Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

Liability for sexual harassment in criminal justice agencies

This article focuses on sexual harassment in criminal justice agencies from a legal perspective. The article briefly describes sexual harassment cases that address agency liability decided by the United States Supreme Court, discussing the standards of liability articulated in Burlington Industries Inc. v. Ellerth (1998), Faragher v. City of Boca Raton (1998), and Meritor Savings Bank v. Vinson (1986). A more precise understanding of when agencies are liable for the actions of their subordinates is developed through an examination of lower federal court decisions. Trends in the law are identified, as case law is categorized according to harassment by supervisors and co-workers. The article concludes by exploring the policy implications flowing from court decisions and by calling for further research on this troubling aspect of the criminal justice workplace.     

Computer Power and Legal Reasoning: A Case Study of Judicial Decision Prediction in Zoning Amendment Cases

While social scientists have long advocated the use of statistical methodology in legal analysis, its practical application has not been tested. Statistical models based on social science theories have been used to predict judicial decisions and explain court behavior, but the legal profession has failed to develop statistical models based on traditional legal theories and using data familiar to the lawyer. This article seeks to demonstrate by practical application of statistical methodologies, coupled with traditional legal research methods, that such research can produce important insight into a court's decision making and provide a useful model for predicting the probability of a favorable decision. The zoning amendment decisions of the Connecticut Supreme Court are the data base of this study, which also provides a comprehensive explanation of zoning amendment law in Connecticut as a backdrop against which to evaluate the insights gained by statistical analysis.     

Between Mendez and Brown: Gonzales v. Sheely (1951) and the Legal Campaign Against Segregation

On March 26, 1951, three years before the historic Brown decision, in Gonzales v. Sheeley ( 1951 ) , Judge Dave Ling of the United States District Court of Arizona ruled that the segregation of Mexican American students in a separate "Mexican School" was unconstitutional. In this article, we trace the legal arguments in Gonzales through two prior cases, Mendez v. Westminster (1946 ) and Delgado v. Bastrop (1948 ). We analyze how racialism, the social science critique of racism and legalism, shaped the arguments in the three cases. Our analysis suggests that Gonzales was a departure from Mendez and Delgado because it was the first case in which a court made an unqualified argument against segregation. The trajectory of the legal arguments across the three cases highlights how new cultural ideas about race were slowly incorporated into civil rights case law, a process that was also shaped by the institutional norms and practices of the legal system.     

Access to medicine and the dangers of patent linkage: lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India's drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.     

Social and social scientific perspectives in judicial interpretations of the constitution

It has been traditional to demarcateMuller v. Oregon as the first Supreme Court case to benefit from a social science perspective andBrown v. Board of Education of Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions,Dred Scott v. Sandford andPlessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article.     

Investors’ Rights in (Crypto) Custodial Holdings: Ruscoe v Cryptopia Ltd (in Liquidation)

Ruscoe v Cryptopia Ltd (in Liquidation) is a landmark decision of the New Zealand High Court that considers for the first time in a comprehensive way whether cryptocurrencies are property at common law and to what extent account holders’ (interests in) cryptocurrencies are protected from the claims of the insolvent crypto‐exchange's creditors. The ruling relies on a body of case law from various common law jurisdictions and, to a significant extent, on the findings of the UK Jurisdiction Taskforce Legal Statement on Cryptoassets and Smart Contracts. In tackling complex areas of legal uncertainty, it provides an authoritative conceptual benchmark for future court decisions and normative initiatives.     

Stampede to judgement: persuasive influence and herding behavior by courts

We model appeals courts as Bayesian decision makers with privateinformation about a supreme court's interpretation of the law;each court also observes the previous decisions of other appealscourts in similar cases. Such 'persuasive influence' can cause'herding' behavior by later appeals courts as decisions progressivelyrely more on previous decisions and less on a court's privateinformation. We provide an example drawn from a recent UnitedStates Supreme Court decision finding unconstitutional a basicprovision of a law previously found constitutional by six circuitcourts. Herding on the wrong decision may remain uncorrected,since review of harmonious decisions is rare.     

