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July|August 2004
The Moral of the Story By Patrick Keefe
Spot On? By Adam Hanft
Elsewhere

Elsewhere

The LSAT's need for speed, the problem of false confessions, and other ideas from the nation's law reviews.

THE NEED FOR SPEED

Law schools and law school applicants typically justify the attention they pay to the infamously grueling LSAT by citing studies that have linked test performance to performance in law school, especially in the first year. In general, according to the Law School Admissions Council, which administers the test, students who score higher on the test get better grades in law school.

But do the LSAT and the typical 1L curriculum emphasize skills that lawyers need? In "The LSAT, Law School Exams, and Meritocracy," Indiana University School of Law professor William D. Henderson argues that the LSAT and the typical in-class exam are testing test-taking speed as much as anything else. According to one study that he cites, 53 percent of LSAT takers run out of time and end up guessing their way through the second half of each test section.

Henderson's article analyzes the LSAT scores and class performances of students in two anonymous law schools, one top-tier and one regional. Through a statistical survey, he shows that success on the LSAT is a much better predictor of success on a timed, in-class test than it is on a take-home exam or a long written assignment. Both "blue book" exams and the LSAT assess not only ability but also speediness, a skill that psychological research has suggested is unrelated to intelligence. While Henderson asserts that a good lawyer must have some capacity to think quickly—if you snooze in court, you typically lose—he argues that tightly timed tests have little in common with the work done by practicing lawyers. Writing briefs, doing scholarly research, and trying cases are all activities that are typically completed over periods of days, not hours.

Henderson believes that law schools' arbitrary reliance on timed exams inflates the value of speediness—and of the LSAT. His data shows that once in-class tests are removed from the equation, college grades outstrip LSAT scores as a predictor of success. He also points out that studies have shown that minority students fare worse than white students on measures of speediness. De-emphasizing the LSAT could have the side benefit of helping admissions departments create diverse classes. Texas Law Review, Volume 82, Number 4

IT WAS(N'T) ME

In 1989, the woman who came to be known as the Central Park Jogger was found raped and beaten in the bushes beside her running route. Police investigated a gang of teenagers who had been terrorizing other runners that night and, before long, they had five confessions from the kids.

Prosecutors were sure they had their men, as were the juries who reached the verdicts. Though all five of the alleged assailants recanted their statements before their trials, all were convicted on assault or rape charges. Thirteen years after the assault, however, one Matias Reyes, a serial rapist doing time in a New York state prison, belatedly said he had committed the crime. His DNA was a perfect match with crime scene evidence.

A confession may be the most persuasive piece of evidence that a prosecutor can marshal. Studies have shown that more than eyewitnesses or forensic scientists, juries and judges trust a story that comes from the mouth of the accused. It's hard to believe that anyone would ever confess to a crime—especially one as serious as rape—that they didn't commit.

Yet "The Problem of False Confessions in the Post-DNA World," an article by Steven A. Drizin and Richard A. Leo, suggests that false confessions do happen. Their study of 125 verifiably false confessions demonstrates that police interrogations sometimes backfire, resulting in confessions by innocent people. Police can interrogate suspects for long periods of time (more than half of the confessions in the study came out of interrogations longer than 12 hours), lie to suspects about the evidence, and suggest that confessing will mean a lighter sentence. When innocent suspects are swayed to say they're guilty, dire consequences often follow. Eleven percent of the people in the study pled guilty to crimes they didn't commit. And of the cases that went to trial, 81 percent ended in convictions and 80 percent of those convicted were slapped with sentences of 10 years or longer.

The authors argue that the justice system is ill-equipped to detect false confessions. Judges rarely render even highly suspicious confessions inadmissible, and juries often convict confessors, even in the absence of physical evidence. The authors recommend the videotaping of interrogations. They also urge the use of DNA testing whenever possible: As the Central Park Jogger case demonstrates, there is some evidence stronger than a confession. North Carolina Law Review, Volume 82, Number 3

TIME WILL TELL

One of the basic assumptions of law and economics is that human beings are rational actors—that is, we act with our best interests in mind. Most cognitive psychologists, however, think this assumption is flawed. We don't act in ways that will make us happiest. In fact, we don't really even know how to make ourselves happy in the first place.

In "Law and the Emotions," Seton Hall Law School professor Jeremy A. Blumenthal describes the problems inherent in "affective forecasting"—that is, our efforts to predict how we will feel in the future. Citing an exhaustive collection of studies, he shows that while people may be able to guess how a certain event—such as the death of a loved one—will make them react emotionally, they are rarely accurate when it comes to foretelling the "intensity and duration" of that reaction. You might think, for instance, that winning the lottery would be a life-changing event that would brighten your outlook for years to come. But a study Blumenthal cites showed that, after a few years, the attitudes of lottery winners were fairly similar to those of accident victims who'd been paralyzed.

Blumenthal argues that the literature of affective forecasting has a great deal of relevance to the law, as litigants often expect that their suits will bring not only monetary recompense but also emotional closure. Blumenthal suggests several areas in which the legal system should do better in calculating emotional impact—for example, when assigning damages for emotional distress. He doesn't venture a guess as to whether those changes will make us any happier. Indiana Law Journal, Volume 80, Number 1

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