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Behind the Growing Skepticism of U.S. Laws, Legal Institutions

10/07/2022

Americans of all political leanings have been voicing skepticism about the legitimacy of the U.S. Constitution, laws, and institutions, directing their doubts at entities ranging from the Supreme Court to local criminal courts to state election bureaus.

But what’s driving that skepticism and is there hope for change? The Law School took on those questions in a well-attended Brooklyn Book Festival panel discussion, “The Legitimacy of Law at a Crossroads,” moderated by Professor Alexis Hoag-Fordjour and held as part of the Oct. 2 festival, which the Law School has hosted and sponsored for 11 years.

One reason for distrust of government institutions is the public’s detachment from the regulatory process, said Professor William Araiza, who wrote Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt (NYU Press, June 2022). His book argues that citizens’ faith in government has weakened over decades, driven most recently by the COVID-19 response. Rebuilding faith requires cultivating “administrative expertise” and acknowledging the public’s competency in guiding some decision-making.

“We need expertise for the very simple reason that the problems we confront as a nation, society, and world are too complex to be addressed in any other way,” Araiza said. “There must be a strong, robust, competent, and also trusted core of bureaucrats.”

Democracy and expertise can reinforce one another if government experts solicit public input early on. One example he cited is the Federal Aviation Administration. Before deciding whether to first address the issue of tarmac delays or compensation for baggage loss, the FAA could ask the public which issue is more urgent. “Engaging the public at that stage can, in fact, increase the agency’s expertise and improve its democratic credibility credentials,” Araiza said. Currently, the public is engaged to react to a complicated set of technical regulations only at the end of the process.

In criminal procedure cases, unreliable criminal evidence has heightened public distrust, said panelist M. Chris Fabricant, director of strategic litigation for the Innocence Project, and author of Junk Science and the American Criminal Justice System (Akashic Books, April 2022). He said half of the wrongful conviction cases that the Innocence Project has helped overturn relied at least partially on “junk science,” including forensic techniques that are known to be unreliable.

Scientific evidence is, however, held to a higher standard in civil cases, he said, asserting that an explosion of personal injury, mass torts, and product liability lawsuits in the 1970s and 1980s prompted corporations to successfully fight back in court against scientific evidence. Those efforts culminated with rulings such as the 1993 Supreme Court decision in Daubert [v. Merrell Dow Pharmaceuticals], which established standards for scientific evidence to be introduced in court.

“No longer were judges going to defer to the so-called relevant scientific community, but they were going to have to look at things like peer reviews and testability, and basic fundamentals of science,” Fabricant said. About 10 years after the Daubert case, a study found nearly 40 percent more exclusions of “scientific evidence” took place in civil cases, but “nothing had changed on the criminal side—nothing.”

Prosecutors are still not held to a high level of scrutiny, he said. Where he sees hope is that the desire to reform the criminal legal system has support on both sides of the aisle. The right is concerned about the financial cost of mass incarceration, while the left considers having 2.3 million people incarcerated as a bad thing in general. He also hopes a “blue wave” of Democrats elected in 2024 could pave the way toward doing away with the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which has hampered the ability to get state-level criminal cases, where most wrongful convictions happen, reviewed by federal courts.

When it comes to skepticism related to the Constitution, some of it focuses on the document’s original framers, nearly half of whom were slaveholders, said Professor Wilfred U. Codrington III, co-author with John F. Kowal of The People’s Constitution: 200 Years, 27 Amendments, and The Promise of a More Perfect Union (The New Press, 2021). Additional uncertainty relates to the difficulties inherent in amending the Constitution through formal means.

While some people think it’s “unachievable” or “fruitless” to make progressive change through Constitutional amendments, Coddington argues that it remains the best way, because without those amendments we would have to rely on 51 different state constitutions or what he calls “informal” changes affecting Constitutional rights at the federal level, as happened with the recent Supreme Court abortion ruling in Dobbs v Jackson Women’s Health Organization.

“Instead, we’re getting a Supreme Court or a ‘super legislature,’ as some would call it, doing these changes without really engaging the whole country, as a democracy requires,” he said. Social movements, such as the civil rights and suffrage movements, he noted, ultimately drove Constitutional changes historically and can do so again.

“We have, mostly in four waves, amended the Constitution to make it more progressive, more inclusive, more protective of democracy,” Coddington said. The political divides now may be problematic, but “there were also problems that people faced in past waves before they amended the Constitution.”