Influencing Behavior

by Jacob Oldaker

The theory of mechanism design is used to the influence the behavior to increase the social preferences of a population to pursue a solution that will increase the well-being for an entire group of people in comparison to maximizing one’s individual material payoff. Bowles, Samuel, and Sandra Polanía-Reyes. “Economic Incentives and Social Preferences: Substitutes or Complements?” Journal of Economic Literature 50.12 (2012): 368-425. Economist and policy-makers (principal) use the assumption that all individuals act in the best interest of oneself, making the design of this mechanism difficult in achieving the best scenario for the entire group (agent). Id. The way policy is introduced impacts how people interpret it determining whether the influence will have either a marginal or categorical effect on social preferences. Id. I will begin this article by explaining why the assumption in economics that people are rational actors is not always the best indicator to use when predicting the agent’s decisions. In coordination with these theories, I will use examples to show how these theories have helped mold the process that principals use to devise their influences which they use on their respected agents.

The theory of fairness presented in Ernest Fehr and Klaus Schmidt article, “A Theory of Fairness, Competition, and Cooperation,” suggests that in contrast with most economic models, the way an individual views the fairness of the outcome from their decision, has a larger affect on their decision then acting in their own material-self interest. Fehr, Ernst, and Klaus Schimdt. “A Theory of Fairness, Competition, and Cooperation.” The Quarterly Journal of Economics 114.3 (1999): 817-78. Web. 12 Dec. 2015. For example, an individual A, Adam, is working with individual B, Bob, on a live game show to accumulate an earnings of $20. Adam wins the contest and now has the choice to keep the $20 or split it equally with Bob. Under the assumption that individuals act in their own material interest, Adam will gain more utility by keeping the $20 for himself compared to the utility he would gain by choosing to split the $20 with Bob.   Using the Fehr-Schmidt Utility Function, Adam will choose to split the $20 with Bob, but why? Id. Adam understands that he and Bob had cooperated with one another to achieve the pot of $20. In the presence of the live-audience, the guilt of associated with keeping the $20, outweighs the utility he receives from keeping the $20. In this example, Adam receives a higher utility by choosing to be “fair,” splitting the earnings equally with Bob.

Understanding that individuals will act in a way that they deem fair, not solely in their own-material interest, allows policy-makers to take the next step in developing their economic incentive that will influence a larger group of agents. Let’s assume there is a policy-maker that is worried about the depletion of fish among the state’s local fisheries. To prevent further depletion of the fishery, the policy maker may introduce a fine that is used to incentivize those using the fishery to abide by regulations that are put into place to help save the fishery.  Rather than decreasing the rate of depletion, the fishery begins to deplete at a higher rate. Although the fine seems both rational and fair in the eyes of the rational actor model and Fehr-Schmidt utility function, what causes those individuals in the community to continue making the irrational decision of depleting their common resource pool? Id. The agents are concerned with more than the costs and benefits that are associated with the economic incentive. Id. There are three additional factors that influence the agent’s decisions that the rational actor model and Fehr-Schmidt utility function fail to include: moral disengagement, “bad news,” and control aversion. Bowles, Samuel, and Sandra Polanía-Reyes. 50.12 (2012): 368-425.

It is plausible that the agents who use the fisheries do not understand why the incentive by the policy-maker has been put in place. The agents may not understand the threat to their fisheries, so instead of taking the measures to prevent further depletion, they continue to over-fish. This is when the agents become morally disengaged; they feel that in the end, they are better off paying for the fine because by in one way or another they will pay for it anyway. Some individuals may feel that the incentive is “bad news,” in which the money the state receives from the fines does not help towards the prevention of depletion of their common resource pool, but is instead put towards the support of another issue that is on the policy-makers agenda. According to the theory of self-determination, some individuals will have acted on their own will to help prevent further depletion of the fishery before the introduction of the incentive. Id. In turn, the new regulations the agents must abide by make the individuals feel like they have to do something that they otherwise would have done anyway. Each of these three factors will negatively affect the agent’s social preferences by producing a categorical effect. Id. at 372. A categorical effect happens when the economic incentive introduced, crowds-out, or substitutes the agent’s social preferences for the economic incentive. There are ways however, to use economic incentives in order to gain a positive effect on the fishery problem.

By using the framing mechanism, the policy-maker can rearrange the proposed economic incentive to receive a marginal effect the agents that use the fishery. Id. at 374. When using the framing mechanism, the policy-maker can design the incentive to guide individuals to act with more appropriate behavior. In the last example, I said the policy maker would fine anyone who does not abide by the regulations when using the fishery. Instead the incentive can be framed as follow: By increasing taxes on fishing license, boat permits, and safety checks for those that use the fishery, we can better ensure that individuals in our community are abiding to the new regulations put in place to stop the depletion of the fishery; we can work together to better save our natural resources, ensure consistent economic usage of our fishery, and guarantee safer recreational use of the fishery for our younger generation. In doing so, we can expect more cooperation by the agents with the new fishery regulations because the correct information was provided to help the agents understand the mission of the incentive that provides benefits both socially and economically to the agents that use the fishery. The individuals are likely to change their social preferences in support of the saving of the fisheries because they are now morally engaged. The consequences of not following the incentive to the agent’s family and friends not being able to receive continued usage of the fishery for both economic and recreational benefits are now prevalent. The positive impact on the social preferences results in a marginal effect, where the incentive and social preferences of the agents work together as compliments to increase the protection their common pool resource. Id. at 373.

In addition to the framing mechanism, when using the fishery example, the policy maker can induce another marginal effect through the conformist mechanism. The conformist mechanism focuses on upgrading the preferences of the agents in the long run. Id. If the incentive that used when using the framing mechanism were to stay in place, the younger generation (generation X) will have greater social preferences than the previous generation (generation Y). Id. Generation X will successfully be able to observe the positive impact that incentive has had from a young age into adulthood. Id. Cooperation from generation Y and the increased benefits gained through cooperation will allow generation X to notice a crowding out effect in which their social preferences increase in coordination with the economic incentive. Id. at 374.

An alternate solution to public policy issues like the fishery example is offered through the work by authors Thomas Dietz, Elinor Ostrom, and Paul Stan in their article, “The Struggle to Govern Commons.” The author’s proposed the idea of self-governance, in which the agents in the community actively participate and become engaged in the policy that will be introduced to the community. Fehr, Ernst, and Klaus Schimdt. “A Theory of Fairness, Competition, and Cooperation.” The Quarterly Journal of Economics 114.3 (1999): 817-78. Web. 12 Dec. 2015. Since the community members collectively agree on the policy, the social-costs associated with breaking the policy outweigh are greater than any cost associated through a purely economic incentive.

