses whether the significant increase in the number of requests for provisional measures shows the emergence of a special regime in cases involving the use of force, and examines the divisions within the Court as to whether there should be a modification of the normal requirements for an indication of provisional measures. It concludes by considering the view the Court has taken of its role as the principal judicial organ of the UN and of its relationship to the Security Council in cases involving the use of force.

Separate and Unequal: Homer Plessy and the Supreme Court Decision that Legalized Racism

Abstract: On June 7, 1892, Homer A Plessy, a New Orleans shoemaker, white in appearance but Negro according to the "one drop" rule that discriminated against anyone with even a small fraction of African blood by that injurious label, boarded a "Whites Only" railroad coach He then volunteered his lineage to the conductor, who ordered that he move to a car set aside by state law for Negroesand so began the legal crusade that culminated in one of the most tragic and dishonorable decisions in Supreme Court history Here, acclaimed historian Professor Harvey Fireside presents a powerful account of Plessy v Ferguson, the famously unlawful ruling that institutionalized racism and helped inspire the civil rights movement Separate and Unequal combines judicial records and historic photographs with a richly evocative portrait of Jim Crowera Louisiana and a tale of the personal heroism of Homer Plessy; lawyer Albion Tourge, who argued his case pro bono; and Justice John Marshall Harlan, the decision's sole dissenter, who argued fervently against the Court majority opinion that "separate but equal" accommodations were not unjust and demeaning With sophistication and passion, Fireside shares a history less renowned but every bit as explosively influential as that of Rosa Parks

The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore

Abstract: PrefaceAcknowledgments Introduction: Mighty Platonic Guardians 1 The Supreme Court of Political Equality 2 Judicial Unmanageability and Political Equality 3 Protecting the Core of Political Equality 4 Deferring to Political Branches on Contested Equality Claims 5 Equality, Not Structure Conclusion: Political Equality and a Minimalist Court Appendix 1: Twentieth-Century Election Law Cases Decided by the Supreme Court in a Written Opinion Appendix 2: Justice Goldberg's Proposed Dissent to a Per Curiam Summary Af?rmance in Harper v. Virginia State Board of Elections NotesIndex About the Author

Delaying Justice: The Supreme Court’s Decision to Hear Rearguments

Abstract: Some of the Supreme Court’s most famous cases—from Roe v. Wade (1973) to Brown v. Board of Education (1954)—have been decided only after being held over and argued a second time. While few cases ta...

Judicial Review of Politics: The Israeli Case

Abstract: In the tradition of studies questioning the impact of celebrated court rulings, this article discusses the effectiveness of the judicial review of politics conducted by the Israeli Supreme Court. The Israeli Supreme Court is generally viewed as a highly influential, almost omnipotent body. During the last two decades, the Court has intervened repeatedly in the so-called political domain, thereby progressively eroding the scope of realms considered non-justiciable. It has ventured to enter domains of 'pure' political power to review the legality of political agreements, political appointments (appointments of political allies to public positions), and political allocations (government funding to organizations affiliated with its political supporters). The prevalent perception is that these developments had a significant impact on Israeli political life. The present article challenges this view and argues that, on closer scrutiny, the influence of the Court on many of the issues reviewed here is negligible. First, many of the doctrines developed by the Court in order to review political measures proved ineffective. Usually, when the Supreme Court (acting as a High Court of Justice) engages in judicial review, it lacks the evidence needed in order to decide that administrative decisions on public appointments or public funding should be abolished because they were based on political or self-serving considerations. Second, the norms mandated by the Court hardly influence politicians' decisions in everyday life, and are applied only in contested cases. The reasons for this situation are not only legal but also socio-political. Large sections of current Israeli society support interest-group politics and do not accept the values that inspire the Court.

