Walker Retires After Making Mark in Procedural Justice, Courtroom Use of Social Science
When experts testify in court about big-picture data, such as how often eyewitnesses are wrong or the impact of basing job promotions on standardized tests, they follow guidelines developed in part by University of Virginia law professor Larry Walker.
Walker, who is retiring this summer after 33 years at Virginia, also helped pioneer the concept of procedural justice, which explores why fair processes matter to people in law and across a variety of fields.
“I went into the business of scholarship hoping to be able to add something,” said Walker. “In the world of scholarship, that’s the kind of reward you go to work for.”
Walker’s work also reflects two successful partnerships — with former University of North Carolina social psychologist John Thibaut, with whom he conceptualized procedural justice, and with University of Virginia Law School professor and psychologist John Monahan, who teamed up with Walker to develop the first comprehensive system to manage the use of social science in court.
“My professional life is linked to these truly great scholars,” Walker said. “We managed to create new corners of interest, one in psychology and one in law.”
Walker comes from a family with a long tradition of teaching. His family built, founded and donated a school for deaf and blind children in South Carolina in 1840, and continued to lead the school, which expanded to care for disabled and disadvantaged children, for several generations.
“I was virtually the first person to leave that business and move on,” he said.
Walker attended public schools in Spartansburg, S.C. — known then for its ties to the textile industry and now for being the only U.S. host to a BMW factory. He earned a full scholarship to Davidson College, where he majored in English and history, and later studied at the London School of Economics as a graduate student before becoming a reporter in his hometown. In that role, Walker often worked from noon until 11 at night.
“I covered the race for the state legislature and the police beat,” he said. “After work we would repair to a local watering hole where the owner knew us so well he gave us the key when he closed up.”
He decided he wanted to be a newspaper reporter with a legal background, so he took a full scholarship to Duke Law School. “I never really intended to practice law or become a lawyer.”
But at the same time he nurtured a desire to become a teacher, and noticed that the people he covered as a journalist were almost all attorneys.
“I decided that after a while I would like to be involved in the decision-making rather than reporting the decision,” he said.
After law school, Walker served as a lieutenant and captain in the U.S. Army, and spent most of his time stationed in Würzburg, Germany. Once his service concluded he joined a tax firm in Atlanta.
“I didn’t bother to find out anything about the firm until after saying yes to the offer, and I found out it was about 75 percent tax and home to some of the best tax lawyers in America.”
Though he enjoyed his time with the firm, Walker decided to pursue an S.J.D. at Harvard to position himself for teaching.
“I became involved in an effort at the Harvard Law School to, in effect, respond to Yale Law School’s interest in social science,” he said. “I found it absolutely engrossing.”
Walker said Harvard law professor David Cavers led a revolution to see law “more as a factor of social forces and sometimes a predictor of society’s behavior.”
“That experience created a fundamental interest in process — that how you decide cases, how you decide conflicts might be even more important than how they turn out.”
After graduating, Walker took an offer at the University of North Carolina, where he taught civil procedure, evidence and torts for eight years.
“During the first year I was teaching civil procedure I became curious as to why I was stating as absolute fact in class all of these assumptions about why procedure should be this way rather than that,” he said.
He asked a research assistant to help him investigate, and quickly discovered that the nation’s leading social psychologist — who worked for UNC — had examined procedural issues, though not in law. When Walker met the professor, John Thibaut, he learned his hobby was jurisprudence.
“We began to discuss the social-psychological aspects of process,” Walker said. “He explained to me that the social psychologists had paid a lot of attention to perceptions of outcomes, but except for bargaining, which has no imposed solution by definition, it had not been studied at all.”
They launched a 10-year research program designed to distill fundamental models of legal procedure and examine them through the lens of psychology. The experiments yielded more than 25 articles and ultimately a landmark book, “Procedural Justice: A Psychological Analysis.”
The experiments focused on mimicking the two dominant styles of legal process — the adversarial system practiced by the United States, the United Kingdom and Australia, in which the parties are in control, and the inquisitorial system favored in Europe and promulgated by France, and practiced in China, Japan and Germany, in which the judge directs the presentation of information.
They set up stylized disputes adjudicated by role players (often law students), recreating the two models to find out which was best.
“From the perspective of the folks going through the process, the decentralized, party-controlled system was the preferred system,” he said. “If you cared about the reaction of the citizens going through the process, they were best served by the decentralized system.”
When they repeated the experiments in Europe, “the satisfaction level of European subjects was lower with their own model than with ours.”
“Much to everybody’s surprise, the folks who lost with the adversarial model were more satisfied than people who won their case with the alternative model. That’s quite counterintuitive,” he said. But “convincing the French that we were right even though the data show it, of course, is going to be a difficult task.”
The adversarial system places value in preserving the community and caring whether parties feel like they belong in the community.
“Some critics say that’s not an important value,” Walker said, but he disagrees. “The maintenance of cooperative human behavior is a fundamental requirement for the human species to continue. If we don’t share tasks and continue to live as a group, then we as a species will disappear.”
Over the next 25 years, psychology and legal scholars took up the topic with enthusiasm and “almost every finding we had generated about the perception of process was replicated not only here, but around the world.”
Dean Paul G. Mahoney said the experiments were unique in that they used empirical methods to test theory rather than use theory to explain doctrine.
“Their research was part of a revolution in social psychology that affected not only thinking about law, but thinking about business and public policy, among other things,” Mahoney said.
Procedural justice is now a principal subject in psychology and even in business school.
