bluuebunny/crossref_metadata_2025 huggingface dataset:
ADMINISTRATIVE FOXES IN EDUCATIONAL CHICKEN COOPS: An Examination of the Critique of Judicial Activism in School Desegregation Cases
Authors: MONTI DANIEL J.
Published: January 2008

Recent arguments against the use of the courts as a route for fashioning and implementing complex school desegregation plans are evaluated in light of the experiences of one district where the courts and federal government did not assume an active role. The political consequences of nonenforcement are explored as are the methods employed by school officials to maintain their control over educational policy‐making. On the basis of this evidence, the author argues that an assertive judiciary is necessary, if desegregation policies and procedural reforms are to be successfully introduced.
THE SLIPPERY SLOPE: Jury Size and Jury Verdict Requirements—Legal and Social Science Approaches
Authors: GROFMAN BERNARD
Published: January 2008

We review six recent U.S. Supreme Court cases dealing with the constitutionality of decision‐making by juries with fewer than twelve members or operating under verdict requirements less stringent than unanimity. For the issues raised in each of these cases, we contrast the views of Supreme Court justices with data drawn from social science research and from statistical models of group decision processes.
THE DELIVERY OF POLICE SERVICES: An Experiment in Team Policing
Authors: NARDULLI PETER F.
Published: January 2008

This article considers team policing as a method of deploying police manpower and examines the impact of an experiment in one neighborhood in a medium‐sized American city. The first section reviews team policing in light of earlier police reforms and sets forth the basic tenets and expectations of team policing as a deployment strategy. Next the design of the quasi‐experiment is discussed. The program is evaluated in terms of its impact upon a number of criteria, including attitudes toward the police, the evaluation of police services, clearance rates, and crime rates. While no reduction in crime rates was detected, a favorable impact was made in most other areas.
HIDDEN ALLOCATORS: Administrative Law Judges and Regulatory Reform
Authors: MARQUARDT RONALD G. , WHEAT EDWARD M.
Published: January 2008

The 1132 administrative law judges now serving in twenty‐nine of the most important agencies of the national government are among the least understood and least studied authorities in the American political system, yet they are among the most powerful authorities in the modern policy process. ALJs have undergone a repid development from the creation of the office of “hearing examiner” in the Hepburn Act of 1906 to the rpesent djay, when they hear cases cfomparable in importance to those heard by federal district judges. ALHs are selected through a merit procedure almost wholly controlled by the agencies in which they are employed and are subject to constant cross‐pressures from their judicial role and their administrative masters. Perceived problems of biased selection procedures, conflicts of interest, and lack of public accountability have led critics in Congress and elsewhere to propose a variety of marginal reforms. The policy proposal that probably gets to the heart of the problem, however, is the creation of an Administrative Court of the United States.
THE CONSTITUTIONAL STATUS OF WOMEN: The Burger Court and the Sexual Revolution in American Law
Authors: GOLDSTEIN LESLIE FRIEDMAN
Published: January 2008

This article analyzes the revolution in Constitutional Law concerning sex discrimination that has been brought about by the Burger Court. It provides an overview of both the doctrinal changes and the policy changes that have composed this legal revolution. It identifies certain policy areas that have troubled the Burger Court during this process and attempts to explain why some policy problems have proved more intractable than others. It concludes with a modest suggestion for dealing with those problems.
TRIAL COURTS AS ORGANIZATIONS: A Critique and Synthesis
Authors: CLYNCH EDWARD J. , NEUBAUER DAVID W.
Published: January 2008

This article has two purposes: (1) to suggest that the informal workgroup is the most appropriate concept from organization theory to explain both participant behavior occurring in criminal trial courts and trial court outputs; and (2) to use the informal workgroup framework to structure the findings generated by previous studies of trial courts. The informal workgroup proves to be a useful way to account for the disjuncture between the adversarial expectations and regularized individual behavior patterns researchers find in criminal trial courts. Furthermore, this concept provides a vehicle to explain the development of uniformities in output such as a classification of criminals, the categorization of crime, and sentencing yardsticks. The conclusion discusses the implications of the informal workgroup for efforts aimed at court reform.
POLICE PERCEPTIONS OF INFLUENCE: A Study in the Criminal Case Disposition Process
Authors: KERSTETTER WAYNE A.
Published: January 2008

This study examines police perceptions of their own influence and the influence of the judges, attorneys, victims, and defendants in the felony case disposition process. The findings suggest that while police perceive their own influence as relatively low, it is enhanced by their direct participation in plea discussions both in their own view and that of the observers. The study concludes that there appear to be substantial benefits from greater police participation in the negotiated disposition of criminal cases.
LITIGATION, JUDICIAL DEFERENCE, AND POLICY CHANGE
Authors: GAMBITTA RICHARD A.L.
Published: January 2008

