Newly Published: Monsters, Law, Crime: Explorations in Gothic Criminology, edited by Caroline Joan Picart @fdu_press @RLPGBooks

Newly published: Monsters, Law, Crime: Explorations in Gothic Criminology (Caroline Joan S. Picart, ed., Rowman & Littlefield for Fairleigh Dickinson Press University Press, 2020) (The Fairleigh Dickinson University Press Series in Law, Culture, and the Humanities). Here from the publisher's website is a description of the book's contents.

Monsters, Law, Crime, an edited collection composed of essays written by prominent U.S. and international experts in Law, Criminology, Sociology, Anthropology, Communication and Film, constitutes a rigorous attempt to explore fertile interdisciplinary inquiries into “monsters” and “monster-talk,” and law and crime. This edited collection explores and updates contemporary discussions of the emergent and evolving frontiers of monster theory in relation to cutting-edge research on law and crime as extensions of a Gothic Criminology. This theoretical framework was initially developed by Caroline Joan “Kay” S. Picart, a Philosophy and Film professor turned Attorney and Law professor, and Cecil Greek, a Sociologist (Picart and Greek 2008). Picart and Greek proposed a Gothic Criminology to analyze the fertile synapses connecting the “real” and the “reel” in the flow of Gothic metaphors and narratives that abound around criminological phenomena that populate not only popular culture but also academic and public policy discourses. Picart's edited collection adapts the framework to focus predominantly on law and the social sciences.

More here at the website.  

Bandes and Feigenson on Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom @BandesSusan @DePaulLaw @QuinnipiacU

Susan A. Bandes, DePaul College of Law, and Neal Feigenson, Quinnipiac University School of Law, are publishingV Vrtual Trials: Necessity, Invention, and the Evolution of the Courtroom in volume 69 of the Buffalo Law Review. Here is the abstract.

Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential – they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts – the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public – we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

Download the article from SSRN at the link.

Schauer on Social Science and the Philosophy of Law @UVALaw

Frederick Schauer, University of Virginia School of Law, is publishing Social Science and the Philosophy of Law in Cambridge Companion to the Philosophy of Law (John Tasioulas, ed., Cambridge, 2020). Here is the abstract.

H.L.A. Hart’s description of his jurisprudential enterprise as an exercise in “descriptive sociology” raises important questions, questions going beyond Hartian exegesis, about the role of empirical social science in addressing jurisprudential questions. This entry focuses on the background empirical assumptions and conclusions in Hart’s own work, on the empirical dimensions of conceptual analysis, on the empirical challenges of legal pluralism, and on the empirical aspects of philosophical analysis of legal reasoning and legal compliance.

Download the essay from SSRN at the link.

Fleury on Social Scientists on Crime After World War II Univ @UniversiteCergy

Jean-Baptiste Fleury, THEMA-Universite de Cergy-Pontoise, has published Social Scientists on Crime After World War II. Here is the abstract.

