AJPS GOODIES

The AJPS has three important articles this quarter for students of law and courts.

• In "Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America," Darren Davis and Brian Silver (both at Michigan State) ask "[h]ow much are American citizens willing to sacrifice to make themselves feel safe from the threat of terrorism?" (29). The authors attempt to answer this question using a "national survey conducted shortly after the September 11, 2001 attack on America." Their basic findings are that "in the face of a terrorist threat both liberals and conservatives endorse granting greater authority to the state," and "regardless of race or ethnicity people are more willling to exchange civil liberties for security if they are more afraid of a terrorist attack" (43). Individuals who express more trust in the federal government are more likely to express willingness to give up civil liberties, but "at every level of trust in the federal government, increased sense of threat leads to a greater willingness to concede some civil liberties in favor of security and order." At the very least, these results show that civil liberties advocates have a tough road ahead of them in the immediate aftermath of terrorist attacks, but I suspect that no research is needed to confirm that fact. In addition -- and the authors do mention this briefly -- the research shows how significant the media can be in situations like that after the attacks of 9/11/2001. Constant reminder of the attack, like constant portrayal of acts of violent crime, may serve to heighten the public's estimation of the terrorist threat and may increase public willingness to trade civil liberties for security. One interesting question would be the extent to which judges are similarly affected by their perception of terrorist threats. A recent 9th Circuit case, Cheema vs. INS, provides one example where the estimation of the threat influenced the votes of the individual judges, or at least influenced the way that they justified their votes. See my post on the case here.


• In "Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals," Virginia Hettinger (UConn), Stefanie Lindquist (UGA), and Wendy Martinek (Binghamton) develop a model of strategic dissenting behavior on three-judge courts of appeals panels and ask whether judges actually engage in such behavior. They argue that their analysis of cases from 1970 to 1988 fails to provide evidence of strategic dissenting behavior; judges are more likely to dissent when their ideology differs from that of the majority opinion writer, and minority judges are more likely to dissent than whites, but judges are not more likely to dissent (or refrain from dissenting) in order to send strategic signals (or non-signals, as it were) to the full circuit. The research is impressive -- and the models of strategic dissenting behavior should prove useful to future researchers -- but it is no accident that Epstein and Knight developed their account of strategic decisionmaking on the U.S. Supreme Court using in-depth case studies rather than large-scale mathematical analyses. Much depends on the characteristics of the cases and personalities involved, and, as the authors concede, some important differences in cases might be masked by the data they use (135).


• On the face of it, these are the only two articles that have any direct connection to the study of law and courts, but I would nominate a third article for consideration, John Hibbing (Nebraska) and John Alford's (Rice) "Accepting Authoritative Decisions: Humans as Wary Cooperators." The article is a fascinating attempt to employ a low-stakes "ultimatum game" in an attempt to test the extent to which people care about the process of decisionmaking as well as the outcome. Briefly, the authors promised a group of subjects from Rice University that they would receive at least $10 for participating in an experiment and that they could receive up to $20 more depending on the decisions of a randomly selected "partner" in a computer-mediated interaction. In reality there were no "partners"; each subject was promised an additional $2 after a computer program simulating the "partner's" decisionmaking process in dividing up the hypothetical $20 (after the experiment was over, though, the subjects did receive the additional $20). If they rejected the $2, however, they were told that neither player would receive any additional money. Thus, the subjects were led to believe that their "partner" had proposed to "take" $18 and give $2. There were several variations on this exchange and the purpose of the experiment was to test how satisfied the recipients of the $2 were with different decisionmaking criteria on the part of their partners. The subjects were told that their "partner" had chosen one of the following criteria for the allocation (a) complete discretion, (b) a formula of merit (distance traveled to site), and (c) a random number. An additional group of subjects was told that the partner had no discretion in choosing the allocation criteria. The subjects were more willing to be satisfied with the $2 if they believed that the allocation was due to merit, and even more willing to be satisfied if they believed that the allocation was random. In addition, subjects who believed that their partner "had discretion thrust upon him" were more likely to accept the same $2 allocation than subjects who believed that the partner sought discretion and then used it to "his" advantage.

  
  One of the reasons why this research is important for the study of courts is that it meshes in an interesting way with Patricia Ewick and Susan Silbey's brilliant The Common Place of Law. Ewick and Silbey argue that Americans have three basic narratives about legal legitimacy: (1) law is a hallowed place where decisions are made in an impartial fashion and ordinary life is "refigured in importance and consequence" (they call this narrative "Before the Law" after Kafka's parable), (2) law is a "game" in which the basic rules are fair but the outcome is determined by the skills and resources marshalled by the parties to the suit ("With the Law"), and (3) law is a powerful, arbitrary, clumsy process that must be evaded by acts of "resistance" ("Against the law") (see 47-49). They argue that these narratives are not exclusive; people can switch back and forth between them while recounting the same basic legal event. Hibbing and Alford might help to explain why individuals accept the legitimacy of courts when they use the "before the law" narrative: the rules and procedures appear so complex and specialized as to be, effectively, random; the byzantine complexity (or imagined complexity) described by Kafka and evoked by Ewick and Silbey's respondents turns into the phenomenological equivalent of randomness, which is perceived as legitimate -- even when the result is destructive (as in Kafka's parable). The same might be true in some phases of the "against the law" narrative, to the extent that the outcomes, while bad, are not necessarily the product of bad intentions, but are instead the results of an intractable "system."
  

  Following Kafka another step, I wonder how many of Hibbing and Alford's subjects kicked themselves when they only got the $2, or when they received the $20 after all, in the same way that we expect the "man from the country" experienced shame the moment the guard tells him that the entrance was "only for you." In contrast to the fate of the man from the country, dying within a few yards of the site of his life-long efforts, for the subjects in Hibbing and Alford's experiment, having the additional $20 in their pockets was some consolation, I imagine.