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Judges on Trial: A Reexamination of Judicial Race and Gender Effects Across Modes of Conviction
Brian Johnson
Criminal Justice Policy Review, March 2014, Pages 159-184
Abstract:
Extant research on the effects of judicial background characteristics suggests minimal influence from the race or gender of the sentencing judge in criminal cases. This raises at least two possibilities: (1) the combined influence of judicial recruitment, indoctrination, and socialization into the judgeship results in a homogenous body of criminal court judges; or (2) current approaches to identifying judge effects in criminal sentencing have methodological and conceptual flaws that limit their ability to detect important influences from judicial background characteristics. The current article examines this issue with data from the Pennsylvania Commission on Sentencing that is augmented to include information on sentencing judges and criminal court contexts. It argues that the mode of conviction shapes the locus of sentencing discretion in ways that systematically underestimate judge effects for pooled estimates of incarceration and sentence length. The empirical results support this interpretation, especially for incarceration in trial cases, where older, female, and minority judges are substantially less likely to sentence offenders to jail or prison terms. The article concludes with a discussion of future research directions and policy implications for judge effects and disparity in sentencing.
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The Color of Juvenile Justice: Racial Disparities in Dispositional Decisions
Jamie Fader, Megan Kurlychek & Kirstin Morgan
Social Science Research, March 2014, Pages 126–140
Abstract:
Existing research on dispositional decisions typically models the outcome as merely placed or not placed. However, this does not accurately reflect the wide variation in residential options available to juvenile court actors. In this research, we combine data from ProDES, which tracks adjudicated youth in Philadelphia, with data from the Program Design Inventory, which describes over 100 intervention programs, to further examine the factors that influence court actors’ decision making in selecting an appropriate program for a juvenile offender. We find that even after controlling for legal and needs-based factors, race continues to exert a significant influence, with decision makers being significantly more likely to commit minority youth to facilities using physical regimen as their primary modality and reserving smaller, therapeutic facilities for their white counterparts. Using focal concerns theory as an explanatory lens, we suggest that court actors in this jurisdiction employ a racialized perceptual shorthand of youthful offenders that attributes both higher levels of blame and lower evaluations of reformability to minority youth.
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The Relationship Between Skin Tone and School Suspension for African Americans
Lance Hannon, Robert DeFina & Sarah Bruch
Race and Social Problems, December 2013, Pages 281-295
Abstract:
This study contributes to the research literature on colorism – discrimination based on skin tone — by examining whether skin darkness affects the likelihood that African Americans will experience school suspension. Using data from The National Longitudinal Survey of Youth, logistic regression analyses indicated that darker skin tone significantly increased the odds of suspension for African American adolescents. Closer inspection of the data revealed that this overall result was disproportionately driven by the experiences of African American females. The odds of suspension were about 3 times greater for young African American women with the darkest skin tone compared to those with the lightest skin. This finding was robust to the inclusion of controls for parental SES, delinquent behavior, academic performance, and several other variables. Furthermore, this finding was replicated using similar measures in a different sample of African Americans from the National Longitudinal Study of Adolescent Health. The results suggest that discrimination in school discipline goes beyond broad categories of race to include additional distinctions in skin tone.
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A Winner's Curse?: Promotions from the Lower Federal Courts
Stephen Choi, Mitu Gulati & Eric Posner
University of Chicago Working Paper, December 2013
Abstract:
The standard model of judicial behavior suggests that judges primarily care about deciding cases in ways that further their political ideologies. But judicial behavior seems much more complex. Politicians who nominate people for judgeships do not typically tout their ideology (except sometimes using vague code words), but they always claim that the nominees will be competent judges. Moreover, it stands to reason that voters would support politicians who appoint competent as well as ideologically compatible judges. We test this hypothesis using a dataset consisting of promotions to the federal circuit courts. We find, using a set of objective measures of judicial performance, that competence seems to matter in promotions in that the least competent judges do not get elevated. But the judges who score the highest on our competence measures also do not get elevated. So, while there is no loser’s reward, there may be something of a winner’s curse, where those with the highest levels of competence hurt their chances of elevation.