Walker said that previously, “the business folks had not focused on the processes by which they made a number of decisions, but particularly decisions about promotion and pay and distribution — the processes of human relations.”
Two years after Walker moved to Virginia, John Monahan, the first psychologist to be employed full-time by an American law school, arrived. Monahan had just finished a round of innovative scholarship on predicting violence, and Walker soon found a new partner interested in social science.
“We developed a focus on the process of bringing social research into the court system,” Walker said, noting that his work with Thibaut prepared him to take a comprehensive and critical look at the entire field.
The resulting book, “Social Science and Law,” became the preeminent casebook in the field and has even been translated into Chinese. Its eighth edition will be published in 2014.
The 19 articles the two worked on include papers on social authority (using research results to make law), facts (how to properly use research results), and on a new concept that would turn out to be the most influential — social frameworks.
“Social frameworks turned out to be, basically, among scholars, a new idea,” Walker said. It “developed a lot of attention and has been the center of a lot of controversy.”
Social frameworks offered a new kind of evidence to the courts. Experts might testify about eyewitness misidentification in criminal cases, for example, by drawing from the body of research on the issue.
“It has been demonstrated over and over and over again that eyewitness testimony is quite unreliable,” Walker said, and witnesses are often mistaken when they identify someone of a different race. As a result, it has become a social framework that defense attorneys regularly use. The idea has become so widespread that New Jersey lawmakers are considering mandating testimony about eyewitness reliability in related felony and capital cases.
But an expert testifying on eyewitness reliability as a social framework would not comment on the specific crime in question, Walker said, which is the kind of connection he said an expert witness made in Dukes v. Wal-Mart, the employment discrimination lawsuit now being considered by the U.S. Supreme Court. By the end of the term the court will rule on whether up to 1.5 million current and former female Wal-Mart employees can pursue a class action lawsuit against the nation’s largest private employer.
Walker said the expert’s testimony was problematic because he concluded that Wal-Mart had discriminated against women after presenting a social framework.
“If you want to cross that bridge, you have to go and study Wal-Mart,” Walker said. “Nobody involved has ever collected any reliable information about what Wal-Mart’s doing. Now that could only happen in the law. And it’s not likely to [be studied], because neither side wants to know.”
A good study of the issue by both sides should show the same result, he said. Walker, Monahan and Law School professor Greg Mitchell have written a series of papers criticizing the misuse of social frameworks in the case. (More)
“Before you link it, you do the research. It’s a very simple point,” Walker said.
Walker is concluding his active teaching career on a high note in the classroom as well as in his scholarship. He said this year’s classes — a seminar on expert witnesses with John Monahan and a class actions course with Mitchell — offered a satisfying conclusion to his time at Virginia.
“It’s been fun. I hope to continue to contribute in the enterprise and I hope to stay engaged in the current topics I am interested in,” he said.
Walker said he will spend more time with grandchildren and his daughters — Margit is the head of a Head Start program in western North Carolina, Helgi (a 1994 Virginia Law graduate) is a partner at a law firm and Cari is a nurse at Johns Hopkins.
He also hopes to travel. “My wife Sharon and I — we’re planning not to be here for 20-inch snows or 103-degree summer days.”
Walker will be remembered by students for his ability to spin potentially tedious topics into stimulating ones.
Third-year law student Elizabeth Horner took a class actions seminar with Walker last year.
“When I told some of my friends that I had signed up for the class, they thought it sounded dry. The class focused on Rule 23, a single rule of the Federal Rules of Civil Procedure,” she said. “Through Professor Walker's stories, anecdotes and infectious laughter, however, the subject came alive. We had lively discussions, and class felt more like a boardroom debate than a law school class.”
Horner said she also appreciated Walker’s kindness when discussing both the class work and her own life.
“His interest in me not only as a law student, but also more importantly, as a lawyer, and even more importantly, as a person, is something that I treasure,” she said.
Apart from teaching, Walker said some of his favorite memories about the Law School involve the faculty. He recalled sharing an office with Hardy Dillard, a renowned public speaker and a judge on the World Court. Walker said he would rise whenever Dillard entered the office.
Dean Emerson Spies, an avid tennis player, brought Walker, who also played, onto the faculty and once asked him if he was an “A” player or a “B” player. When Walker affirmed the latter, Spies said, “Well, I won’t be playing with you.”
“I’ve learned most of what I know about law right here,” Walker said. “These are smart people, these are kind people, they are talented and many are unusual.”
In his remarks at Law Alumni Weekend, Mahoney told graduates that Walker will be missed.
“To his faculty colleagues, Larry’s infectious good humor and openness have been as important as his intellectual contributions,” Mahoney said. “He is as wonderful a friend as he is a colleague.”
Monahan said he will miss his most-frequent writing partner, and not only because of his commitment to understanding the best way for courts to use social science research.
“Larry has been an ideal collaborator, meaning he always does at least half of the work,” Monahan said. “I react to his retirement with denial — I hope that our collaboration continues for many years to come, and I’m extremely glad that Larry intends to be active at the Law School.”
Walker likewise praised Monahan, with whom he plans to continue to collaborate.
“There is no more diligent scholar in the nation than John Monahan,” Walker said. “He’s a great fellow and a great friend.”
Walker said he was pleased he could contribute to the academic world, and acknowledged the effort involved.
“It’s like drilling for oil. You drill 40 to 50 wells for every one that produces oil,” he said. “Scholarship in the way practiced here at Virginia and our cohort schools at this level is awfully labor-intensive, and you have to suffer a lot of defeats before you get a win.”