Hearing problems
Detained: A Study of Immigration Bond Hearings
Emily Ryo
Law & Society Review, forthcoming
Abstract:
Immigration judges make consequential decisions that fundamentally affect the basic life chances of thousands of noncitizens and their family members every year. Yet, we know very little about how immigration judges make their decisions, including decisions about whether to release or detain noncitizens pending the completion of their immigration cases. Using original data on long-term immigrant detainees, I examine for the first time judicial decision-making in immigration bond hearings. I find that there are extremely wide variations in the average bond grant rates and bond amount decisions among judges in the study sample. What are the determinants of these bond decisions? My analysis shows that the odds of being granted bond are more than 3.5 times higher for detainees represented by attorneys than those who appeared pro se, net of other relevant factors. My analysis also shows that the detainees' prior criminal history is the only significant legally-relevant factor in both the grant/deny and bond amount decisions, net of other relevant factors. This finding points to the need for further research on whether and how immigration courts might be exercising crime control through administrative proceedings.
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Peremptory Challenges and Jury Selection
Francis Flanagan
Journal of Law & Economics, May 2015, Pages 385-416
Abstract:
I examine how peremptory challenges, which are vetoes that attorneys may use to reject prospective jurors, affect jury composition. The purpose of peremptory challenges is to eliminate biased jurors; however, I show that under the two most common rules used in the United States, peremptory challenges actually increase the probability of juries composed entirely of members on one extreme or another of some ideological spectrum. I then show that it is not possible to design a peremptory-challenge procedure that unambiguously makes such juries less likely. I show that if unanimity is required for conviction, the distribution of juror types is symmetric about some mean type, and each attorney has the same number of challenges, then challenges benefit the prosecution.
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Interparty Judicial Appointments
Jonathan Remy Nash
Journal of Empirical Legal Studies, December 2015, Pages 664-685
Abstract:
Empirical studies of judges' ideological voting call for a theory according to which the ideology of the judges can be measured. This article calls into question the assumption that undergirds the measure that currently dominates the legal, economic, and political science literature - the assumption that the ideology of a lower federal court judge is largely predicted by the ideologies of the nominating president and the relevant state's senators who are of the same political party as the president. The article relies on a natural experiment to examine this question empirically. Between 1977 and 1998, New York was represented in the Senate by one Democrat and one Republican who had an agreement to divide appointments to the district courts in the state: the senator who shared party affiliation with the president would be allocated three of every four appointments, while the "out-of-party" senator would be allocated the rest. The article employs a novel data set - consisting of all federal district judges appointed to the federal bench in New York during the time period in question, and the senator who recommended each nominee to the nominating president. If the dominant theory - that the party of the recommending senator affects judicial decision making - holds, then one would expect the theory's explanatory power to be at its apex where senators of different parties recommend judges at the same time to the same president. Yet, using median prison sentence length as a proxy for ideology in decision making, the empirical analysis finds no evidence that senatorial ideology has a statistically significant effect on district judge decision making. At the same time, it finds that, indeed, the nominating president's ideology does have a statistically significant effect. The findings are instead consistent with the minority view of lower federal court judges' ideological leanings - that a lower federal court judge's ideology is in large part a function solely of the nominating president's ideology.
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Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions
William Blake, Hans Hacker & Shon Hopwood
Law & Society Review, December 2015, Pages 973-997
Abstract:
We investigate why the Supreme Court grants a smaller percentage of cases at the first conference of each term compared to other conferences. According to received wisdom, Supreme Court law clerks are overly cautious at the beginning of their tenure because they receive only a brief amount of training. Reputational concerns motivate clerks to provide fewer recommendations to grant review in cert. pool memos written over the summer months. Using a random sample of petitions from the Blackmun Archives, we code case characteristics, clerk recommendation, and the Court's decision on cert. Nearest neighbor matching suggests clerks are 36 percent less likely to recommend grants in their early cert. pool memos. Because of this temporal discrepancy, petitions arriving over the summer have a 16 percent worse chance of being granted by the Court. This seasonal variation in access to the Court's docket imposes a legally irrelevant burden on litigants who have little control over the timing of their appeal.
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The polarization of the judiciary
Marc Sennewald, Kenneth Manning & Robert Carp
Party Politics, forthcoming
Abstract:
The polarization of political parties in the United States is a well-documented phenomenon. This paper considers polarization of the judicial branch and relates it to the evolution of the parties. In this paper we define polarization specifically as movement from a modal distribution (of votes, attitudes, or decisions) to a bimodal distribution along a liberal-conservative spectrum over time. Using data compiled from 90,000 United States District Court decisions published in the Federal Supplement between 1934 and 2008, we find that the judiciary began to polarize in the 1960s and has remained polarized. We consider a number of competing explanations for the polarization of the district courts, including a top-down view that emphasizes presidential power and a bottom-up view that focuses on the sorting of elites that form the pool of potential judges.
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Hayley Cleary & Todd Warner
Law and Human Behavior, forthcoming
Abstract:
Despite empirical progress in documenting and classifying various interrogation techniques, very little is known about how police are trained in interrogation methods, how frequently they use various techniques, and whether they employ techniques differentially with adult versus juvenile suspects. This study reports the nature and extent of formal (e.g., Reid Technique, PEACE, HUMINT) and informal interrogation training as well as self-reported technique usage in a diverse national sample (N = 340) of experienced American police officers. Officers were trained in a variety of different techniques ranging from comparatively benign pre-interrogation strategies (e.g., building rapport, observing body language or speech patterns) to more psychologically coercive techniques (e.g., blaming the victim, discouraging denials). Over half the sample reported being trained to use psychologically coercive techniques with both adults and juveniles. The majority (91%) receive informal, "on the job" interrogation training. Technique usage patterns indicate a spectrum of psychological intensity where information-gathering approaches were used most frequently and high-pressure tactics less frequently. Reid-trained officers (56%) were significantly more likely than officers without Reid training to use pre-interrogation and manipulation techniques. Across all analyses and techniques, usage patterns were identical for adult and juvenile suspects, suggesting that police interrogate youth in the same manner as adults. Overall, results suggest that training in specific interrogation methods is strongly associated with usage. Findings underscore the need for more law enforcement interrogation training in general, especially with juvenile suspects, and highlight the value of training as an avenue for reducing interrogation-induced miscarriages of justice.