In order to instill the cost of social pressures cognitively into the agents of the community, the agents need to first be presented with information that they can relate to. A national statistic that states the depletion of fisheries has eliminated 1% of fish species along with 2.5% jobs nationwide will barely affect the way people in the community look at the issue. Id. If the policy-maker were to use a statistic in the agent’s community that stated 34% of fish species in our species have become extinct, as a result 25% of individuals who were employed in the maritime industry have lost their job, that policy-maker would see a much larger increase in participation to help save the fishery. Id. After providing the agents with hometown examples of how their affecting their community, the agents need to meet to work out a set of rules they agree they can all abide by. Id. There will always be a one individual who will disagree with another individual when trying to negotiate the policy. To ensure compliance, it would beneficial to make an incremental system of warnings and fines for those who break the policy. A first time offender will receive a warning while a second time offender will receive a small fine. The fine will then increase after the second offense. Id. at 615.

To achieve a complete adaptive governance, the agents in the community may suggest that policy makers use money from those who broke the policy anyway or some other form of funding to create technologies that ensure the safety of the common pool resource. Returning to the issue of the fisheries, the policy maker make choose to invest in more cost guards that will ensure all boats meet regulation, all fisherman use proper tackle and are registered to fish the fishery. Id. at 614-6201.

After all rules, compliance measures, and sufficient technologies are in place, an agent in the community that decides to breaks the new policy will socially become an outlier. These individuals will be looked down upon because everyone in the community is now aware of the threats to their common pool of resources without proper cooperation of policy. The social pressure associated with the need to follow the policy, becomes much greater than the cost associate with trying to further take advantage of the common pool resource. Id. at 611-618.

In conclusion, the use of pure-economic incentives suggested by neoclassical economists is not the most viable option when deciding public policy. The complexity of the representative agent goes far beyond the rational actor model in which economists assume that all individuals act in their own interest. This idea is can be a great base for a starting point, but this idea alone will not achieve cooperation. Combining the theory behind the rational actor model with theories in the social sciences will allows us to develop models to create public policy that increase the benefits to a broader group of individuals.


Purposefully Struck

By: Liana Stinson

Batson, an African American, was indicted in the state of Kentucky on charges of “second-degree burglary and receipt of stolen goods.” Batson v. Kentucky, 476 U.S. 79, 82 (1986). The case proceeded to trial where the judge conducted voir dire excusing potential jurors for cause. Id. at 82. Then, the judge allowed both the defense and state to exercise their peremptory challenges. Id. at 82-83.

Of all the potential jurors, only four were African American. Id. at 83. The state used its peremptory challenges to get all four of those African American jurors stuck. Id. The jury was then only composed of white persons. Id. Before the newly-elected jury was sworn in, the defense moved to discharge the jury because the removal of all of those of African American descent violated Batson’s “Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws.” Id. The judge denied this motion reasoning that both the defense and state can utilize their peremptory challenges to “strike anybody they want to.” Id. As to the question of a jury drawn from a cross section of the community, the judge reasoned that that only applies to selection of the potential jurors themselves not selection of the actual jury. Id.

Batson was convicted on both counts, the burglary and the receipt of stolen goods. Id. Then on appeal, Batson urged that the state’s use of peremptory challenges was wrongful and displayed a “pattern” of discriminatory challenges. Id. at 83-84. The Supreme Court of Kentucky then affirmed the trial’s court’s ruling and reliance on Swain which held that the defendant “alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.” Id. at 84. Batson then appealed to the United States Supreme Court which granted certiorari. Id.

The Court first looked at the underlying principle of Swain which reasoned that a “State’s purposeful or deliberate denial to [African Americans] on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” Id. However, the holding in Swain makes it a high burden for defendants to meet to prove “systematic exclusion.” That is why the Court reversed the reliance on Swain but affirmed the principle behind it. Id.

Since 1880, the Court has held that when members of a defendant’s particular race are purposefully excluded from a jury, the defendant is denied equal protection of the laws. Id. at 85. That decision was the first of many in the Court’s efforts to abolish discrimination in the selection of the jury. Id. In that, the Court reasoned that the Fourteenth Amendment was created to end governmental discrimination on the basis of race. Id. While a defendant does not have the right to a jury composed of all persons of his race, a defendant does have the right to a jury selected pursuant to nondiscriminatory criteria. Id. at 85-86.

“The equal Protection Clause guarantees the defendant that the State will not exclude member of his race form the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors.” Id. at 86.

Denying a defendant’s right to equal protection of the laws denies him of the protection that affording defendant’s a trial by jury is mean to protect. Id. The Court reasoned in Strauder that “[t]he very idea of a trial by jury is a body composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Id. This provides a sense of security to defendants that the state cannot have use this power against them to make the trial unfair.

The Court ruled in this case that the defendant must first show that he is a member of a racial group that is capable of being singled out for differential treatment. Id. at 94. Then, the defendant can make a prima facie case by showing that members of his race have not been summoned for jury duty over a period of time which can show systematic discrimination. Id. The defendant can also establish a prima facie case by showing evidence of continued, unexplained absence of members of his race from the jury. Id. at 95.

The case of Batson v. Kentucky took place in 1986. The Court has been repeatedly striking down cases exactly like Batson since 1880. But my question is: how can this still be happening more than 100 years later? And when will it end?

Slavery was abolished in 1865. The first case to come before the Supreme Court of the United States where African American jurors were purposefully eliminated from the jury pool in 1880. The Court has had to consistently from then on strike down courts’ decisions in each state in which the state upheld the discrimination. In some areas of the nation in which are rural and uninhabited, it may be more difficult to obtain a fair jury selection pool from randomly selecting individuals from the area. However, peremptory challenges do not need a reason. So if there is one member of a protected class selected from a jury pool from a rural area, how can it be known that it is purposeful discrimination? How can it be known if it is not purposeful discrimination?

The fact that excluding jurors based on their race is still prevalent today amazes me. How can we not have moved past eliminating someone solely based on the color of their skin?

