Author Archive for corey-yung
In Praise of Complexity
posted by Corey Yung
Earlier this month, right here on this very blog, Dave Hoffman pontificated about two of my favorite subjects: empirical legal studies and baseball. Primarily, Dave wondered about whether empirical legal research was facing might face the same problem as sabermatic baseball analysis: inaccessible complexity. I won’t rehash his argument because he did a very good job of explaining it in the original post. Although I completely agree with his conclusion that empirical legal studies should seek to be more accessible (which I always note at the end of my introduction of my empirical work), I disagree with his contention that empirical legal studies are facing might face widespread incomprehensibility due to growing complexity. Because I think it is a helpful analogy, I’ll borrow Dave’s example of advanced statistics in baseball. Read the rest of this post »
September 28, 2011 at 11:32 pm
Posted in: Courts, Empirical Analysis of Law
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What is “Practical” Scholarship?
posted by Corey Yung
Due to a public comment by the Chief Justice and as a side issue in the ongoing ScamProf debacle, the criticism that legal scholarship in law reviews is worthless to real lawyers has reemerged with a vengeance. As someone who enjoys doctrinal, empirical, theoretical, and completely esoteric scholarship, I’ve struggled to figure out why people in these discussions essentially equivocate doctrinal with practical. Why would Chief Justice Roberts think that a doctrinal article in a law review which might be out of date by the time he reads it is better suited to persuade him than the extensive briefing in the case he is reviewing? For Supreme Court Justices, who have party and amicus briefs so numerous that they don’t read them all, it seems strange to want law reviews to become redundant with other materials that they don’t bother to review.
For lower federal courts, the situation is a bit different. There, I think a strong case can be made that doctrinal scholarship can play a substantial role. Yet, when I have looked through cases that cite law reviews, it seems like the propositions cited are rarely doctrinal in nature. As someone who reads more federal cases for my scholarship than any sane person should, it seems as though law reviews are most often cited for propositions other than legal argument. At least if citations are a good proxy for the utility of law reviews for courts, it appears like the far more used portions of law reviews concern factual, empirical, or historical claims. Even broad theories of law seem to receive more attention than strict doctrinal points. Of course, no one has really studied this issue to confirm my impressions, but, to me, law reviews are most “practical” when they fill a niche distinguishable from other forms of legal writing. Why would anyone want a law review to simply become a legal brief (even one that was more even-handed than the average party brief)? I think many of these complaints about legal scholarship are simple railings against academia, but when they are made by people like Chief Justice Roberts they take on special significance. Although the Chief might not read law reviews in their current form, I hope for the sake of scholarship that he doesn’t get his wish to make them “practical” as he understands the concept.
September 19, 2011 at 10:52 pm
Posted in: Courts
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Panel Effects and the Independent Vote Assumption
posted by Corey Yung
For people interested in judicial decision-making, one of the most interesting findings in the last decade was the evidence that judges on panels do not make decisions independent of one another. In fact, the political ideology of co-panelists has a strong connection to how an individual judge will vote in many cases. These “panel effects” are now well-known among scholars who are not regular readers of empirical work regarding the courts. However, the details, magnitude, and explanation for these panel effects are still disputed and ambiguous.
The so-called “whistleblower” panel effect occurs when a judge wants to draw attention to the actions of co-panelists that might be acting in an ideological extreme manner. In contrast, strategic incentives often point in a different direction because dissents rarely serve any function at the federal appellate level when en banc panels are infrequent and Supreme Court review even less likely. There are also strong incentives toward consensus among judges in the same circuits because of the limited value of dissents and the upsides to collegiality among judges that will serve on panels hundreds of times together. To these theories of panel decision-making, I wanted to share one of my recent findings. Read the rest of this post »
August 1, 2010 at 8:27 pm
Posted in: Uncategorized
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From the Ivory Tower to the Courts
posted by Corey Yung
It has been conventional wisdom for some time that the legal academy has become increasingly disconnected from the practice of law. And because of this, law reviews are said to be of little use to attorneys and judges. A recent piece in the California Lawyer by a law professor and former law school dean has received some attention for making these claims in the strongest terms. From the article:
I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite—or perhaps because of—the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley’s alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.
As Adam Liptak of the New York Times observed a few years ago, “Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions—which is to say the practice of law—is beneath them.”