Social scientists have reported extensively on the impact of Supreme Court decisions overturning public policy, but not on those sustaining it. This article stresses the need to study the impact of litigation, including the impact of losing lawsuits. Presenting data on the impact of San Antonio Independent School District v. Rodriguez, the article demonstrates how a losing lawsuit can produce positive policy change from the consumer's perspective. After comparing the policy aftermath of Rodriguez with that of two winning school‐finance cases, I suggest that the final judicial decision may not be the most significant event in litigation stimulating policy change.
PARENS PA TRIAE: Poltergeist of Mental Health Law
Authors: BARTOL CURT R.
Published: January 2008

This article examines the uncanny resiliency of an ancient doctrine called parens patriae despite legislative and judicial attempts to restrict its use in involuntary commitment proceedings of the mentally ill. Attempts by the legislature and courts to reduce parens patriae rationales, which are heavily promoted by the medical profession, have emphasized police power rationales and have followed two general strategies. One strategy sets up a number of procedural steps that provide monitoring of individual rights at critical junctures during the commitment process. The second strategy attempts to establish multiple criteria that must be met before any commitment decision can by made. It is pointed out that legislatures, and to some extent the courts, have focused on the procedural strategy, while neglecting the more substantive issue of behavioral criteria. It is argued that the lack of attention to the second strategy, specifically in relation to clear definitions and rigorous criteria, have created the impetus for the medical‐psychiatric profession to continue its dominance in involuntary commitment proceedings under the guise of parens patriae.
SUPREME COURT OPINIONS: Getting the Message
Authors: ULMER S. SIDNEY
Published: January 2008

The true significance of policy articulations by appellate courts lies in the behavioral responses of relevant parties below. Actions consistent with the intent of appellate sources is dependant on effective communication between message source and message recipient. Limiting focus to the U.S. Supreme Court as an appellate source, two measures of effective communications are developed. These measures incorporate two dimensions of comprehension difficulty: message structure and the familiarity of the reader with constitutional language. The article also suggests 13 hypotheses pertaining to relative communicative success or failure, several of which are tested briefly.
INDIVIDUAL DECISIONAL CONSISTENCY ACROSS COLLEGIAL COURTS
Authors: NICHOLLS WILLIAM W.
Published: January 2008

This article examines the decisional consistency of U.S. Supreme Court justices with lower collegial court experience in a twofold effort to expose the potential policy implications of consistent or inconsistent behavior and to show the value of longitudinal analysis of individual rather than aggregate decisional patterns. The results show a fairly high level of consistent behavior but with marked differences across the case subjects. The article concludes with an assessment of the implications for justice selection processes and Supreme Court decision‐making theory.
LAWYERS‘ STRATEGIES AND DIVERSITY JURISDICTION
Authors: PERLSTEIN JOLANTA JUSZKIEWICZ
Published: January 2008

There has been a long‐standing debate concerning the status of diversity jurisdiction. Its champions wish to retain the availability of choice for attorneys, while others argue that perhaps the traditional justification is no longer valid and therefore the need for diversity jurisdiction is reduced. This research attempts to determine whether the traditional justification for diversity jurisdiction is still valid, and whether other factors motivate attorneys' choice of forum. An experimental design was employed to ascertain which of several factors including local bias, delay, availability of modem rules of procedure, and quality of state judges had an effect on an attorney's choice of forum in diversity cases.
CRIMES, DISORDERS, AND THE DEMAND FOR HANDGUNS: An Empirical Analysis
Authors: CLOTFELTER CHARLES T.
Published: January 2008

In a recent paper, Bordua and Lizotte (1979) analyze determinants of firearm ownership using cross‐sectional data for Illinois counties. Noting that firearms may be purchased for the purpose of sport, self‐protection, or crime, they present clear evidence of sporting demand and limited evidence of defensive motives in the pattern of gun ownership. Crime rates are significant only in the equation explaining gun ownership by women (1979: 161). The purpose of the present article is to supplement the findings of Bordua and Lizotte and earlier empirical studies by focusing on the demand for handguns alone. In particular, the article analyzes the role of crime rates and fear of violence in motivating citizens to buy and keep handguns. For this purpose, aggregate time‐series and cross‐sectional data on handgun sales were collected and analyzed. Because handguns are durable pieces of equipment, it is necessary to use a model that distinguishes the stock of handguns at any one time from the rate of handgun purchases.
THE IMPACT OF REAPPORTIONMENT ON POLICY EXPENDITURES: A Quasi‐Experimental Time‐Series Analysis
Authors: HARDY RICHARD J. , NEWCOMER KATHRYN E.
Published: January 2008

While there is little question that court‐ordered reapportionment has changed the composition of state legislative personnel, it is still unclear whether reapportionment has had any significant impact on public policies. Evidence to date has been both contradictory and methodologically suspect. Using time‐series regression in a quasi‐experimental design, we examine the effects of reapportionment on expenditures in three policy areas within eight states—four control (states well apportioned before 1964) and four experimental (states egregiously malapportioned before 1964). Contrary to recent time‐series analyses on this topic, we find that the implementation of the “one man, one vote” ruling had little significant effect on the distribution of state expenditures believed beneficial to urban interests.
WEBER AND THE LIMITS OF JUDICIAL POLICY‐MAKING
Authors: ROSSUM RALPH A.
Published: January 2008

