Downloadable papers from today's workshops:
Chicago Crime & Punishment Workshop, Tom Tyler, Legitimacy and cooperation: Why do people help the police fight crime in their communities? Here is a taste:
Past research indicates that legitimacy encourages compliance with the law. This study extends consideration of the influence of legitimacy by exploring its impact on cooperation with the police and with neighbors to combat crime in one’s community. It uses a panel study design, and focuses upon the residents of New York City. The study finds that legitimacy shapes cooperation with the police and has a lesser influence on cooperation with others in the community. Consistent with the findings of prior research, legitimacy itself is found to be linked to the justice of the procedures used by the police to exercise their authority. Finally, the study explores the influence of personal experience with the police on legitimacy and cooperation. Results suggest that experiencing procedural justice during a personal experience increases legitimacy, irrespective of the favorability of the outcome. These results suggest that, even when they are delivering negative outcomes, the police can enhance their legitimacy by using fair procedures.
USC, Pamela Karlan, Stanford, “The Law of Small Numbers: Carhart v. Gonzales, Parents Involved in Community Schools, and Some Themes from the First Term of the Roberts Court.” Here is a taste:
During October Term 2006, the Supreme Court of the United States decided fewer cases than during any Term since the end of the Civil War.1 A full third of the cases were decided by a 5-4 vote, the highest proportion in more than a decade.2 And in all those 5-4 decisions, Justice Anthony Kennedy was in the majority.3
One version of the law of small numbers tells us to be wary of attempts to generalize about a sequence from the first few items. Thus, it would be risky to predict where the Roberts Court will go on the basis of only a Term and a half’s worth of decisions.
But although there have not yet been a lot of decisions from the Roberts Court, the decisions we do have suggest an eagerness to revisit doctrines across the legal spectrum.Willamette, Elizabeth Glazer, Hofstra, When Obscenity Discriminates. Here is the abstract:
When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine's infliction of first generation, or status discrimination against sexual minorities by conflating “sex” - and the prurient representation of sex that constitutes obscenity - and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or “cover” traits constitutive of their group identities. However, some groups, particularly those in civil rights law's “second wave” - sexual minorities, women, the elderly, and the disabled - continue to suffer first generation discrimination harms. This Article bridges first amendment and anti-discrimination literatures, which until now have not come together to address a harm that falls within their individual, and collective, jurisdictions. Moreover, and perhaps more importantly, the Article addresses a pervasive harm that courts will likely not have the opportunity to resolve. Because their representation is classified as obscenity, and therefore unprotected speech for first amendment purposes, sexual minorities are effectively barred by obscenity doctrine from bringing suit to assert their first amendment rights.
Virginia, Jim Gibson, Richmond, Unreasonable Care. Here is the abstract:
This paper examines “doctrinal feedback” in negligence law, and specifically in medical malpractice. Doctrinal feedback is an organic, reiterative process that causes inadvertent and inadvisable changes in both law and practice. It occurs when: (1) the ambiguity of the applicable legal standard prompts those it governs to behave overcautiously, so as to avoid the gray areas of liability; (2) the legal standard incorporates that increased level of caution as the new norm, and (3) the cycle starts again, with a new iteration of overcompliance based on the new, heightened standard.
I argue that this feedback effect is present in medical malpractice. First, physicians living in the shadow of negligence law’s “reasonable care” standard routinely provide more care than the standard demands. Next, as that extra level of care becomes customary, it also becomes part of the reasonable care standard. Finally, overcautious physicians then provide even more care, so as to steer clear of the new standard. The bulk of the paper explores the evidence for this phenomenon, and then I briefly examine the potential for similar feedback in other fields of law.Texas, Laura Gomez, New Mexico, Manifest Destiny’s Legacy: Race in America at the Turn of the 20th Century. Here is a taste:
This chapter elaborates on the three central themes of this book as they relate to the national scene: (1) the centrality of colonialism in constituting Mexican Americans as a racial group; (2) the important links between the experience of Mexican Americans and the broader patterns of racial formation and racial ideology in the United States; and (3) the crucial role of law in the social construction of race.
