Legal problems
Resource Constraints and the Criminal Justice System: Evidence from Judicial Vacancies
Crystal Yang
American Economic Journal: Economic Policy, forthcoming
Abstract:
Ten percent of federal judgeships are currently vacant, yet little is known on the impact of these vacancies on criminal justice outcomes. Using judge deaths and pension eligibility as instruments for vacancies, I find that prosecutors dismiss more cases during vacancies. Prosecuted defendants are more likely to plead guilty and less likely to be incarcerated, with defendants who were detained pretrial more likely to be incarcerated. The current rate of vacancies has resulted in 1000 fewer prison inmates annually compared to a fully-staffed court system, a 1.5 percent decrease.
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Will Putting Cameras on Police Reduce Polarization?
Roseanna Sommers
Yale Law Journal, March 2016, Pages 1304-1362
Abstract:
In the wake of national outrage and polarization over several high-profile police shootings of unarmed citizens, reformers have called for police officers to wear body cameras. This Note argues that, despite the seeming objectivity of the camera, video footage remains susceptible to biased interpretation by observers such as grand jurors. Reporting empirical findings based on mock jurors' perceptions of real police footage, this Note observes that viewers' prior attitudes toward the police color their interpretations of the events caught on tape, resulting in considerable polarization on a variety of dimensions. Further, this Note finds that video evidence does not conclusively outperform nonvideo testimony in minimizing mock jurors' reliance on their prior attitudes. Study participants learned about an incident involving a police officer and a citizen in one of four ways. Some participants watched a video of the altercation, others read dueling accounts of the altercation written from the perspectives of the police officer and of the citizen, a third group read a single account from the perspective of a disinterested third party, and a final group read only the police officer's version of events. Participants' prior attitudes toward police significantly affected their judgments of the officer's conduct in all four conditions, and the degree of bias did not differ significantly across the different types of evidence. Furthermore, people who identified strongly with the police - but not those who identified weakly-became more confident in their judgments when presented with video evidence. This Note discusses the implications of these findings for the policy debate over body-worn cameras, cautioning against the assumption that body cameras will reduce polarization and societal conflict following instances of use of deadly force by police. It concludes that we should be more skeptical of the widely held belief that video footage tells us unambiguously and definitively what happened.
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The Long Shadow of Bush v. Gore: Judicial Partisanship in Election Cases
Michael Kang & Joanna Shepherd
Stanford Law Review, forthcoming
Abstract:
Bush v. Gore decided the 2000 presidential election and is still the most dramatic election case of our lifetime, but cases like it are decided every year at the state level. American law leaves it to ordinary common-law courts to regularly decide questions of election rules and administration that effectively decide electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial determination of these cases: outcome-driven, partisan judicial decisionmaking. This Article investigates whether judges decide cases, particularly political sensitive ones, based on their partisan loyalties. It presents a novel method to isolate the raw partisan motivations of judges and identifies their partisan loyalty, as opposed to their ideology, by studying decisions in a special category of cases almost entirely about partisan loyalty - candidate-litigated election disputes. The Article finds that Republican judges display greater partisan loyalty than Democratic judges in election cases where ideology is not a significant consideration. This result is not a function of selection methods, with both elected and appointed judges behaving similarly, but it is partially a function of party campaign finance for elected Republican judges, with party loyalty increasing with party money received. However, the effect of party campaign finance disappears for more visible election cases and largely disappears for retiring judges in their final term. What is more, partisan loyalty is reduced when state supreme court elections have recently featured more campaign attack advertising. These findings give reason to re-think judicial resolution of election disputes that require impartial, nonpartisan settlement and offer new insight into judicial partisanship as a more general matter.