In United Steelworkers of America v. Weber (1979), the U. S. Supreme Court engaged in one of the most blatant examples of judicial policymaking to date. This paper explores Weber (and, to a lesser degree, the other major cases that have addressed the question of ameliorative racial preference), and argues that the very attributes of the adjudicative process that make the courts so well‐suited for the resolution of particular controversies and grievances also render them most ill‐suited for general policy‐making.
JUDICIALIZED PROCEDURES IN REGULATORY POLICY IMPLEMENTATION
Authors: ETHRIDGE III MARCUS E.
Published: January 2008

The effect of changes in formal administrative procedure on policy implementation is a subject of considerable controversy. It has been traditionally argued that requiring elaborate, “judicialized” procedures for administrative adjudication contributes to sluggish, ineffective regulation. However, the continued strength of the public advocacy movement suggests that such procedures may be used by pro‐regulatory forces to instigate more vigorous regulation by agencies. This article addresses the issue through a comparative state analysis. Using environmental policy as a context for study, the association between the judicialization of procedure and the aggressiveness of regulation is measured.
INVESTIGATING THE NORMATIVE ASPECTS OF PUBLIC POLICY
Authors: HARMAN JOHN D.
Published: January 2008

This article challenges the idea that political philosophy must be of peripheral concern in the study of public policy through an exploration of the concept of harm and the debate over aggressive police patrol. This exploration begins with a brief discussion of the ways the concept of harm figures in the justification and administration of police work. It proceeds through an exposition of differing ways the concept of harm can be defined, the normative overtones of these varying definitions, and some of their policy ramifications with regard to police work. Finally, the way conceptual variation figures in policy debate is explored in the context of the debate over aggressive police patrol—the policy of maximizing the surveillance and criminal interception aspects of police activity as a patrol strategy.
EVALUATING THE COOK COUNTY SENTENCING GUIDELINES
Authors: HEWITT JOHN D. , REGOLI ROBERT M. , CLEAR TODD R.
Published: January 2008

This article examines the empirical basis for current criminal sentencing guidelines being used in Cook County, Illinois. Unlike in many other sentencing reforms, guidelines have generally been developed out of an empirical analysis of past sentencing decisions through the identification of variables most predictive of sentence. However, when the statistical analysis is inadequate or faulty, the resultant sentencing guidelines must be questioned. Presented is a reanalysis of the original data used to develop Cook County's sentencing guidelines. Generally, the current sentencing guidelines used in Cook County are not found to be predictive of sentence. Implications of this finding are discussed.
IMPLEMENTING SERRANO
Authors: CROWLEY DONALD W.
Published: January 2008

In Serrano v. Priest the California Supreme Court held the state's method of financing public schools unconstitutional because educational expenditures were dependent on district wealth. This article traces the court's ability to structure the implementation of this policy. Although the court succeeded in placing the issue on the agenda, the events since the decision illustrate the difficulties courts encounter when they require action from a legislature. In Serrano, the “polycentric” nature of the problem, the difficulties of obtaining legislative action on a redistribute policy, and the effect of intervening economic forces have served to keep the Serrano principle from being realized fully.
PRISON BEHAVIOR AND RELEASE PERFORMANCE
Authors: GOTTFREDSON MICHAEL R. , ADAMS KENNETH
Published: January 2008

It is argued widely that an inmate's behavior while in prison is not related to his or her behavior after release. This putative lack of a relation is a point set forth in debates about discretionary release from prison by parole boards. This article reviews the empirical status of the prison behavior and release performance controversy and offers new data from the federal jurisdiction. The results indicate that there is some relation between officially recorded institutional infractions and post‐release infractions, once controls for a priori risk are established. The fact that some post‐sentencing information may be related to behavior after prison raises difficult policy issues that are not addressed by the common assertion of no relationship. Among these issues are the propriety and fairness of predictive judgments per se, the proper locus of authority for release decision making, and alternative uses of predictive information in corrections. The findings here suggest that more intensive study of the relation between prison behavior and release performance is required.
REMEDIES UNDER CONTRACT LAW: Designing Rules to Facilitate Out‐of‐Court Settlements
Authors: HARRIS D. R. , VELJANOVSKI CENTO G.
Published: January 2008

The law of contract is analyzed in economic terms, focusing on the influence of formal rules in contract disputes. An argument is presented for the utility of designing rules with an understanding of their impact on the relative regulating strength of the parties seeking to bargain out of court. Several reasons are identified for suggesting that unless designed for such out‐of‐court negotiations formal rules need to be different from those suitable for the resolution of contract disputes in the courts.
SOCIAL SCIENCE AND SAGECRAFT IN THE DEBATE OVER GUN CONTROL
Authors: TONSO WILLIAM R.
Published: January 2008

This article is not about the gun control issue per se; instead, it considers the way in which this issue has been treated by social scientists. The article points to some of the shortcomings in what is commonly referred to as the conventional social scientific approach to controversial social matters. While the subject examined in the article is gun control, other equally controversial issues, such as school busing or the legalization of marijuana, could have been used as well to make the same points.

