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77 Alb. L. Rev. 1095 (2013-2014)
How do the Courts Create Popular Legitimacy - The Role of Establishing the Truth, Punishing Justly, and/Or Acting through Just Procedures

handle is hein.journals/albany77 and id is 1117 raw text is: HOW DO THE COURTS CREATE POPULAR LEGITIMACY?: THE ROLE OF ESTABLISHING THE TRUTH, PUNISHING JUSTLY, AND/OR ACTING THROUGH JUST PROCEDURES Tom R. Tyler* & Justin Sevier** I. INTRODUCTION When legal authorities evaluate the courts, their focus has traditionally been upon the degree to which the courts achieve two distinct objectives: establishing the truth and punishing justly. These two goals are not, of course, unrelated, since establishing the truth is often viewed as a precursor to determining just punishments. A first concern of the system is with using the courts to draw upon investigative reports and evidence presented during trials to establish the facts of the case, that is, to determine as well as possible what actually happened. These facts in turn address the second concern of the courts: justly punishing wrongdoing. Hence, establishing truth and achieving substantive justice in punishment are two goals of the courts and are central to their evaluation by legal authorities and scholars. To determine how well the courts achieve these objectives, scholars examine the frequency of erroneous verdicts' and of punishments departing from objective standards of substantive justice.2 A parallel social science literature considers the role of perceptions-about the degree to which court proceedings establish * Tom Tyler is Macklin-Fleming Professor of Law and Professor of Psychology, Yale University. Ph.D. in psychology, University of California, Los Angeles, Ph.D. (1978). ** Associate Research Scholar, Yale Law School. Visiting Assistant Professor, University of Illinois (2010-2012); Ph.D. in psychology, Yale (expected 2015); J.D., Harvard (2006). 1 See, e.g., BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS Go WRONG 6-13 (2011). 2 See, e.g., KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 104-42 (1998). Achieving substantive justice involves determining applicable laws, finding appropriate types of punishment, and applying general legal concepts, such as state of mind, reasonableness, or foreseeability to the facts determined in the case. Cf. Nicholas Faso, Civil Disobedience in the Supreme Court: Retroactivity and the Compromise Between Formal and Substantive Justice, 75 ALD. L. REV. 1613, 1614 (2012) (Substantive justice ... involves a value judgment about the content of the law and its consequences.). 1095

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