CRJ 441 Study Guide One
1. What is the difference between this course and a sociology of law or a law and society course? (Refer Preface)
Other classes look at what the law has to offer social science, whereas this class looks at what social science has to offer the law.
2. State the names of three jurists who offered early criticism of classical jurisprudence. (p.2)
Holmes, Brandeis, and Pound
3. What was the legal realist movement reacting to? (Ch. 1, Section 1) The formal jurisprudence
4. Identify the major characteristics of legal formalism. What is the syllogistic structure of legal formalism? (Lectures)
Major Premise: Law consists of a set of natural, selfevident, Godgiven principles that do not change.
Minor Premise: The facts of a case can be categorized in selfevident, objective ways.
Conclusion: The single, correct decision in a case can be obtained by taking the facts and the law and applying the deductive logic.
5. Would you agree that U.S. v. Knight (p.1) illustrates formal jurisprudence? State reasons for your answer.
6. What social and historical facts led to the skepticism of the natural law? 7. Summarize the main points of Holmes, The Common Law. (pp. 24 and lectures)
8. Why is Holmes’ Common Law still controversial? (Lectures and the textbook)
Because it focuses mostly on unconscious recognition of the legislative function of the courts.
9. Who was the first legal practitioner to challenge formal jurisprudence? What is the case in which a brief containing mostly empirical evidence was filed for the first time? (pp. 410)
Louis Brandeis. Muller v. Oregon (1907).
10. What is the Lochner doctrine? (p.8)
“A law providing that no laborer shall be required or permitted to work in a bakery more than sixty hours in a week or ten hours in a day was not as to men a legitimate exercise of the police power of the state, but an unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under, the Federal Constitution.” Don't forget about the age old question of general physics 1 study guide
11. State the main points of Roscoe Pound's Sociological Jurisprudence. (pp. 1113) 1. Study the actual social effects of the law.
2. Study how the law operates in society and effects that they produce when put into action.
3. “The life of the law is in its enforcement”
4. Study what social effects the doctrines of the law have produced in the past and how they have produced them, so that we may get the results desired now. 5. Judges should consider law as a general guide and exercise discretion within the wide limits of the law.
6. The overall objective of the sociological jurisprudence is instrumental in achieving the purpose of the law.
12. What are the two major branches of legal realism? Name the two jurists who pioneered these schools of thought. (Chapter 1, Section 2, and lectures)
1. Llewellyn’s instrumental, policy oriented branch (the most influential in American law).
2. Frank’s form of introspective legal realism (reflected primarily in judicial biographies).
13. What are Llewellyn's nine common points of departure? (Lecture notes, and Ch.1, Section 2, pp.1618) We also discuss several other topics like an ancient date palm seed germinated and grew into a healthy plant. what was the source of nutrients for the young sporophyte embryo during germination of the date palm seed?
1. Law is in “flux,” is “moving,” and is judicially created.
2. Law is a “means” to social ends, and not an “end” in itself.
3. The society changes faster than the law and the law has to be reexamined to ensure that it fits the society. If you want to learn more check out border dwellers through socialization
4. The temporary divorce of “is” and “ought” for purposes of study – Judges should try to see the world as it empirically is rather than as they would like it morally to be. Does the law empirically work?
5. Legal rules are “generalized predictions of what courts will do” in given cases. They do not describe what people actually do in real life. Precepts vs. practices. 6. Judges often decide a case and then create “a rule as a rationalization” to justify it.
7. The worthwhileness of grouping cases and legal situations into narrow categories. Broad and verbally simple rules cover so many dissimilar fact situations that they have no predictive power.
8. Evaluate law in terms of its “effects” in the world rather than its logical or rational structure.
9. Only the realists have gathered these points together in a systematic way and are trying “consistently, persistently, insistently to carry them through.” 14. Summarize Jerome Frank's realist view of the law. (pp. 1922) We also discuss several other topics like mitchell sitnick
∙ Focused on the personality of judges
∙ Focused on the human element in the administration of justice ∙ Legal decisions are reached not by a machine applying syllogistic logic but “by a human being called a judge”
∙ Judge’s “prejudices, passions, and weaknesses” influence judicial decisions ∙ The human element in judging should be admitted and confronted directly 15. Would you agree that legal realism has created a crisis in democratic theory? (Pp. 2226, and lecture)
16. Read the extracts of senate confirmation hearings of Chief Justice Roberts and Justice Sotomayor (pp. 2630), and determine whether the views of each one of them are aligned with legal formalism or legal realism. While the hearings demonstrate the intellectual legacy legal realism and the continuing controversy could we say that today practically no legal scholar or practitioner believes in legal formalism?