This paper addresses the history of social scientific work on crime after World War II. We argue that the mid-1960s marked a turning point that profoundly transformed the way in which the public discourse, policy programs, and social scientific work addressed crime. Up to the mid-1960s, crime was not a central concern for the average American and the Federal government had a very limited role in fighting it. Within social science, sociological studies dominated the analysis of crime. The mainstream of research mixed the influence of Robert Merton’s theory of anomie with the Chicago-school ecological approach, relegating biological and psychological explanations to a backstage status. It located the origins of delinquent behavior in relative deprivation and dysfunctional neighborhoods. This broad outlook framed the way in which various social scientific notions infused the study of crime and eventually made their way to Washington, making the idea of relative deprivation central to Lyndon Johnson’s War on Poverty. From then on, crime fell under the prerogatives of the Federal government and gradually gained prominence. At the same time, the social turmoil of the 1960s challenged the consensus about the so-called “rootcauses” of crime and their treatment though welfare programs and community empowerment. By the end of the decade, crime rates had skyrocketed and riots erupted throughout the country. The fear of crime nurtured the rise of a conservative view that emphasized the significance of law enforcement and punishment. The figure of the criminal as a responsible decision-maker became increasingly popular. Social scientists involved in the public attack on crime also shared increasing doubts about social-deprivation explanations. Even though they did not go as far as James Q. Wilson in urging criminologists to become “policy analysts” and relinquish the socioeconomic rootcauses of crime, the social scientific study of crime increasingly emphasized a “control” approach to crime. That approach brought together insights from economics, operations research, political science, sociology and psychology so as to address cost-effective law enforcement and deterrence. In effect, criminology became increasingly dependent on policy concerns. Public support from urban development or health agencies was progressively replaced by funds from criminal justice and law enforcement agencies, further illustrating the changing orientation in public policy. Within a number of universities, the creation of criminal justice departments also provided a new institutional setting to further this multi-disciplinary outlook and respond to the ever-increasing public demands for professional training in crime combat. By the end of the 1970s, control theories of crime represented a sizable chunk of the literature, though they were not influential enough to define a new consensus. On top of the unresolved debates on how policy-oriented research should handle crime, a number of social scientists rejected criminology’s dependence on the State and the development of policy analysis. Emerging from the counterculture of the 1960s, another approach brought together radical economists, historians, sociologists and psychologists, in analyzing lawmaking and the criminal justice system as tools used by those in power to enforce their own interests. Instead of taking the legal definition of crime for granted, they urged social scientists to analyze crime with their own tools. These were not the only theories to push for a thorough redefinition of crime in disciplinary terms. Neoliberal economic analysis of law, championed by Richard Posner and Gary Becker, also offered to redefine crime as “market bypassing” in order to promote wealth maximization. Very influential in the expansion of the boundaries of economics into the law, the movement did not stand in stark opposition to control theory if only because it also focused on deterrence. As a result of the important transformations of American society, politics and social sciences during the 1960s, knowledge about crime became specialized and increasingly discipline-oriented, even under the broad umbrellas of control theories and critical criminology. In the process, the boundaries between the social sciences shifted. The socioeconomic causes of crime used in sociology to understand individual trajectories toward criminal behavior gave increasingly way to a broader focus on crime and law enforcement, grounded on rational choice and cost benefit analysis.

Download the article from SSRN at the link.

Feingold and Carter on What Social Science Can Tell Us About the Supreme Court's Use of Social Science @drevvycarter

Jonathan P. Feingold, UCLA, and Evelyn Carter, UCLA, have published Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science at 112 Nw. U. L. Rev. Online 236 (2018).

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice Rehnquist — himself part of the McCleskey majority — invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against White applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory and empirical scholarship on motivated social cognition. This “eCRT” lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to over-value “evidence” that rationalizes existing racial disparities and, as a result, author legal opinions that re-instantiate and legitimize the status quo.

Download the article from SSRN at the link.

Atuahene @ProfAtuahene on Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss

Bernadette Atuahene, Chicago-Kent Coolege of Law, Illinois Institute of Technology, has published Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss at 12 Annual Review of Law and Social Science 171 (2016). Here is the abstract.

This review seeks to establish takings as a respected field of sociolegal inquiry. In the legal academy, the term takings has become synonymous with constitutional takings. When defined more broadly, however, a taking is when a person, entity, or state confiscates, destroys, or diminishes rights to property without the informed consent of rights holders. Adopting a more expansive conception of takings lays the groundwork for a robust interdisciplinary conversation about the diverse manifestations and impacts of involuntary property loss, where some of the most valuable contributions are made by people who do not consider themselves property scholars. This review starts the conversation by bringing together the empirical literature on takings published between 2000 and 2015 and scattered in the fields of law, economics, political science, sociology, psychology, geography, and anthropology. Most importantly, a robust understanding of property's multiple values is required to fully comprehend the magnitude of the loss associated with takings, and this creates a space in which scholars can rescue property's political, cultural, emotional, and social value from the sizeable shadow cast by the overly dominant focus on its economic value.

