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Today’s Lecture:
Sociological Jurisprudence
1. More Examples
2. Its Failure
3. Why it failed
Lecture Organization:
• Class Announcements
• Summarizing Brown and the New Jurisprudence
• Other Examples of Sociological Jurisprudence
• The Decline of Sociological Jurisprudence
• Brown v. Board of Education
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Class Announcements
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Riggs v. Palmer
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Questions?
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Summarizing Brown and
the New Jurisprudence
Sociological Jurisprudence
Progressive Determinism
Classical Determinism
1. Judging has correct
answers
1. Judging has one
right answer
2. But the answers are
probabilistic in nature
2. Certainly known
3.
Self-contained logic
3. Found through empirical
social science
“hard science”
Soft science, “growth science”
Immutable, timeresistant
Knowledge cumulates, grows,
changes
(1881 -1935)
Holmes
(1900 -1935)
The Realists
Sociological
Jurisprudence
Summarizing Brown and
the New Jurisprudence
The logic of Brown
-- We had said last time that the logic of the Brown decision
had followed progressive determinism
Meet the New Boss
1. The Law says that everyone gets equal protection
True!
Legal Starting point
2. Education is important
True!
Factual A priori
3. segregation causes psychological injury
Key Empirical Premise!
How does the judge
know if this is true??
Warren's Opinion
“Whatever may have been the extent of psychological
knowledge at the time of Plessy v. Ferguson, this finding is
amply supported by modern authority. 11 Any language
[347 U.S. 483, 495] in Plessy v. Ferguson contrary to this
finding is rejected.”
K. B. Clark, Effect of Prejudice and Discrimination on Personality
Development (Midcentury White House Conference on Children and
Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c.
VI; Deutscher and Chein, The Psychological Effects of Enforced
Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259
(1948); Chein, What are the Psychological Effects of [347 U.S. 483,
495] Segregation Under Conditions of Equal Facilities?, 3 Int. J.
Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in
Discrimination and National Welfare (MacIver, ed., (1949), 44-48;
Frazier, The Negro in the United States (1949), 674-681. And see
generally Myrdal, An American Dilemma (1944).
Meet the New Boss
1. The Law says that everyone gets equal protection
True!
Legal Starting point
2. Education is important
True!
Factual A priori
3. segregation causes psychological injury
Question:
Question:
True!
Key Empirical Premise!
DidWas
Earl the
Warren
Brown
use his
ideology
decisionwhen
correctly
deciding Conclusion follows logically
4. therefore,
segregation is not equal
decided?
the case?
Which
of of
these
justices
What
Did
would
some
Supreme
them
use
Court
it
used
theirthan
“ideology”
decisions
more
lookothers?
like if when
no
deciding
cases?
ideology
was
used?
\
\
John Marshall
Roger Taney
Oliver Wendell
Holmes
Earl Warren
Decision has to be made
?
Must always be
used
Used only
sometimes
Identify what it is,
Concept less relevant or
please.
useless?
Are
using
it right
now
Areyou
all the
choices
in you
life say this only because you
Do
Falsifiable?
Iswhen
it wrong
use
it?
Can science show me
Scientific?
– to
can
empirical
science
answer
the
equal?
Didyou
Gandhi
and
Jesus
don’t like the result?
Is it
it is?
YOU that
(can’t be,
by
definition)
what
even study
and Walterquestion?
Payton
use itit?too?
are just whining?
Helpful concept
Constituence
(“arithmetic”)
(“processor”)
Constituence
Constituence
Constituence
Individual cases
John Marshall
Roger Taney
Oliver Wendell
Holmes
Earl Warren
Helpful concept
Constituence
Constituence
Constituence
One level of analysis: Does the
constituence have integrity?
(Art appreciation?) Philosophy?
Has it stood the test of time?
Constituence
Helpful concept
Constituence
Constituence
Constituence
What constituency is winning or
losing?
Seems to be more of a question
for politics
Constituence
Other Examples of Sociological
Jurisprudence
Your take-home exam/paper
You are going to apply all of the schools of judging that I
teach you
We have to start practicing this
Let’s take some examples …
Other Examples of Sociological
Jurisprudence
Your take-home exam/paper
A word of caution
This is a philosophic exercise, not an historic one
No one is saying that any particular judge – or even scholar
– would or would not support the positions of the “school.”
This is an exercise in RATIONALIZATION.
Just apply the “rule of the school,” and you will be fine
For Sociological Jurisprudence, the rule is as follows:
• Perfect the law using the “truth” of empirical social
science;
Other Examples of Sociological
Jurisprudence
Speed Trap
Imagine the following: there is standard, two-lane road that
has a speed limit of 25 miles per hour.
There are businesses around the road
In truth, no one travels 25 miles per hour; it’s largely a
speed trap (tell your wv story)
One day, Frodo is going 35 miles per hour down the road,
which is the optimum speed for the thoroughfare.