Using the gun control issue as a case in point, this article has argued that the conventional social scientific treatment of controversial social phenomena often has much more in common with sagecraft than it does with social science. The social scientific treatment of the gun issue passed on to the general public through magazine articles, the published findings of various social‐science‐assisted commissions, and social science textbooks, is generally identical to the pro‐gun control argument accepted by that segment of American society with which the more prominent social scientists are more likely to identify—namely urban, college educated, philosophically and politically liberal, upper‐middle class, or cosmopolitan America. It would appear that cosmopolitan ethnocentrism and the sage orientation that it fosters do little to encourage the intellectual curiosity and skepticism so vital to the social scientific enterprise.
ADVERSARY POLLING AND THE CONSTRUCTION OF SOCIAL MEANING: Implications in Gun Control Elections in Massachusetts and California
Authors: BORDUA DAVID J.
Published: January 2008

Opinion survey data have been used to assert that the public's desire for serious gun control has been blocked by the “gun lobby.” This construction is opposed by a survey‐based counter construction developed by the gun lobby. The superiority of the gun lobby's construction is supported by this article's survey data and by analysis of actual elections in 1976 in Massachusetts and in 1982 in California. What blocks the public from getting strict gun control is that the public does not want it.
GUN CONTROL LEGISLATION: Impact and Ideology
Authors: DeZEE MATTHEW R.
Published: January 2008

This analysis attempts to measure the impact of state laws upon the rates of gun violence. While controlling for several standard social phenomena and using two different statistical techniques, it appears that laws governing the use of handguns in the various states have little effect on the rates of gun crime. It is suggested that the possible reason for such ineffectiveness is not necessasrily the nature of the solutions (laws), but rather the misunderstanding of the problem (gun violence) by policy implementers.
SUPPORT FOR THE SUPREME COURT AS A NATIONAL POLICYMAKER
Authors: ADAMANY DAVID , GROSSMAN JOEL B.
Published: January 2008

The most frequent explanations for the endurance of the Supreme Court's policies and of its power as a national policymaker assume public reverence for the Court, widespread support for it as an institution, or broad‐based agreement with its policies. Public opinion studies refute most of these assumptions. Our research confirms those studies and shows, in addition, that the Court cannot claim strong support among occasional political activists. It does, however, have a strong constituency among liberal activists and liberal position‐holders. We hypothesize, therefore, that the Court's endurance as a national policymaker is explained by special support from one wing of the dominant party coalition that, because of its strategic location in the complex national policy process, is able to obstruct broadly‐based attacks on the Court's authority and policy. Such attacks gain force, however, when critical elections alter the dominant party coalition and therefore weaken the hold of the Court's ideological allies. Yet even then—or at least so far—the Court and its policies have prevailed against various court curbing efforts.
Alcohol‐Impaired Driving in Norway and Sweden: Another Look at “The Scandinavian Myth”
Authors: SNORTUM JOHN R.
Published: January 2008

Ross's (1975) assessment of the Scandinavian drinking‐and‐driving laws was a pivotal paper in the international literature because, in many ways, Norway and Sweden offer a critical test of the “tough approach” to deterring alcohol‐ impaired drivers. The present review raises some methodological and philosophical questions about Ross's approach to the Scandinavian data and examines four types of indirect evidence for deterrence in Norway and Sweden. While no conclusive evidence for deterrence could be identified, there was internal consistency in the pattern of circumstantial evidence pointing to a workable system of external restraints and internal controls in Scandinavia; and this pattern of evidence contrasted sharply with that obtained in the U.S.
The Deterrent Effects of Automobile Insurance and Tort Law: A Survey of the Empirical Literature
Authors: BRUCE CHRISTOPHER J.
Published: January 2008

One of the central issues in the debate concerning no‐fault insurance is the question of whether tort damages can deter accidents. Although a large, scientific literature exists which could cast light on this question, the participants in the debate have made little reference to that literature. In an attempt to rectify this omission, the following paper surveys a large segment of the statistical results, and comments on the implications which those results have for the no‐ fault debate.
Testing Peltzman's Theory of Driver Intensity
Authors: KELLEY HUBERT
Published: January 2008

The 1966 National Traffic and Motor Vehicle Safety Act empowers the federal government to set motor vehicle safety performance standards. By passing the Act, Congress intended to lower the motor vehicle crash and death rates.