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Sonja Starr & Marit Rehavi
Yale Law Journal, October 2013, Pages 2-80
Abstract:
This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference methods that fail to disentangle the effects of sentencing-law changes, such as Booker, from surrounding events and trends. In contrast, we use a dataset that traces cases from arrest to sentencing, allowing us to assess Booker’s effects on disparities in charging, plea-bargaining, and fact-finding, as well as sentencing. We disentangle background trends by using a rigorous regression discontinuity-style design. Contrary to other studies (and in particular, the dramatic recent claims of the U.S. Sentencing Commission), we find no evidence that racial disparity has increased since Booker, much less because of Booker. Unexplained racial disparity remains persistent, but does not appear to have increased following the expansion of judicial discretion.
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Gender and Voting Decisions in the US Court of Appeals: Testing Critical Mass Theory
Katherine Felix Scheurer
Journal of Women, Politics & Policy, Winter 2014, Pages 31-54
Abstract:
Although a wide body of research examines whether gender influences judicial decisions, past studies do not analyze whether a critical mass of female judges affects the voting behavior of the US court of appeals. To address this gap in the existing literature, I examine whether a critical mass of female judges influences the voting decisions of court of appeals judges in civil rights and economic activity cases. Providing support for critical mass theory, I find that female judges are more likely to vote liberally in civil rights and economic activity cases when there is a critical mass of female judges.
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Gender and Sentencing in the Federal Courts: Are Women Treated More Leniently?
Jill Doerner & Stephen Demuth
Criminal Justice Policy Review, March 2014, Pages 242-269
Abstract:
Using data from the United States Sentencing Commission (2001-2003), we examine the role of gender in the sentencing of defendants in federal courts. We address two questions: First, can we explain the gender gap in sentencing by taking into account differences in legal and extralegal factors? And second, do legal and extralegal factors have the same impact for male and female defendants? Overall, we find that female defendants receive more lenient sentence outcomes than their male counterparts. Legal factors account for a large portion of the gender differences, but even after controlling for legal characteristics a substantial gap in sentencing outcomes remains. Also, despite their influence on sentencing outcomes in some instances, extralegal characteristics do not help to close the gender gap. Finally, when male and female defendants are examined separately, we find that not all legal and extralegal factors weigh equally for male and female defendants.
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Jennifer Robbennolt & Robert Lawless
Journal of Empirical Legal Studies, December 2013, Pages 771–796
Abstract:
Apologies result in better outcomes for wrongdoers in a variety of legal contexts. Previous research, however, has primarily addressed settings in which a clear victim receives the apology. This research uses experimental methods to examine the influence of apologies on a different kind of legal decision — the decision of a bankruptcy judge to confirm or not to confirm a proposed repayment plan. This article expands examination of apologies to a legal setting in which there is no clear “victim” and to decisions of a neutral (nonvictim) decisionmaker. We find that judges' assessments of debtors were influenced by apologies. These assessments, in turn, affected judges' confirmation decisions.
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Trial and Error: Decision Reversal and Panel Size in State Courts
Yosh Halberstam
University of Toronto Working Paper, November 2013
Abstract:
Using data on appeals to state courts, I show that lower court decisions are reversed more frequently by high courts on which justices sit in larger, rather than smaller, panels. I do not find evidence that appeal selection effects are driving this result. As a possible mechanism, I propose a theory that highlights the effect of free riding on reversals as a function of the number of justices reviewing an appeal. My findings suggest that the predictability of judicial decisions decreases in panel size.
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Is the Modern American Death Penalty a Fatal Lottery? Texas as a Conservative Test
Scott Phillips & Alena Simon
Laws, Winter 2014, Pages 85-105
Abstract:
In Furman v. Georgia (1972), the Supreme Court was presented with data indicating that 15% to 20% of death-eligible defendants were actually sentenced to death. Based on such a negligible death sentence rate, some Justices concluded that the imposition of death was random and capricious — a fatal lottery. Later, the Court assumed in Gregg v. Georgia (1976) that guided discretion statutes would eliminate the constitutional infirmities identified in Furman: If state legislatures narrowed the pool of death-eligible defendants to the “worst of the worst” then most would be sentenced to death, eliminating numerical arbitrariness. However, recent research suggests that numerical arbitrariness remains, as the death sentence rate falls below the Furman threshold in California (11%), Connecticut (4%), and Colorado (less than 1%). The current research estimates the death sentence rate in Texas. Interestingly, Texas provides a conservative test. In contrast to most states, the Texas statute does not include broad aggravators that substantially enlarge the pool of death-eligible defendants and therefore depress the death sentence rate. Nonetheless, the death sentence rate in Texas during the period from 2006 to 2010 ranges from 3% to 6% (depending on assumptions made about the data). The same pattern holds true in the key counties that send the largest number of defendants to death row: Harris (Houston), Dallas (Dallas), Tarrant (Fort Worth and Arlington), and Bexar (San Antonio). Thus, the data suggest that Texas can be added to the list of states in which capital punishment is unconstitutional as administered. If the death sentence rate in Texas runs afoul of the Furman principle then the prognosis for other states is not encouraging.