Frodo is then pulled over for speeding and given a ticket.
The police officer sees, in plain view, marijuana. He
charges Frodo with a drug crime (along with speeding)
Other Examples of Sociological
Jurisprudence
Speed Trap
Frodo’s lawyer files a motion to suppress
He/she proves conclusively, through civil engineering
studies that 35 is the optional speed for the road, and that
no one travels 25.
He/she argues that Frodo, at all times, was obeying the
Question:
natural rate of speed on the road. Question:
Question:
If itFrodo
is true
that because
no
travels
25,
There was no basis to pull
over,
he was
not
Should
theone
lawallow
find
Frodo
Should
the
law
Frodo
andoffense.
that theguilty
optimal
speed for the
truly committing any traffic
of speeding?
to suppress
the evidence
road is 35, should that matter in
of marijuana?
any way?
(mention the subtle difference in this issue)
Other Examples of Sociological
Jurisprudence
Speed Trap
Answers
For purposes of our game, a judge who is a sociological
jurisprude will decide a case using empiricism first, law
Question:
second
If aempirical
judge suppressed
the evidence
on
Hence, if, in fact, the
evidence clearly
shows that
this speed
basis or
declared thatisFrodo,
the empirically correct
oneven
the thoroughfare
35 not
Question:
wasn’t,
in is
fact,
-- would there
25, then that is what
the law
in aspeeding
state of empirical
be anything
wrong
withwould
this? Is
perfection.
If a judge
did can
this,
hethis a
(You
see how this as described
to you
be
proper
way to“ideology?”
judge?
she
be The
using
regarded
as a natural
law or
position.
in of
a perfection is
With complete
knowledge,
the law
in alaw
state
state
35. of perfection).
Other Examples of Sociological
Jurisprudence
Gay Marriage
Let’s imagine a hypothetical world where a constitution
provided equal protection to all.
The Law:
No State shall deny to any person within its
jurisdiction the equal protection of the laws.
Other Examples of Sociological
Jurisprudence
Gay Marriage
Let’s imagine a hypothetical world where a constitution
provided equal protection to all.
Imagine further that two adult males with to marry
Question:
Question:
How would
a judge rule in
this case
he or shescience
was a
What
doesifempirical
sociological
jurisprude?
say about being
gay?
Other Examples of Sociological
Jurisprudence
Gay Marriage
Hypothalamus evidence
(Gland in the brain that is known to have something to do
with the expression of “male” sexual behavior)
-- Sheep study (sheep who are attracted to females have
larger hypothalamus than sheep attracted to males, no
matter their chromosomes)
-- studies of gay men:
one study found a similar finding: gay men had a
“woman’s” hypothalamus”
Caution: sample size is low
Other Examples of Sociological
Jurisprudence
Gay Marriage
Brain structure evidence
a section of the fibers connecting right and left hemispheres
is one-third larger for gay men.
(synthetic capacity)
Other Examples of Sociological
Jurisprudence
Gay Marriage
Pre-natal Hormones
Probably the most important of all the evidence
-- rat fetus
Scientists can make gay rats by manipulating the hormones
that rat fetus are exposed to
-- female sheep
-- scientists can create homosexual sheep if if their
pregnant mothers are injected with testosterone during a
critical gestation period.
-- critical period: middle of the 2nd and 5th months.
conception
hormones
Explain what hormones actually
do (programming)
Question:
Knowing this, how
should the judge
decide the case?
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Copyright, Sean Wilson. 2007.
26
Other Examples of Sociological
Jurisprudence
War on Terror
Let’s imagine a hypothetical world where a constitution
provided protection against unreasonable searches and
seizures
The Law:
No unreasonable searches and seizures.
Other Examples of Sociological
Jurisprudence
War on Terror
Let’s imagine a hypothetical world where a constitution
provided protection against unreasonable searches and
seizures
Let’s imagine that there is a new security threat posed by a
clandestine global terror network that imports nuclear or
radiological explosives into urban cities and blows them up
Answer:
Question:
Let’s imagine that the president has
a secret spying plan
Question:
that involves fishing and
data
mining
forsociological
communications
How
would
a
Cost/benefit
analysis?
Game
What
empirical
science
between the network and jurisprude
its cells approach this
theorywould
modeling,
studies of how
be considered?
case?
terror networks
function, etc.
Other Examples of Sociological
Jurisprudence
Warning
No public opinion schools
This school is not a public opinion school. Doing a poll or
survey in order to do what “the people” is not what this
school is all about
It is about using the TRUTH to perfect law.
It doesn’t matter whether the truth is popular or not
Other Examples of Sociological
Jurisprudence
Critique
Politicization of social science
“Perspective Science:”
-- science is done by humans and has consequences for
• Critical race theory in sociology
culture an groups. Therefore, it may have a degree of
motivation
to attitudinal
it.