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The Performance of Elected Officials: Evidence from State Supreme Courts
Elliott Ash & Bentley MacLeod
NBER Working Paper, March 2016
Abstract:
This paper provides evidence on the effect of electoral institutions on the performance of public officials. Using panel data on state supreme courts between 1947 and 1994, we measure the effects of changes in judicial electoral processes on judge work quality - as measured by citations by later judges. Judges selected by non-partisan elections write higher-quality opinions than judges selected by partisan elections. Judges selected by technocratic merit commissions write higher-quality opinions than either partisan-elected judges or non-partisan-elected judges. Election-year politics reduces judicial performance in both partisan and non-partisan election systems. Giving stronger tenure to non-partisan-selected judges improves performance, while giving stronger tenure to partisan-selected judges has no effect. These results are consistent with the view that technocratic merit commissions have better information about the quality of candidates than voters, and that political bias can reduce the quality of elected officials.
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Paul Davies et al.
Social Psychological and Personality Science, forthcoming
Abstract:
Eyewitness misidentification is the primary cause of wrongful convictions in North America. Discovering a discernible pattern to these errors is a critical step toward creating procedures that reduce the occurrence of these tragic mistakes. To these ends, we hypothesized that both the victims' race and the victims' sex may impact eyewitness identification for perpetrators of certain crime types. In two experiments, we demonstrated that a Black male drive-by shooter's level of phenotypic stereotypicality is accurately identified by eyewitnesses only when the victims are Black males. Specifically, when eyewitnesses believe the victims are White or female, the drive-by shooter's level of Black phenotypic stereotypicality is falsely elevated. In contrast, when a Black male perpetrator is suspected of committing a stereotypically non-Black crime (i.e., serial killing), the perpetrator's level of phenotypic stereotypicality is accurately identified regardless of the victims' race or sex.
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Jonathan Kastellec
Journal of Law and Courts, Spring 2016, Pages 1-42
Abstract:
I conduct a quantitative evaluation of the "countermajoritarian difficulty" by examining the relationship between public opinion, state policy, and judicial review in constitutional challenges to state abortion statutes in the period before Roe v. Wade. I find that state and lower federal court judges tended to invalidate statutes in states with high levels of public support for moving policy away from the status quo, and judges did not strike down statutes in states where majorities firmly supported the status quo. These results suggest the importance of creating a role for state and lower federal courts in evaluating the countermajoritarian difficulty.
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Mark Harmon
American Journal of Criminal Justice, June 2016, Pages 296-320
Abstract:
Since the early 1970s, U.S. states have adopted a series of sentencing reforms that have substantially altered sentencing and release policies by limiting discretion of judges, parole boards, and/or prison administrators. The current study assesses shifts in year-to-year changes in new commitments and parolees returned to prison within all 50 states from the years 1972 to 2008. The study tests the theory that sentencing reforms resulted in increased commitments to prison due to changes in the structures of sentencing and not due to increased crime. Data was analyzed using panel regression with robust standard errors, fixed effects, and conditional change scores. By treating six main sentencing reforms as dynamically interacting, the results suggest that certain combinations of sentencing reforms significantly increase new commitments while the number of parolees returned to prison was not meaningfully affected. The analysis further indicates that the combinations that the reforms appear in at the state-level influence the magnitude of the impacts of reforms.
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Working Themselves Impure: A Life-Cycle Theory of Legal Theories
Jeremy Kessler & David Pozen
University of Chicago Law Review, forthcoming
Abstract:
Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle requires a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory's persistence may foster, down the line.