The full text is not available from download from SSRN.

Sood and Trielli @DanielTrielli on the Representation of Race, Gender, and Crime on the Television Series Law & Order

Gaurav Sood and Daniel Trielli, both independent scholars, have published The Face of Crime in Prime Time: Evidence from Law and Order. Here is the abstract.

Race, gender, and crime are inextricably linked in people's minds. And television programming is thought to strongly influence how they are linked. We investigate the extent to which popular television programming perpetuates stereotypical linkages by tallying the race and gender of criminals and victims in three popular series of the most successful criminal procedural franchise on television --- Law & Order. Using data from a census of the shows from aired seasons of Special Victims Unit and Criminal Intent series, and data from seven seasons of the Original series, we find that whites and women are overrepresented (and blacks and men underrepresented), both as victims and as criminals. In particular, blacks are dramatically underrepresented both as criminals and as victims, with actual arrest rate and violent victimization rate of blacks nearly 300% and 200% respectively of the commensurate numbers for the show.

Download the article from SSRN at the link.

Social Scientific Evidence and Its Place In the Contemporary U. S. Trial

Robert P. Burns, Northwestern University, School of Law, has published Social Scientific Evidence as Northwestern Public Law Research Paper No. 15-43. Here is the abstract.

This paper considers two distinct and internally complex language regions, those of the contemporary American trial and of the social sciences. Its concern is how the trial treats the social sciences, not how the social sciences treat the trial. It first surveys the controversies that surround each region and argues that those controversies counsel against any "craving for generality" in defining their relationship with one another. It then describes the canonical account of the trial implicit in the rationalist tradition of evidence scholarship and explains how that account understands the place of social scientific evidence within it. The paper contrasts that received view of the trial with a more concrete and, to my mind, adequate interpretation of the trial. It then provides an account of the various functions of the social sciences within that more adequate understanding of the trial.

Download the article from SSRN at the link.

Before Ferguson

Rigel Christine Oliveri, University of Missouri School of Law (Columbia), is publishing Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis in the Missouri Law Review. Here is the abstract.

The events of fall 2014 in Ferguson, MO (the shooting death of Michael Brown by a white police officer and the subsequent protests and riots), have been examined from many angles – the policing of minority communities, the militarized police response to peaceful protests, the poor schools and job prospects for young people like Mr. Brown, etc… This paper adds another factor to the analysis: housing discrimination. St. Louis is one of the most segregated places in the country and this is not an accident. The history of St. Louis is replete with discriminatory housing laws, policies, and practices. While these were common throughout the United States, they were particularly egregious, widespread, and pervasive in industrial mid-western cities like St. Louis. St. Louis, in fact, was where three of fair housing law’s most foundational fair housing cases emerged from: Shelly v. Kraemer, which held that racially restrictive covenants could not be enforced by courts; Jones v. Mayer, which held that private acts of race discrimination in housing were prohibited by the Civil Rights Act; and United States v. City of Black Jack, which recognized the use of disparate impact theory in fair housing cases. When we look closely at these cases – not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested – we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis. This paper traces the history of housing discrimination in the St. Louis metro area using these cases as a framework, concluding with a discussion of how these historical forces resonate in contemporary Ferguson. The paper concludes with suggestions for reforms that might help undo what a century’s worth of officially sanctioned discrimination and segregation have wrought.

Download the article from SSRN at the link.

The Relevance of Literature to Social Science (and Law)

Dustin A. Zacks, King, Nieves & Zacks, PLLC, has published A Response to Epstein: Honoré De Balzac's Rise and Fall of Cesar Birotteau and Literature's Relevance to Social Science at 36 Whittier Law Review 283 (2015). Here is the abstract.