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The animal in you: Animalistic descriptions of a violent crime increase punishment of perpetrator
Eduardo Vasquez et al.
Aggressive Behavior, forthcoming
Abstract:
Criminal acts are sometimes described using animal metaphors. What is the impact of a violent crime being described in an animalistic versus a non-animalistic way on the subsequent retribution toward the perpetrator? In two studies, we experimentally varied animalistic descriptions of a violent crime and examined its effect on the severity of the punishment for the act. In Study 1, we showed that compared to non-animalistic descriptions, animalistic descriptions resulted in significantly harsher punishment for the perpetrator. In Study 2, we replicated this effect and further demonstrated that this harsher sentencing is explained by an increase in perceived risk of recidivism. Our findings suggest that animalistic descriptions of crimes lead to more retaliation against the perpetrator by inducing the perception that he is likely to continue engaging in violence.
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Does it matter how you deny it?: The role of demeanour in evaluations of criminal suspects
Amy Bradfield Douglass et al.
Legal and Criminological Psychology, forthcoming
Purpose: In some cases of wrongful convictions, demeanour seen as inappropriate can trigger suspicions of guilt. Two experiments systematically manipulated the demeanour of criminal suspects in interrogations to test its impact on guilt ratings.
Methods: In Experiment 1 (N = 60), participants saw a videotaped interrogation in which the suspect displayed flat demeanour or emotional demeanour. Before viewing the interrogation, participants were told that normal reactions to trauma consisted of either flat or emotional demeanour. In Experiment 2 (N = 147), the presence of the suspect's coerced confession and demeanour evidence were both manipulated.
Results: In Experiment 1, a suspect who displayed flat demeanour during the interrogation produced higher ratings of guilt than did a suspect who displayed emotional demeanour, especially when participants were told to expect emotional demeanour. In Experiment 2, without a confession, flat demeanour inflated guilt ratings, whereas emotional demeanour slightly (but non-significantly) decreased guilt ratings compared with a no demeanour information condition. When a confession was introduced, guilt ratings increased for all groups, with the highest ratings in the emotional demeanour condition.
Conclusions: Flat demeanour biases judgments against defendants. On its own, emotional demeanour is neutral (or potentially exonerating), but when paired with a confession, it becomes just as incriminating as flat demeanour. Recommendations for educating police professionals on the wide range of appropriate reactions to trauma are described.
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Detecting Deception in Non-Native English Speakers
Jacqueline Evans & Stephen Michael
Applied Cognitive Psychology, forthcoming
Abstract:
The ability to accurately assess credibility is important in countless situations, including many in which individuals being assessed are not speaking their native language. There is reason to believe that native and non-native speakers may behave differently when lying and that detectors may have a bias to believe non-native speakers are lying. However, very little is known about detecting deception in non-native speakers, and the few existing studies have not resulted in consistent findings. The current research compared the ability to detect lies and truths in native speakers with that in non-native speakers and looked at differences in the cues displayed via the Psychologically Based Credibility Assessment Tool. Results from two samples with different demographic characteristics and backgrounds indicated that there was a bias to believe that non-native speakers were lying. These results may have implications regarding the use of interpreters in settings where credibility is being assessed.
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Misdemeanor Justice: Control without Conviction
Issa Kohler-Hausmann
American Journal of Sociology, September 2013, Pages 351-393
Abstract:
Current scholarship has explored how the carceral state governs and regulates populations. This literature has focused on prison and on the wide-reaching collateral consequences of a felony conviction. Despite the obvious importance of these findings, they capture only a portion of the criminal justice system’s operations. In most jurisdictions, misdemeanors, not felonies, constitute the bulk of criminal cases, and the number of such arrests is rising. This article explores a puzzling fact about New York City’s pioneering experiment in mass misdemeanor arrests: the preponderance result in no finding of guilt and no assignment of formal punishment. Drawing on two years of fieldwork, this article explores how the criminal justice system functions to regulate significant populations without conviction or sentencing. The author details the operation of penal power through the techniques of marking through criminal justice record keeping, the procedural hassle of case processing, and mandated performance evaluated by court actors to show the social control capacity of the criminal justice system.