How Culture Affects the Negotiation Process

By Thomas F. Lovecchio

To understand how Culture impacts the negotiation process it is important to understand what culture exactly is. Culture “is the cumulative result of experience, values, religion, beliefs, attitudes, meanings, knowledge, social organizations, procedures, timing, roles, spatial relations, concepts of the universe and material objects and possessions acquired or created by groups of people, in the course of generations, through individual and group effort and interactions.” Chris Moore, Mapping Cultures- Strategies for Effective Intercultural Negotiations, (March 2004), Negotiation tactics not only affect several different industries and professions, they also affect how one should approach cross-cultural negotiations. Given the diversity of the United States, many of these principles can be utilized even domestically. Culture plays a big role in the negotiation process and negotiation tactics. Culture determines whether and how negotiations occur; what is negotiable; determines the importance of personal relationships, affects the responses of the parties, and governs the overall flow and style of the negotiation. The ability to overcome cultural obstacles and barriers can result in more successful business deals, and improve overall business operations.

There are several things that I will explore that differ across cultures such as; time orientations, communication styles, space orientations, power distance, and risk avoidance. I will provide some general examples of these differences are apparent in American culture, African culture, and Japanese culture. Finally, I will discuss how law schools can include culture within negotiations into its curriculum.

Time Orientations

How a culture perceives time orientation can impact the negotiation process. Two different approaches to time orientation exist; monochronic time and polychromic time. Michelle LeBaron, Culture-Based Negotiation Styles, Beyond Intractability (July 2003), Polychronic time orientation involves simultaneous occurrences of various things and the participation of various people. Id. Negotiators from polychronic cultures tend to begin and finish meetings at flexible times; take breaks whenever they feel it is needed; enjoy a high flow of information; sometimes speak over one another; and do not take lateness personally. Id. European influenced cultures like the United States, Switzerland, and Germany tend to be polychronic cultures. Id. While negotiators from monochronic time orientations prefer, meetings with prompt start and end times; scheduled breaks; discuss one piece of information at a time; prefer to take turns speaking; and consider lateness as a lack of respect. Id. Examples of Monochronic cultures are France, Italy, Greece, and Mexico. Id.

Other aspects of time also differ depending on the culture. Negotiators of different cultures have different perspectives on the amount of time that is devoted to a negotiation. In the United States the goal is often to close the deal as quickly as possible. Thus, Americans tend to skip all of the formalities and get straight down to business. Jeswald W. Sallacuse, Negotiating: The Top Ten Ways That Culture Can Affect Your Negotiation, Ivey Business Journal (September/October 2004), In contrast to many Asian cultures, whose primary goal is to build and create good business relationships, and there is no rush to get straight down to business and sign the contract. Id. They believe that the parties need to truly invest in the negotiation process so the parties have an opportunity to get to know each other well enough to determine if they can operate in a long-term business relationship. Id. If a party is obviously trying to shorten the meeting these cultures may assume that the other party is attempting to hide something. Id.

Communication Style

The methods and styles of communication also differ among cultures. Specifically cultures may engage in a high context communication style or a low context communication style. Jeanne M. Brett, Culture and Negotiation, 35 INTERNATIONAL JOURNAL OF PSYCHOLOGY, 97, 101 (2000). High context versus low context refers to the degree to which the people within a certain culture communicate directly or indirectly. Id. In high-context cultures the meaning is to be inferred, and is not conveyed by direct communication between the parties. Id. Examples of high context cultures are the United States and Israel. Id. In contrast low-context cultures exchange information more explicitly and the meaning of a message will not have to be inferred. Id. Low context cultures include those such as the Japanese and the Egyptians. Sallacuse, supra.

Communication is a very important part of the negotiation process. In order for the parties to reach an optimal agreement they must exchange information to figure out the other party’s interests, goals, preferences, and priorities. Brett, supra. Exchanging information about interests, goals, preferences, and priorities is a direct communication tactic. Id. This usually involves the asking of direct questions, and in response there are direct answers. Id. During this “give and take” exchange of questioning the parties are working to develop an understanding of the other party’s interests, determine if there are commonalities, and gauge how important or irrelevant each interest is for the other party. Id.

A more indirect communication tactic involves a heuristic trial and error approach. Id. This is the process of parties exchanging settlement offers or proposals back and forth. Id. When an offer is rejected and a counter-offer is made the party who offered the initial offer uses this as a way to try and infer what was wrong with their proposal by how the party responds in their counter-offer. Id. All of the information regarding the interests and priorities of the parties is conveyed indirectly when each party makes their proposal or counter-offers. Id.

Space Orientations and Power Distances

Space orientations are another component of negotiations that differ among cultures. Space orientations relate to territory, differences between public and private, personal distance, and comfort with physical contact. LeBaron, supra. Certain cultures allow more touching or physical contact than others. Mediterranean, Latin American, and Arab cultures allow more touching than Asian, Canadian, and U.S. cultures. Id.

Space orientations also relate to how comfortable someone is with eye contact. In many Arab cultures, Canada, and the United States eye contact is perceived as a sign of honesty, respect, and trustworthiness. Id. However, in some North American indigenous cultures, eye contact may be taken as inappropriate or even disrespectful. Id. Also in many Asian cultures looking downward is interpreted as a sign of respect, and in Central America movement of the eyes may indicate that someone is embarrassed, showing respect, or disagreement. Id.

Power distance is the “degree of deference or acceptance of unequal power between people.” Id. Cultures that utilize a high degree of power distance are those cultures where certain people are classified as superior because of their education, age, social class, gender birth origin, family background, or other personal achievements. Id. Cultures that have a low power distance believe in equality among all people, and believe that status is earned. Id. Usually if there is a large difference is the distribution of wealth, the higher the power distance will be in that culture. Cultures with high power distances include: Arab countries, Mexico, Indonesia, and India. Id. Negotiators from high power-distance cultures are more comfortable with defined authority figures, the right to use power, and hierarchical structures. Id. Cultures with a low degree of power distance include: New Zealand, Norway, Germany, Ireland and Israel. Negotiators from low power distance cultures are more comfortable with shared authority, the right to use power in only limited situations, and democratic structures. Id. How a culture perceives the differences in power can affect their positions on various issues, and how they may perceive the other party during the negotiation.

Risk Taking or Risk Avoidance?

