The Perils of Public Opinion

Justice, Liability, and Blame: Community Views and the Criminal Law (“Justice”) is a rich, creative, and intriguing book with an ambitious goal: to examine the extent to which laypersons\u27 views of justice (their “moral intuitions”) are reflected in current criminal codes. This Article discusses the significance of Justice\u27s approach to understanding law and why the book is an excellent springboard for further research comparing community standards and legal codes. However, this Article particularly emphasizes the perils of incorporating public opinion into the law based upon three major sources: (1) this Article\u27s own study of national and New Jersey demographic and political affiliation data, (2) the results presented in Justice, and (3) the results of public opinion research. Part I of this Article reviews and critiques Justice\u27s methodology and sample selection procedures. Part II discusses briefly the importance of a sample\u27s demographic make-up, as well as a study\u27s measurement instrument, in the context of several problems that are associated with much public opinion research. This Article suggests that public opinion research may fail to measure accurately the public\u27s fundamental values or “moral intuitions.” Rather, it may be far more successful in reflecting individuals\u27 erroneous knowledge and distorted attitudes, which can range enormously depending on demographics and personal experiences. This Article considers whether the goal of incorporating community standards into the law at the level Justice recommends can be achieved with any accuracy under even the most ideal empirical circumstances