Section I Legal Methods If you want to learn more check out utsa.com
1. What is the Frye test regarding the admissibility of expert testimony? (Pp. 3334) ∙ The admissibility of a lie detector test If you want to learn more check out cwv 101 quiz 3
∙ “…while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
2. State FRE 702. (P.35)
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
3. State the Daubert test. How was it made operational by the 9th Circuit? (pp. 35 44, and lectures)
3 ways to demonstrate that expert testimony is scientifically valid:
1. Show that it grows out of prelitigation research
2. Show that it is based on research that has been subjected to peer review 3. Have experts explain what was done and point to an objective source that indicates that the scientific method was followed
4. According to the Supreme Court in Joiner, what is the standard that an appellate court should apply in reviewing a trial court's decision to admit expert testimony? (p.45)
5. Is it true to say that the court in Kumho (p.47) extended Daubert's gatekeeping function to all expert testimony, not just scientific testimony? See the amended FRE 702 on p.49.
Section II Social Science Methods
A. METHODS OF ASKING QUESTIONS
1. Ask the right question (page 53)
a. The question must make reference to the empirical world.
b. The question often calls for a causal explanation.
c. The question involves measuring/quantifying what is observed.
2. Reference to the Empirical World (pages 5355)
3. Components of causal explanation (page 5557)
a. Prediction (ability to state what will happen before it happens)
b. Control (ability to bring about a change in a state of affairs)
c. Understanding (knowing the causal mechanisms/processes by which something operates and changes
4. General causal accounts are called theories. Good theories yield testable and verifiable hypotheses.
5. All social science research does not try to establish causality. Some research is descriptive (e.g., census). A single piece of research does not have to fulfill all three goals of prediction, control, and understanding (E.g., Scurvy).
a. Necessary cause (pp.5556)
One in which some factor or condition, X, is required to produce an effect, and will invariably do so.
b. Sufficient cause (p.56)
Those in which X is one of many causes that can independently produce Y. c. Contributory cause (p. 56)
Those in which X is neither necessary nor sufficient to cause Y, but can nonetheless contribute to (that is, change the likelihood of) Y’s occurrence.
5. Measurement (pages 5762)
I. Variables Things/concepts that one chooses to measure (page 58). The defining characteristic of variables is that they vary or change.
a. Categorical (male/female) b. Continuous (age)
Independent Variable one that may be the cause of something Dependent Variable that something
Intervening Variable mediates the effect of independent variable on the dependent variable
II. Operational definition Define things by how they are measured (p.59) III. Reliability Consistency (get the same value every time you measure it) (p.61)
a. Interrater reliability
b. Test retest reliability (lectures)
IV. Validity True/accuracy (accurately measures what you want to measure) (p.63)
a. Internal Validity validity of a study on its own terms, e.g., a 6 member and 12 member jury function study of state and federal juries. (p.64)
Threats to Internal Validity (pages 6466)
A threat when an observed effect might be due to an event which takes place between the pretest and posttest, when this event is not the treatment of research interest
A threat when an observed effect might be due to the respondent’s growing older, wiser, stronger, more experienced, and the like between pretest and posttest and when this maturation is not the treatment of research interest.
A threat when an effect might be due to the number of times particular responses are measured.
iv. Instrumentation v. Regression
Instrumentation is a threat when an effect might be due to a change in the measuring instrument between pretest and posttest and not to the treatment’s differential impact at each time interval. Regression is a threat when an effect might be due to respondents’ being classified into experimental groups at, say, the pretest on the basis of pretest scores or correlates of pretest scores.
vi. Selection vs. Mortality
Selection is a threat when an effect may be due to the difference between the kinds of people in one experimental group as opposed to another. Mortality is a threat when an effect may be due to the different kinds of persons who dropped out of a particular treatment group during the course of an experiment.
b. External Validity the ability to generalize the results of a study. (p.67) B. METHODS OF GATHERING INFORMATION
Threats to validity can be eliminated with good research design. Four generic kinds of research design are case studies, correlational studies, true experiments, and quasi experiments.