I’m not quite sure the method that the author used to identify just six citations to law reviews, but I performed a quick and dirty Lexis search and turned up far more. The bigger question, though, is whether the author is right that judges are not reading law reviews. A new article by David Schwartz and Lee Petherbridge indicates that, at least for the federal appellate courts, the conventional wisdom seems to be flat wrong. In fact, according to their study, law review citations have increased dramatically in the last twenty years (even when accounting for the increased number of journals). I couldn’t cut and paste the tables and graphs from the article, but the results regarding the proportion of court opinions that cite law reviews are clear.
So, why is the conventional wisdom so completely wrong on this point? Maybe citations are clerk driven. Or it could be that judges are misremembering the golden age of law reviews. I want to offer a different explanation, though. Judges and commentators have argued that because law review articles are rarely concerned with legal doctrine, they are of no use to those practicing law and judging cases. I think there is a strong argument that it is precisely because law reviews are unconcerned with doctrine, they are much more valuable to judges and are cited as a result. Articles that merely outline, discuss, or analyze doctrinal areas do little to advance the judge’s knowledge beyond what he or she could establish alone. Instead, it is the broader theoretical points and empirical studies that are outside of a judge’s metaphorical wheelhouse. Just as judges will not allow an expert on law to testify, it makes little sense for law reviews to inform judges about topics which they are comfortable. Instead, like the expert on ballistics evidence or biological sciences, law reviews that are increasingly removed from “law” actually educate judges where they are weakest. And, as a result, law reviews are increasingly being cited by the very judges who proclaim their uselessness.
July 31, 2010 at 6:54 pm
Posted in: Empirical Analysis of Law, Law School, Legal Theory
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The Federalism Revolution Did Not Take Place
posted by Corey Yung
In 1991, Jean Baudrillard provocatively titled a collection of essays as The Gulf War Did Not Take Place. In the book, Baudrillard did not embrace some bizarre conspiracy theory that the Gulf War was staged like many have contended about the Apollo moon landing. Instead, Baudrillard argued that the invasion of Iraq was not a “war” in any meaningful sense of the word. Although the media treated the run up to the conflict as the beginning of a possible global conflagration, the outcome was preordained. I remember the repeated statement that Iraq had the fourth largest army in the world as a particularly odd statement of propaganda. The death and environmental damage were real, but, to Baudrillard, the non-event could not be termed a “war.”
Baudrillard’s view of the Gulf War is perhaps more applicable to the so-called “federalism revolution” that was led by Justice Rehnquist. As a result of the Court’s opinions in Lopez and Morrison, many legal scholars felt that the Commerce Clause was seemingly reinvigorated as a means of limiting federal power. As hundreds of law reviews embraced the revolutionary narrative, the popular press joined them. To many, the revolution came to a screeching halt with the Court’s ruling in Raich. However, it was still possible to reconcile the doctrine in Raich (as a logical extension of Wickard v. Filburn) with Lopez and Morrison. Whereas marijuana was an economic good, sexual violence and guns were not (although the tension with Lopez was clear). However, with the Court’s recent decision in United States v. Comstock, the legacy of Justice Rehnquist in regards to the Commerce Clause seems to have vanished. Read the rest of this post »
July 30, 2010 at 10:31 pm
Posted in: Constitutional Law
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Judicial Conservatism, Liberalism, Activism, Restraint, and Everything in Between
posted by Corey Yung
While this is my last planned post on the subject, I continue to welcome comments and suggestions about my attempt to measure judicial ideology. My goal in both my posts here and overall project has been to push forward the effort to better understand the process of judging and the outcomes of judicial decision-making. Judge Richard Posner’s detailed and extremely valuable account of judging in How Judges Think offers one of the most interesting looks into judicial decision-making. However, there has been limited empirical research into the various models of judging like those described by Judge Posner as applied in the real world. Frank Cross has been one of the few that has rigorously tested whether the major models of judging describe judicial behavior for judges at the federal appellate level. There is still an immense amount of work to be done in this area.