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The Role of Lawyer-Legislators in Shaping the Law: Evidence from Voting on Tort Reforms
Ulrich Matter & Alois Stutzer
Journal of Law & Economics, May 2015, Pages 357-384
Abstract:
Attorneys elected to the US Congress and to state legislatures are systematically less likely to vote in favor of tort reforms that restrict tort litigation but more likely to support bills that extend tort law than are legislators with different professional backgrounds. This finding is based on the analysis of 64 roll call votes at the federal and state levels between 1995 and 2014. It holds when controlling for legislators' ideology and is particularly strong for term-limited lawyer-legislators. The empirical regularity is consistent with the hypothesis that lawyer-legislators, at least in part, pursue their private interests when voting on tort issues. Our results highlight the relevance of legislators' identities and individual professional interests for economic policy making.
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An Experimental Investigation of How Judicial Elections Affect Public Faith in the Judicial System
Anthony Nownes & Colin Glennon
Law & Social Inquiry, forthcoming
Abstract:
Judicial scholars have often speculated about the impact of elections on the administration of justice in the state courts. Yet relatively little research has concerned itself with public perceptions of state court selection methods. Of particular interest is the concept of legitimacy. Do elections negatively affect public perceptions of judicial legitimacy? Bonneau and Hall (2009) and Gibson (2012) answer this question with an emphatic "No." Judicial elections, these studies show, are not uniquely troublesome for perceptions of institutional legitimacy. This article aims to extend the findings of Bonneau and Hall and Gibson via a laboratory experiment on the effects of elections on public perceptions of judicial legitimacy. In the end, we find that because elections preempt the use of the other main selection method - appointment - they actually enhance perceptions of judicial legitimacy rather than diminish them.
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The welfare effects of minority-protective judicial review
Justin Fox & Matthew Stephenson
Journal of Theoretical Politics, October 2015, Pages 499-521
Abstract:
Constitutional theorists usually assume that minority-protective judicial review leads to outcomes more favorable to the protected minority and less favorable to the majority. Our analysis highlights an indirect effect of judicial review that complicates this conventional wisdom. Without judicial review, pro-majority and pro-minority leaders adopt different policies. Because judicial review limits the degree to which pro-majority leaders can adopt anti-minority policies, it becomes easier for pro-minority leaders to 'mimic' pro-majority leaders by adopting the most anti-minority policy that the judiciary would uphold. Furthermore, if judicial invalidation of anti-minority policies is probabilistic rather than certain, pro-majority leaders may propose even more extreme anti-minority policies in order to deter pro-minority leaders from mimicking. These effects can sometimes nullify, or even reverse, the assumed relationship between minority-protective judicial review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should favor minority-protective judicial review, while those concerned with protecting unpopular minorities should oppose it.
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Inside the Caucus: An Empirical Analysis of Mediation from Within
Daniel Klerman & Lisa Klerman
Journal of Empirical Legal Studies, December 2015, Pages 686-715
Abstract:
This article provides a glimpse into the worlds of mediation and settlement negotiation. Because they are almost always private, there has been relatively little empirical analysis of the dynamics of settlement or mediation. This article analyzes a unique data set derived from a mediator's contemporaneous notes of mediations involving employment disputes, such as claims of discrimination or wrongful termination. Although the data set includes more than 400 cases, since they were all mediated by a single mediator, this article can be viewed as a case study. Among the most interesting facts uncovered by this analysis are the following. Mediation can be extremely effective in facilitating settlement. The mediator studied here achieved a settlement rate of over 94 percent. There are very few gender differences, whether one looks at the gender of the plaintiff or the gender of the lawyers. For example, settlement rates are the same for male and female plaintiffs and lawyers. On average, cases settle much closer to the defendant's first offer than the plaintiff's, irrespective of case type, size of law firm, or other factors. A mediator's proposal appears to be the most effective mediation technique. A mediator's proposal was used in almost 90 percent of cases and, when it was used, the settlement rate was over 99 percent.
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A Probation Profanation: Race, Ethnicity, and Probation in a Midwestern Sample
Kevin Steinmetz & Jamilya Anderson
Race and Justice, forthcoming
Abstract:
Racial and ethnic disparities in criminal justice have received increasing scrutiny recently. Little attention, however, has been directed toward understanding inequality in the area of probation. The current study addresses this dearth through two analyses of 14,365 probation cases. The first involves a logistic regression analysis, which examines race/ethnicity against probation failure. Using probation success as a control outcome, the second analysis uses a multinomial regression to examine the effects of race and ethnicity across four types of probation failure - administrative failure and revocations resulting from technical violations, new felonies, and new misdemeanors. Across both models, racial/ethnic categorization were found to be significantly and positively associated with probation failure outcomes. In addition, the standardized coefficients indicate that Black and Hispanic racial/ethnic categorization presented a moderate to strong effect sizes across outcomes studied. The strongest effect sizes for these two variables were found in the multinomial model within the administrative failure outcome. Across both models, other racial categorization (Asian/Pacific Islander or Native American/Alaskan Native) was statistically significant but consistently produced some of the weakest effect sizes. Potential explanations for these findings are offered along with a discussion of study limitations, future research suggestions, and policy implications.