1. Sampling (p.75)
A representative sample must be drawn from the Population of study. Probability Sampling vs. Convenience Sampling (whoever you run into).
Simple Random Sampling every person in the population has the same probability of being in the sample.
Stratified random Sampling Break the population into groups of interest (e.g., by gender, age, ethnicity, etc.), and then randomly sample from each group.
You can randomize by different units of analysis. For example, prisons may be assigned to different treatment programs.
2. Research Design
a. Case Studies are subject to selection bias. One is likely to select cases that validate one's hypothesis. (p.69)
b. Correlational Studies examine the positive (change in the same direction) or negative (change in the opposite direction) relationship between variables. Correlation does not imply causation (e.g., TV viewing and violent behavior, ice cream sales and drowning.) Most surveys use correlational designs. (p.71)
c. True Experiments Random assignment (not random sampling) of subjects to various groups in the experiment guards against threats to internal validity except mortality (that is more subjects may drop out of one group than another.) (p.75)
d. Quasiexperiments There is no random assignment. (p.79)
i. Before and After designs are subject to maturation, history, and testing threats to internal validity. (p.80)
ii. Simple Comparison Group designs are subject to the threat of selection biases. (p.80)
iii. Time Series Designs measure the same group at more than two points in time. History may affect validity. For example, some historical event, rather than the independent variable, may cause the change in the dependent variable. (p.81)
3. You must have reliability in order to have validity. It is possible to have perfect reliability and no validity (e.g., hat size as a measure of IQ).
4. Validity is rarely all or none. It is more a matter of degree. Reasonable people often disagree about the validity of variables. (E.g., reasonable people may disagree on the most valid definition of whether a crime has been committed.)
Chapter 3 Social Science Used to Determine Facts
Adjudicative facts (p.97). Use of social science to determine adjudicative or case specific facts.
Section I Trademarks
1. Hearsay Rule (p.88) was used for sometime to object to the introduction of scientific evidence. Courts took the view that the respondents in the surveys were offering statements in evidence while not being present at trial to testify and be crossexamined. (Page 99).
Elgin National Watch Company and Life Savers (Pages 99100)
In Triangle Publications (Pp.100101) where the issue was whether teenage girl consumers were likely to be confused, Judge Frank, a realist, did his own survey because
he thought that the male judges in the case were not likely to have knowledge of teenage girls' shopping behavior. Note that Judge Frank writes the dissenting opinion. Today, his survey would be rejected as unscientific because the survey was not random and the sample was not representative of the population of consumers at issue.
2. Oneida is an example of the beginning of judicial acceptance of scientific surveys. But witnesses were called and their testimony was given more weight than the scientific evidence. (Page 102).
3. Zippo (page 103) marks the end of the hearsay objection to survey evidence.
a. Surveys are not hearsay because they are not offered in evidence to prove the truth of the matter asserted.
b. Even if they are hearsay, they are admissible under the present sense impression exception to the hearsay rule. (See Note on page 104).
c. The judge ruled that the methodological problems affect the weight, not the admissibility of evidence. (These problems are mentioned on pages 104105. They affect the external validity.)
4. Amstar is an example where the problems with the survey affected the admissibility. The surveys had no probative value. (Page 105). (Lectures.)
5. Study the methodology adopted in the Squirt Company case (page 107.) The court liked this study because it was conducted in a live market environment and measured actual consumer behavior, and not opinion. Why does the court think that the 4.3% error is statistically insignificant?
6. In La Victoria Foods (page 111) consumers were instructed to buy a certain product, and were tested to see if they could follow those instructions without getting confused. Compare this case with Squirt Company case.
7. The methodology in Kroger (p.110) suffers from external validity. The court disparages Kroger’s affidavits from 152 people as worthless.
8. Read lecture notes on Kroger (p.110), Kis (p.113), Pharmacia (p.124) and Fortune Dynamic v. Victoria Secret (p. 120.)
9. Social science evidence of consumer confession need not be perfect or decisive. It must be relevant. (Page 126)
Section II Obscenity
1. Does the First Amendment protect obscenity? Is obscenity the same as pornography? What is the standard for determining whether the material in issue is obscene or not? How can social science evidence be used to determine obscenity?