Thus far, I have created measures of judicial activism and ideology. I’m currently working on projects to assess the traits of judicial partisanship and independence. My goal is not to just create a typology of judges based upon those measures, but to really have an objective grasp of the differing ways judges in our federal system are reviewing cases. Since I have results based upon my first two measures, I thought it would be worthwhile to consider the Activism and Ideology Scores of a handful of judges.
| Judge | Circuit | Activism Score (Mean = 56.0) | Ideology Score (Midpoint = 0) |
| Deborah L. Cook | 6 | 74.0 | 77.2 |
| Diarmuid F. O’Scannlain | 9 | 57.1 | 59.7 |
| Frank H. Easterbrook | 7 | 33.6 | 55.8 |
| Edith H. Jones | 5 | 68.6 | 22.0 |
| Richard A. Posner | 7 | 68.3 | -9.9 |
| Jerome A. Holmes | 10 | 89.6 | -9.7 |
| Ann C. Williams | 7 | 64.1 | -31.5 |
| Diane P. Wood | 7 | 44.7 | -37.2 |
| Sonia Sotomayor | 2 | 51.8 | -40.1 |
| Gilbert S. Merritt, Jr. | 6 | 25.2 | -52.4 |
| Kim M. Wardlaw | 9 | 92.7 | -63.3 |
June 24, 2010 at 9:53 am
Posted in: Empirical Analysis of Law, Legal Theory
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Which President Appointed Judicial Ideologues?
posted by Corey Yung
Moving away from the findings regarding individual judges in my two prior posts, I thought I would talk about some of my aggregate findings. In particular, one question that often arises in discussions of the federal judiciary is: which President(s) appointed the most ideological judges. Conventional wisdom has been that President Reagan appointed particularly conservative judges. Some also have argued that President George W. Bush appointed ideologues to the federal bench. Based upon my study, the judges appointed by President Reagan do appear to be especially ideological. However, the data did not support a similar finding as to those appointed by President George W. Bush. The figure below indicates the net Ideology Scores for the six most recent Presidents before President Obama for all of the judges in the dataset.
Outside of the judges appointed by President Reagan, there is remarkable symmetry among those appointed by the Presidents after President Nixon. There is one important caveat to the above findings, however. The older appointments represent a non-random sample of judges appointed by Presidents Ford, Carter, H.W. Bush, and Reagan. For those Presidents, there have been a large number of retirements. It might be that the judges who remain on the bench today do not adequately represent the entire class of appointees by those Presidents. Regardless, it is interesting to see that other than President Reagan’s appointments, the current Courts of Appeals appear to have been stacked to roughly the same ideological degree by the various Presidents.
June 23, 2010 at 9:15 am
Posted in: Empirical Analysis of Law, Legal Theory
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Government Experience and Judicial Liberalism
posted by Corey Yung
In my last post, I explored the result that there is a correlation between judicial liberalism and a higher ranking of the law school attended by a judge. My Judge Database also included a variety of other biographic and demographic information about the judges. Most of those background factors had no statistical relationship with the Ideology Scores. However, one that did show a connection was prior government experience (excluding judicial experience) before nomination. Based upon my research, if a judge had executive or legislative experience at the state or federal level prior to appointment, he or she was much more likely to be politically liberal. Again, as with law school ranking, the effect was true for both Republican and Democratic appointees.
This result may not seem particularly surprising if liberalism is associated with a pro-government view and conservatives are relatively anti-government. Interestingly, however, experience in the private sector did not show a statistically significant correlation with judicial ideology. Based upon the findings described in this post and the previous one, Republican Presidents might want to be cautious when appointing judges from highly-ranked schools and who have prior government experience. Similarly, Democratic Presidents might want to take a second look at potential nominees from lower-ranked schools with only private sector experience. Of course, none of this proves a causative relationship, but the differences in the populations of judges are striking.
June 22, 2010 at 4:50 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Law School Rankings and Judicial Liberalism
posted by Corey Yung
A common attack on elite law schools is that they are filled with with a bunch of loony liberals who hope to indoctrinate their law students with their left-wing beliefs. To my surprise, for federal appellate judges, there seems to be a kernel of truth to that belief. The Ideology Scores of the 138 judges with sufficient sample size that I studied had a statistically significant relationship with the ranking of the law school attended according to the US News and World Report Rankings from 2010. While the flaws in the USNWR rankings are well-documented, they are simply the only ranking available for all of the law schools in my sample. The figure below indicates that for each ten ranks lower in USNWR, a judge’s Ideology Score increased in a conservative direction by 27.9 points (on a scale of -100 to 100).