The final aspect of negotiation differences among cultures is how risk averse a culture is. This factor plays a big role in the negotiation process, because it will play a significant role in whether a party from a certain culture will take risks or avoid risks in the entire negotiation process. A negotiators culture can determine whether or not they take risks in divulging information, trying new approaches, and acceptance of uncertainties in proposed agreements. Sallacuse, supra. Americans, the French, and the British often consider themselves high-risk takers. Id.  How risk averse a culture is also ties into how well they adapt to ambiguity and uncertainty. Countries that are not comfortable with ambiguity and uncertainty place a high value on risk avoidance, safety, and reliance on rules and rituals. LeBaron, supra. In these cultures it may be harder for outsiders to build trusting relationships with members of these high-risk averse cultures. Id. Cultures that tend to be highly risk adverse include the Japanese, Muslim, and traditional African cultures. Id.

Some Examples

In the United States negotiators tend to be more competitive in their approaches. They often begin with an unrealistic offer, but always have a back-up plan. Id.  U.S. negotiators are energetic, confident, persistent, and enjoy arguing their positions. Id. They tend to focus on one problem at a time, and focus on points of disagreement as opposed to commonality. Id. Finally, U.S. negotiators like closure at the end of the negotiation process. Id.  Which easily relates back to their philosophy that, “time is money.” If you picture any type of negotiation depicted in film or television of the legal system it can be seen as more of a straight forward, hardball type of negotiation, which fits with the high risk taking and is much different from a risk adverse negotiation.

In African cultures the approach to negotiation is quite different. Many African cultures rely on indigenous systems of conflict resolution. Id.  These systems pay particular attention to kinship, age, and the structure of the local community. Id. Thus, these cultures will likely have a high degree of power distances.

Over time there have been several conflicts between the United States and Japan because of the different approaches to negotiation. Id. The Japanese usually focus on interdependence and group goals. Id. The Japanese often show an awareness to group objectives and desires, and show more deference to individuals with a higher status. Id.  As a result they are known for their politeness and their desire to build long-lasting relationships. Id.

These are only a few examples of how different cultures are in the negotiation process. Each culture will have different principles, value different things, and have different goals in a negotiation process.

For Law Schools

It is important that law schools include culture into its curriculum, so that students can become better negotiators. “Yet despite the importance of culture in dispute resolution, the reality is that the subject receives scant mention in the law curriculum.” Ilyhung Lee, In re Culture: The Cross-Cultural Negotiations Course in the Law School Curriculum, 20 Ohio St. J. on Disp. Resol. 376 (2005). Law schools should include this in its curriculum because many areas of the law are being internationalized. Id. at 380. Even laws that are not internationalized. Teaching about different cultures would help students negotiating or practicing at any level in the United States because students will presumably come across many different cultures while practicing law.

By studying culture in negotiations it would be encroaching students to understand the difference in cultures. 388. Some students may not know of the differences or even if they do, gaining a deeper understanding would only help those students to become better negotiators. Even if, as some will argue that this is based more in anthropology or management rather than law, cross-cultural negotiations involve many different areas. Id. at 409. Due to the complexity of the law and the factors that effect it, “cultural differences can contribute to competition interests and desires, tension, and dispute, all of which relate to legal rights.” Id. at 410. If lawyers can “identify the ‘cultural cues,’ so that the necessary adjustments can be made and the process be allowed to pursue more constructively.” Id. This identification can be compared to the classic issue spotting that law schools teach. Id. “Without cultural recognition and issue spotting, it may be impossible to proceed to a fruitful result: toward dispute resolution in the former and application of the law in the latter.” Id. This can be taught in a similar way that issues are taught, such as practice problems with more of a description of the clients’ background, power distance and time orientation. Id. at 411.


As time goes on Cross-cultural negotiation becomes more and more prevalent in every industry.  As detailed above time orientations, space orientations, power distances, communication styles, and risk avoidance are just some of the factors that play a role in cross-cultural negotiations. There are several others and, preparing for these negotiations and learning all of these intricacies will be crucial to the result of the negotiation process. It is important to keep these factors in mind during any negotiation process because some cultures are more risk adverse than others and place a high level of importance on certain factors. Law schools should teach this because a negotiator who familiarizes themselves with the other party’s culture will ultimately be more successful in reaching a favorable outcome, and building trustworthy business relationships.

“Two Types”

By Liana Stinson

A no-contact order was issued against Keith Tharpe by Migrisus, Tharpe’s wife. Tharpe v. Sellers, 138 S. Ct. 545, 547 (2018) (Dissent). Regardless of the order, Tharpe told his wife that if she wanted to “’play dirty’ he would show her ‘what dirty was.’” Id. The next morning, Tharpe ambushed his wife and her sister, Jaquelin Freeman, by pulling his vehicle in front of the car they were in to force them to stop. Id. Once they were stopped, Tharpe pulled out a shotgun from his vehicle, aimed it at their car, and order his wife to get into his truck. Id. Tharpe then told Freeman that he was going to “f– [her] up” and then took her to the back of his vehicle, shot her, “rolled her body into a ditch, reloaded, and shot her again, killing her.” Id. Tharpe next both kidnapped and raped his wife, leaving behind Freeman’s body in the ditch to be later found by her husband while driving their children to school. Id.

Subsequently, Tharpe was convicted by a jury of malice murder and two counts of aggravated kidnapping. Id. The jury only needed two hours to return the unanimous death sentence after hearing all of the evidence. Id. The jury noted that not only did Tharpe commit a murder that was “outrageously or wantonly vile, horrible, or inhuman,” he also committed two other capital offenses at the same time: the aggravated kidnappings of Ms. Freeman and his own wife. Id. at 547-548.

Fast forward to seven years after Tharpe’s trial, Tharpe’s attorneys interviewed one of the jurors in his trial, Barney Gattie, and drew up an affidavit. Id. at 548. During the interview, Gattie stated that he knew Freeman and that her family was “what [he] would call a nice [b]lack family.” Id. Gattie then stated that “there are two types of black people: 1. Black folks and 2. N******.” Id. Thereafter, the affidavit included that Gattie thought Tharpe “wasn’t in the ‘good’ black folks category’” and if Freeman had be “‘the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much.’” Id. Gattie then stated that because Freeman, along with her family, were “good black folks,” Tharpe “should get the electric chair for what he did.” Id. The affidavit even included a statement by Gattie that “[a]fter studying the Bible, “he had “wondered if black people even have souls.” Id. In regards to the other jurors, Gattie noted that some of them “wanted blacks to know they weren’t goin to get away with killing each other.” Id.