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Judicial Selection and Death Penalty Decisions
Brandice Canes-Wrone, Tom Clark & Jason Kelly
American Political Science Review, forthcoming
Abstract:
Most U.S. state supreme court justices face elections or reappointment by elected officials, and research suggests that judicial campaigns have come to resemble those for other offices. We develop predictions on how selection systems should affect judicial decisions and test these predictions on an extensive dataset of death penalty decisions by state courts of last resort. Specifically, the data include over 12,000 decisions on over 2000 capital punishment cases decided between 1980 and 2006 in systems with partisan, nonpartisan, or retention elections or with reappointment. As predicted, the findings suggest that judges face the greatest pressure to uphold capital sentences in systems with nonpartisan ballots. Also as predicted, judges respond similarly to public opinion in systems with partisan elections or reappointment. Finally, the results indicate that the plebiscitary influences on judicial behavior emerge only after interest groups began achieving success at targeting justices for their decisions.
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The Costs and Benefits of American Policy-Making Venues
Aaron Ley
Law & Society Review, March 2014, Pages 91–126
Abstract:
Many law and policy scholars consider judges inimical to good public policymaking, and the criticisms they level on the judiciary implicitly reflect some of the concerns raised by Alexander Bickel and other critics. Despite the charge by critics that judges are institutionally ill equipped to participate in the policy-making process and that legal processes are costly, there are reasons to believe otherwise. This article uses field interviews and three case studies of an environmental dispute in the Pacific Northwest to show that the judiciary can be an institutional venue that enhances public input, can be more inclusive than other venues, and produces positive-sum outcomes when other venues cannot. The findings also suggest that legislative and agency policymaking are just as contentious and costly as judicial policy-making processes.
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An Economic Theory of Supreme Court News
Richard Vining & Phil Marcin
Political Communication, Winter 2014, Pages 94-111
Abstract:
In this article, we develop and test an economic theory of Supreme Court news. We hypothesize that information about the Third Branch is newsworthy when it has lower production costs and qualities attractive to the audiences and advertisers desired by news organizations. We examine Supreme Court news in elite newspapers, television news broadcasts, and online news sources during the October 2008 and 2010 terms. The results of our quantitative analyses indicate that all three types of news outlets are more likely to provide content about Supreme Court decisions with substantive importance but vary in their responses to costs and qualities appealing to the lay audience. We conclude by discussing the similarities and differences among news outlets with regard to their selection of Supreme Court information as news content.
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Death Row Confessions and the Last Meal Test of Innocence
Kevin Kniffin & Brian Wansink
Laws, March 2014, Pages 1-11
Abstract:
Post hoc analyses of Rector v. Arkansas have regularly highlighted that the defendant requested that part of his last meal be saved so that he could it eat later. While the observation is typically raised as part of arguments that Rector was incompetent and unfit for execution, the more basic fact is that commentators have drawn important inferences about Rector’s mental state from how he treated his last meal. In this essay, we draw upon multiple disciplines in order to apply the same inferential logic to a much broader sample and explore the question of whether traditionally customized last meals might offer signals of defendants’ guilt or innocence. To investigate this, the content of last-meal requests and last words reported for people executed in the United States during a recent five-year period were examined. Consistent with the idea that declination of the last meal is equivalent to a signal of (self-perceived) innocence, those who denied guilt were 2.7 times as likely to decline a last meal than people who admitted guilt (29% versus 8%). Consistent with the complementary theory that people who admit guilt are relatively more “at peace” with their sentence, these individuals requested 34% more calories of food than the rest of the sample (2786 versus 2085 calories). A third finding is that those who denied guilt also tended to eat significantly fewer brand-name food items. Previous discussions of last meals have often lacked quantitative measurements; however, this systematic analysis shows that last meal requests offer windows into self-perceived or self-proclaimed innocence. Knowing one’s last meal request and one’s last words can provide valuable new variables for retrospectively assessing the processes that led to past executions.