Richard Epstein has questioned whether the literature is useful to the social sciences. In his 2002 remarks considering George Orwell, Epstein rails against the utility of consulting literary accounts as authority to establish, both factually and scientifically, any specific state of affairs. Rather, he argues that authors tend to overgeneralize from their personal experiences that literary predictiveness is fatally non-falsifiable, and that literature, accordingly, cannot be trusted as a source of authority for lawyers or social scientists. Although several of Epstein’s arguments are well-founded and may be appropriate in regards to certain authors, the works of Honoré de Balzac may disprove the universality of Epstein’s claims. Balzac’s compendium of dozens of novels and short stories known as the Comedie Humaine, documenting every conceivable aspect of life under the French Restoration, provides relevant points of interest to legal scholars, particularly in light of Balzac’s training as a lawyer. Balzac’s tale of a bankrupt merchant, The Rise and Fall of Cesar Birotteau, is a uniquely valuable work to emphasize the value of literature to legal scholars. Birotteau’s encounters with the French bankruptcy process paint a historically accurate picture of the state of French law during the Restoration. Perhaps even more noteworthy than its value as a primer of legal history, though, is Balzac’s precise description of the social and physical effects of debt and bankruptcy. These empirically verified observations in narrative fiction directly contradict Epstein’s insistence that literature should not necessarily be considered accurate, normative, or otherwise relevant to legal theory. This article’s case study of Balzac’s Cesar Birotteau demonstrates the accuracy of his French bankruptcy depictions and of his references to social and physical effects of bankruptcy that have been borne out by empirical literature. Furthermore, Balzac’s dissections of each side of bankruptcy debates foreshadowed questions that scholars continue to raise today. In this manner, Balzac’s forceful novel stands in direct contradiction to Epstein’s arguments that literature cannot, or perhaps should not, be trusted to contribute to legal scholarship and debates.

Download the article from SSRN at the link.

Policing the Perps

Jeffrey Ian Ross University of Baltimore School of Law, and Benjamin Wright, University of Baltimore, have published 'I've Got Better Things to Worry About': Police Perceptions of Graffiti and Street Art in a Large Mid-Atlantic City at 17 Police Quarterly 176 (2014). Here is the abstract.

The majority of scholarly research on graffiti and street art has examined this phenomenon in terms of its distribution and the nature of the perpetrators. Rarely has the law enforcement response been investigated. To better understand this neglected aspect, the investigators constructed a survey that they administered to a sample of officers in a large Mid-Atlantic police department to determine their attitudes, in particular their perceptions, regarding graffiti, street art, and perpetrators of this behavior. The survey takes into consideration important police-related variables and situational factors to provide a portrait of officer perceptions. The major finding indicates that the shift and race of police officers might have an influence on their decisions to stop, question, and arrest suspects on graffiti and street art vandalism-related charges. This is consistent with other studies of police perceptions of illegal behavior.

Download the article from SSRN at the link.

Cross-posted at Media Law Prof Blog.

Call For Papers: Association of American Law Schools, Section of Law and the Humanities, 2016 Meeting

The AALS Section of Law and the Humanities has issued the following CFP for the 2016 Meeting.

The following is a Call for Papers issued by the Section of Law and the Humanities:

"In the past three decades, significant research links assumptions based on race, ethnicity, and gender to views of individuals and their capacities.

“One example of such research is through use of the Implicit Association Test, available at https://implicit.harvard.edu/implicit/takeatest.html,

and discussed in, Anthony G. Greenwald, Debbie E. McGhee, and Jordan L. K. Schwartz, “Measuring Individual Differences in Implicit Cognition: The Implicit Association Test,” Journal of Personality and Social Psychology, vol. 74, p. 1464 (1998); Mahzarin R. Banaji and Anthony G. Greenwald, Blindspot: Hidden Biases of Good People (Delacorte, 2013).

