Kevin Lewis

December 12, 2012

Voting For The President: The Supreme Court During War

William Howell & Faisal Ahmed
Journal of Law, Economics, and Organization, forthcoming

An extraordinary body of scholarship suggests that wars, especially major wars, stimulate presidential power. And central to this argument is a conviction that judges predictably uphold elements of presidents' policy agendas in war that would not withstand judicial scrutiny in peace. Few scholars, however, have actually subjected this claim to quantitative investigation. This article does so. Examining the universe of Supreme Court cases to which the US Government, a cabinet member, or a president was a named party over a 75-year period, and estimating a series of fixed effects and matching models, we find that during war Justices were 15 percentage points more likely to side with the government on the statutory cases that most directly implicated the president. We also document sizable effects associated with both the transitions from peace to war and from war to peace. On constitutional cases, however, null effects are consistently observed. These various estimates are robust to a wide variety of model specifications and do not appear to derive from the deep selection biases that pervade empirical studies of the courts.


The Supreme Court's Many Median Justices

Benjamin Lauderdale & Tom Clark
American Political Science Review, November 2012, Pages 847-866

One-dimensional spatial models have come to inform much theorizing and research on the U.S. Supreme Court. However, we argue that judicial preferences vary considerably across areas of the law, and that limitations in our ability to measure those preferences have constrained the set of questions scholars pursue. We introduce a new approach, which makes use of information about substantive similarity among cases, to estimate judicial preferences that vary across substantive legal issues and over time. We show that a model allowing preferences to vary over substantive issues as well as over time is a significantly better predictor of judicial behavior than one that only allows preferences to vary over time. We find that judicial preferences are not reducible to simple left-right ideology and, as a consequence, there is substantial variation in the identity of the median justice across areas of the law during all periods of the modern court. These results suggest a need to reconsider empirical and theoretical research that hinges on the existence of a single pivotal median justice.


Sentencing Juvenile Offenders to Life in Prison: The Political Sociology of Juvenile Punishment

Jason Carmichael & Giovani Burgos
American Journal of Criminal Justice, December 2012, Pages 602-629

Sentencing juvenile offenders to life in prison is the most severe criminal penalty available, yet we know little about the factors that produce jurisdictional differences in the use of such sanctions. Political explanations emphasize conservative values and the strength of more conservative political parties. Threat accounts suggest that this sentence will be more likely in jurisdictions with larger minority populations. After controlling for many explanations using count models, the results show that larger numbers of juvenile life sentences are handed out in more politically conservative states with a stronger Republican Party. Findings also show that racial politics is a factor in juvenile life sentences. Those jurisdictions that have the most blacks and have judicial elections sentence the most juveniles to life terms. By highlighting the explanatory power of public ideologies, these findings support political explanations for the harshest criminal punishment directed towards juveniles.


Judicial Errors and Crime Deterrence: Theory and Experimental Evidence

Matteo Rizzolli & Luca Stanca
Journal of Law and Economics, May 2012, Pages 311-338

The economic theory of crime deterrence predicts that the conviction of an innocent individual (type I error) is as detrimental to deterrence as the acquittal of a guilty individual (type II error). In this paper, we qualify this result theoretically, showing that in the presence of risk aversion, loss aversion, or type I error aversion, type I errors have a stronger effect on deterrence than type II errors. We test these predictions with two experimental studies in which participants choose whether to steal from other individuals, under alternative combinations of probabilities of judicial errors. The results indicate that both types of errors have a significant impact on deterrence. As predicted, type I errors have a stronger impact on deterrence than type II errors. This asymmetry is entirely explained by differences in the expected utility gains from crime, whereas nonexpected utility factors do not play a significant role.


Shaping the Federal Courts: The Obama Nominees

T.J. Kimel & Kirk Randazzo
Social Science Quarterly, December 2012, Pages 1243-1250

Objectives: The objective of this study is to explore President Obama's nominations to the lower federal courts and compare his patterns to those from George W. Bush and William Jefferson Clinton using a typology established by Goldman in 1997.

Methods: Using data from 1993 to 2012 provided by the American Constitution Society for Law and Policy, we examine a series of cross-tabulations to make our comparisons.

Results: The data indicate that President Obama has nominated more women and minorities to the federal bench than either of his two immediate predecessors. Additionally, his nominees possess more moderate ideological preferences than the nominees from either Bush or Clinton.