Two days later, Gattie presented an affidavit to the State saying that he “did not vote to impose the death penalty because [T]harpe was a black man,” but because “the evidence presented at trial justified it and because Tharpe showed no remorse.” Id. Gattie explained in the affidavit that although the previous affidavit through Tharpe’s attorneys was signed by Gattie, he “never swore to [it] nor was [he] ever asked if [the] statement was true and accurate” and also that he had consumed “seven or more beers” when he signed the first affidavit. Id. In regards to the statements in the first affidavit, Gattie stated that they “were taken out of context and simply not accurate.” Id. He also mentioned how he felt that Tharpe’s attorneys who took the affidavit “were deceiving and misrepresented what they stood for.” Id.

Thereafter, Tharpe moved to reopen his federal habeas corpus proceedings and claimed that the jury that convicted him of murder included a juror, Gattie, whom was biased against Tharpe simply because he was black. Id. at 545. The state court made a factual determination that Tharpe failed to show “prejudice in connection with his procedurally defaulted claim. Id. Tharpe then appealed to the District Court. Id. The District Court denied his claim because it was “procedurally defaulted in state court.” Id. Also, the District Court noted that Tharpe “failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him.” Id. Tharpe then appealed to the Eleventh Circuit which agreed with the state court’s factual determination and concluded that Tharpe had “failed to demonstrate that Barney Gattie’s behavior ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. Tharpe then appealed to the Supreme Court of the United States which granted certiorari.

Although the state court, before the District Court, concluded that Gattie’s vote to impose the death penalty on Tharpe was not based on race, that finding, absent “clear and convincing evidence to the contrary, is binding on the Supreme Court. However, the Court found that there was clear and convincing evidence to the contrary in this case. Id.

The affidavit produced by Tharpe was signed by Gattie which explicitly expressed his view that “there are two types of black people” and that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did.” Id. These statements, among all of Gattie’s other statements in the affidavit, would at least allow jurors to debate whether Tharpe did meet his burden by showing clear and convincing evidence to show that the state court’s factual determination was wrong. Id. Therefore, the Court concluded that the Eleventh Circuit erred when it concluded that Tharpe had failed to produce evidence to the contrary. Id.

The dissent argued that the second affidavit submitted by Gattie was significant and that, because none of the other jurors corroborated his story that they “wanted blacks to know they weren’t going to get away with killing each other,” the dissent argues that Gattie’s second affidavit was credible. Id. at 548. The dissent is however, mislead.

Regardless of whether it was true that Gattie had consumed alcoholic beverages prior to the meeting with Tharpe’s lawyers, he signed the affidavit. His signature on the affidavit affirms that those statements were told by him in response to the lawyer’s questions. There was no sign of duress in this case, being that this affidavit was taken seven years after the death sentence was imposed on Tharpe. Therefore, Gattie’s statements reflected what he truly felt, intoxicated or not.

I am extremely pleased with the Court’s holding in this case. Had the dissent become the majority, there would have been an injustice to Tharpe as well as any proceeding case where a defendant finds out later that there was any sort of bias against him by a juror which might have cause his harsh sentence and possibly subjected him/her to the death penalty. A slippery slope may have been created if the majority did not rule that the question of juror bias should be left to the finder of fact; jurors then would be free to hide their true feelings towards defendants to obtain a favorable conviction to them and then subsequently unveil those true feelings after the trial. Jurors would then intentionally try to convict those defendants that they have harsh feelings towards.

This outcome in this case, however, may have an impact on the court system. Because this case needs to now be remanded to have a jury decide whether Tharpe produced clear and convincing evidence, the case is not final. It will now be another case in the court system. If every death penalty conviction or conviction in general is found to have a possibility of bias jurors, while fairness and justice dictates they be remanded, the court system may become bogged down with all of the remands. However, because we should look at the element of fairness and justice to all persons, the jury should decide whether Tharpe met his burden of showing the jury pool was bias against him. If that is found to be the case, he has the right to a fair and just trial.

Gerrymandering in Pennsylvania

By Jacob Oldaker

In February of 2018, the Pennsylvania Supreme Court released a decision in League of Women Voters v. Commonwealth that bound Pennsylvania to a new congressional district map. League of Women Voters v. Commonwealth, No. 159 MM 2017, 2018 Pa. LEXIS 927 (Feb. 19, 2018).  This decision will upend familiar bounders and the renumbering of districts across the state may give the Democratic party a boost in the 2018 House elections.  Jonathan Lai, In Gerrymandering Case, Pennsylvania Supreme Court Releases New Map for 2018 Elections,, (last visited Apr. 12, 2018).  The new plan splits only 13 counties which is vastly reduced to when contrasted with the most recent map in 2011 that split 28 counties. Id.

“The Remedial Plan is superior or comparable to all plans submitted by the parties, the intervenors, and amici, by whichever Census-provided definition one employs,” the court wrote in its order. It also wrote that the plan is “superior or comparable” to the various map proposals on the average compactness of districts and that each district in the map has an equal population, plus or minus one person.


Much concern is brought from these changes because they appear to be favorable to the Democrats. Id.  Under the new plan, President Donald Trump would have won 10 congressional districts which is two fewer than he won in 2016 under the current map. Id.  These changes are not going unnoticed within the Republican party and they are pushing back, and have further pushed towards the Supreme Court of the United states.  Id.  The Republicans believe this has become a Constitutional issue because by taking mapmaking into the court’s own hands, they are overstepping the line drawing power that the U.S. Constitution gives to state legislature. Id.  In the mindset of the Republican party

“This Court recognized that the primary responsibility for drawing congressional districts rested squarely with the legislature, but we also acknowledged that, in the eventuality of the General Assembly not submitting a plan to the Governor, or the Governor not approving the General Assembly’s plan within the time specified, it would fall to this Court expeditiously to adopt a plan based upon the evidentiary record developed in the Commonwealth Court,” the per curiam order reads, adding that drawing a map is “a role which our Court has full constitutional authority and responsibility to assume.”  

Id.  This belief is not entirely true because the court notes that all participants in the case had opportunity to submit proposals and feedback, and those submissions guided the redrawing. Id.

This decision could have a significant impact going forward in not only local elections but in presidential elections in the future.  Pennsylvania is a key battleground state for major elections because the number of voters per political party is close to an even split. Id.  These new district lines may not only affect presidential elections but can impact politics at the state and national level as the Democratic party attempts to capitalize on favorable political trends to regain control of the U.S. House of Representatives.