A Comparative Analysis of the Standard of Fraud Required Under the Fraud Rule in Letter of Credit Law

Abstract: National courts have required different standards of fraud to justify non-payment, or restraint of payment, under a letter of credit. The United Nations Commission on Trade Law (UNCITRAL) has adopted its own position. The issue is far from settled in any legal system. Based on an analysis of the law in the United States, United Kingdom, Canada and Australia, and under the Convention, this article proposes a standard that is a distinct improvement on the various standards applied around the world and suggests a means for its implementation. ********** The fraud rule allows the issuer of a letter of credit or a court to disrupt the payment of a letter of credit when fraud is involved. The raison d'etre of letters of credit is to provide an absolute assurance of payment to a seller, provided the seller presents documents that comply with the terms of the credit. The fraud rule thus goes to the very heart of the letter of credit obligation. The fraud rule is necessary to limit the activities of fraudsters, but its scope must be carefully circumscribed so as not to deny commercial utility to an instrument that exists to serve as an assurance of payment. (1) This article explores the kind of fraud required to invoke the fraud rule or, in other words, what does fraud mean under the fraud rule in the law governing letters of credit? This is a challenging question because fraud is an "inherently pliable concept." (2) Some argue that the fraud rule must be applied in a strict fashion, or in cases where only egregious fraud is involved. These commentators emphasize that the letter of credit is a unique commercial device that must be protected from simple contract disputes, which are often difficult to distinguish from certain fraud claims. (3) Others favor a more flexible approach to the concept. (4) This article investigates how this question has been answered in the United States, United Kingdom, Canada and Australia, and under the United Nations Convention on Independent Guarantees and Standby Letters of Credit (the UNCITRAL Convention). (5) I. THE POSITION IN THE UNITED STATES A large number of letter of credit fraud cases have been decided in the United States. In addition, Article 5 of the Uniform Commercial Code (U.C.C.) contains state-of-the-art provisions with respect to the fraud rule. Therefore, the U.S. position deserves much attention. To facilitate the discussion, the U.S. position will be examined in three categories: the pre-U.C.C, position, the Prior U.C.C. Article 5 position, and the Revised U.C.C. Article 5 position. (6) A. Pre-U.C.C. Position 1. Pre-Sztejn Cases. The seminal case on the fraud rule in letter of credit law was Sztejn v. J. Henry Schroder Banking Corp. (7) While a U.S. decision, Sztejn has influenced and shaped the fraud rule in virtually all jurisdictions worldwide. Before Sztejn was decided, a number of letter of credit cases in the United States touched on the issue of fraud, but none considered the fraud rule in detail. Little discussion appeared in those cases about what kind of fraud might invoke the fraud rule. One of the few passages mentioning the issue was the dissenting judgment of Justice Cardozo in Maurice O'Meara Co. v. National Park Bank, (8) which read, in part: We are to bear in mind that this controversy ... arises between the bank and a seller who has misrepresented the security upon which advances are demanded.... I cannot accept the statement of the majority opinion that the bank was not concerned with any question as to the character of the paper. If that is so, the bales tendered might have been rags instead of paper, and still the bank would have been helpless, though it had knowledge of the truth, if the documents tendered by the seller were sufficient on their face. (9) This paragraph shows that, in the view of Justice Cardozo, fraud under the fraud rule in the law governing letters of credit means misrepresentation. …

Reading between the Lines: Analyzing the Supreme Court’s Views on Gender Discrimination in Employment, 1971–1982

Abstract: Supreme Court decisions can be read on two levels: as prescriptive statements of what legally can or cannot be done and as discourses that define the Court’s view of social problems. This article explores this latter role through a content analysis of Court decisions that directly address the struggle for women’s equality in the workplace during the 1970s. As it formulated the legal rules applicable to gender discrimination, the Court also gave social and political meaning to the concept of equality. Examining this process of problem definition in the judicial arena provides a different perspective for viewing Supreme Court decisions.

Toward A Positive Theory of State Supreme Court Decision Making

Abstract: State Supreme Courts have grown in importance during the last thirty years in the formation of public policy. Their judgements determine many aspects of constitutional law, tort reform, judicial selection, and campaign finance reform, among others. A vast body of literature has been developed that analyzes State Supreme Court decision making, which emphasizes the conditioning effects of the legal and institutional environment. This article expands on this previous work by incorporating the interaction of the judiciary with other government institutions, and applies the Positive Political Theory approach to law and legal institutions to the State Supreme Court. In addition, the neo-institutionalist literature of the selection process is incorporated to defend a systematic approach towards decision making. Towards that end, this article explores how judicial decisions are conditioned by institutional rules, resulting in a formal modeling of how the State Supreme Courts interact with political actors to form...

