Scales of justice
Issue-Specific Opinion Change: The Supreme Court and Health Care Reform
Dino Christenson & David Glick
Public Opinion Quarterly, forthcoming
Abstract:
Did the Supreme Court decision in the Affordable Care Act case change public opinion about health care reform? Utilizing a multi-wave panel design with observations collected just hours before and after the Court’s decision, this study addresses macro-level questions concerning the Court’s effect on opinion about health care reform generally and the individual mandate specifically. Findings show that support for health care reform remained constant despite significant positive movement on the mandate. The panel design also allows for the analysis of micro-level change and the testing of hypotheses related to cognitive models, individual attributes, and assessments of the Court’s legitimacy. Despite some evidence of micro-level variation, the data ultimately point to a decision that induced a general, persistent, and relatively unconditional uptick in support for the provision the Court deemed constitutional.
---------------------
Birth Order, Preferences, and Norms on the U.S. Supreme Court
Kevin McGuire
Law & Society Review, December 2015, Pages 945–972
Abstract:
The members of the U.S. Supreme Court have different ideas about what constitutes good judicial policy as well as how best to achieve that policy. From where do these ideas originate? Evolutionary psychology suggests that an answer may lie in early life experiences in which siblings assume roles that affect an adult's likely acceptance of changes in the established order. According to this view, older siblings take on responsibilities that make them more conservative and rule-bound, while younger ones adopt roles that promote liberalism and greater rebelliousness. Applying this theory to the Court, I show that these childhood roles manifest themselves in later life in the decisions of the justices. Birth order explains not only the justices’ policy preferences but also their acceptance of one important norm of judicial decisionmaking, specifically their willingness to exercise judicial review.
---------------------
Byungbae Kim, Cassia Spohn & E.C. Hedberg
Criminology, forthcoming
Abstract:
Investigations of how criminal justice actors contribute to variation in sentencing typically focus on the role played by the judge. We argue that sentencing should be viewed as a collaborative process involving actors other than the judge and that the role of the prosecutor is particularly salient. We also contend that the courtroom workgroup literature has suggested that sentences may vary depending on the particular judge and prosecutor to whom the case is assigned. By using a unique data set from three U.S. district courts (N = 2,686) that identifies both the judge and the prosecutor handling the case, we examine how the judge, the prosecutor, and the judge–prosecutor dyad contribute to variance in offender sentences. We do this by employing cross-classified random-effects models to estimate the variance components associated with judges, prosecutors, and judge–prosecutor interactions. The results indicate that disparity attributable to the prosecutor is larger than disparity from the judge. Moreover, the role that the judge plays is moderated by the prosecutor to whom the case is assigned, as the judge–prosecutor effect is consistently larger than other random effects across the models. We also find that results vary by judicial district.
---------------------
Life or Death: An Examination of Jury Sentencing With the Capital Jury Project Database
Dennis Devine & Christopher Kelly
Psychology, Public Policy, and Law, forthcoming
Abstract:
The Capital Jury Project (CJP) was conducted by a consortium of scholars who collected extensive interview data from nearly 1,200 jurors serving in 353 death-penalty trials in 14 states over a number of years. It represents a landmark research initiative and one of the most comprehensive and systematic efforts ever made to study death-penalty decision making by juries. Previous analyses of the CJP data have focused on the perceptions and sentencing preferences of individual jurors, so the purpose of this study was to model the sentencing decisions of CJP juries using a broad set of explanatory variables, including legally relevant case characteristics, aspects of the trial, deliberation discussion and voting, and the demographic characteristics of defendants, victims, and jurors. We conducted bivariate and multivariate analyses to examine case-level predictors of jury sentence using data on 314 CJP juries with multiple respondents. Jury sentence was modestly moderately associated with a variety of characteristics in bivariate form — including indices of aggravating and mitigating circumstances, the perception of defendant remorse, and several variables related to deliberation. In contrast, juror, defendant, and victim demographics were generally related only weakly to jury sentence, and we found no evidence of a “White male dominance” or “Black male presence” effect when other relevant variables were statistically controlled. Overall, multivariate logistic regression models were only able to account moderately well for jury decisions but, as in noncapital trials, the first-vote distribution of juror preferences in the penalty phase was an excellent predictor of the jury’s final sentence.
