The Decline of Sociological Jurisprudence by Wittgenstein

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									Today’s Lecture:

The Death of Sociological Jurisprudence

Number:

10

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
Time

Class Announcements

Reading • Riggs v. Palmer (homosexuality and science) Homework Question:
(1) Upon what is the majority decision based? Why is it necessary or compelled according to the majority? (2) Same for the dissent. On what is the dissent founded? Why does it purport to be required?

Class Announcements

paper -- due on 16th with consults; 19th otherwise

exam
-- returned next week -- you can retake it Questions?

Time

Summarizing Brown and the New Jurisprudence
Sociological Jurisprudence

Progressive Determinism
1. Judging has correct answers 2. But the answers are probabilistic in nature 3. Found through empirical social science

Classical Determinism
1. Judging has one right answer 2. Certainly known 3. Self-contained logic “hard science” Immutable, timeresistant

Soft science, “growth science”
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 True! Key Empirical Premise! Conclusion follows logically 4. therefore, segregation is not equal

Meet the New Boss

Time

1. The Law says that everyone gets equal protection True!

(compare to John Marshall)
1. const. is supreme law 2. Education is important True! 2. statutes are “smaller” law

3. courts interpret law
3. segregation causes 4. you can’t do (3) if you ignore (1) psychological injury True! 5. therefore, courts interpret the constitution 4. therefore, segregation is not equal

Detour: Ideology

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 True! Key Empirical Premise!
4. therefore, segregation is not equal Question: Conclusion follows logically Did Earl Warren use his Was the Brown ideology when deciding decision correctly the case? decided?

Which of Supreme Court What would of them use it Did some these justices used their “ideology” when decisions look like if no more than others? 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 you the Are all using it right now in Do life this science show me Falsifiable? choices it?you say Can only because you Is it wrong to use the Scientific? – answer Jesus when you can and like the result? Is it YOU that equal? Did Gandhi empirical science don’t (can’t be, by definition) what it is? even study it? question? and Walter Payton use it too? just whining? are

Helpful concept
Constituence (“arithmetic”) (“processor”) Individual cases John Marshall

Constituence

Constituence

Constituence

Roger Taney

Oliver Wendell Holmes

Earl Warren

Helpful concept
Constituence Constituence Constituence Constituence

One level of analysis: Does the constituence have integrity? (Art appreciation?) Philosophy? Has it stood the test of time?

Helpful concept
Constituence Constituence Constituence

Time

Constituence

What constituency is winning or losing? Seems to be more of a question for politics

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 Frodo over, no one travels 25, There was no basis to pull it is true that becausefindwas not Should the law he Frodo Should the law allowFrodo and that the optimal speed for truly committing any traffic offense.suppressspeeding? the to guilty of 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

Time

If empirical evidence the evidence on Hence, if, in fact, the a judge suppressedclearly shows that this basis on the declared that Frodo, the empirically correct speed or eventhoroughfare is 35 not wasn’t, in fact, Question: -- would speeding 25, then that is what the law is in a state of empirical there be anything wrongthis, would Is this a perfection. If a judge did with this? he (You see how this as described to you can be proper way to judge? regarded as a natural law or she lawThe law in of perfection is position. in a state a With complete knowledge, the be using “ideology?” state of perfection). 35.

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 does he or she was a Whatcase ifempirical science sociologicalbeing gay? say about jurisprude?

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.

Time

conception

hormones

Explain what hormones actually do (programming) Question: Knowing this, how should the judge decide the case?
10/25/2009 Copyright, Sean Wilson. 2007. 29

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 a sociological How would for communications Cost/benefit analysis? Game What empirical science between the network and jurisprude approach this its cells theorywould be considered? how modeling, studies of case? terror networks function, etc.

Other Examples of Sociological Jurisprudence
Warning No public opinion schools

Time

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

Criticizing Sociological Jurisprudence

Critique Politicization of social science -- science is done by humans and has consequences for culture an groups. Therefore, it may have a degree of motivation to it. Question: Is there anything wrong with this school? What’s wrong with using empirical social science to purify or perfect law?

Criticizing 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 model in political • The it.

science? • Feminist-viewpoint science
Question: 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.

Criticizing Sociological Jurisprudence

Critique Politicization of social science Judges don’t understand statistics -- judges don’t understand journal articles.

Criticizing 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.)

Criticizing Sociological Jurisprudence

Critique The big one … -- is law more about order than it is truth? -- is it more about politics than justice?

Criticizing 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.)

Criticizing 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?

Criticizing 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 that “Justice” or “truth” outside that mean you can plop itconstruct is going to be a problem into a country like Iraq? • let’s imaginefor politics, notand religion are good, too. that free speech law? 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

10/25/2009

Copyright, Sean Wilson. 2007.

41

Conceptualizing Hamilton

Congress Executive Society Doesn’t happen this way either!

Courts

Time
10/25/2009 Copyright, Sean Wilson. 2007. 42

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. Borenstatistics Rejection of

“Moreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value the case -- Oklahoma argues that statistics should govern to equal protection analysis.the empirical evidence shows that young -- they argue that [He goes on to critique them ... then says:]. are more involved in fatalities belabor this line of males There is no reason to 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 out! inevitably is Statistics are that in tension with the normative philosophy that underlies the Equal Protection Clause. “

Statistical evidence:

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

Rejection of Karl Popper? said: Two things are

Issue

-- what constitutes acceptable scientific evidence at trial?

“I-- what to1. Judges my confidence in federal judges; defer is “junk science?” understand Karl no one in don’t but I am at aPopper; know what is meant when it is loss to said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, 2. they don’t understand too. philosophy of science “

Three Approaches Emerge

Time

Holmes Explosion

Sociological Jurisprudence Positivism

(Progressive
Determinism)

Skepticism
Domination of American Legal Culture


								
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