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Should courts and legislatures listen to public opinion? In developing and interpreting society’s laws, to what extent should these bodies privilege the lay perceptions of citizens-their “moral intuitions”-of what the law should be? In one sense this is a trivial question: In theory, legislators respond to their constituents’ opinions. But recent empirical work in the social sciences has asked a less trivial question: To what extent should lay perceptions be privileged when citizens’ “moral intuitions” differ from existing law? If citizens disagree with a criminal law, should the law change, or should popular opinion? The best known of such “community sentiment” work is ongoing research by University of Pennsylvania Law School Professor Paul Robinson and psychologist John Darley, investigating whether the legal intuitions of the communities they sample deviate from the existing criminal law, in particular from the provisions of the Model Penal Code. But does it really matter whether citizens agree with substantive criminal laws, so long as we obey them? Robinson and Darley suggest that such agreement matters profoundly. Expanding on the empirical work of psychologist Tom Tyler, they suggest that disagreement with existing substantive law can lead to noncompliance, not only with the particular, objectionable law, but with other laws promulgated by the authority that set forth that “wrong” law in the first place. This is a sharp divergence from traditional deterrence theory, where the simple threat of punishment prevents crime, regardless of citizens’ views of the law. In some instances, the authors found notable disagreement between their respondents and the substantive law of the model code. For instance, subjects would punish someone who took preliminary steps toward a theft less than someone who completes the crime; the model code doesn’t make as broad a distinction. In another example, subjects would assign liability for a failure to assist a drowning person; the substantive law ordinarily does not impose such a Good Samaritan requirement. The authors seem ambivalent in the conclusions they draw. In some cases they suggest adjusting the law to reflect popular opinions, while in other cases (such as the Good Samaritan dilemma) they are more hesitant. How wise is the public? There are a number of serious theoretical and methodological concerns about the community sentiment research, some of which the authors freely recognize. But their hesitation about when to change the substantive law highlights an important drawback to this work: the very reliance on lay opinion. Despite the perceived usefulness of public opinion, at bottom, the general public is not well informed about criminal justice public policy. It may not be surprising that areas of disconnection between lay perceptions and existing substantive law (e.g., Good Samaritan laws) are those that have traditionally engendered substantial debate in the courts and the legal academy. Worse, the public in fact tends to be misinformed about such matters. Researchers investigating attitudes toward the death penalty, for instance, bemoan popular misconceptions about it. In brief, the opinions of scholars informed in the nuances of criminal law-of someone such as, say, Professor Robinson-would seem a better grounding for substantive changes or pronouncements in such laws than those of lay people who are simply less informed. Finally, despite Tyler’s excellent work, there is more empirical work to be done to support the noncompliance hypotheses. I confess I have little data to support my intuition, but I do not think that opponents of capital punishment, for example, begin to evade their taxes more after each execution; nor do I think that Democrats looted and rioted at statistically significant higher rates than Republicans after Bush v. Gore. Obviously my description approaches caricature. But it seems that steps are omitted in the implicitly posited chain that would take an individual from his own perception of a particular law or court decision as unjust, to the perception that more laws or aspects of the court system are unjust, to the generalized perception that all laws or aspects of the court system are unjust, to the triumph of that perception over any other socially or individually inculcated reluctance to break the law, just or unjust, to (perhaps the crucial step) the decision to engage in illegal activity-not simply as a means of protest or civil disobedience, but because of a lack of faith in the legal system-followed by actual engagement in the illegal activity. A fuller account of this process, supported by the empirical research for which the authors call, is crucial. At bottom, there are a number of important insights in this new research on community sentiment. The work is an important step in helping develop ways of determining and applying public opinion about justice and the rule of law-but it is only a beginning. Jeremy Blumenthal teaches at Seton Hall University School of Law. This is adapted from his article “Who Decides? Privileging Public Sentiment about Justice and the Substantive Law,” 72 U.M.K.C. L. Rev. 1 (2003).

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