A Formal Theory of the Rule of Law*

Abstract
The author presents a relatively formal theory of the rule of law which includes three basic components: conceptual, institutional and axiological. He then emphasizes the differences between a formal and a substantive theory of the rule of law and highlights the advantages and limits of the former. Finally, the author indicates the importance of this type of theory, namely the values it implies such as predictability, justified reliance, autonomous choice, minimization of disputes and legitimacy.**     

Institutional Arrangements and the Dynamics of Agenda Formation in the U.S. Supreme Court and Courts of Appeals

The manner in which agenda change occurs demonstrates how institutional arrangements influence agenda priorities in the Supreme Court and Courts of Appeals. A neo-institutional theoretic perspective is employed to examine the dynamics of agenda formation in these courts. The article finds that the Supreme Court's agenda choices influence the decisions of litigants, interest groups, and lawyers to appeal certain cases to the Courts of Appeals. While the Supreme Court's agenda primarily is influenced by internal factors, it is constrained by agenda changes in the appeals courts. Critically, it is shown that these federal appellate courts exist within an endogenous system with respect to agenda formation, as both courts respond to agenda changes made in the other over time.     

Comprehending life and death matters

Modern capital jurisprudence places special significance on judicial instructions to guide the discretion of the capital jury in reaching a penalty phase decision. Yet, previous social science research has raised doubts about the extent to which judicial instructions are generally understood by jurors and questioned their utility in producing intended effects. The present study measured the comprehension of the capital sentencing instruction employed in California. Data suggest widespread inability to define accurately the central concepts of aggravation and mitigation in use in virtually every state that currently has a death penalty statute, as well as the inability to distinguish properly the sentencing significance of the enumerated factors jurors are directed to use in reaching their life and death verdicts. In addition, an inordinate focus on the circumstances of the crime—to the exclusion of other potentially important factors—was identified, as well as special problems in comprehending the crucial concept of mitigation in constitutionally required ways.We would like to thank Suzanne Ban, Cori Nardello, and Maryanne Tagavilla for assistance in transcribing and content-analyzing the data.     

Symposium: Policy analysis for congress. Policy analysis for congress: Lengthening the time horizon

Policy analysis for the Congress is a timely subject. Several policy initiatives have emerged recently from the “first branch.” Others have demonstrated an independent capacity for analysis that is impressive by historical standards. This article introduces a practitioner symposium of three related works on policy analysis for Congress, with appropriate commentary by a distinguished veteran. It argues that because timing is crucial in the congressional policy process, anticipation and advance preparation are central to the effective use of analysis. The other articles illustrate the stages of advance preparation—of the policy analyst, the congressional environment, and the Member for voting—in the form of case studies.     

Evaluation of a computer-assisted monitoring (CAMO) project: Some measurement issues

This article investigates the effect of Computer Assisted Monitoring of Offenders (CAMO) on probation outcome. In a comparison sample, the effect of CAMO treatment is compared to the effect of “regular” probation. In addition to testing the effects of CAMO as an intermediate treatment, methodological issues, such as level of probation restrictiveness and the effects of prior criminal involvement on probation outcome, are tested. Although the results are mixed, they indicate that level of probation restrictiveness and prior criminal involvement have a greater effect on probation outcome than does CAMO. These findings have ramifications for researchers comparing CAMO probationers to “regular” probationers and for those comparing different CAMO programs. An earlier version of this paper was presented at the Western Social Science Association’s 1992 annual conference.