Personally, I believe these new lines could add a level of competition to the districts.  New, completive districts, in the eyes of the Democrats allows the lines to be fairly drawn based on population to create an equal opportunity in each election period.  The Supreme Court of Pennsylvania needs to be conscientious in their decisions around redrawing district lines to avoid accounts of gerrymandering from either party.  There is a fine line when it comes to matters that involve elections, and the courts and political parties need to work together to avoid gerrymandering claims in the future.

Lamar, Archer & Cofrin, LLP v. Appling

by Thomas F. Lovecchio

The Supreme Court heard arguments on April 17th, 2018 in Lamar, Archer & Cofrin, LLP v. Appling. This case involves a circuit split regarding the Bankruptcy Code. Mr. Appling hired Lamar, Archer & Cofrin “Lamar” to represent him against the former owners of his business. Lamar, Archer & Cofrin, LLP v. Appling, Oyez, (last visited Apr 18, 2018). Mr. Appling had some substantial legal fees and he told Lamar that once he received his tax return, which he was expecting to be a decent amount, he would be able to pay Lamar. Id. Based on this Lamar continued representing Mr. Appling. Id. Mr. Appling’s tax refund was less than what he was expecting and told Lamar this but did not pay Lamar and instead put the money into his business. Id. “Lamar obtained a judgment against Appling and Appling subsequently filed for bankruptcy.” Id. When “Lamar initiated an adversary proceeding to collect the debt, and the bankruptcy court ruled that the amount was not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) because Lamar had justifiably relied upon Appling’s fraudulent statements. The district court affirmed.” Id.

On appeal the 11th Circuit reversed and remanded. Id. The 11th Circuit cited a split in the Circuit Court of appeals with how it construes 11 U.S.C. § 523(a)(2)(A). Id. The issue for the Supreme Court is “Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor’s … financial condition” within Section 523(a)(2) of the Bankruptcy Code. Lamar, Archer & Cofrin, LLP v. Appling, SCOTUS blog, (last visited Apr 18, 2018).

Lamar argues that a statement concerning a specific asset are not be a “statement respecting the debtor’s … financial condition within Section 523(a)(2) of the Bankruptcy Code. Lamar’s argument follows along with the 5th, 8th, and 10th Circuits.  Danielle D’Onfro, Argument preview: Court to decide whether Bankruptcy Code protects dishonest debtors (April 10, 2018 2:01 PM), Based off of this argument, Appling’s statements would be the exception to the exception and not be discharged under the Bankruptcy code. Id. Appling argues that his statements were based off of his overall financial condition, thus it would meet the exception in the Bankruptcy Code. Id.

Two key points of this case are how the Court is going to construe statement and financial condition. Statement could be narrowly construed to mean financial statements and financial documents or it could be expanded to include any statement, such as something a person says.

Next is financial condition. The statements made by Appling were about his financial condition but were ultimately about his tax return and as Lamar argues, a specific asset. I would find in favor of Lamar because Appling’s a statement about a specific asset is not about the debtor’s financial decision. First, a statement about a specific asset would only pertain to that asset. Even if it could be reasoned that one asset is indicative about a debtor’s financial condition that would require a search into the debtor’s assets as to how many assets he has. Second, while cash is often the first asset listed on a balance sheet, at the time of the statement the debtor did not have the cash he was speaking about. Since the debtor would be unable to list the tax refund as cash at the time he made the statement it should not be considered a statement about a specific asset.

From Behind Bars to Taking the Bar

by Liana Stinson

One might assume that the typical of life of a lawyer started by that person graduating high school, then going on to college to graduate and apply to law school. Maybe that person played sports in college or was the star of the Mock Trial team. Maybe that person started off a little rocky in college but then was able to become refocused and graduate with honors. For Daryl Atkinson, none of those scenarios ring true.

For Daryl, high school centered around him being a basketball star with a large circle of friends. Eric Tucker, Public face of US re-entry effort speaks from own experience, The Associated Press (Apr. 26, 2016), Growing up in Alabama, his family was deeply devoted to public service. Id. Daryl went on after high school to the University of Tennessee where he played basketball. Id. Tragically, an injury ended his basketball aspirations at the University of Tennessee where he was forced to return home to Alabama. Id. With his basketball career over and having nothing to do back at home, Daryl realized his talents in the area of sales. He began selling marijuana. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), Daryl first begin selling to “smoke for free” but then he says, “I saw I was good at dealing. As my status elevated, I moved up through the ranks and started dealing cocaine.” Id.

Daryl continued selling drugs until one day, one of his crime partners turned him in. Id. “I could have gotten 99 years, but I pled guilty in exchange for a 10-year sentence with a 40-month mandatory minimum for good behavior.” Id. Daryl entered an Alabama state penitentiary in 1996. Id. He then continued to sell drugs to both prison guards and inmates while inside and eventually, got himself into a minimum-security facility because of his “good behavior.” Id. However, Daryl was transferred to a maximum-security prison, where 60% of the inmates are serving life sentences without parole, when he got into fight with a white supremacist. Id. Daryl remarked about the incident that it is “hard to stay out of trouble in a place like that.” Id. “A sense of hopelessness and frustration permeates everything and I was forced to make life or death choices [with regards to fighting] all the time. If I fought, I could serve the entire 10-year sentence, but if I didn’t, someone might kill me.” Id.

While in the maximum-security prison, Daryl spent the first two months in solitary confinement. In solitary, the prisoner spends 23 hours a day in the cell alone. Daryl was given “two meals, two pairs of boxers and two shirts.” Id. U.S. prison officials use solitary confinement to punish and control difficult or dangerous prisoners, such as those engaged in fighting, that they needed to be kept apart from the other prisoners. Erica Goode, Solitary Confinement: Punished for Life, The New York Times (Aug. 3, 2015), Solitary confinement has been linked to worsening mental illness and producing symptoms in prisoners who did not start out mentally ill. Id.

Solitary confinement has been viewed as a form of torture, however, for Daryl, it was the source of a turning point in his life. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), While sitting in his cell, Daryl had a lot of time to review the events of his life and how they led to a life behind bars. Id. “In high school, I’d felt validated through sports. Then turned to success as a street dealer to feel good about myself. But in prison I had no money or status, so I learned how to be validated from the inside, based on character and principle.” Id.