---------------------
Judicial independence and economic freedom in the US states
John Dove
Applied Economics Letters, Winter 2016, Pages 78-83
Abstract:
This article addresses the extent to which differences in judicial independence across US states influence economic freedom by using the Fraser Institute’s Economic Freedom of North America Index. Overall, the results suggest that, as judicial independence increases within a state’s court of last resort, so does a state’s overall economic freedom score, along with each of the subcomponent index scores. These findings add important nuances to the literature and provide opportunities for future research.
---------------------
Increasing Leverage: Judicial Review as a Democracy-Enhancing Institution
Nicholas Almendares & Patrick Le Bihan
Quarterly Journal of Political Science, Summer 2015, Pages 357-390
Abstract:
Although judicial review is used to police constitutional boundaries, the practice raises serious democratic concerns because unelected judges can overrule the decisions of political majorities. Using an agency model we show that judicial review has a heretofore unacknowledged democracy-enhancing effect. By constraining the policy choices made by elected representatives, judicial review increases the importance of office benefits as compared to policy benefits, making it more likely that politicians behave in the voters' best interests. Politicians do so across policy issues, including those that courts cannot review, leading to a spillover effect. These effects do not depend on the preferences of the court, nor on the courts' decisions being observed by the voters. The overall impact judicial review has on democracy is ambiguous, however, because this democracy-enhancing effect comes at the expense of turning some policies over to the courts. We suggest that this ambiguity can be resolved in favor of democracy by tailoring the courts' jurisdiction or standards of review.
---------------------
Lorraine Hope et al.
Law and Human Behavior, forthcoming
Abstract:
Investigations after critical events often depend on accurate and detailed recall accounts from operational witnesses (e.g., law enforcement officers, military personnel, and emergency responders). However, the challenging, and often stressful, nature of such events, together with the cognitive demands imposed on operational witnesses as a function of their active role, may impair subsequent recall. We compared the recall performance of operational active witnesses with that of nonoperational observer witnesses for a challenging simulated scenario involving an armed perpetrator. Seventy-six police officers participated in pairs. In each pair, 1 officer (active witness) was armed and instructed to respond to the scenario as they would in an operational setting, while the other (observer witness) was instructed to simply observe the scenario. All officers then completed free reports and responded to closed questions. Active witnesses showed a pattern of heart rate activity consistent with an increased stress response during the event, and subsequently reported significantly fewer correct details about the critical phase of the scenario. The level of stress experienced during the scenario mediated the effect of officer role on memory performance. Across the sample, almost one-fifth of officers reported that the perpetrator had pointed a weapon at them although the weapon had remained in the waistband of the perpetrator’s trousers throughout the critical phase of the encounter. These findings highlight the need for investigator awareness of both the impact of operational involvement and stress-related effects on memory for ostensibly salient details, and reflect the importance of careful and ethical information elicitation techniques.
---------------------
Travis Franklin, Layne Dittmann & Tri Keah Henry
Crime & Delinquency, forthcoming
Abstract:
The sentencing literature is replete with studies that have examined the influence of extralegal offender characteristics on two key sentence outcomes: the imprisonment and sentence length decisions. Yet the study of other outcomes, such as the application of intermediate sanctions, is rarely addressed. To date, no studies have been conducted in the federal courts to examine the potential influence of race/ethnicity, age, gender, and educational attainment on the decision to apply intermediate sanctions. Consequently, the present analysis employs U.S. Sentencing Commission data to examine direct and interactive effects of these extralegal characteristics on this understudied outcome. Findings indicate that extralegal effects may play an important role in the use of intermediate sanctions. The implications of this research are discussed in detail.