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Andrea Roth
Georgetown Law Journal, forthcoming
Abstract:
This Article explores the rise of "machines" in criminal adjudication. Human witnesses now often give way to gadgets and interpretive software, juries' complex judgments about moral blameworthiness give way to mechanical proxies for criminality, and judges' complex judgments give way to sentencing guidelines and actuarial instruments. Although mechanization holds much promise for enhancing objectivity and accuracy in criminal justice, that promise remains unrealized because of the uneven, unsystematic manner in which mechanized justice has been developed and deployed. The current landscape of mechanized proof, liability, and punishment suffers from predictable but underscrutinized automation pathologies: hidden subjectivities and errors in "black box" processes; distorted decision-making through oversimplified - and often dramatically inaccurate - proxies for blameworthiness; the compromise of values protected by human safety valves, such as dignity, equity, and mercy; and even too little mechanization where machines might be a powerful debiasing tool but where little political incentive exists for its development or deployment. For example, the state promotes the objectivity of interpretive DNA software that typically renders match statistics more inculpatory, but lionizes the subjective human judgment of its fingerprint and toolmark analysts, whose grandiose claims of identity might be diluted by such software. Likewise, the state attacks the polygraph as an unreliable lie detector at trial, where results are typically offered only by defendants, but routinely wields them in probation revocation hearings, capitalizing in that context on their cultural status as "truth machines." The Article ultimately proposes a systems approach - "trial by cyborg" - that safeguards against automation pathologies while interrogating conspicuous absences in mechanization through "equitable surveillance" and other means.
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Jeremiad or Weapon of Words?: The Power of Emotive Language in Supreme Court Dissents
Amanda Bryan & Eve Ringsmuth
Journal of Law and Courts, Spring 2016, Pages 159-185
Abstract:
Unable to directly control the policy articulated by the Supreme Court, dissenting justices are faced with the challenge of finding alternative ways to pursue their policy goals. We argue that one strategy available to them is to use their power over the language of a dissenting opinion to increase the media attention paid to a case. Our results show that cases with negative dissents attract more media coverage, which creates a variety of mechanisms through which a dissenter's policy preferences could be realized, such as inducing Congress to take action, influencing public debate on the issue, and provoking further litigation. This finding ultimately suggests that dissenters, while disadvantaged, are not powerless to affect legal policy.
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The Cycles of Separation-of-Powers Jurisprudence
Aziz Huq & Jon Michaels
Yale Law Journal, forthcoming
Abstract:
The Supreme Court's approach to the Constitution's separation of powers is a puzzle. Although all Justices appear to agree on the doctrine's goals, in almost every important line of cases the Court oscillates between two basic approaches of hard-edged rules and open-textured standards. Its seemingly erratic shifts cannot be wholly explained by changes in the bench's personnel or methodological fads. This Article isolates and analyzes pervasive doctrinal cycling between rules and standards as a distinctive element of separation-of-powers jurisprudence. Breaking from previous scholarship critical of the Court's zigzagging, we consider whether purposeful cycling between rules and standards might be justified as a judicial strategy for implementing the separation of powers. We develop a new theoretical account of the separation of powers in which doctrinal cycling can be justified on two key assumptions: First, the separation of powers promotes a plurality of normative ends, and second, it does so in the context of a more heterogeneous institutional environment than a focus on the three branches alone would suggest. Doctrinal cycling between rules and standards could be used, at least in theory, to manage normative pluralism and police this "thick political surround" when simpler, more straightforward regulatory strategies would fail. This rational reconstruction of the feasible judicial role in the separation-of-powers context provides a benchmark for evaluating observed doctrinal oscillations, and, more generally, determining whether courts possess the necessary institutional resources to promote separation-of-powers values.
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Sound the Alarm? Judicial Decisions Regarding Publication and Dissent
Morgan Hazelton, Rachael Hinkle & Jee Seon Jeon
American Politics Research, forthcoming
Abstract:
Judges sitting on three-judge panels in the U.S. Courts of Appeals make decisions under the shadow of potential review by supervising courts, the full circuit sitting en banc and the Supreme Court. Review is more likely for published decisions, particularly when a dissent is present. Unpublished decisions do not have binding precedential status. These factors create the potential for judges to be strategic in deciding whether to publish a decision or write a dissent. We develop a formal model of decision aggregation that takes the possibility of negotiating a tradeoff between the ideological location of a rule and its precedential value into account. Implications of our model are tested empirically using an original data set of search and seizure cases. Our model and results indicate that preferences within the panel and judicial hierarchy coupled with discretionary review influence judges' decisions regarding publication and dissent, and that these choices have important consequences.