Sam Peltzman has since challenged the assumption that safer cars lead to fewer crash‐related deaths. His theory is that safer cars instill a feeling of protection in motorists that encourages them to drive more recklessly than in unsafe cars. Peltzman has devised a regression equation that predicts what the motor vehicle death rate would be without auto safety regulation. According to it, the total motor vehicle death rate without regulation is not much different from what we have experienced with regulation. Thus Peltzman concludes the auto safety regulation was ineffective.

But Peltzman's equation should not be looked upon as absolute. Other predictive equations of statistical quality equal to Peltzman's model contradict its findings. A series of regressions constructed solely on the basis of maximizing statistical quality with no underlying theory consistently predicts a higher motor vehicle death rate without auto safety regulation than with it. Thus Peltzman's theory lacks the statistical foundation he claims for it.
Suing the Philadelphia Police: The Case for an Institutional Approach
Authors: Anechiarico Frank
Published: January 2008

Note: The comments of Alan Snyder, Eugene Lewis and the Editor and anonymous reviewers of Law and Policy are gratefully acknowledged.

This article examines the merits of two alternative briefs in Equal Protection litigation on police misconduct. The several suits brought against the Philadelphia Police Department illustrate the shortcomings of the judicially preferred intentionality brief and indicate the need for a more completely specified institutional brief. The background of the two briefs is traced to a dialectical conflict between discretion and control in the idea of law enforcement.

The use of force is not a philosophical issue for a policeman. It is not a question of should or whether, but when and how much (Rubinstein 1973:323).
Mapping Difficult Terrain: “Legal Culture,”“Legal Consciousness,” and Other Hazards for the Intrepid Explorer
Authors: ENGEL DAVID M. , YNGVESSON BARBARA
Published: January 2008

By this time Gertrude Stein was in a sad state of indecision and worry. I sat next to her and she said to me early in the afternoon, what is the answer? I was silent. In that case, she said, what is the question? Then the whole afternoon was troubled, confused and very uncertain. … (Toklas, 1963: 173)
The Influence of Citizen Satisfaction with Police Behavior Upon Public Support for Increases in Police Authority
Authors: TYLER TOM R.
Published: January 2008

This study examines the influence of citizen satisfaction with police behavior in citizen‐police encounters upon citizen support for increases in the authority granted to the police. The results suggest that satisfaction has no influence upon support for increases in police authority. Instead, views about police authority are related to political/social values.
Aggressive Patrol: A Search for Side‐effects
Authors: WHITAKER GORDON P. , PHILLIPS CHARLES DAVID , WORDEN ALISSA P.
Published: January 2008

Recent interest in the possible deterrent effects of aggressive or proactive policing raises the issue of such strategies' consequences for individual liberties and police‐community relations. This study examines the latter—specifically, the effects of four neighborhood‐level measures of an aggressive patrol style on citizens' evaluations of police and citizens' propensities to report crimes. The results suggest that, for most citizens, aggressive patrol has almost no effect on either evaluations or reporting behavior. Surprisingly, one form of proactive patrol, the neighborhood rate of suspicion stops, seems to have a positive effect on the evaluations of police made by young black men.
REGULATION, RISK ASSESSMENT, AND THE SUPREME COURT: THE CASE OF OSHA'S CANCER POLICY
Authors: MATHENY ALBERT R. , WILLIAMS BRUCE A.
Published: January 2008

As a case study of policy distortion in the legal and regulatory processes, this article first establishes the incongruities among the political, scientific, and legal issues surrounding OSHA's Cancer Policy and then examines the political consequences of ignoring these incongruities in judicial and administrative decisions about that policy. By delineating the political, scientific, and legal issues involved, we develop a basis for assessing the Supreme Court's difficulties in reviewing the Cancer Policy. These difficulties are related to the issue of regulatory reform, as indicated by the subsequent fate of OSHA's Cancer Policy under the Reagan administration. This article concludes with reflections upon regulatory reform in the light of the current status of OSHA's regulation of workplace carcinogens.
Law Centres, Citizenship, and Participation
Authors: STEPHENS MIKE
Published: January 2008

It's difficult to redirect things once we'd started up as a casework agency. It's difficult to keep casework under control. Cases can only be related to one another; if you justify taking on one case, it's difficult to avoid taking on similar cases. There is still not sufficient priority given to educational and community work. This is so because of the demands of [individual] casework … It's difficult to change approach from casework to educational and community work. (Lawyer at the Urban Community Law Centre)

From the beginning we have attempted to do work with people rather than for them. This has meant that wherever possible we have brought people with similar problems together so that they learn how to cope with different establishment bodies … more important, they realize they can exercise control over their own lives. Whether we help an individual deal with his or her own personal problem, or help a group of people get to grips with whatever is oppressing them, our main aim is to inculcate a practical philosophy of self‐reliance. (Statement of aims of the Northern Neighbourhood Law Centre1)
The “Totality of Circumstances Test” in Section 2 of the 1982 Extension of the Voting Rights Act: A Social Science Perspective*
Authors: GROFMAN BERNARD , MIGALSKI MICHAEL , NOVIELLO NICHOLAS
Published: January 2008

