The Federal Bias In Criminal Law Scholarship


John Pfaff has an interesting post up at Empirical Legal Studies Blog entitled Federalism and Empirical Legal Research. In it he asks why there appears to a skew towards analysis of federal law among empirical researchers of criminal law. He ultimately boils his questions down to these:

1. Do we focus “too much” on federal outcomes?

2. If we do, does this mean that we are not developing results that explain either the impact of or the forces behind the legal changes that actually play a bigger role in people’s lives?

3. If so, how can we rectify this? In particular, if it’s a problem of data availability, how can we get the numbers we actually need?

In my view, we do focus too much on federal courts. Most cases – and prisoners – are in state systems. And states really are different. The employees are different because state criminal jobs often involve less training and lower salaries than comparable federal positions. State facilities are often in much poorer condition. State sentencing schemes vary widely from state to state, and often look little like federal provisions. And because most state prosecutors and judges stand for election, they operate under a different set of professional pressures. I would expect these differences have substantial effects on case processing and outcome.

Why do academics focus so much on the feds? A number of compelling reasons are mentioned at ELS Blog: a federal bias that starts in law school, better data collection in the federal system, and a worry that law reviews won’t publish state-focused articles. To these I’d add the fact that federal jobs are considered higher status, and thus most law profs practice criminal law in the federal system before entering teaching.

For empirical researchers, the data problem is surely a biggie. I’ve run up against data shortages in both my quantitative and qualitative work. The quantitative ones are obvious: if states aren’t collecting sentencing data, for example, how can you study deterrence? But there are problems even for qualitative work. In Making the Case for Megan’s Law: A Study in Legislative Rhetoric, I compared Megan’s Law debates at the state versus federal level. As I sought out a state dataset – that is, a well transcribed legislative debate – I discovered that few jurisdictions record their proceedings as fully, usefully, or permanently as Congress. And the absence of these legislative materials creates more than a gap in scholarship; it makes the job of courts more difficult, and renders democratic process less transparent.

This is not an impossible quandry, however. Quantitative researchers have collected some important data about state systems. Ron Wright and Marc Miller obtained a treasure trove of material from New Orleans, for example. And qualitative researchers can collect data about state systems at least as easily as they can study the feds. For example, a researcher using surveys, interviews and focus groups can work with county DA’s as easily as Assistant US Attorneys. In fact, I imagine the local prosecutors will be far more excited about participating in a research project. When you’re struggling in the trenches – and that is how state prosecutors and public defenders see themselves – it’s kind of nice to have someone notice your work.

In my view, criminal law scholars ought to make a concerted effort to address state criminal justice systems. I don’t edit a journal, but I’d like to use this bully pulpit to issue a Call For Papers on state criminal law.

Place them wherever you like, but drafts are due August 15.

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3 Responses

  1. Bubba says:

    I too have noticed that the criminal scholarship circulating in the law review realm is overwhelmingly federal. It seems like there would be almost a “trickle down” effect as state decision makers are able to refer only to the federal-centric commentary. I agree that there needs to be more state-focused scholarship. If there really is a trickle down effect, I think the beneficial side effects of our federalist system will be suppressed…

  2. Seth R. says:

    Academics focus on the federal level because they tend to be a bit elitist.

    All that runny-nosed populism at the state level disgusts them and they’re hoping that the federal system will step in and protect them from the raving barbarians.

    They’re really no different from the Sierra Club in this respect.

  3. bjr says:

    One potential explanation for the dearth of state-specific criminal law scholarship is the limited journal market for these articles. Many states, whose own law schools will be the primary market for state-specific pieces have a very small number of law schools, and therefore law reviews. This may decrease the odds of acceptance. (I am assuming that editors at the University of Washington Law Review is unlikely to be especially interested in an article focusing on the criminal law of Idaho) Moreover, some of these geographically isolated journals are not highly ranked, dereasing the rewards of acceptance.

    The prospect of writing for such a small market, with the limited rewards that come from what may be perceived as mediocre placements, therefore operates as a disincentive to expend the time and energy writing state-specific criminal law articles. (My feeling is that the bulk of this scholarship takes the form of sudent notes.)

    The answer may lie in broadening the applicability of the topic. There are two obvious ways to do this: (1) conduct a comparative anaysis or state survey, or (2) link the state issue back to a federal issue. I am currently attempting to do the latter, but I still worry about acceptance by the two journals in my geographical target audience (although quality of placement is less of an issue here, there is an inverse relationship to the prospect of acceptance) and the limited specialty journals whose editors might be interested.

    In sum, I believe that until the journal editors who comprise the first audience for whom scholars must write either solicit or prove willing to accept articles on state criminal law on a regular basis, we will not see an increase in such scholarship.