Sexual Orientation Discrimination after Grant v South-West Trains

In Grant v South-West Trains [1998] ECR I-621, the European Court of Justice implied that, as a general matter, discrimination against an employee on the ground of sexual orientation did not violate Article 141 EC. This article argues that Grant rests on shaky foundations, in that it is conceptually inconsistent with the Court's earlier decision in P v S and Cornwall County Council [1996] ECR I-2143. Furthermore, the scope of Grant has since been qualified by decisions of the European Court of Human Rights – decisions which may well have undermined the status of the case more broadly. However these difficulties are ultimately resolved, the Court of Justice's treatment of sexual orientation discrimination exposes flaws in its approach as a self-proclaimed constitutional court.     

Justices,Political Actors,or Both: An Exploration of the Brandenburg Line Through the Regime Theory Lens

Regime theory seeks to explain decisions by the Supreme Court of the United States by noting that justices tend to decide cases in ways that align with the prevailing political ideology. The theory emerged from political science literature and has not been explored regarding communication law. This article tests regime theory against the progression of seven Supreme Court precedents that led to the threatening speech test established in Brandenburg v. Ohio. The test is traditionally viewed as the fruit of about a half-century of deliberate judicial evolution. The analysis found regime theory helped explain the Court's progression and decisions in this line of cases, but contained some notable weaknesses.     

Judicial Review of European Anti-Terrorism Measures—The Yusuf and Kadi Judgments of the Court of First Instance

Abstract:  In the Yusuf and Kadi judgments of 21 September 2005, the Court of First Instance endorsed the Community practice of sanctioning individuals blacklisted by the United Nations (UN). It accepted that the Community uses its competence to adopt state sanctions in combination with Article 308 EC to freeze the assets of civil persons, including European citizens. The court also reduced its jurisdiction to a basic scrutiny of whether jus cogens was violated. The Court of First Instance's decisions can be criticised on various grounds. First, the application of these Articles is contrary to the wording of the Treaty and the case-law of the European Court of Justice (ECJ). Further, as a consequence of the Court of First Instance's judgments, decisions of the UN Sanctions Committee become the supreme law within the EU, provided they meet the requirements of jus cogens as defined by the Court of First Instance. In addition, the individual is deprived of all fundamental rights guaranteed under European law.     

No Confidence: Confidentiality,Ethics and the Law of Academic Privilege

The law recognizes several evidentiary privileges, including a qualified privilege recognized by statute or court precedent in forty-eight states and several federal circuits that allows journalists to protect confidential sources. Meanwhile, ethical practices for social science surveys require pledging confidentiality to respondents, a practice that can conflict with subpoenas and court orders requiring revelation of such information. Only a handful of court decisions have formally recognized a privilege for scholars similar to a reporters’ privilege, and an examination of the court decisions that have either ruled on or discussed the issue reveals that while many courts recognize the interests of scholars in confidentiality, most courts decline to recognize a legal privilege for researchers. Courts do, however, often limit disclosure to accommodate these concerns. The specific circumstances and rationales of these decisions are discussed and analyzed.     

Regina v. Butler: The harms approach and freedom of expression

In Regina v. Butler the Supreme Court of Canada explicitly accepted the argument that obscenity law should be based on harm rather than morality. The court's opinion, and the view of certain feminists, depends heavily on social science research that shows exposure to some pornographic materials may have harmful effects. However, an analysis of these studies indicates that the findings encompass a wide range of stimuli and are not limited to pornography. Based on the research, the court's shift to a harms approach should logically include all presentations containing harmful messages, regardless of the degree of sexual explicitness. As such, this article argues that the court has not really abandoned its moral approach to obscenity. It has just disguised it by adopting the rhetoric of harmfulness.     

International agreements

This article discusses the place of non liquet in the statute and practice of the International Court of Justice. It argues that although there is no prohibition of non liquet in the statute of the court, the completeness of the court of international law in article 38(1) of the statute makes no room for the court to declare non liquet in practice. The author argues that the inclusion of general principles of law and judicial decisions in article 38(1) makes the sources of international law available to the court complete, thereby affording the court the means to avoid non liquet through judicial creativity.     