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June 19, 2010 at 4:00 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Judging the Measures of Judges
posted by Corey Yung
In my last post, I discussed the measure I have proposed in my article for the judicial ideologies of federal appellate and district judges. That leads to the question: how do we know if my measure is “good?” Anyone can make up a bunch of numbers and formulas and declare their measure to be better than existing ones. How can it be said with any certainty that one measure of ideology is quantitatively or qualitatively better than another? That is one of the trickier questions in empirical legal studies of federal courts.
Consider the very interesting and valuable studyby Michael Heise and Gregory Sisk of judicial ideology in religious liberty cases published in the Northwestern University Law Review a few years ago. The study found, consistent with prior research, that ideology had a modest correlation with outcomes in religious liberty cases. How was ideology measured? Using Common Space Scores. What if the Common Space Scores were actually a poor measure of judicial ideology and votes in religious liberty cases were actually a “better” indicator of a judge’s ideology? How would we know? Heise and Sisk chose to use Common Space Scores even while noting in detail the potential problems with the Scores. Of course, Heise and Sisk did so in part because they framed their study as part of a response to the firestorm created by an article by Lee Epstein and Gary King attacking empirical legal studies by legal academics. The types of inferences that can be drawn from the Heise and Sisk study would change dramatically if Common Space Scores were not strong indicators of judicial ideology. Read the rest of this post »
June 18, 2010 at 3:41 pm
Posted in: Empirical Analysis of Law, Legal Theory, Uncategorized
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Judged by the Company You Keep
posted by Corey Yung
Last week, I tried to outline the difficulties associated with measuring judicial ideology in regards to the limited alternatives that have been offered by scholars. In this post, I hope to describe how I have measured it and attempted to overcome the various obstacles brought about by my methodology.
My idea for identifying the ideologies of federal appellate judges was to determine the rates at which such judges agree and disagree with “conservatives” and “liberals” on the bench. The assumption was that like-minded judges will vote together more often and judges with dissimilar ideologies will tend to disagree. By focusing on the agreements and disagreements among the judges, the goal was to pinpoint their respective ideologies (via “ideal points”). This is an agnostic method that necessarily faces all of the shortcomings of such an approach that I previously described.
The initial concern with such a method is that there are far too few disagreements among the judges on the Courts of Appeals. Indeed, in the 10,242 cases in my dataset, there were only 288 dissents (including partial dissents). Some judges who participated in over 100 cases were not on a panel in which there was a single dissenting vote. Looking at the Courts of Appeals alone was, thus, unlikely to offer much information. My solution was to treat the district judges being reviewed as pseudo-fourth members of the appellate panel. After all, the district judge reviewed the same legal issue as the appellate panel and rendered judgment on that very same issue. Notably, there are far more disagreements with district judges in the form of reversals. Also, by including the district judges, my methods also allowed data to be harvested from unanimous affirmances as well (as described below). Read the rest of this post »
June 15, 2010 at 3:55 pm
Posted in: Empirical Analysis of Law, Legal Theory, Uncategorized
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How Can Judicial Ideology be Measured?
posted by Corey Yung
In my last post, I talked about the shortcomings with the leading measures of judicial ideologies. There are strong reasons, however, why those measures have dominated empirical legal research. If a scholar wants to assess the ideology of a judge, he or she is likely to try a technique that fits within one of these three categories: Case Outcome Coding, External Proxies, and Agnostic Coding. Each of these types of measures has advantages and disadvantages for federal judges not serving on the Supreme Court.
Case Outcome Coding – this category relies on a researcher going through a sample of cases and coding whether the judge’s or panel’s vote were “liberal” and “conservative” in ideological direction. While this technique can work reasonably well at the Supreme Court level (although there are shortcoming there as well), it is extremely difficult to apply to the Courts of Appeals or federal district courts. There is an enormous amount of labor required for sufficient samples to be accumulated for individual judges. Further, coding decisions are much more subjective than at the Supreme Court level as most of the federal docket is filled with cases that have little political salience. As Tonja Jacobi and Matthew Sag recently observed, “the last four decades of empirical scholarship have proceeded without a sophisticated objective measure of case outcomes.” Given the low level of disagreement among judges on the Courts of Appeals (due to consensus norms, “easy” cases, or other strategic incentives), there is an additional problem of making valid assessments without an enormous sample of data for each judge. It is also possible that a researcher could try to code the ideological direction of methods instead of outcomes, but such a technique would tend to accentuate the difficulties described above. As a result, such measures have never been attempted on a comprehensive basis for individual judges on the federal appellate or district courts. Read the rest of this post »
June 10, 2010 at 11:11 am
Posted in: Empirical Analysis of Law, Legal Theory
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“What is Judicial Ideology, and How Should We Measure it?”