“Another example is through the use of “blind” and “double-blind” testing.  See, e.g., Corinne A Moss-Racusin, John F. Dovidio, Victoria L. Brescoli, Mark J. Graham, and Jo Andelsman, “Science Faculty’s Suble Gender Biases Favor Male Students,” Proceedings of the National Academy of Sciences, no. 109, no. 41, pp. 16474-16479 (2012)

“More generally, the relationships among perception, sight, knowledge, and judgment have spawned a debate about how to develop wise judgment.

“At the Annual Meeting of the AALS, the Section on Law and the Humanities wishes to explore how implicit bias operates in courtrooms and how its operation has an impact on the participation of and outcomes for women and minorities as litigants.  Among other possible topics, we are interested in how partiality or impartiality in the courtroom is represented; how judicial impartiality is performed; and how bias is visible not only in judicial decisionmaking but in ways such as court composition.  Areas of interest include anti-discrimination, in which the protected class status of women and minorities plays a role, and also criminal law, family law, and immigration, among others.

“At this stage, the Section invites abstracts of proposed papers that address one of the described topics. The Section's Executive Committee will select among the abstracts and request that the proponents make a twenty-minute presentation at the Section’s meeting during the AALS Annual Meeting, January 7-9, 2016, in New York.  We request also that those who make presentations commit to publication of papers summarized at the Meeting.  We, in turn, commit to seek publication in an appropriate journal.

"Please submit an abstract of a proposed paper by April 15 to Dr. Neil H. Cogan, ncogan@law.whittier.edu."

The Language of Supreme Court Opinions

Adam Sean Feldman, University of Southern California, Department of Political Science, has published A Brief Assessment of Supreme Court Opinion Language. Here is the abstract.

The language of Supreme Court opinions is an often overlooked yet integral outcome of Supreme Court decision-making. Opinion language has significant implications for Supreme and lower court decisions as well as for public and social policy. This paper examines the relationship between Supreme Court opinion language and parties' merits briefs from 1946 through 2013. I developed an original dataset for this paper that includes the percent of overlapping language for each brief with its corresponding opinion as well as the attorney and law firm of record on each brief. I find factors including the types of parties, lawyers' experience in the Supreme Court, a case's importance and complexity, and the justices' ideological dispositions all have significant impacts on the amount of language opinions share with briefs.

Download the paper from SSRN at the link.

Engaging the Homeless Through New Media

Suzanne Bouclin, University of Ottawa Common Law Section, has published Homeless Nation: Producing Legal Subjectivities Through New Media as Ottawa Faculty of Law Working Paper No. 2015-10. Here is the abstract.

This book chapter describes “Homeless Nation” [HN], a Montreal-based non-profit organization dedicated to “democratizing technology” throughout Quebec and elsewhere in Canada. The overarching goal of Homeless Nation is to facilitate the street community’s ability to “tell their stories and have their voices heard” through written, audio, and video testimonials.

Its primary vehicle for doing so is a website that has been designed ‘for and by the street community’. In step with new user-friendly medial (file-sharing, portable cinematographic equipment, camera-ready phones, and new exposition venues such as YouTube), HN has, since 2003, provided access to interactive communication technologies (e-mail, blogging) and training in new media technologies (digital cameras, sound equipment, and editing software) to its members. The organization boasts more than six thousand users and one hundred guests (or “members”). Street-involved people who use the HN social media write poetry, post information about rallies, and suggest appropriate shelter or other survival strategies such as how to cash a check without identification and how to pass a driver’s test. Contributors provide “life updates” and also express political views such as critiquing cuts to social programs.

Download the paper from SSRN at the link.

A Review of Brazilian Sociolegal Studies

José Reinaldo Lopes, University of Sao Paulo, Faculdade de Direito, and Roberto Freitas Filho, Uniceub, have published Law and Society in Brazil at the Crossroads: A Review at 10 Annual Review of Law and Social Science 91 (2014). Here is the abstract.