---------------------
Who are the Top Law Firms? Assessing the Value of Plaintiffs' Law Firms in Merger Litigation
C.N.V. Krishnan, Steven Davidoff Solomon & Randall Thomas
American Law and Economics Review, forthcoming
Abstract:
Using a hand-collected sample of 1,739 lawsuits that challenge the fairness of M&A transactions from the period 2003–2012, we examine the effectiveness of plaintiffs' law firms. From out of the 336 law firms in our sample, we determine the top law firms based on their popularity with informed plaintiffs as well as their proven ability to obtain large attorneys' fees awards. We find that the presence of a top plaintiffs' law firm is significantly and positively associated with a higher probability of lawsuit success. These results hold even after instrumenting for unobserved case quality, given that top law firms likely can obtain better cases with higher chances of success. This success appears to stem from the fact that top plaintiffs' law firms are significantly more active in prosecuting cases than other plaintiffs' law firms: they file more documents in the cases they litigate and they are more likely to bring injunction motions to enjoin a transaction. Defendants are also less likely to file a motion to dismiss cases filed by top plaintiffs' law firms. Our results inform the debate over shareholder litigation as well as provide courts guidance for selecting lead counsel in shareholder class action litigation.
---------------------
Investigating Miranda waiver decisions: An examination of the rational consequences
Hayley Blackwood et al.
International Journal of Law and Psychiatry, forthcoming
Abstract:
Millions of custodial suspects waive their Miranda rights each year without the benefit of legal counsel. Miranda understanding, appreciation, and reasoning abilities are essential to courts' acceptance of Miranda waivers (Grisso, 2003; Rogers & Shuman, 2005). The question posed to forensic psychologists and psychiatrists in the disputed Miranda waivers is whether a particular waiver decision was knowing, intelligent, and voluntary. Despite the remarkable development of Miranda research in recent decades, studies have generally focused on understanding and appreciation of Miranda rights, but with comparatively minimal emphasis on Miranda reasoning and attendant waiver decisions. Research on defendants' decisional capacities constitutes a critical step in further developing theoretical and clinical models for Miranda waiver decisions. The current study evaluated Miranda waiver decisions for 80 pretrial defendants from two Oklahoma jails to study systematically how rational decision abilities affect defendants' personal waiver decisions. In stark contrast to what was expected, many defendants were able to identify a rational decisional process in their own legal cases, yet cast such reasoning aside and chose a completely contradictory Miranda waiver decision.
---------------------
The Policy of Enforcement: Red Light Cameras and Racial Profiling
Robert Eger, Kevin Fortner & Catherine Slade
Police Quarterly, December 2015, Pages 397-413
Abstract:
We explore the question of whether some of the often conflicting evidence of racial profiling can be cleared up using red light camera observations to measure racial disparities in traffic violations. Using data from cameras at intersections matched to census data, we find that although citations from the red light cameras are issued to a disproportionate number of minorities based on the racial composition of the surrounding location, the racial composition of the violator is consistent with the racial composition of the block group in which they reside. Our study indicates that red light cameras may have a present and future role in assisting public policy makers on issues of racial profiling thresholds.
---------------------
Can Philosophy Be Justified in a Time of Crisis?
Nathan Robinson
Harvard Working Paper, September 2015
Abstract:
In this paper, I take the position that a large portion of contemporary academic work is an appalling waste of human intelligence that cannot be justified under any mainstream normative ethics. Part I builds a four-step argument for why this is the case, while Part II responds to arguments for the contrary position offered in Cass Sunstein’s “In Defense of Law Reviews.” First, in Part I(A), I make the case that there is a large crisis of suffering in the world today. (Part I does not take me very long.). In Part I(B), I assess various theories of “the role of the intellectual,” concluding that the only role for the intellectual is for the intellectual to cease to exist. In Part I(C), I assess the contemporary state of the academy, showing that, contrary to the theory advanced in Part I(B), many intellectuals insist on continuing to exist. In Part I(D), I propose a new path forward, whereby present-day intellectuals take on a useful social function by spreading truths that help to alleviate the crisis of suffering outlined in Part I(A).