posted by Corey Yung
That was the title of an excellent symposium piece by Josh Fischman and David Law last year that highlighted the limited scholarly work that has been done to effectively define and measure judicial ideology, particularly for judges not serving on the Supreme Court. Academics who are not engaged in empirical work relevant to the courts are often to surprised to find out just how crudely ideology is measured by law scholars and political scientists. There really are only two existing measures of the judges serving on the federal courts other than the Supreme Court: political party of the appointing President and Judicial Common Space Score. Every major study in empirical legal studies for decades examing members of the judiciary has relied upon one of those two metrics to determine the ideologies of federal judges (with most studies using the party of the appointing President).
Using the President’s party reduces ideology to a simple binary score – either a judge is “liberal” or “conservative.” Notably, using the President’s party, recent and current Justices Clarence Thomas, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Samuel Alito, Harry Blackmun, and David Souter are ideological equals. In a nomination battles, the measure is essentially useless since whoever the President nominates is given the exact same score. Read the rest of this post »
June 8, 2010 at 10:48 am
Posted in: Empirical Analysis of Law, Legal Theory
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“[Insert Judicial Nominee Here] is Out of the Political Mainstream”
posted by Corey Yung
I wanted to start by thanking the Concurring Opinions gang for having me as a guest this month.
The common attack of partisans in the recent judicial confirmation battles has been to brand the nominee as “out of the political mainstream.” Such accusations have been made against Justice Roberts, Justice Alito, Justice Sotomayor, and General Elena Kagan. However, the argument has also been deployed against lower court nominees as well. My favorite use of the device has been in the opposition to Ninth Circuit nominee Professor Goodwin Liu. In what typifies our modern political theater, Liu has been labeled as “out of the mainstream” in large part because he had the audacity to assert that Justice Alito was out of that very same “mainstream.” Of course, no one ever explains exactly what the “mainstream” is or what it takes to be “outside” of it. Read the rest of this post »
June 7, 2010 at 1:05 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Mirror, Mirror on the Wall, Who is the Most Activist of Them All?
posted by Corey Yung
In my last post, I gave some results based upon collective groupings of appellate judges. In this post, I want to focus on the performance of individual judges. The primary reason that I am working to create a relatively large dataset is to allow for individual judge assessments. That has not been possible with the existing appellate court databases.
So, while I cannot yet tell you who the most activist judge was in 2008 because I have only reviewed data from five circuits, I can share my preliminary results for a few higher profile judges, including the most recent nominee to the United States Supreme Court. Here are the activism scores based upon my preliminary data for some of the highest profile judges in the Second, Third, Fourth, Seventh, and Eighth Circuits ranked from most activist to least activist:
June 4, 2009 at 8:07 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Applying My Measure of Judicial Activism
posted by Corey Yung
In my previous post, I finally got around to explaining my measure of judicial activism. In this post, I will give some of the results based upon my preliminary data.
One of the most remarkable things I have found so far is that, although each of the circuits has a relatively consistent reversal rate, the activism scores vary by significant margins. The chart below shows the reversal rates and activism differentials for each of the five circuits that I have examined:
The activism scores are negative numbers with the higher numbers indicating a higher degree of activism. Thus, the 3rd Circuit is the most activist and the 4th Circuit is, by far, the least activist.
Of course, one thing that is always interesting to look at is which President’s appointees are the most activist. Here are the results I have so far:
This chart should be taken with a very large grain of salt. Although in some senses, I already have a large amount of data, in others I have very limited sample sizes. When I start analyzing data that uses the judge as a unit of measure, I only have 52 judges with adequate sample sizes. So, there are few representatives for some presidents. That is also why I am not including any regression analysis in these posts. I include this chart simply to show one of variables that I will explore in regards to activism. Other examples of variables I will examine include background experience (district court, private practice, prosecutor, law professor, etc.), conditions at the time of the appointment (election year, unified government, etc.), and other assorted factors (law school attended, activism in particular areas of law, ABA ratings, etc.).
As this project is still ongoing, I welcome any comments and/or suggestions. In my next, and probably last, post, I will give some information about some high profile judges including Judge Sotomayor.