After spending those two months in solitary confinement, Daryl met James, a fellow inmate who created an ad-hoc law firm within the prison’s library. Id. For many prisoners, having their own lawyer was a luxury they did not possess. So to plead their case, prisoners utilized the resources in this library to research and file litigation on their own behalf while they were incarcerated. Id. James set up this law firm while spending his life in prison without the possibility of parole to “start a movement” says Daryl. Id.

Forty inmates, including Daryl, have utilized their recreational time while imprisoned in the library working on their cases. James required these men to drop their gang affiliations and learn Alabama’s rules of procedure. While incarcerated, Daryl saw James help 18 men get out of prison due to “their parole had been erroneously revoked or there were mistakes in their cases.” Id. Through working with James in the prison’s “law firm,” Daryl “learned the power of the law” which “planted the seed” for his later career. Id.

Fortunately, due to his good behavior, Daryl was released after serving just 40 months. Id. Alabama has a very high recidivism rate at 30% of newly released convicts will return to the prison system. Alabama Public Radio (May 6, 2017), For many newly released people, getting out is actually more terrifying than being incarcerated. These people face discrimination in employment due to their criminal status and discrimination in housing, federal assistance, and education. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), That is why newly released people turn back to the life of crime they once knew instead of constantly fighting for a job and to make ends meet.

Daryl was luckily not a part of that 30% that returned to a life of crime. With the support of his family in both supplying him a place to live and food to eat, Daryl was able to pursue a career in the law after being released. Id. Daryl obtained his “Associate in Arts, Bachelor in Science, and Juris Doctor Degrees.” He has also passed both Minnesota and North Carolina’s Bar Exam. Id.

However, Daryl did not completely escape the discrimination that accompanies being a former convict. While applying to law schools, Daryl was rejected at all but one law school because of his criminal record. Eric Tucker, Public face of US re-entry effort speaks from own experience, The Associated Press (Apr. 26, 2016), The University of St. Thomas in Minneapolis accepted Daryl and said, “[w]e like to think of ourselves as a nation that’s open to rehabilitation and reformation.” Id.

Throughout his years of law school, Daryl was an exceptional student. “[Daryl had] an unmatched sense of righteous indignation about injustice,” said Artika Tyner, one of Daryl’s supervising attorneys in a family law clinic. Id. Daryl ended up being the commencement speaker at his graduation and graduated in the top third of his class. Id.

Currently, Daryl lives in North Carolina and works as a staff attorney for the Southern Coalition for Social Justice (SCSJ). Daryl “raises awareness about the collateral consequences of the criminal justice system and represents clients who, like [himself], face legal barriers to reintegration after leaving prison” at SCSJ. Tessie Castillo, A Real Shawshank Redemption: One Man’s Journey from Prison Bars to the Bar Exam, The Huffington Post (Nov. 30, 2015), Daryl is a “founding member of the North Carolina Second Chance Alliance, a burgeoning statewide coalition of advocacy organizations, service providers, faith-based organizations and community leaders that have come together to achieve the safe and successful reintegration of adults and juveniles returning home from incarceration.” Dustin Chicurel-Bayard, White House Honors Champion of Change Daryl Atkinson, Southern Coalition for Social Justice (Jun. 27, 2014),

In June of 2014, the White House honors “Champions of Change” who work to facilitate employment opportunities for those formerly incarcerated. Id. Daryl received a “Champion of Change” award for the work he does at the Southern Coalition for Social Justice. Id. Daryl said when receiving the award, “[t]his award is a huge honor … [t]o me, it really demonstrates the potential of every formerly incarcerated individual to achieve their dreams if they have the proper support.” Id.

Widener Commonwealth Law School was lucky enough, in 2016, to have Daryl speak at the Diversity Forum “Justice: Healing for the Past; Opportunity in the Future.” Daryl is now the public face “of the Justice Department’s efforts to help convicted felons re-enter society.” Eric Tucker, Public face of US re-entry effort speaks from own experience, The Associated Press (Apr. 26, 2016), He joined the Justice Department as the Department’s first-ever Second Chance Fellow where he helps to “develop a re-entry policy that the Obama administration sees as a vital component of its broader effort to reshape the criminal justice system and the handling of nonviolent drug offenders.” Id.

Daryl has committed his life now to helping remove common barriers faced by former convicts in restarting their lives. Also, Daryl advises a federal re-entry council that represents about 20 agencies and together, they develop strategies for assisting former convicts in getting a fresh start. Daryl wants to identify people who, like him, found success after incarceration and wants to add the stories to an online digital “story bank.” Id.

The Georgia Justice Project

by Jacob Oldaker

In 2016, the Widener Law Journal – Economics and Race held the 9th annual Diversity Forum. The Focus of the Forum was on “Justice: Healing for the Past; Opportunity in the Future” which centers around changes in the judicial process that can lead to the betterment of future generations. A key-note guest speaker visiting Widener for the discussion was Doug Ammar who is the Executive Director for the Georgia Justice Project (GJP). The GJP is one of many, established programs that work to assist in proper representation in the criminal justice system to in turn reduce the rates of reentry into the prison system.

The Georgia Justice Project strengthens the community of Atlanta, Georgia, by offering better ways to represent and support individuals in the criminal justice system and to reduce recidivism rates. Georgia Justice Project, About GJP,, (last visited Mar. 18, 2018). There are many practices and tools that have been used to attempt to reduce recidivism in the United States but they need to be narrowly tailored to the demographic the organization is assisting. The GJP specifically promotes innovative change through direct legal representation, policy advocacy, education and coalition building. Id. They have improved their practices over the past thirty years and have found a niche that has developed a personal identity between themselves and the people of Georgia. So, now the question becomes, how can a “another” recidivism effort be unique? The GJP has pioneered a unique approach that combines legal and social services, along with employment support, to the neediest people who commonly become the poor people accused of committing crimes. Id. As Martin Luther said, “Our lives begin to end the day we become silent about things that matter.” Id. The GJP serves the lowest-wealth members of the community who are also at the highest risk for criminal involvement. The demographic they serve consists of clients between the ages of 14 and 58 – with more than half between the ages of 17 and 25, most being male residing in the city of Atlanta. Id. The GJP has discovered the most relevant demographic that needs assistance but that is only step one in solving the problem.