---------------------
Reinforced self-affirmation as a method for reducing the eyewitness misinformation effect
Malwina Szpitalak & Romuald Polczyk
Psychology, Crime & Law, forthcoming
Abstract:
The misinformation effect occurs when an eyewitness includes information in their account that is incongruent with the event they witnessed, and stems from being exposed to incorrect external sources. Yet little research has been undertaken on techniques that could protect eyewitnesses from the influence of misinformation, despite the dangerous consequences of distorted testimony. In this article, a method of enhancing self-confidence, called reinforced self-affirmation (RSA), was proven to reduce the misinformation effect in five experiments. First, participants watched or heard an original event take place. They were then exposed to post-event material containing false information about that event, and finally they were given a memory test about the original material. The RSA, which took place either before the post-event material or before the final test, consisted of self-affirmation (recalling the greatest achievements in life) and external positive feedback (simulated ‘good’ results in a memory test or fake favourable results on personality tests). A meta-analysis of all five experiments revealed that the overall effect of RSA on reducing the misinformation was significant (effect size of 0.94), suggesting that this technique has the potential to be developed for practical use to make eyewitnesses less vulnerable to misinformation.
---------------------
Confidence and Eyewitness Identifications: The Cross-Race Effect, Decision Time and Accuracy
Chad Dodson & David Dobolyi
Applied Cognitive Psychology, forthcoming
Abstract:
Participants encountered same-race and cross-race faces at encoding, completed a series of line-up identification tests and provided confidence ratings by using one of nine different confidence scales. Confidence was less well calibrated with identification accuracy when participants selected a cross-race than a same-race face because of overconfidence. By contrast, there was no cross-race effect on confidence–accuracy calibration when participants responded ‘not present’. Whereas confidence was a very strong predictor of accuracy for fast identifications of a line-up face, this was much less the case for slower decisions. Highly confident identifications showed a dramatic drop in accuracy from faster decisions to slower decisions, whereas there was little change in accuracy between faster and slower decisions for moderately confident or weakly confident identifications. Finally, we observed little influence of the format of the nine different confidence scales: numerical and verbal scales produced comparable calibration scores, as did scales with few or many points.
---------------------
Perceptions of credibility of sexual abuse victims across generations
Bianca Klettke, David Hallford & David Mellor
International Journal of Law and Psychiatry, forthcoming
Abstract:
The success of prosecutions of perpetrators of sexual abuse often depends substantially upon the perceived credibility of the victim witness. However, perceptions of credibility may vary by generation of the observer, and the constitution of juries may therefore lead to bias. In this study we examined whether perceptions of credibility of female victims of sexual abuse varied across generation Y, generation X, “baby boomers”, and “builders”. One hundred and twenty-eight jury-eligible members of the community from each generation (N = 512) responded to ten questions assessing the perceived believability, competence, trustworthiness, demeanour and sexual naiveté of females providing testimony related to alleged sexual abuse. Although consistent between-generation differences were not found for all questions, or all four groups of generational cohorts, in instances where significant differences were found, it was consistently the older generation groups (builders and baby boomers) that attributed less credibility to the victim than the younger generation groups (generation Y and generation X). The implications of these findings are discussed.
---------------------
Benjamin Cheung & Steven Heine
Personality and Social Psychology Bulletin, forthcoming
Abstract:
Much debate exists surrounding the applicability of genetic information in the courtroom, making the psychological processes underlying how people consider this information important to explore. This article addresses how people think about different kinds of causal explanations in legal decision-making contexts. Three studies involving a total of 600 Mechanical Turk and university participants found that genetic, versus environmental, explanations of criminal behavior lead people to view the applicability of various defense claims differently, perceive the perpetrator’s mental state differently, and draw different causal attributions. Moreover, mediation and path analyses highlight the double-edged nature of genetic attributions — they simultaneously reduce people’s perception of the perpetrator’s sense of control while increasing people’s tendencies to attribute the cause to internal factors and to expect the perpetrator to reoffend. These countervailing relations, in turn, predict sentencing in opposite directions, although no overall differences in sentencing or ultimate verdicts were found.
