Author: Max Minzner

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Thanks and Goodbye

Today is my last day guest blogging, so I want to thank Dan and the rest of the staff here at Concurring Opinions for allowing me to spend the last month here. Let me end with one last post on empirical work and the law. Andrew Gelman makes the nice point here about the difference in empirical work in political science and psychology — psychologists run experiments while political scientists analyze data that already exists. For the most part, legal empiricists are far more like political scientists than psychologists. True legal experiments are few and far between. Of course, this fact does not prevent good work from being done. As an example of one of the most interesting and important pieces of work on the life of real lawyers, all law students, prospective law students, and law professors should be following Bill Henderson’s discussion of the bimodal nature of lawyer salaries.

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Criminal Law, Empirics, and Burglary (II)

I have been away for awhile, but I’m back and want to continue discussing the book Burglars on the Job. There is still more there for those of you preparing your criminal law class for the first time. In particular, students often ask me “does the criminal law matter?” The utilitarian justifications behind the criminal law turn heavily on the idea that the law is knowable (and known) and that people avoid or reduce their criminal activity in response to the law. Especially in the death penalty context, there have been dueling regressions on the effect of differences in the law, but I’m never going to try to explain those results to my students and (to steal a line) regression results often fail to move people away from their pre-existing views. This area, though, is one where I think there’s a lot of value in qualitative empirical work. If you are interested in what criminals know and what shapes their behavior, asking criminals can be a good first step. The answers aren’t a replacement for harder data, but they are a valuable addition to the story.

So what do Wright and Decker find? First, there is some evidence that criminal penalties matter. As I noted earlier, the burglars they interviewed often avoided occupied houses, both because they feared victim resistance and because they might be called on to use violence, which they knew might lead to higher penalties. More surprising (at least to me), there was at least one burglar who, when discussing reasons to commit crime alone, demonstrated a vague awareness of the felony murder rule (although he believed that it was even broader and included a felony assault rule):

That’s the whole point of going [on burglaries] by yourself. If you have somebody else with your and they panic . . . they might hurt somebody. Then you got an assault charge. Accidentally kill somebody and then you both got a murder charge.

They also report some results suggesting a substitution effect. They quote burglars who had previously supported themselves through robberies and narcotics sales, but shifted to burglaries as penalties for those crimes increased. My students always find substitution effects interesting and it is nice to have at least anecdotal support for the idea. (For more on substiution effects, see here).

And finally, Wright and Decker make the point that prices in the stolen goods market appears to have fallen. A similar argument is made here. As consumer goods become cheaper, stealing them becomes less lucrative.

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Criminal Law, Empirics, and Burglary

The next piece of empirical data that I think is worth considering the context of criminal law comes from an excellent book, Burglars on the Job (h/t Marginal Revolution), by Richard T. Wright and Scott Decker. The book is almost 15 years old, but anyone who teaches burglary as part of the basic criminal law course should read it. Wright and Decker interviewed 105 self-reported burglars and what drew my eye to the book is the methodology. Rather than interviewing incarcerated burglars, they set out to find active burglars in the community. They drew on a network of people who they believed were likely to know criminals. Interviewees would introduce them to burglars who in turn would introduce them to other burglars. This approach introduces a selection effect, of course, but avoids the obvious selection bias arising from only interviewing burglars in prison.

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Criminal Law, Empirics, and the Duty to Rescue

Around this time of year new professors start to think about their courses and I thought I would add in my contribution. One of the struggles of teaching criminal law is that the doctrine is often divorced from reality. This is hardly a new observation, but I am always struck by the divide between the practice of criminal law and the course we teach to first year students. As a simple example, the standard criminal law class spends little or no time on narcotics prosecutions, even though drug cases are an important, if not the dominant, feature of the practice of criminal law. One way to overcome that divide is to bring some empirical work into the classroom so I thought I would share some of the items I have used or plan to use in the future.

The first installment is on the duty to rescue, a standard part of a criminal law course. Most states do not impose a general duty to rescue. If a stranger about to drown in a lake, most states will not charge someone who fails to rescue him with murder. Of course, in some situations courts will impose a duty. For instance, you cannot let your spouse or your child drown. Similarly, a nurse hired to care for someone who is ill is obliged to intervene if the patient seems to be having a heart attack. After introducing the general rule and exceptions, my class spends time analyzing and breaking down these distinctions as well as arguing about the reasons to either impose or not impose a general duty to rescue.

Without some understanding of rescue rates in the real world, though, the discussion is very abstract. I have found this paper by David Hyman to be a very nice addition to the class. He finds that even in a world without a duty to rescue, rates of non rescue are very low. Far more people die risking their lives to rescue strangers than die from failing to be rescued by someone who could have helped but did not. The relatively aberrant nature of non-rescue helps shape and ground the discussion of this issue.

It also provides a hook to compare punishment and reward. While we do not punish a failure to rescue, we do reward rescue. We take the same approach with reporting crime and serving as a cooperating witness. There are financial rewards available for reporting crime and if you are charged with a crime, there are rewards available in the form of reduced jail time for testifying against co-defendants. We do not, though, punish those who fail to report crime (aside from the rare misprision statute) or decide to remain silent. My experience is that students find these comparisons interesting and helpful.

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Tribal Court Jurisdiction (II)

Yesterday I argued that Plains Commerce Bank has a number of flaws. Today I want to discuss the fundamental uniqueness of tribal court jurisdiction in the American system. (As a caveat, the following analysis is intentionally brief and leaves out much of the complexity of the field to keep it relatively generally accessible.)

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Tribal Court Jurisdiction

Thanks to Dan and the rest of the Concurring Opinions staff for having me here this month. I’ve been reading the blog since its inception and I’m thrilled to get the chance to be a part of it.

I am a little late to the party, but I thought I would join in the chorus of commentary on last week’s developments in the Supreme Court. I’m talking, of course, about Plains Commerce Bank v. Long Family Land & Cattle Co., the Court’s most recent foray into the jurisdiction of tribal courts, one of my research areas. (I think the court might have decided another case as well).

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