Political Science Legal Studies 217 IMPACT OF LAW
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1 Political Science Legal Studies 217 IMPACT OF LAW Functions of Law Establish relations between government and the people Powers of government Enunciate rights of the people Allocate social & economic resources Establish and enforce standards of behavior Prevent and settle disputes But, What Difference Does the Law Actually Make? Imagine a world without law Hobbes: The state of nature solitary, nasty, brutish, and short Democracy depends on the rule of law Law generally versus specific laws? Difficulty of assessing law s impact 1
2 How Successful Is Law? When does law do what we ask of it? What are the unintended effects of law? How do we know what are the effects of law or other societal forces? Did Roe v. Wade lead to an increase in the number of abortions? Source: Center for Disease Control Assessing the Impact of Roe Legal vs. illegal abortions Nature of legal change Statutory change Judicial change What would have happened without Roe? Additional statutory change? Would abortions have increased for other reasons? 2
3 Impact of Roe decision Increased number of abortions? Decreased fertility rate? Increased women s participation in the labor market Reduced death and injury from unsafe, illegal abortion? Increased promiscuity? Decreased valuing of life? Decreased respect for traditional values? Mobilized political conservatives Banning Abortion Reduce abortions Reaffirm traditional family values Make women s lives less predictable Create an underground abortion market Increase health risks arising from illegal abortions Increase child abuse Decrease societal wealth More children Fewer women working Constitutive Role of Law: An Alternative Image Social construction of our world versus material nature of our world Law creates Expectations Categories Mental structures Law orients individuals in their day- to-day interactions in extensive and complex ways 3
4 Impact as Compliance When do we comply with the law? Routine law breaking Principled law breaking Civil disobedience The Crito: : Socrates and the hemlock Natural law Noncompliance other than criminal behavior Deterrence Compliance due to fear of consequencies Centrality of rationality Utilitarianism Jeremy Bentham ( ) 1832) John Stuart Mill ( ) 1873) "The greatest happiness for the greatest number." if two available punishments have equal deterrence, then the lesser punishment must be chosen. The Rationality Problem Motivations for crime or disobedience Individuals Crimes of calculation Crimes of neglect Crimes of passion Corporations Crimes of calculation Crimes of neglect Crimes of greed Pre-Roe decisions to obtain illegal abortions Decisions to provide abortions 4
5 Issues in Deterrence Analysis Types of deterrence General deterrence Individual ( specific or special ) deterrence Mechanisms of deterrence Certainty Severity The death penalty debate Legal Engineering to Achieve Deterrence Increase severity of sanctions Will murder rate in Wisconsin go down if we adopt a death penalty? Will murder rate in Wisconsin go up if we reduce the maximum sentence to 20 years? 10 years? Increase certainty of sanctions Increase detection rate Make penalties mandatory Impact of Criminal Law Beyond Deterrence Condemnation of unwanted behavior Retribution Compensation for injury Restorative justice Creating proper expectations Rehabilitation as re-education education Incapacitation Protection of society 5
6 Dilemmas of Legal Engineering Unintended and/or unpredicted consequences Difficulty of determining change Has crime decreased in states with concealed carry laws? Difficulty of attributing change to specific causes Multi-conjunctural causation Is the decrease due to concealed carry laws? Gap studies Assessing Consequences Research design The classic experiment The quasi-experiment The potential for error Failing to see something that is not there See something that is not actually there The problem of validity Internal validity: are you seeing what you think you are seeing? External validity: does what you see in the experimental setting apply outside that setting? The problem of reliability Threats to Validity in Experiments History Selection Maturation Instrumentation Testing Mortality Regression 6
7 Moving Beyond Experiments Statistical control Random selection/sampling Correlation of variables Case studies Selecting cases purposefully rather than randomly Cases as replications rather than sample points Examples We Will Look At Crime control Control of smoking and pornography Environment and regulation Equality and discrimination The role of LAW and the role of POLITICS 7
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