Copyright (c) 2003 University of Missouri-Kansas City School of Law
UMKC Law Review
ARTICLE: WHO DECIDES? PRIVILEGING PUBLIC SENTIMENT ABOUT JUSTICE AND THE SUBSTANTIVE LAW
72 UMKC L. Rev. 1
Jeremy A. Blumenthal *
In legislating, how can lawmakers best achieve a fair society in which individuals respect and comply with the rule of law? How can they ensure that the framework of law that they develop is just? Indeed, what is such fairness and such justice? 1 Is it, as a recent Symposium punned, "just us?" 2 That is, in developing and interpreting the laws that will govern a particular society, to what extent should legislatures and courts privilege citizens' lay perceptions of what the law should be? 3
In one sense this is a trivial question, as one hallmark of the United States is that of a representative democracy in which the voice of the people is supposed to be reflected, 4 if not reified, in legislatures' enactments. In theory, the laws of a particular state reflect in large part the attitudes and perceptions of that state's populace. Similarly, federal laws should in large part reflect national attitudes, as filtered through the legislative process and as debated, adjusted, and compromised upon. 5 In this sense, the judicial and political systems should indeed give significant weight, if not primacy, to lay beliefs about what the law should be.
But a growing literature in the social sciences, and in law-and-social science collaborations, has focused on a somewhat different aspect of this question: specifically, to what extent should lay perceptions be privileged when those perceptions and attitudes differ from existing law? 6 This line of empirical literature examines the degree to which current ...
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