Law & Society Review 45(1)

Do Victims of War Need International Law? Human Rights Education Programs in Authoritarian Sudan
Mark Fathi Massoud

Drawing on ethnographic fieldwork in Sudan, this article illuminates the consequences of human rights educational workshops as a form of humanitarian assistance in war-ravaged areas. These projects are built on flawed assumptions about Sudanese politics and about the likelihood that human rights education empowers the war-ravaged poor. The beneficial impacts of human rights discourse stem from its side effects, which fulfill urgent and symbolic needs, and not from the core content of human rights. The case of an authoritarian regime exposes an alternative site of rights promotion, outside the established or struggling democracies where most literature on rights resides. Bridging the literature on rights in Western, democratic contexts and on human rights in Africa, this article argues that law is not enough—and is potentially dangerous—in the insecure and impoverished areas where the international aid community has been encouraging it to flourish.

Rehabilitation in the Punitive Era: The Gap Between Rhetoric and Reality in U.S. Prison Programs
Michelle S. Phelps

Scholars of mass incarceration point to the 1970s as a pivotal turning point in U.S. penal history, marked by a shift toward more punitive policies and a consensus that “nothing works” in rehabilitating inmates. However, while there has been extensive research on changes in policy makers' rhetoric, sentencing policy, and incarceration rates, scholars know very little about changes in the actual practices of punishment and prisoner rehabilitation. Using nationally representative data for U.S. state prisons, this article demonstrates that there were no major changes in investments in specialized facilities, funding for inmate services–related staff, or program participation rates throughout the late 1970s and the 1980s. Not until the 1990s, more than a decade after the start of the punitive era, did patterns of inmate services change, as investments in programming switched from academic to reentry-related programs. These findings suggest that there is a large gap between rhetoric and reality in the case of inmate services and that since the 1990s, inmate “rehabilitation” has increasingly become equated with reentry-related life skills programs.

Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide”
Mona Lynch and Craig Haney

This article examines the nature of racial bias in the death sentencing process. After reviewing the various general explanations for the continued significance of race in capital cases, we report the results of an empirical study in which some aspects of racially biased death sentencing are examined in depth. Specifically, in a simulated capital penalty-phase trial setting where participants were assigned to small group “juries” and given an opportunity to deliberate, white male jurors were significantly more likely to sentence black defendants to death than were women and nonwhite jurors. This racialized pattern was explained in part by the differential evaluation of the case facts and the perceptions of the defendant that were made by the white male jurors. We discuss these findings in light of social psychological theories of contemporary racism, and we conclude that the demonstrated bias in capital jury settings should be understood as an interaction of several factors, including individual juror characteristics, group-level demographic composition, and group deliberation processes.

“How Do I Bring Diversity?” Race and Class in the College Admissions Essay
Anna Kirkland and Ben B. Hansen

In the first systematic study of what college applicants invoke when required to submit a diversity essay, we revisit many settled assumptions on both the left and the right about how such an essay would operate after Grutter and Gratz as well as after the passage of anti–affirmative action ballot initiatives. Our data are a sample of 176 diversity essays submitted to the University of Michigan in the immediate aftermath of the University's Supreme Court win, analyzed both qualitatively and quantitatively with special attention to the differences that the essay writer's race and class position make. We find that in many respects the essays are similar when written by applicants from similar backgrounds but different races, and that conservative critics were wrong to assume the essay would function simply as a way of announcing oneself as an under-the-table affirmative action candidate. Rather than suggesting a straightforward lineup of advantage and disadvantage, we suggest rather that the essay is a vehicle for the youngest generation of citizens to both receive and send back a new conception of difference that has some essentializing elements but overall is turning in a postracial, cosmopolitan direction.

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century
Russell Smyth and Vinod Mishra

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.

Comparing Circuits: Are Some U.S. Courts of Appeals More Liberal or Conservative Than Others?
Andreas Broscheid

This article investigates possible ideological differences between circuits of the U.S. Courts of Appeals. It looks at the distribution of three-judge panel ideologies on the circuits and at differences in decisionmaking patterns, testing several theoretical approaches to circuit differences: the attitudinalist approach, arguing that different judicial ideologies account for intercircuit differences; historical-institutionalist approaches that argue that circuit norms lead to differences in the proportion of conservative decisions and in the effects of judicial ideologies; and the rational-choice institutionalist argument that overall circuit preferences constrain three-judge panel decisions through the en banc process. Using a multilevel logit model, the study finds some support for the attitudinalist and historical-institutionalist accounts of circuit differences. It also finds that intercircuit ideological differences contribute comparatively little to the prediction of appeals court outcomes.

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?
James L. Gibson and Gregory A. Caldeira

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.

Law & Society Review, March 2011: Volume 45, Issue 1