We discuss uses of social science definitions and research methods in judging compliance with the recently modified language of Section 2 of the Voting Rights Act. That Act now specifies a “totality of circumstances” effects lest for the existence of racial vote dilution. There are seven “typical” factors listed by the Senate Committee on the Judiciary in its report on the 1982 Voting Rights extension as among those which may be used to establish a Section 2 violation. Because of the nature of these factors, extensive (and often conflicting) testimony by social scientists has now become an inescapable feature of Section 2 litigation. We focus particular attention on one of the seven factors, racially polarized voting, because measurement of it is, as judged by recent litigation, the most controversial, the most complex, and the most important. We also discuss at some length another factor, racial campaign appeals, which also raises issues of appropriate definition and measurement. The aim of this paper is to contribute to a standardization of terminology and operationalization in an important public policy area, and to show how social science methodology can assist legal fact‐finding.
Legal Needs of The Poor: Problems, Priorities and Attitudes*
Authors: MEEKER JAMES W. , DOMBRINK JOHN , SCHUMANN EDWARD
Published: January 2008

The Legal Services Corporation is faced with the problem of allocating limited resources in order to meet the legal needs of the poor. It is forced into the dilemma of setting priorities, creating workable regulations to meet an ambiguously defined and elusive concept of legal need. Recently enacted regulations require annual reports by legal services programs that are based, in part, on the assessment of eligible clients' needs as expressed by their attitudes. These regulations are premised on unarticulated implicit assumptions relating attitudes, problems experienced, and legal need. This study examines these assumptions in an analysis of perceived problems, help seeking behavior, attitudes toward the allocation of legal services resources, and how these have changed over time for the eligible client population of one legal service program in California.
A Court Quietly Rewrote the Federal Pesticide Statute: How Prevalent is Judicial Statutory Revision?
Authors: MACINTYRE ANGUS
Published: January 2008

Author's Note: My thanks to Lloyd Musolf, Paul Sabatier, Martin Shapiro, John M. Thomas and three anonymous reviewers for helpful comments on an earlier draft. I also acknowledge the generous support of the Energy and Environmental Policy Research Program at the Institute of Ecology, University of California at Davis.

The resurgence in policymaking by American courts has revitalized the longstanding debate over judicial activism. Yet much of that debate addresses judicial interpretations of the Constitution, as distinct from statutory law. When interpreting vague statutes, judges can make inconspicuous but fundamental policy reforms. This paper discusses the political circumstances encouraging this form of judicial intervention. The enormous subtlety in judicial capabilities is illustrated. The paper concludes that by focusing primarily on obvious features of court activism, the contemporary debate may be seriously under representing the extent of judicial contributions to our fragmented form of governance.
Comparing Justice and Labor Department Lawyers: Ten Years of Occupational Safety and Health Litigation
Authors: OLSON SUSAN M.
Published: January 2008

Federal regulatory programs are strongly influenced by the outcome of litigation seeking to challenge or to enforce those programs. Competition exists between the Department of Justice and numerous federal agencies for control of that litigation. This article proposes several measures for comparing litigation conducted by the Justice Department with that done by the agency whose program is being‐litigated. It then uses case data to compare the Justice Department's and the Labor Department's handling of litigation under the Occupational Safety and Health Act from 1972 through 1980. The findings show relatively little difference attributable to the identity of the litigator in the types or numbers of cases brought, the appeal rates, or the success rates. This suggests that further research, including other measures of difference, are needed to discern whether who controls the litigation matters as much as theory predicts it might and the lawyers involved believe it does.
Procedural Rationality and Regulatory Decision‐Making: A Decision Framework Approach
Authors: TUOHY CAROLYN J.
Published: January 2008

This paper presents the methodology and some preliminary findings from an ongoing study of the procedural rationality of regulatory decisionmaking in the occupational health arena. The author employs the concept of procedural rationality in the sense used by Herbert Simon to refer to the logic of decision‐making as it is shaped by institutional constraints. Of particular interest here is the impact of provisions for the involvement of affected interests in and public scrutiny of the regulatory process. The methodology presented involves a charting of the “decision frameworks” adopted by participants in the process at various stages. The methodology is illustrated through its application to the particular case of the development of a regulation governing occupational exposure to inorganic lead in the Canadian province of Ontario.
Citations to Authority in Supreme Court Opinions
Authors: JOHNSON CHARLES A.
Published: January 2008

This article analyzes citations used by the U.S. Supreme Court in its majority opinions. The research explores variations in citations and evaluates various explanations for these variations, including the potential impact of individual judicial style, legal factors, and group interaction in the formation of opinions. The article suggests that systematic analysis of citations holds potential for contributing to our understanding of the judicial process.
Elements of the Defense Attorney's Craft: An Adaptive Expectations Model of the Preliminary Hearing Decision
Authors: FLEMMING ROY B.
Published: January 2008