This article presents a general overview of Brazilian sociolegal studies. After presenting a short historical narrative of the field in Brazil, we argue that the early years of intense teaching of legal sociology had a politically committed approach, which gave rise to growing criticism of Brazilian legal scholarship that in turn affected the self-image of law professors. Different theoretical strands appeared in the years that followed, and some specific fields of research gained importance, particularly those concerning a sociology of the legal profession, the administration of courts, and law schools. However, we contend that as time went by, many sociolegal scholars began to neglect the critical approach to law, and today most of them fail to confront critical aspects of the gap between law on the books and law in action, especially when that gap affects lower classes or stigmatized populations.

The full text is not available from SSRN.  

Columbia and the Charles Beard Thesis

Ajay K. Mehrotra, Indiana University Maurer School of Law, has published Charles A. Beard & The Columbia School of Political Economy: Revisiting the Intellectual Roots of the Beardian Thesis at 29 Constitutional Commentary 475 (2014). Here is the abstract.

A century after it was first published, Charles A. Beard’s An Economic Interpretation of the Constitution remains a significant and controversial part of constitutional scholarship and history. Just as Beard sought to historicize the Founders as they drafted and adopted the Constitution, this article attempts to historicize Beard as he researched and wrote his classic text on the Constitution. Because Beard was both a graduate student and professor at Columbia University before and while he researched and wrote his book, this article explores the particular influence that Columbia University’s institutional and intellectual climate may have had on Beard and the writing of An Economic Interpretation of the Constitution.

This article contends that Charles Beard was the product of a unique Columbia tradition of inductive, proto-institutionalist research in political economy – a tradition that at its core sought to meld serious political and historical scholarship with progressive social activism. Yet, in many ways, Columbia’s influence on Beard was more reinforcing than it was revolutionary. Columbia, in other words, facilitated an evolution rather than a dramatic transformation in Beard’s thinking. His time at Columbia provided him with new scholarly perspectives and research methods, but ultimately these new views heightened his innate tension between scholarly objectivity and political advocacy, between his belief in social scientific research and his desires for social democratic reform. In short, Beard’s time at Columbia, as both a student and junior scholar, refined his personal predilections and his early upbringing and education, rather than radically converting him into a new thinker and writer.

This article was part of a special symposium on the 100th Anniversary of Charles Beard’s An Economic Interpretation of the Constitution, hosted by the University of Virginia’s Miller Center and law school.

Download the article from SSRN at the link. 

Judge Humorous, Are You Pulling My Leg?

Mary B. Trevor, Hamline University School of Law, has published From Ostriches To Sci-Fi: A Social Science Analysis of the Impact of Humor in Judicial Opinions at 45 University of Toledo Law Review 291 (2014). Here is the abstract from SSRN.

In the legal profession, understanding — or at least, formal analysis — of humor and its impact is in its infancy. Lawyers and judges are not trained to use or understand humor, although all would acknowledge that humor, cringe worthy or otherwise, is by no means unknown in the practice of law. But for most intents and purposes, we pretend that humor is not part of legal culture. When humor is addressed in the law school or professional advocacy context, for example, it typically gets short shrift: don’t try to be funny. Resources on judicial opinion writing, in particular, generally advise that humor is inappropriate, and commentators on judicial humor have offered similar, mostly negative, assessments.
Despite this advice, humor, while not widespread, is an ever-present aspect of the body of judicial opinions, an aspect that periodically attracts attention. One of the best-known recent examples is Gonzalez-Servin v. Ford Motor Co., an opinion by Judge Richard Posner of the Seventh Circuit. Multiple counsel in the case had, in Judge Posner’s view, ignored “apparently dispositive precedent” when presenting arguments. Unsatisfied with a mere holding, however, Judge Posner not only verbally compared the tactic to an ostrich burying its head in the sand, but also inserted two photographs into the opinion: one of an ostrich burying its head in the sand, and immediately following, one of a man dressed in traditional “attorney” attire burying his head in the sand. Legal newsletters and blogs picked up on Judge Posner’s opinion, but they were not the only sources to do so. The general press (the Wall Street Journal and the Chicago Tribune) did as well. And such treatment was for an opinion addressing an issue that was not a matter of public interest-forum non conveniens.
Judge Posner does not stand alone in his use of humor. There are even some indications that judicial use of humor in opinions is increasing. And in our era of rapid and widespread electronic communication, public awareness of this humor also appears to be increasing. In light of the evidence of continued use of humor in the face of advice and commentary largely counseling against its use, a reassessment of judicial humor seems warranted.
An additional reason for reassessment at this time comes to us from recent developments in the field of social science, which offers sophisticated tools for the job. In the last few decades, social scientists have greatly expanded the study of humor’s role in our society. Their theories offer new tools to assess judicial humor, to bring together the perspectives of earlier commentators on judicial humor, and to offer more comprehensive guidelines for judicial humor than have previously been offered.
The intent of this article is not to suggest that humor is always, or even often, appropriate in judicial opinions. But social science tells us that, despite the bad name humor has justly acquired based on its use in certain opinions, it may be possible for humor to be used appropriately, and even helpfully, in certain instances.