---------------------
Deterrence effects under Twombly: On the costs of increasing pleading standards in litigation
Sergio Campos, Christopher Cotton & Cheng Li
International Review of Law and Economics, October 2015, Pages 61–71
Abstract:
We develop a stylized game theoretic model of litigant behavior to study the effects of increased pleading standards on incentives to engage in illegal activity. Such a model is necessary to build intuition about the potential costs associated with the procedures set forth by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly (550 U.S. 544 [2007]) and Ashcroft v. Iqbal (556 U.S. 662, 684 [2009]), which increase the standard of plausibility that lawsuits must meet before being allowed by a judge to proceed to discovery and trial. We show how increasing pleading standards tends to increase illegal activity, and can increase litigation costs. These negative effects should be accounted for when setting a standard. Our results provide a counterpoint to the U.S. Supreme Court's argument that increased plausibility requirements will decrease the costs of litigation.
---------------------
The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content
Paul Collins, Pamela Corley & Jesse Hamner
Law & Society Review, December 2015, Pages 917–944
Abstract:
We address fundamental questions about the ability of interest groups to shape public policy by examining the influence of amicus curiae briefs on U.S. Supreme Court majority opinion content. We argue that the justices will incorporate language from amicus briefs into their opinions based on the extent to which the amicus briefs contribute to their ability to make effective law and policy. Using plagiarism detection software and other forms of computer assisted content analysis, we find that the justices adopt language from amicus briefs based primarily on the quality of the brief's argument, the level of repetition in the brief, the ideological position advocated in the brief, and the identity of the amicus. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.
---------------------
Kevin Buckler
Criminal Justice Policy Review, December 2015, Pages 773-804
Abstract:
This study examines the role of status differential between the involved parties and amici curiae participation in explaining variation in U.S. Supreme Court criminal justice decisions that favor the government interest over the interest of the other party (1994-2012 terms). The study finds status differential between the involved parties to be a significant predictor of outcome. Repeat player effects were found for special interests that file in support of the government entity (U.S. Solicitor General and Criminal Justice Legal Foundation), but not for special interests who file for the other party (the American Civil Liberties Union and National Association of Criminal Defense Lawyers). The study found that greater levels of aggregate amici curiae participation (all interest group activity) in the direction of the other party significantly reduce the likelihood of a case outcome that favors the government. Implications are discussed.
---------------------
Litigant Status and Trial Court Appeal Mobilization
Christina Boyd
Law & Policy, October 2015, Pages 294–323
Abstract:
The advantages held by haves over have nots in litigation have long fascinated scholars, with a long line of research revealing that litigant status often affects litigant resources, experience, and chances of overall success from trial courts to appellate courts. What has received considerably less attention, however, is how this status affects the decision to appeal. Bringing a new perspective to this important area holding implications for the shape and content of the judicial hierarchy, this study analyzes the decision of the losing federal district court litigant to appeal to the US courts of appeals. Utilizing an original database containing a sample of federal district court civil cases decided between 2000 and 2004, the results indicate, as predicted, that litigant status differentials affect whether there will be an appeal. This influence is further magnified when conditioned upon the relative costs of the appeal. These findings provide one of the first detailed examinations of litigant status and appeals coming from US trial courts and, simultaneously, offer the first empirical evidence to date that business litigants, like previously known government parties, are advantaged over individuals when deciding whether to appeal.
---------------------
Sentencing and State-Level Racial and Ethnic Contexts
Xia Wang & Daniel Mears
Law & Society Review, December 2015, Pages 883–915
Abstract:
Sentencing studies have incorporated social context in studying sentencing decisions, but to date the bulk of prior work has focused almost exclusively on county context. An unresolved question is whether there also may be state-level effects on sentencing. Drawing from the minority threat perspective, we examine (1) whether state-level racial and ethnic contexts affect sentencing, (2) whether this effect amplifies the effect of county-level racial and ethnic contexts on sentencing, and (3) whether the interaction of county-level and state-level contextual effects is greater for minorities than for whites. Analysis of State Court Processing Statistics and other data indicates that state-level racial and ethnic contexts are associated with sentencing outcomes and that this effect may differ by outcome (e.g., incarceration versus sentence length) and by type of context (e.g., racial or ethnic). The study's findings and their implications are discussed.