What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia

Abstract: This article examines judicial citations to analyze the determinants of judicial prestige in the Federal Court of Australia. First we construct two alternative measures of judicial prestige for all current and retired judges of the Federal Court. Second, we regress these measures of judicial prestige on a series of explanatory variables covering age on appointment, appointing government, prior experience, which law school the judge attended, how many law review articles the judge has published, gender, and tenure. We compare our results with those of previous studies that examine the determinants of judicial influence and prestige in courts in the United States and the High Court of Australia. One of the main contributions of the article is to provide evidence from an intermediate appellate court that can be used to test the general application of findings as to what determines judicial prestige in the United States to courts in other countries with different institutional frameworks.

SUPREME COURT LEGITIMACY AND GROUP-CENTRIC FORCES: Black Support for Capital Punishment and Affirmative Action

Abstract: The Supreme Court has addressed capital punishment and affirmative action many times and, as a result, has had sweeping policymaking effects. For that reason, we argue that black opinion on capital punishment and affirmative action will be shaped by diffuse support for the Court. We also recognize the important role of group-centric forces in shaping black opinion. We find that diffuse support for the Court leads blacks with lower levels of race consciousness to be more supportive of capital punishment and less supportive of affirmative action, positions in line with the Court's decisions on these issues but contrary to black interests. The Court, however, is not able to throw its cloak of legitimacy around its policy position for blacks with the highest levels of group consciousness.

In Defense of the Search and Seizure Exclusionary Rule

Abstract: I. INTRODUCTION II. THE PRE-MAPP ERA III. THE LAW ENFORCEMENT COMMUNITY'S REACTION TO MAPP IV. HAS THE EXCLUSIONARY RULE INHIBITED THE DEVELOPMENT OF ALTERNATIVE REMEDIES ? V. ARE TODAY'S POLITICIANS MORE LIKELY TO IMPOSE EFFECTIVE "DIRECT SANCTIONS" AGAINST THE POLICE THAN THE POLITICIANS OF YESTERYEAR? VI. POLICE PERJURY AND JUDICIAL "WINKING" VII. THE COSTS OF THE EXCLUSIONARY RULE VIII. JUDGE CALABRESI'S PROPOSAL I. INTRODUCTION (1) About a quarter-century ago, after my co-authors and I had published the fourth edition of our criminal procedure casebook, (2) I attended a conference with A. Kenneth Pye, then the Dean of the Duke Law School. During a break in the conference proceedings, Dean Pye, a strong admirer of the Warren Court, (3) took me aside to give me some advice about casebook writing. This is a fairly accurate recollection of what Dean Pye said: On thumbing through the new edition of your casebook, I couldn't help noticing that you have eliminated a number of the pre-Warren Court cases you had in the earlier editions. I realize you were responding to the need to add a good deal of new material to the book without letting an already big book get any larger. But taking out the old cases has serious costs. In the years ahead, as more and more interesting new cases are handed down, you will feel much pressure to take out still more older cases. But this is a process you must resist. Otherwise, by the time you and your co-authors publish your eighth or tenth edition, the confessions chapter will begin with Miranda (4) and the search and seizure chapter with Mapp. (5) This would be calamitous. For many law students (and a few young criminal procedure professors) won't appreciate Mapp and Miranda--won't really understand why the Court felt the need to take the big steps it did--unless casebooks like yours contain material that enables readers of the books to get some idea of how unsatisfactory the prevailing rules and doctrines were before the Warren Court arrived on the scene. I think Dean Pye's advice about casebook writing was sound, (6) and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude. II. THE PRE-MAPP ERA Perhaps we should begin with People v. Cahan, (7) the pre-Mapp case in which California adopted the exclusionary rule on its own initiative. (8) At first, Justice Roger Traynor, who wrote the majority opinion, had not been a proponent of the exclusionary rule. Indeed, thirteen years earlier, he had written the opinion of the California Supreme Court reaffirming the admissibility of illegally seized evidence. (9) By 1955, he and a majority of his colleagues felt compelled to overrule state precedents and adopt the exclusionary rule. Why? The Cahan majority explained: [O]ther remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule [of admissibility] have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers. (10) Justice Traynor and his colleagues seemed astounded by how casually and routinely illegally seized evidence was being offered and admitted in the California courts. After noting that Los Angeles police had candidly admitted that they had illegally installed listening devices in the defendants' homes and had described, with equal candor, how they had forcibly entered buildings without bothering to obtain warrants by breaking windows and kicking in doors, (11) Justice Traynor observed: [W]ithout fear of criminal punishment or other discipline, law enforcement officers . …