2. Until the 1970's the two issues regarding the use of social science evidence in obscenity litigation were:
a. whether the prosecution is required to offer expert evidence;
b. whether the defense must be permitted to offer expert evidence. (Page 130)
3. People v. Muller (page 130). Whether the photographs are obscene is a selfevident fact. Therefore, to allow an expert would be to invade province of the jury.
4. Jacobellis (pages 131132).
a. White, J., Let the jury decide by looking at the material.
b. Harlan, J., Expose the jury to the views of other individuals in the community. Opens the door for admitting expert testimony to educate the jurors.
c. Stewart, J., But I know it when I see it.
4. Smith (page 132) Frankfurter, J., believed that defendants have a due process right to present expert testimony on the question of obscenity. To allow light to be shed on what those contemporary community standards are.
5. Miller (page 133) is the most important case in obscenity law. For the basic guidelines for the jury read the 3rd paragraph of the opinion. A jury need not consider national standards to determine whether certain materials are obscene. Defining community as a statewide standard would not violate the constitution.
6. Paris Adult Theatre (page 134). The prosecution is not required to present expert evidence of obscenity.
7. Kaplan (page 134). The defense should be free to introduce expert testimony. Miller, Paris and Kaplan were decided by the U.S. Supreme Court on the same day. These cases together resolved the issue of expert testimony in obscenity cases.
8. Hamling (page 135). The constitution does not require a statewide community standard. It can be a local standard.
9. Nelson (p.136). The Illinois obscenity statute specified that a statewide standard should be used. Note the survey question asked. (see lecture notes). Read the first and the second paragraphs on p.137 carefully as regards the admissibility of social science evidence.
a. Foundational Criteria = Admissibility b. Technical Adequacy = Weight
10. Trainor (page 138) is an example of how not to do a survey.
11. Pryba (page 141) rejected an ethnographic study that is qualitative, and not quantitative.
Section III Damages
Social science is used to determine compensatory damages in mass tort cases due to difficulty of considering each case individually.
A court of appeal may intervene if the trial court abused its discretion in admitting the scientific evidence.
The constitutional issues raised in regard to the use of damage award determinations in sampled cases to nonsampled cases are:
a. Due Process: The plaintiffs in nonsampled cases are denied the right to individual trials.
b. 7th Amendment: Use of random samples violates the right to a jury trial.
1. Harolds (page 151) is an example of the use of social science in a tort case involving one plaintiff.
2. Cimino (page 155). Over 2000 plaintiffs who have been injured by exposure to asbestos. Study the methodology adopted by Judge Parker to consolidate cases. He stratified the plaintiffs into five categories based
on medical diagnosis, and then selected a random sample of 160 cases from each category. The juries sat separately and heard testimony of individual cases, and returned individual damage verdicts. After trial the judge decided that the average verdict in each of the five categories should be applied to each of the nonsampled cases.
3. On appeal the Fifth Circuit reversed Judge Parker's decision in Cimino (page 165). It was held that the 7th Amendment required jury trials in individual cases.
4. In re Estate of Ferdinand E. Marcos Human Rights Litigation (page 159) Study the methodology adopted. How is it different from Cimino? The judge certified a class that included three categories determined by type of harm. A statistician presented a plan to take depositions of a random sample of 137 claimants in the three categories. A Special
Master took the depositions and recommended damage amounts for each of the sampled claimants. He then recommended total damages for each category of nonsampled claimants. The jury was allowed to accept, reject, or modify the plan.
The Ninth Circuit Court of Appeals in Hilao (p.162) approved the damage phase trial as conducted.
5. In re Chevron U.S.A. 3000 plaintiffs. The trial court approved a plan to hold trials for 30 plaintiffs, 15 selected by the plaintiffs, and 15 selected by Chevron. Chevron objected that the selection process was not representative because it was not random. The Court of Appeal limited the use of the results to the 30 individual plaintiffs.
6. Blue Cross and Blue Shield of New Jersey v. Philip Morris. The judge endorses the use of sampling in mass tort cases, and holds that surveys
do not violate either 14th Amendment due process rights or the 7th Amendment right to a trial by jury.
7. In Duke v. WalMart Stores (p.168) the Ninth Circuit Court of Appeals relied on Hilao (p.162). In WalMart Stores v. Dukes disparages what it calls “Trial by Formula” and seems inclined to limit the use of statistical sampling to determine damages in future mass tort cases. Read the two paragraphs on p.169.