Specific services and outlets need to be provided to these people and GJP offers specific services based on their clientele needs. The GJP has determined a strong correlation between unemployment, poverty and crime. Id. According to their research:

  • 90% of those in the criminal justice system live below the poverty line.
  • Nearly 600,000 inmates arrive annually on the doorsteps of communities nationwide with virtually no system to help integrate them.
  • The United States has the highest incarceration rate in the world.
  • The racial disparities of who is incarcerated are profound.  39% of the US prison population is African-American (but only 12.9% of the US population).
  • We do our work in the area of the country where the need is greatest:  The South has the highest incarceration rate in the US and in Georgia, 61.6% of the prison population is African-American (they make up 31.5% of the state’s population)


Do to these profound statistics, GJP offers opportunity for social impact through programs that overcome criminal barriers to economic stability. Id. These programs focus on criminal defense assistance, criminal records maintenance, mitigation of collateral consequences, and an overall systematic change. Id. Each program will influence the legal practice by minimizing the impact of criminal records and providing adequate services to the indigent population. As future members of the legal community we need to remember the importance of advocacy for the underrepresented members of out community because each person affected by the criminal justice system is our responsibility as attorneys.


Economic Justice

by Thomas Lovecchio

Last year at the 10th Annual Dean’s Diversity Forum the topic was Economic Justice: Dignity Through Opportunity. The Forum explored how lawyers could create economic opportunities for low income individuals. Economic Justice is “a set of moral principles for building economic institutions.” Investopedia, Definition of ‘Economic Justice’ An example of this is the tax system in the United States, where one is taxed at a higher percentage if they are in a higher income bracket. Id.

A great place to teach future lawyers about developing economic justice is right at home where they are being taught, at law school. This can be done through clinics. In law school “[s]tudents are drawn to particular clinics because of the clinics’ social justice missions.” Lynnise Pantin, The Economic Justice Imperative For Transactional Law Clinics, 62 Vill. L. Rev. 175, 177. Lawyers are often seen as the larger than life litigator advocating for social justice and often over looked is a lawyer’s advocacy in transactional practice. Id. at 178-79. Economic issues that have been examined through economic justice involve numerous transactions, such as, insurance coverage and lending practices. Further, other daily financial aspects that are not traditionally seen as transactional involve a financial advisor or broker that still involve economic justice. Due to this, economic justice for clinics should extend beyond the traditional transactional sense. With this law schools need to do more than teach “solely for the technique of practice” because students would then have no sense of how economic justice impacts daily economic decisions. Id. at 181

Law schools often have to decide between the historical approach to clinics versus the “practice-readiness of their graduates.” Id. at 189. This leaves those in charge of developing clinics faced with a tough decision. It may be because I am not too familiar with the intricacies of clinics, but I do not see a reason as to why a clinic could not encompass both the historical approach and practice readiness. By including economic justice as a goal of a transactional clinic, law schools could adhere to the historical approach of clinics, with some type of social justice because economic justice is sometimes seen as a subset of social justice. Including economic justice as a goal of a transactional clinic, law schools could adhere to the practice ready approach because having an understanding of how economic justice factors into transactions is something that would be valuable to any client.

An argument not to include social justice here is that having students “ready for practice supersede a social justice curriculum.” Id. at 193. This argument fails to consider that one can include economic justice into a business curriculum and still have practice readiness supersede it. Law schools could decide on a school by school basis how much it would want to include economic and social justice into the business curriculum based on that school’s administration and board of trustees/advisors. Further, not including some sort of economic justice into a business curriculum does a disservice to students. If students understand the concepts and the practice of business law but do not understand other factors that are not written into the law, students would go into practice without a full understanding of all of the factors they would face. By including some amount of economic justice in the business law curriculum would even further prepare law students to be “practice ready.”

Racial Riots

by Liana Stinson

March 3, 1991: Rodney King, recently paroled felon, was involved in a high speed chase with police through the streets of Los Angeles. Riots erupt in Los Angeles (1992), He eventually surrendered, however, he was visibly intoxicated and uncooperative with police. Id. Unbeknownst to the police, a citizen videotaped King resisting arrest and four police officers brutally beat King with their batons and kick him a significant amount of time after he was capable of resistance. Id. The video was subsequently released to the press which sparked national outrage and shed light on police brutality. Id.

King was later released without charges. Id. The four police officers, Powell, Wind, Briseno, and Sergeant Koon, were indicted in connection with the beating. Id. Koon was not an active participant in the beating of King, however, he was charged with aiding and abetting by being the commanding officer present on the scene. Id. In addition, Powell and Koon were charged with filing false police reports. Id.

The police officers were subsequently acquitted of any wrongdoing by a mostly white jury. Id. A few hours after they were acquitted, the L.A. riots began. Id. Hundreds of people were so filled with rage surrounding the acquittal, they had to express it. Traffic was blocked, one hundred fires were set, store were looted, and motorists were beaten. Id.

Henry Keith Watson stood trial in 1993 on charges of “aggravated mayhem, felony assault, robbery, and attempted murder” for the beating of Reginald Denny during the L.A. riots. Anthony V. Alfieri, Defending Racial Violence, 95 Colum. L. Rev. 1301 (1995). Watson was one of four men convicted for beating Reginald Denny. Riots erupt in Los Angeles (1992),

The defense of Watson presented the defense of diminished capacity under a “group contagion” theory of mob violence. Anthony V. Alfieri, Defending Racial Violence, 95 Colum. L. Rev. 1301 (1995). The group contagion theory “applies to a ‘crowd situation’ of ‘impulsive thoughtless action’ marked by an emotional ‘outpour’ of frustration, anger, and violence in a given community. Id. Watson’s lead attorney described the riots as “total and complete anarchy, an abrupt explosion of anger, utter chaos, conflict, disorder, confusion and explosion of tempers, mass hysteria, people scrambling, a spontaneous form of activity, sudden violence, screaming, turmoil, cursing, yelling … any human being who suddenly found himself feeling violated, humiliated, confused, in despair and totally hopeless in the same chaotic situation and circumstance may have found himself caught up in the civil unrest of April 29th, 1992.” Id. at 1301-1302. The group contagion theory was used by the defense not to exculpate or excuse Watson’s acts, but to explain the acts in regards to the racial context and to mitigate claims of retributive punishment. 1302-1303.

The theory does not explain the utter violence that took place in the Los Angeles riots. Outrage must have filled many citizens, if not all, that the police officers were acquitted after brutally beating an African American. However, the group contagion theory as a defense in this situation was warranted. The African American community, as a whole, must have felt violated and beaten by those officers themselves after watching the video and after hearing that the officer got away with it. The justice system has not been kind to the African American community in years past, still isn’t today, so the acquittal was simply the straw that broke the camel’s back.