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September|October 2003
Root Causes By Adam Cohen
The Quest to Be Called a Tribe By Michael Nelson
Elsewhere

Elsewhere

Gun control statistics fall on deaf ears, canine courts, and other ideas from the nation's law reviews.

NUMB TO NUMBERS
With the 1994 federal ban on assault weapons approaching its expiration, both sides of the gun control debate have begun lining up evidence about the relationship between gun regulation and crime. A University of Pennsylvania Law Review article by Dan M. Kahan and Donald Braman, meanwhile, suggests that such computational contests may be a waste of time.

"More Statistics, Less Persuasion"—the title is a riff on John R. Lott Jr.'s controversial pro-gun book More Guns, Less Crime—argues that the numerous empirical studies of gun control have had little effect on public opinion. Kahan and Braman believe that studies like Lott's wrongly assume that readers will be compelled to accept the truth if it's presented to them in cold, hard numbers.

To explain the public's imperviousness, the authors employ the cultural theory of risk, an idea developed by anthropologists in the 1980s. Most people, the theory goes, assess different kinds of risks differently. Choices about risky behavior are made not on a rational basis but by evaluating the nature of the risk in conjunction with a person's set of values. Imagine, for example, a conservative investor who is also a skydiving enthusiast. She might associate the risks of diving with positive values like courage and the risks of playing the market with negative values like recklessness. It's unlikely that a study on the dangers of diving would change her belief that the sport is adventurous; a report in Forbes espousing tulip futures as a prudent investment would probably have similarly little effect.

Kahan and Braman argue that people on each side of the gun debate view the risks associated with guns differently: One fears being a victim of gun crime, while the other fears being a gunless victim. Either way, the authors assert, a person's position on gun control is based not on a rational choice but on deeply ingrained values that aren't likely to be swayed by statistics.

Lott's book is also the inspiration for a pair of articles recently published in the Stanford Law Review. Ian Ayres and John J. Donohue III use Lott's own data set to refute his conclusion that concealed weapons increase crime, while the economists Florenz Plassman and John Whitley recast the same data to support Lott's theories. Each side asserts the superiority of its own statistical analysis but what emerges after some 200 pages of dueling statistical reviews is hardly a feeling of certainty. In the end, the arguments offer more compelling evidence in support of Kahan and Braman's thesis than their own. University of Pennsylvania Law Review, Volume 151, Number 4; Stanford Law Review, Volume 55, Number 4

DON'T FEED THE DEFENDANTS
Last summer, a married couple in San Francisco was tried for murder after their dog killed a neighbor, mauling her as she returned home from the grocery store. The trial, which ended with the wife being convicted of murder and the husband of a lesser charge, set off a national debate over the fairest way to punish people for the crimes of their pets. There was no debate over the appropriate punishment for the offending dog, however: Bane, a Presa Canario, was deemed dangerous by state authorities and destroyed long before his owners were found guilty by a jury of their peers.

This was not always the way of animal justice. In her historical survey of animal prosecution and punishment in Animal Law, an annual journal published by Lewis and Clark Law School, Jen Girgen contends that animal defendants like Bane have been entitled for most of Western history to many of the same due-process protections as their human counterparts, including the right to counsel, to call witnesses on their behalf, and even the right to an appeal. In a 1522 trial in Autun, France, for instance, a lawyer argued (unsuccessfully, in the end) that his clients, the rats who had ravaged the local barley crop, had failed to appear in court because they feared attacks by cats en route. In 1750, a donkey from Vanvres, France, on trial for bestiality was acquitted after her counsel submitted a document, signed by the donkey's neighbors, attesting to the animal's virtue. The animal's co-defendant—her owner—lacked any such character witness, and was sentenced to death.

Girgen sees these as the good old days, when animals could not arbitrarily be deemed "dangerous" and executed without a trial. Contemporary animal punishments are closer to "lynching" than justice, she argues, since animals accused of being dangerous are almost always killed, either by civil authorities or by their "guardians," a term she uses because she is "unable to comprehend (and unwilling to accept) the notion that one sentient being may be 'owned' by another." Girgen favors placing greater responsibility on the shoulders of humans, as the judge and jury did in the San Francisco case. And though she's more interested in the ethical arguments for expanding animal justice than the practical ones against it, she looks forward, with a straight face, to a time when every dog will have his day in court. Animal Law, Volume 9

BAR NONE
Law school grads who spent this summer studying for the bar exam but didn't make the grade may find solace in "Who Needs the Bar? Professionalism Without Monopoly," by Stanford professor William Simon. Published in the Florida State University Law Review, Simon's critique argues that the bar—the institution that licenses lawyers and provides standards for professional conduct—deprives both lawyers and their clients of freedom and professionalism. "It is implausible in principle and corrupt in practice," he writes, calling the bar not only "monopolistic" but also "self-serving" and "indulgent."

Nothing a little free enterprise can't solve. Simon advocates a set of rules for lawyers' conduct based on corporate chartering. If states shed unnecessary barriers that prevent lawyers from practicing in multiple jurisdictions, clients could benefit from a wider choice of lawyers. Free from unwieldy bar exams, lawyers would have to meet only narrowly tailored requirements set by other states to practice outside their home state.

But it's not just the licensing requirements that Simon re-envisions. He suggests that a free-market system be applied to lawyers' ethical codes as well, with clients allowed to choose from a menu of contractual options, depending on their needs, rather than being stuck with boilerplate confidentiality and zealous advocacy codes. Call it the Burger King school of legal practice: Have it your way! Florida State University Law Review, Volume 30, Number 4

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