• The
model in political
science?
Question:
• Feminist-viewpoint science
Is there anything wrong with this
… who is doing these
studies;
what
are with using
school?
What’s
wrong
their values?
empirical social science to purify
or perfect law?
Compare: drug studies and vitamins.
Other Examples of Sociological
Jurisprudence
Critique
Politicization of social science
Judges don’t understand statistics
-- judges don’t understand journal articles.
Other Examples of Sociological
Jurisprudence
Critique
Politicization of social science
Judges don’t understand statistics
Does empirical science have many universals?
-- sociologists don’t tend see the same reality that
economists do
-- infighting with disciplines.
(good example of reliability problem: drug studies.)
Other Examples of Sociological
Jurisprudence
Critique
The big one …
-- is law more about order than it is truth?
-- is it more about politics than justice?
Other Examples of Sociological
Jurisprudence
Critique
The big one …
Speed trap example …
-- what if law enforcement uses speed traps to catch drug
couriers, and this is important for that purpose?
-- what if the business community wants a lower legal
speed limit so that insurance premiums are lower?
-- what if a false limit helps you police real speeders better
(those going 50. Harsher penalty.)
Other Examples of Sociological
Jurisprudence
Critique
The big one …
Law as a kind of Hegemony …
-- what if all that law was ever meant to be was a kind of
dominant social opinion that was strong enough to capture
a checked-and-balanced government long enough?
-- you need society to change POLITICALLY before law can
progress?
-- Truth is not supposed to purify law; only culture and
politics are its ultimate guardian?
Other Examples of Sociological
Jurisprudence
Critique
The big one …
Law is connected to a social
Law as
a kind of Hegemony
…
construct
in some important
way.
-- other examples
• democracy
is empirically
good.
Does of
thatthat
mean you can
“Justice”
or “truth”
outside
plop itconstruct
into a country
like Iraq?
is going
to be a problem
notand
law?
• let’s imaginefor
thatpolitics,
free speech
religion are good, too.
Why couldn’t it be declared to be true in a fundamentalist
Islamic regime?
-- Hamilton’s notion …
Conceptualizing Hamilton
Congress
Executive
SocietyDoesn’t happen this way
Courts
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Copyright, Sean Wilson. 2007.
37
Conceptualizing Hamilton
Congress
Executive
Society
Doesn’t happen
this way either!
Courts
Time
7/20/2015
Copyright, Sean Wilson. 2007.
38
Decline of Sociological
Jurisprudence
Craig v. Boren
Facts:
-- Oklahoma passes a law that allows women under 21 to
buy 3.2% beer, but not men. Men have to wait longer to
drink beer.
Issue:
-- Equal protection clause
Question:
Question:
What are the facts of
What is the legal issue?
this case?
Decline of Sociological
Jurisprudence
Craig v. Boren
Statistical evidence:
-- Oklahoma argues that statistics should govern the case
-- they argue that the empirical evidence shows that young
males are more involved in fatalities
Question:
What does the Court do
with the statistics?
Decline of Sociological
Jurisprudence
Craig
v. Boren
Rejection
of statistics
Statistical evidence:
“Moreover, the statistics exhibit a variety of other
shortcomings
seriously
impugn
theirgovern
valuethe
to case
equal
-- Oklahomathat
argues
that statistics
should
protection
analysis.
[Heempirical
goes onevidence
to critique
them
then
-- they argue
that the
shows
that...young
says:].
is no reason
to belabor this line of
males areThere
more involved
in fatalities
analysis. It is unrealistic to expect either members of the
judiciary or state officials to be well versed in the rigors
of experimental or statistical technique. But this merely
illustrates that proving broad sociological propositions by
statistics is a dubious business,
and one
that inevitably is
Statistics
are out!
in tension with the normative philosophy that underlies
the Equal Protection Clause. “
Decline of Sociological
Jurisprudence
Daubert v. Merrill Pharmaceuticals
Issue
-- what constitutes acceptable scientific evidence at trial?
-- what is “junk science?”
Question:
What is justice
Rehnquist’s opinion
about this?
Decline of Sociological
Jurisprudence
Daubert v. Merrill Pharmaceuticals
Issue
Rejection of
Karl
Popper?
Two
things
are said:
-- what constitutes acceptable scientific evidence at trial?
“I--defer
noJudges
one
in my
confidence
in federal
what to
is1.
“junk
science?”
don’t
understand
Karl judges;
but I am at aPopper;
loss to know what is meant when it is
said that the scientific status of a theory depends on
its "falsifiability,"
I suspect
some of them will be,
2. theyand
don’t
understand
too.
philosophy of science
“
Holmes Explosion
Sociological
Jurisprudence
(Progressive
Determinism)
Positivism
Skepticism
Domination of American
Legal Culture