Conclusions: These results demonstrate that Obama seems more concerned with racial and gender diversity rather than ideological preferences. Therefore, President Obama's claims of pragmatism and his desire to nominate individuals who reflect American society, often doubted by both political supporters and detractors, appear supported by the available data.


The effect of attorneys' work with trauma-exposed clients on PTSD symptoms, depression, and functional impairment: A cross-lagged longitudinal study

Andrew Levin et al.
Law and Human Behavior, December 2012, Pages 538-547

To date, few studies have examined mental health consequences among attorneys exposed to clients' traumatic experiences. A longitudinal, 2-wave, cross-lagged study was used in a cohort of attorneys (N = 107) from the Wisconsin State Public Defender's Office. We assessed changes in posttraumatic stress disorder (PTSD), depression, and functional impairment over a 10-month period and tested the effects of intensity of contact with trauma-exposed clients on symptom levels over time. Attorneys demonstrated strong and significant symptom stability over time in PTSD, depression, functional impairment, and levels of exposure. Analyses involving cross-lagged panel correlation structural equation modeling path models revealed that attorneys' levels of exposure to trauma-exposed clients had significant positive effects, over time, on PTSD, depression, and functional impairment. Gender, age, years on the job, and office size did not predict any of the outcomes. Level of exposure to trauma-exposed clients predicted reduction of weekly working hours over time, but there was no reciprocal relationship between PTSD, depression, and functional impairment and level of exposure over time. These findings underscore the central role of exposure to trauma-exposed clients in predicting mental health outcomes and emphasize the need to support attorneys by managing the intensity of exposure as well as addressing emerging symptoms.


Prosecutorial discretion for domestic violence cases: An examination of the effects of offender race, ethnicity, gender, and age

Danielle Romain & Tina Freiburger
Criminal Justice Studies, forthcoming

Much of the existing literature on courts and sentencing has focused on judicial decision-making. Prior research on prosecutorial decision-making is more limited, with even less attention paid to the prosecution of domestic violence cases. The research that has been conducted has produced inconsistent results regarding the effects of legal and extralegal variables. The current study focuses on the effects of extralegal suspect characteristics on the decision to dismiss domestic violence cases in a large Midwestern county from June 2009 to December 2009. The findings demonstrate that gender and race have a strong influence on prosecutors' decisions to dismiss charges in domestic violence cases. Contrary to the focal concerns perspective, however, the results indicate that males and Black and Hispanic offenders are more likely to have their cases dismissed. Implications for future research are discussed.


Misogyny: It's Still the Law - An Empirical Assessment of the Missouri Juvenile Court System's Processing of Rape and Robbery Offenders

Dyan McGuire, Steve Donner & Elizabeth Callahan
Gender Issues, December 2012, Pages 1-24

Patriarchal societies have long used their legal systems as a vehicle of oppression. This article examines the extent to which bias against women can still be discerned in the content of the criminal law by comparing and contrasting Missouri's forcible rape and robbery in the first degree statutes. The study then analyzes the application of these statutes by examining all of the forcible rape and robbery in the first degree cases processed by Missouri's juvenile court system between January 1, 2001 and December 31, 2004 (N = 617). The results of these analyses suggest that Missouri's robbery statute is more protective of victims than is its rape statute. They also indicate that at least among juveniles, robbery offenders are sanctioned more severely than rape offenders in terms of detention, informal adjustment and adjudication.


On the Benefits and Costs of Legal Expertise: Adjudication in Ancient Athens

Robert Fleck & Andrew Hanssen
Review of Law & Economics, October 2012, Pages 367-399

Legal expertise permits detailed laws to be written and enforced, but individuals with expertise may employ their special knowledge to skew decisions in privately beneficial directions. We illustrate this tradeoff in a simple model, which we use to guide our analysis of the legal system in ancient Athens. Rather than accepting the costs of expertise in return for the benefits, as do most modern societies, the Athenians designed a legal system that banned professional legal experts. And this was not because Athenian society was simple: The Athenians employed sophisticated contingent contracts and litigated frequently (to the point that the law courts featured prominently in several famous comedies). Furthermore, the Athenians recognized that forgoing expertise was costly, and where the cost was particularly high, designed institutions that made use of expertise already existing in society, employed knowledgeable individuals who were unable to engage in significant rent-seeking, or increased the private returns to collecting publicly beneficial information. Although the Athenian legal system differs in many ways from modern legal systems, it nonetheless functioned very effectively. Investigation of the Athenian system highlights how important it is for institutional designers to consider legal institutions as a bundle, whose pieces must complement one another.