论法律的惯性

法律的惯性是衡量法律优劣的标准,法律的惯性对指导立法、指导修改法律以及指导法院判案具有重大意义。法律的惯性与一定的社会状态相对应,在法律的实施中,法律与社会相互作用、相互影响,当社会出现不和谐状态时,应及时修改相应的法律,法律的惯性最终会引导法律走上有序状态。     

Legal Validity, Acceptance of Law, Legitimacy. Some Critical Comments and Constructive Proposals

In this paper the author first presents a critical account of some basic views of Habermas' Discourse Philosophy. He points out some difficulties inherent in notions such as valid justification in argumentation theory, in the notion of ideal form of discourses, and in consensus theory of truth. Secondly, he focuses on Habermas' conceptions of validity, acceptance and legitimacy of law from the perspective of neo-institutionalism. In particular, (i) the author argues that Habermas' definition of legal validity is unclear and unrealistic; (ii) the author stresses the distinction between acceptance and acceptability; (iii) Habermas presupposes harmony between sovereignty and human rights postulates, but the present author takes into account the possibility of conflicts between autonomous popular decisions and human rights which must be resolved by methods of discursive democracy; (iv) criteria for acceptance of law cannot be fixed by a stipulative definition, but are in social discussion; (v) legitimacy is not an objective feature of valid law and presupposes an evaluation based on our political convictions.     

Intoxicated Consent in Rape: Bree and Juror Decision-Making

The article examines the recent Court of Appeal judgment in Bree, in which the court considered the guidance that should be given to a jury when the complainant is intoxicated at the time of an alleged rape. As well as analysing the reasoning of the court in Bree, the judgment is placed in context by examining factors, such as social attitudes, that influence juror decision-making in rape cases. It also examines the suggestion made by the court in Bree that further law reform in this area would represent 'patronising interference' in the lives of women.     

Brief for bioethicists for privacy as amicus curiae supporting appellees

Amicus, an ad hoc group of philosophers, theologians, attorneys, and physicians, believe that adults should consult their doctor when making personal decisions. The doctor-patient relationship would be protected under the Constitution. In "Griswold v. Connecticut," the Supreme Court said that a state law which forbid married couples from using contraceptives was unconstitutional; that the couples should have a right to privacy. In "Roe," the Supreme Court recognized that a patient and her doctor should have privacy. In "Doe v. Bolton," the Supreme Court found that the State of Georgia was violating the patients' and physician's freedom. In "Planned Parenthood of Missouri v. Danforth," the Supreme Court said that a general informed consent provision was alright because it did not take away the abortion decision. The post- Roe state laws were ways to control doctors and patients so that a particular philosophical view could be imposed. The major question in Webster is whether personal decisions should be made by doctors and patients or the state. Both parties must agree to the decision. Section 188.205 of the Missouri law was before the Court in Webster. This section makes it illegal for public funds to be used to encourage a woman to have an abortion that wasn't necessary to save her life. There are medical conditions for which abortion is reasonable - Tay-Sachs disease, for instance. The child usually dies by 3 years of age. Without genetic screening, many at-risk couples would abort all pregnancies. 95% of all prenatal screenings are negative. State medical treatment decisions are arbitrary and impersonal. Having control over important personal decisions is necessary for freedom.     

The Supreme Court's spring term: abortion, the right to die, and the decline of privacy rights

Wing analyzes the constitutional significance and the important long-term implications for health policy of three 1990 U.S. Supreme Court decisions: Hodgson v. Minnesota, Ohio v. Akron Center for Reproductive Health, and Cruzan v. Director, Missouri Department of Health. Hodgson and Ohio upheld state statutes requiring parental notification of a minor's impending abortion. Cruzan upheld a state court decision refusing to allow the family of a patient in a persistent vegetative state to discontinue life-sustaining treatment. Wing argues that these decisions reach far beyond "the abortion issue" or "the right to die." Not only have they narrowed the constitutional protection of individual privacy, but they allow states to regulate activities like abortion in a manner that indicates that the Court is prepared to repeal the notion that individual privacy is entitled to enhanced judicial protection.