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Jeff Kukucka & Saul Kassin
Law and Human Behavior, forthcoming
Abstract:
Citing classic psychological research and a smattering of recent studies, Kassin, Dror, and Kukucka (2013) proposed the operation of a forensic confirmation bias, whereby preexisting expectations guide the evaluation of forensic evidence in a self-verifying manner. In a series of studies, we tested the hypothesis that knowing that a defendant had confessed would taint people’s evaluations of handwriting evidence relative to those not so informed. In Study 1, participants who read a case summary in which the defendant had previously confessed were more likely to erroneously conclude that handwriting samples from the defendant and perpetrator were authored by the same person, and were more likely to judge the defendant guilty, compared with those in a no-confession control group. Study 2 replicated and extended these findings using a within-subjects design in which participants rated the same samples both before and after reading a case summary. These findings underscore recent critiques of the forensic sciences as subject to bias, and suggest the value of insulating forensic examiners from contextual information.
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Unfounding Sexual Assault: Examining the Decision to Unfound and Identifying False Reports
Cassia Spohn, Clair White & Katharine Tellis
Law & Society Review, March 2014, Pages 161–192
Abstract:
One of the most controversial — and least understood — issues in the area of sexual violence is the prevalence of false reports of rape. Estimates of the rate of false reports vary widely, which reflects differences in way false reports are defined and in the methods that researchers use to identify them. We address this issue using a mixed methods approach that incorporates quantitative and qualitative data on sexual assault cases that were reported to the Los Angeles Police Department (LAPD) in 2008 and qualitative data from interviews with LAPD detectives assigned to investigate reports of sexual assault. We found that the LAPD was clearing cases as unfounded appropriately most, but not all, of the time and we estimated that the rate of false reports among cases reported to the LAPD was 4.5 percent. We also found that although complainant recantation was the strongest predictor of the unfounding decision, other factors indicative of the seriousness of the incident and the credibility of the victim also played a role. We interpret these findings using an integrated theoretical perspective that incorporates both Black's sociological theory of law and Steffensmeier, Ulmer, and Kramer's focal concerns perspective.
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The effect of the election of prosecutors on criminal trials
Siddhartha Bandyopadhyay & Bryan McCannon
Public Choice, forthcoming
Abstract:
We examine whether elections of public prosecutors influence the mix of cases taken to trial versus plea bargained. A theoretical model is constructed wherein voters use outcomes of the criminal justice system as a signal of prosecutors’ quality, leading to a distortion in the mix of cases taken to trial. Using data from North Carolina we test whether reelection pressures lead to (a) an increase in the number and proportion of convictions from jury trials and (b) a decrease in the average sanction obtained in both jury trials and pleas. Our empirical findings are consistent with our theoretical predictions.
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The Impact of Neuroimages in the Sentencing Phase of Capital Trials
Michael Saks et al.
Journal of Empirical Legal Studies, March 2014, Pages 105–131
Abstract:
Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and nonexpert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials. Two mock jury experiments (n = 825 and n = 882) were conducted online using nationally representative samples of persons who were jury eligible and death qualified. Participants were randomly assigned to experimental conditions varying the defendant's diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation). For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; nonimage neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that the defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or nonimage neurological, but when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.
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Galit Nahari, Aldert Vrij & Ronald Fisher
Applied Cognitive Psychology, January/February 2014, Pages 122–128
Abstract:
According to the verifiability approach, liars tend to provide details that cannot be checked by the investigator and awareness of this increases the investigator's ability to detect lies. In the present experiment, we replicated previous findings in a more realistic paradigm and examined the vulnerability of the verifiability approach to countermeasures. For this purpose, we collected written statements from 44 mock criminals (liars) and 43 innocents (truth tellers), whereas half of them were told before writing the statements that the verifiability of their statements will be checked. Results showed that ‘informing’ encouraged truth tellers but not liars to provide more verifiable details and increased the ability to detect lies. These findings suggest that verifiability approach is less vulnerable to countermeasures than other lie detection tools. On the contrary, in the current experiment, notifying interviewees about the mechanism of the approach benefited lie detection.
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The (Dis)Advantage of Certainty: The Importance of Certainty in Language
Pamela Corley & Justin Wedeking
Law & Society Review, March 2014, Pages 35–62
Abstract:
How can legal decision makers increase the likelihood of a favorable response from other legal and social actors? To answer this, we propose a novel theory based on the certainty expressed in language that is applicable to many different legal contexts. The theory is grounded in psychology and legal advocacy and suggests that expressing certainty enhances the persuasiveness of a message. We apply this theory to the principal–agent framework to examine the treatment of Supreme Court precedent by the Federal Courts of Appeal. We find that as the level of certainty in the Supreme Court's opinion increases, the lower courts are more likely to positively treat the Court's decision. We then discuss the implications of our findings for using certainty in a broader context.