The way criminal defense attorneys handle cases prior to final disposition is a subject that has gone largely unexplored by researchers. This study focuses on the decisions of attorneys to waive preliminary examinations in nine felony courts. Employing both interviews and case‐level data, analysis of this decision emphasizes the adaptive behavior of attorneys to local court policies, client concerns, tactical issues, and time pressures. Underlying the specific rules of choice guiding this decision are more fundamental concerns of attorneys regarding efficiency, professionalism, and the minimization of later regrets associated with waiving preliminary hearings.
Assessing the Consequences of Corporate Discretion on Regulatory Compliance: The Case of Motor Vehicle Safety in Canada
Authors: TOBIN RICHARD J. , FITZGERALD ROY
Published: January 2008

What are the consequences of discretion when government shares the responsibility for regulatory compliance with the industry subject to regulation? Do differing underlying goals affect implementation? This article examines the implementation of Canada's Motor Vehicle Safety Act for fiscal years 1974–75 to 1981–82. Since the law creates opportunities for the exercise of discretion and those responsible for implementation (government versus industry) do not share the same underlying goals, one can expect that who implements the act will be of considerable importance. The data suggest that when incentives for compliance differ, discretion creates the opportunity for substantially different outcomes. Notable differences exist in the characteristics of recalls that manufacturers initiated and those that Transport Canada influenced.
Gun Availability and Robbery Rates: A Panel Study of Large U.S. Cities, 1974–1978
Authors: MCDOWALL DAVID
Published: January 2008

This paper examines the hypothesis that crime rates and the availability of firearms form a “vicious circle,” so that increases in one lead to increases in the other. Two waves of panel data are used to estimate the relationship between rates of robbery and the relative availability of guns in a sample of large U.S. cities. The results indicate that total robbery rates and gun availability had no influence on each other, but that weapons choice in robbery and gun availability did form a mutually reinforcing cycle. Some implications of these findings are considered.
Means Discrimination: An Investigation into the Ideology of Constitutional Equality
Authors: BRIGHAM JOHN
Published: January 2008

Constitutional “equal protection” has a technical meaning that orients legal thinking. Its roots are in Plessy v. Ferguson (1896) and the relationship between separation of the races in schools, theaters, and other public places and the guarantee of material or physical equality. Brown v. The Board of Education (1954), in eliminating separation from constitutional protection also eliminated the constitutional promise of material equality.

The approach to this ideology turns away from outcomes in order to get to the meanings, standards and conceptual parameters that influence the application of constitutional discourse to discrimination against those with inadequate means.
Free Trade: Problematic Theory and Anachronistic Faith
Authors: ALBERT LEE A.
Published: January 2008

Despite disruptive and costly impacts of imports, the U.S. maintains adherence to an ideal of free trade as the goal of trade policy. This article questions that axiomatic preference in arguing that goods from low‐wage and non‐market economies pose significant trade policy issues.

It sets forth the costly effects of such imports on workers and producers and asks whether trade benefits are commensurate. It addresses the fairness of competition between American and non‐market producers as well as the viability of U. S. fair trade safeguards.

The article ultimately observes that there is a basic conflict of interest between comparatively less developed low‐wage countries and high‐cost, high‐employment nations and that free trade theory does not produce an acceptable resolution of this conflict. At stake for the U.S. is its standard of living and its social values as well. Management of trade thus is not a vestige but an essential part of this nation's commitments.
In Search of Legitimacy: Toward An Empirical Analysis
Authors: McEWEN CRAIG A. , MAIMAN RICHARD J.
Published: January 2008

Legitimacy is a much used concept in the social sciences. However, the absence of precise operational meaning has prompted questions about its utility as an explanation of compliance with social norms. Most recently, Alan Hyde has argued that legitimacy cannot be disentangled from other explanations of compliance such as coercion and self‐interest and should, therefore, be abandoned. However, institutional, attitudinal, and behavioral dimensions of legitimacy can be operationalized. As part of our research on small claims courts we examined variations in institutional processes and legitimacy, gathered data on levels of voluntary compliance, and questioned defendants about their reasons for paying claims against them. We conclude that institutional legitimacy is related to voluntary compliance, and that the “language of obligation” is an important part of normal discourse. Operational meanings for legitimacy are available and empirical research about legitimacy should be a prominent part of the social science research agenda.
Reforming Public Safety: An Evaluation of the 1983 British Seat Belt Law
Authors: LEGGE JEROME S.
Published: January 2008

The purpose of this paper is to analyze the impact of the 1983 British seat belt law in England and Wales. The methodology employed is interrupted time series analysis.