Update: Based upon popular demand, I have changed the second graph to a bar chart.
June 2, 2009 at 9:25 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Measuring Judicial Activism by Federal Appellate Judges
posted by Corey Yung
In my last post, I briefly described the major approaches to studying activism. In this post, I will outline my measure for the concept as well as the contours of my dataset.
Since judicial activism at its core is about substituting judgment of other constitutional actors, for federal appellate courts it makes the most sense to study where they do most of their work: reviewing the judgments of district courts. That ensures large sample sizes, wide coverage of different areas of law, and decisions that are still restrained so some non-activist baseline can be derived.
To that end, standards of review offer a powerful tool to understand judicial decision making at the federal appellate level. There are deferential (i.e. clear error) and non-deferential (i.e. de novo) reviews of district court judgments. As you can see from the chart below derived from my dataset, standards of review do affect reversal rates.
May 30, 2009 at 9:15 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Studying Judicial Activism by Federal Appellate Judges
posted by Corey Yung
In my last post, I offered a new definition of judicial activism as applied to federal appellate judges. In this post, I will discuss some of the existing research on the subject.
The existing empirical scholarship is largely focused on two things: activism by the U.S. Supreme Court and judicial review of the other federal branches. While there is a lot of interesting work within those studies, I think the focus on Supreme Court review of other branches offers an extremely narrow view of judicial activism.
The Supreme Court is an unusual body in American courts. It is not subject to any higher review. The Justices are largely free to decide a case however they feel. As a result of the unrestrained nature of the Court, “activism” is a hard concept to measure. There is difficulty in finding a baseline against which to measure the Justices. A Justice who is an outlier on one Court might have regularly been in the majority during a different era. The problem of measuring activism is compounded by the Court’s very small docket. Because there are so few cases, the sample sizes are not large. Further, because the docket is self-selected, the cases are not random and are concentrated in just a few areas of law.
May 30, 2009 at 7:31 am
Posted in: Empirical Analysis of Law, Legal Theory, Uncategorized
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Defining Judicial Activism by Federal Appellate Judges
posted by Corey Yung
First off, I wanted to thank Dan and the rest of the Concurring Opinions bloggers for having me back so soon. My last stint was cut a bit short by some unexpected family issues. As it turns out the subject I wanted to blog about then, judicial activism by federal appellate judges, is more timely now because of the Sotomayor nomination. She is already being attacked as an activist judge as a basis for rejecting her nomination (even if those attacks are just part of some inevitable game we play). For some time, I have been working on a project that attempts to provide an effective measure of judicial activism by federal appellate judges like Sotomayor. Over the next few posts, I will explain my measure and show some preliminary results. However, I need to do a bit of work defining the concept first.
May 29, 2009 at 7:34 pm
Posted in: Empirical Analysis of Law, Legal Theory
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When Does Ordinary Law Enforcement Become a “War on Crime?”
posted by Corey Yung
In 1971, Richard Nixon declared the War on Drugs in America. However, the laws enabling that criminal war had been enacted years before Nixon’s speech officially recognized the new conflict. By 1968, Lyndon Johnson had established the Bureau of Narcotics and Dangerous Drugs (the predecessor organization to the Drug Enforcement Agency) to lead the charge against domestic drug use and distribution. The next year, efforts to limit drug smuggling along the Mexican border culminated in Operation Intercept which nearly closed the border entirely. When Nixon took over the Presidency, he signed into law the Comprehensive Drug Abuse Prevention and Control Act which established the categorization system for regulating narcotics. Perhaps the clearest sign that something was afoot even before Nixon’s speech was that the anti-drug-war group, The National Organization for the Reform of Marijuana Laws (“NORML”), was founded to counter the shifting policy priorities of the criminal justice system. By the time of the official declaration, the War on Drugs was already underway.
So, when did the “war” actually start? In an era when foreign wars are not even truly “declared” anymore, perhaps it is not surprising to think that a criminal war might be underway without a specific statement from the federal government. In a paper I have been working on for a while that I will be presenting at the Law & Society Conference, I contend that a criminal war on sex offenders may have already begun. We are, thus, in a period like that in the late 60′s and early 70′s wherein the conflict has started even if the government has not yet acknowledged it.
March 27, 2009 at 10:48 am
Posted in: Criminal Law
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