Download the text from SSRN at the link.

What We Talk About When We Talk About Poverty: Racialized Metaphors and Anti-Poverty Programs

Ann Cammett, CUNY School of Law, has published Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law at 34 Boston College Journal of Law and Social Justice 233 (2014). Here is the abstract.

Since the 1960s, racialized metaphors describing dysfunctional parents have been deployed by conservative policymakers to shape the way that the public views anti-poverty programs. The merging of race and welfare has eroded support for a robust social safety net, despite growing poverty and economic inequality throughout the land. This Article begins by describing the influence that metaphors have on the way people unconsciously perceive reality. It proceeds by examining historical racial tropes for Black families and how they were repurposed to create the Welfare Queen and Deadbeat Dad, the metaphorical villains of welfare programs. It also tracks the demise of welfare entitlements and the simultaneous ascendency of punitive child support enforcement intended to penalize both “absent” parents and families with non-normative structures. Ultimately, this Article argues that the focus on demonizing Black parents in the welfare system has created an obstacle to providing necessary resources to alleviate the suffering of a growing number of poor children of all races, the intended beneficiaries of public assistance.

Download the article from SSRN at the link. 

The US Supreme Court and Institutional Legitimacy

James L. Gibson, Washington University in St. Louis, Department of Political Science, Milton Lodge, Stony Brook University, Department of Political Science, and Ben Woodson, Stony Brook University, Department of Political Science, have published Legitimacy, Losing, But Accepting: A Test of Positivity Theory and the Effects of Judicial Symbols. Here is the abstract.

How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy – the robe, the gavel, the cathedral-like court building – in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court; (2) has differing effects depending upon levels of pre-existing institutional support; and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.

Download the paper from SSRN at the link. 

The Media and Reports of Crime, 1960-2009

Moira Peelo, Lancaster University, and Keith Soothill, Lancaster University, have published ‘Marginal’ Crime: The Example of Blackmail in Representing Evolving Crime Narratives at 53 Howard Journal of Criminal Justice 221 (2014). Here is the abstract.

Newspaper representation of blackmail cases from over half a century (1960–2009) is used to illustrate ‘marginal’ crime reporting in an era of social change: we asked how such crimes fare in attracting public attention and what meanings they represent during a period of politicised, public and criminological narratives of crime and disorder. ‘Marginal’ crimes sit at the edges of crime narratives and at the boundaries of criminology, yet the example of blackmail indicates wider social concerns. A macro analysis of 252 cases showed a steady public profile with six major categories of blackmail reported. At a micro level, only 33 cases achieved sustained reporting, deriving meaning from current social anxiety; acted normatively – defining current group values; or were one of a palette of charges brought against individuals.

The full text is not available from SSRN.