Efficient,Fair, and Incomprehensible: How the State “Sells” Its Judiciary

Socio‐legal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply‐side,” perspective. Focusing on the state's efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state's services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades‐long effort to displace local justice systems.     

The Search for “Fred”: An Unusual Vertical Burial Case,

Police witness intelligence stated a murdered adult male “Fred” had been vertically buried in wooded hilly terrain 30 years ago in the Midlands, U.K. Conventional search methods were unsuccessful; therefore, the police requested a geophysical investigation to be undertaken to determine whether “Fred” could be detected. A multiphased geophysical approach was conducted, using bulk ground conductivity and metal detectors, then follow‐up magnetics and ground penetrating radar (GPR) survey profiles on electromagnetic (EM) anomalous areas. A tight grid pattern was used to account for the reduced target size. Relatively high‐resolution EM and GPR techniques were determined optimal for this terrain and sandy soil. Geophysical anomalies were identified and the most promising intrusively investigated, and this was found to be a large boulder and tree roots. Study implications suggest careful multiphase geophysical surveys are best practice and give confidence in cold case searches. This study yielded a no‐body result, effectively saving police time and costs from further investigations.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

On Logic in the Law: “Something,but not All”

Abstract. In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the “logical theology” of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of “axioms and corollaries”; and this element of truth is not obviated by the more powerful logical techniques that are now available.     

“CRACK,” STREET GANGS,AND VIOLENCE*

This investigation considers the connections among street gangs, “crack” cocaine, and violence associated with crack distribution during the initial years of crack proliferation. Data were extracted from the narcotics investigation files and homicide fires of five Los Angeles Police Department and Sheriff's Department areas where both crack and gangs were prominent. The aims were to compare for 1983–1985, when crack first emerged as a significant problem, hypotheses about (1) gang involvement in crack distribution and (2) concomitants of gang involvement, particularly violence. The analyses confirm a dramatic growth in crack sales, an accompanying increase in gang members involved, but a declining rate of involvement, and inconsistent evidence on the impact of gang involvement on sales events. We infer that crack distribution, while including many individual gang members, was not primarily a street gang phenomenon.     

“It Depends on the Outcome”: Prisoners,Grievances, and Perceptions of Justice

Social scientists have long investigated the social, cultural, and psychological forces that shape perceptions of fairness. A vast literature on procedural justice advances a central finding: the process by which a dispute is played out is central to people's perceptions of fairness and their satisfaction with dispute outcomes. There is, however, one glaring gap in the literature. In this era of mass incarceration, studies of how the incarcerated weigh procedural justice versus substantive justice are rare. This article addresses this gap by drawing on unique quantitative and qualitative data, including face‐to‐face interviews with a random sample of men incarcerated in three California prisons and official data provided by the California Department of Corrections and Rehabilitation (CDCR). Our mixed‐methods analysis reveals that these prisoners privilege the actual outcomes of disputes as their barometer of justice. We argue that the dominance of substantive outcomes in these men's perceptions of fairness and in their dispute satisfaction is grounded in, among other things, the high stakes of the prison context, an argument that is confirmed by our data. These findings do not refute the importance of procedural justice, but show the power of institutional context to structure perceptions of and responses to fairness, one of the most fundamental principles of social life.     

Hate Speech,Group Libel,and “Ford's Megaphone”

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. Pp. xv, 408. $55.00, cloth; $24.95, paper. This essay on Victoria Saker Woeste's Henry Ford's War on Jews and the Legal Battle Against Hate Speech (2012) emphasizes that what made Ford's broadsides against Jews in the 1920s so dangerous was technology—his command of an unparalleled network of distribution, through his nationwide Ford dealerships. In addition, at the time of Ford's libels, US legal culture had not yet absorbed the idea that ideological and psychological subordination of minority groups was the principal harm worked by what would later be called “hate speech.”     

Becoming “Copwise”: Policing,Culture, and the Collateral Consequences of Street‐Level Criminalization

Over the last four decades, the United States has witnessed a historic expansion of its criminal justice system. This article examines how street‐level criminalization transforms the cultural contexts of poor urban communities. Drawing on five years of fieldwork in Los Angeles’ Skid Row–the site of one of the most aggressive zero‐tolerance policing campaigns to date–the study finds that residents develop and deploy a particular cultural frame–“cop wisdom”–by which they render seemingly‐random police activity more legible, predictable, and manipulable. Armed with this interpretive schema, “copwise” residents engage in new forms of self‐presentation in public, movement through the daily round, and informal social control in order to deflect police scrutiny and forestall street stops. While these techniques allow residents to reduce unwanted police contact, this often comes at the expense of individual and collective well‐being by precluding social interaction, exacerbating stigma, and contributing to animosity in public space.     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.