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Surveys and Judiciaries, or Who's Afraid of the Purple Curtain?

Published online by Cambridge University Press:  01 July 2024

Theodore L. Becker
Theodore L. Becker*
Affiliation:
Department of Political Science, University of Hawaii
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Extract

As any science, natural or social, goes through various stages of development, practitioners find that past conceputalizations and tools need revamping or new applications. This is in the scheme of scientific things; it is essential for progress in science. It is necessary for developing that body of knowledge and those observations and measurement techniques comprising the sum and substance of the sciences. But one question remains: when will this occur — sooner or later?

Type
Research Article
Information
Law & Society Review , Volume 1 , Issue 1 , November 1966 , pp. 133 - 143
Copyright
Copyright © 1966 by the Law and Society Association

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Footnotes

Author's note: The author wishes to express his appreciation to the Faculty Research Committee, University of Hawaii, for the grant which made the research possible. Also, many thanks to Lucille Takesue, Wesley Fong, Gary Okamoto, Bill Tardy, Brian Molmen and Bessell Vander Kolk — several of my fearless interviewers whose enthusiasm kept the research going.

References

1. The coinage of this word to refer to the judicial practice of law is not mine, nor that of a political scientist. It was adopted by, of all people, a law professor at Yale. See F. Rodell, Woe Unto You Lawyers (2d ed. 1957).

2. S. Ulmer, Leadership in the Michigan Supreme Court, in Judicial Decision Making 3, 14 (G. Schubert ed. 1963). It is often argued that courts achieve legitimacy by perpetuating such myths and enveloping their decision-making in a cloud of secrecy. Cf A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962); J. Frank, Courts on Trial: Myth and Reality in American Justice (1949).

3. Though Glendon Schubert's newest book bears that phrase as a title, it would appear to me to be a misnomer as he operationally defines it. See G. Schubert, The Judicial Mind (1965).

4. S. Nagel, Off-the Bench Judicial Attitudes, in Judicial Decision Making 29 (G. Schubert ed. 1963).

5. T. Becker, Political Behavioralism and Modern Jurisprudence (1965).

6. B. Cook, Boundary Interchange Between Teaching and Research in Judicial Process and Research in Judicial Process 11 (paper presented at Western Political Science Association Convention, Reno, Nevada, March 1966).

7. W. Good & P. Hatt, Methods in Social Research 180 (1952).

8. See J. Grossman, Lawyers and Judges 164 (1965). Though Grossman only received a 40% return of a questionnaire sent to the 100 U.S. Senators, no mention is made of the validity problem. Indeed, Grossman even tells us that he received 40 “valid responses” — whatever that might mean.

9. J. Holbrook, Role of Juries in Judicial Administration, in Civil Justice and the Jury 195 (C. Joiner ed. 1962).

10. A brief account of this is presented in F. Strodtbeck, Social Process, the Law, and Jury Functioning, in Law and Sociology 151 n.8 (W. Evans ed. 1962).

11. J. Frank, op. cit. supra note 2, at 2–3.

12. Frank is frequently cited by legal scholars seeking authority for their own debunking of various “myths” which cloak judicial activities. See, for instance, the recent article H. Jones, The Trial Judges — Role Analysis and Profile, in The Courts, The Public and the Law Explosion 130 (H. Jones ed. 1965).

13. “Among eminent judges and bar leaders the conviction grew that unless quick action were taken many courts would capsize in the flood of their work.” M. Rosenberg, Court Congestion: Status, Causes, and Proposed Remedies in id. at 31.

14. B. Henderson & T. Sinclair, The Selection of Judges in Texas (1965).

15. Id. at 121.

16. Id. at 3.

17. M. Rosenberg, Comparative Negligence in Arkansas: A “Before and After” Survey, 36 N.Y.S.B.J. 457 (1964).

18. Id. at 464.

19. Closed-ended questions require the respondent to choose from a limited set of responses, which have been created by the researcher; open-ended questions allow the respondent to reply in whatever way he chooses.

20. W. Prosser, Handbook of the Law of Torts 1024 (3d ed. 1964): “In short, the immunity of charities is clearly in full retreat; and it may be predicted with some confidence that the end of the next two decades will see its virtual disappearance from American law.”

21. C. Backstom & G. Hursh, Survey Research (1963).

22. Id. at 12.

23. There is little reason to suspect that the obvious disparity in the percentage of District Court judges solicited as compared to the Circuit Courts and Supreme Court is related to the percentage of judges who responded. First, several were “solicited” (telephoned) and agreed to answer, but no funds were available for plane fare to the islands when they were sitting. Secondly (but keeping the limited N in mind) the “urban” judges were the only judges who refused to co-operate. All “rural” District Court judges on Oahu (N-5) co-operated. The remaining nine District Court judges were “rural” — coming from Kauai, Maui and the island of Hawaii.

24. B. Henderson & T. Sinclair, op. cit. supra note 14, at 121.

25. This data is contained in a personal letter to me from Professor Vines dated July 7, 1966.

26. Ibid.

27. The psychologist Gordon Allport expressed this point succinctly “If we want to know how people feel: what they experience and what they remember, what their emotions and motives are like, and the reasons for acting as they do — why not ask them?” C. Selltiz, M. Jahoda, M. Deutsch and S. Cook, Research Methods in Social Relations 236 (1963.)