In terms of a lasting impact, the seat belt legislation for automobiles compares favorably with other interventions designed to decrease deaths and injuries on the road, such as legislation to control drinking and driving. Typically, such legislation is effective only in the short term. In contrast, the seat belt law thus far shows a stronger and more lasting shift in the reduction of serious and fatal car casualties. The post intervention decline in this variable is stronger than a control series that consists of the number of fatal and serious non‐car casualties. A more marginal reduction is found for non‐serious car casualties even though this drop in injuries is slightly stronger than a control category of nonserious non‐car casualties. The paper suggests also that the seat belt legislation may have had a short term effect on the number of fatal and serious accidents on weekend nights, the period of time during which alcohol‐related crashes are most likely to occur.

The policy implications of this study suggest that with comparable compliance, such an intervention may similarly be effective in the United States and other Western countries which up to now have used primarily deterrence‐based approaches to reduce highway casualties.
The Imperial Judiciary Meets the Impotent Congress?
Authors: O'NEILL TIMOTHY J.
Published: January 2008

The continuing debate over an activist judiciary frequently overlooks the issue whether majoritarian institutions such as Congress can be the principal policy makers for a democracy as well as whether they ought to be. An explicit comparison of the institutional capacities of the Congress and federal courts on abortion funding suggests that Congress is capable of developing representative, responsible, and educative policies. However, a retreat by the “Imperial Judiciary” from an activist posture would not necessarily transfer power from the courts to the Congress but from the courts to unelected bureaucracies within the Congress and the Presidency.
Perceptions About the Poor, Their Legal Needs, and Legal Services*
Authors: MEEKER JAMES W. , DOMBRINK JOHN , SONG JOHN
Published: January 2008

The Legal Services Corporation is faced with the problem of allocating limited resources in order to meet the legal needs of the poor. It is forced into the dilemma of setting priorities, creating workable regulations to meet an ambiguously defined and elusive concept of legal need. Current regulations require annual reports by legal services programs that are based, in part, on the assessment of eligible clients' needs as expressed by the attitudes of clients, the private bar and other interested persons. These regulations are premised on implicit assumptions relating attitudes, problems experience, legal need, and the relevancy of nonclient perceptions. This study examines these assumptions in an analysis of perceived problems, attitudes toward the allocation of legal services resources, and how these differ between the eligible client community, the private bar and public agencies in a community served by one legal service program in California.
The Timing of Justice in Felony Trial Courts*
Authors: FLEMMING ROY B. , NARDULLI PETER F. , EISENSTEIN JAMES
Published: January 2008

Criminal court delay raises serious political and policy concerns. Analysis of the problem, however, is hobbled by the absence of theory and a lack of comparative, multivariate research that includes both micro‐level and contextual factors. This article draws on data from nine circuit‐level courts to develop an empirical model combining these factors. The results raise new questions about future research designs in this area and about the need to recognize policy trade‐offs in the formulation of reforms.
Case Processing Times in Three Courts
Authors: LUSKIN MARY LEE , LUSKIN ROBERT C.
Published: January 2008

The time it takes a court to process its cases, a critical aspect of court performance, varies widely from case to case, from court to court, and within a given court as the court and its environment change over time. The sources of this variation, however, have remained largely obscure.

This paper examines the structural and case‐level influences on processing times in three criminal courts experiencing structural changes, including a number of administrative reforms designed to reduce processing times. We find both similarities and differences between courts, but in general both many structural arrangements and many case characteristics affect processing times, with some case characteristics having different effects under different structural arrangements, and some structural arrangements affecting different sorts of cases differently. We conclude with a discussion of implications for court management.
An Enforcement Taxonomy of Regulatory Agencies
Authors: BRAITHWAITE JOHN , WALKER JOHN , GRABOSKY PETER
Published: January 2008

A variety of multivariate techniques were used to develop a taxonomy of regulatory agencies from the first comprehensive study of the disparate enforcement strategies employed by business regulatory agencies in one country. Seven types of agencies were identified: Conciliators, Benign Big Guns, Diagnostic Inspectorates, Detached Token Enforcers, Detached Modest Enforcers, Token Enforcers and Modest Enforcers. Agencies were distinguished primarily according to their orientation to enforcement versus persuasion, according to their commitment to detached (or arms length) command and control regulation versus cooperative fostering of self‐regulation, and according to their attachment to universalistic rulebook regulation versus particularistic regulation. Nevertheless, it is not unreasonable to view regulatory agencies as lying on a single continuum from particularistic non‐enforcers who engage in cooperative fostering of self‐regulation to rulebook enforcers whose policy is detached command and control. This approximates the suggestions of Hawkins and Reiss for distinguishing regulatory agencies according to a “sanctioning/deterrence” versus “compliance” dimension. The predominant regulatory style in Australia, however, is distant from both poles, being a perfunctory regulatory approach which is neither distinctively diagnostic and educative nor litigiously “going by the book”; rather it amounts to “going through the motions”. The typology also partially conforms to Black's categorisation of social control as penal, therapeutic, conciliatory and compensatory.