Jurors' Use of Standards of Proof in Decisions about Punitive Damages

William Douglas Woody & Edie Greene
Behavioral Sciences & the Law, November/December 2012, Pages 856-872

Standards of proof define the degree to which jurors must be satisfied that a fact is true, and plaintiffs in civil lawsuits assume the burden of proving their claims to the requisite standard of proof. Three standards - preponderance of evidence, clear and convincing evidence, and beyond a reasonable doubt - are used by different jurisdictions in trials involving liability for punitive damages. We investigated whether individual mock jurors apply these standards appropriately by instructing them to read two personal injury trial summaries and to use one of three standards in either qualitative or quantitative format when deciding punitive liability. Results showed that jurors tended not to incorporate the standard into their judgments: defendants were just as likely to be found liable when the plaintiff's burden was high ("beyond a reasonable doubt") as when the burden was low ("preponderance of evidence"). The format of the instruction also had a negligible effect. We suggest that nonuse of the standard of proof is related to jurors' preferences for less effortful or experiential processing in situations involving complicated or ambiguous material.


How Well do Measures of Judicial Ability Predict Judicial Performance?: A Case Study Using Securities Class Actions

Stephen Choi, Mitu Gulati & Eric Posner
International Review of Law and Economics, March 2013, Pages 37-53

Diverse measures are used as proxies for judicial ability, ranging from the college and law school a judge attended to the rate at which her decisions are cited by other judges. Yet there has been little examination of which of these ability measures is better or worse at predicting the quality of judicial performance - including the management and disposition of cases. In this article, we attempt to evaluate these measures of ability by examining a rich group of performance indicators. Our innovation is to derive performance measures from judicial decisions other than case outcomes (which are inherently difficult to evaluate): the decisions to preside over a securities class action, to reject a motion for lead plaintiff, to dismiss the complaint with prejudice, and to reject a request for fees. In each case, an affirmative decision requires more work from the judge, and thus may be an indicator that the judge works hard and, all else equal, performs well. Using a database of securities class action cases, we find that judges who publish frequently and are highly cited are more likely to dismiss with prejudice but no more likely to make the hard choice in the other cases. Other proxies for judicial ability (attended top law school, judicial experience, earlier position as judge, prior private practice, heavy business caseload, and senior status) are more mixed in terms of their predictive power.


Is It Legal Representation or Clients? : An Empirical Testing of Clients' Performance and Their Legal Representation in Tulsa County Drug and DUI Programs

Bin Liang, Michael Long & Wendy Brame
American Journal of Criminal Justice, December 2012, Pages 544-561

The importance of legal representation to a criminal defendant is widely accepted, but the quality of government-provided counsels (particularly public defenders) has continuously been questioned. Based on data from Tulsa County DUI and Drug programs in Oklahoma, the authors tested the impact of legal representation (public defender versus private counsel) on clients' performance in program, measured by plea terms and program outcome. Initial bivariate analyses showed disparate effect of legal representation, as clients represented by private counsels received better plea terms and fared better in program outcome. This effect, however, disappeared once other variables were controlled. Instead, factors closely related to the clients themselves (e.g., demographic features and their criminal behaviors) significantly impacted their program performance.


Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums

Joshua Fischman & Max Schanzenbach
Journal of Empirical Legal Studies, December 2012, Pages 729-764

The U.S. Sentencing Guidelines restrict judicial discretion in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities if judges use discretion to offset disparities emanating from prosecutorial discretion or sentencing policies that have a disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges' discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums, which have a disparate impact on minority offenders. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.


Assisting jurors: Promoting recall of trial information through the use of a trial-ordered notebook

Lorraine Hope, Naomi Eales & Arta Mirashi
Legal and Criminological Psychology, forthcoming

Purpose: This study examined the effects of note taking on juror recall of trial information and, specifically, investigated whether providing mock jurors with a pre-structured Trial-Ordered Notebook (TON) was more beneficial for subsequent recall than freestyle note taking by jurors. Previous research has demonstrated some benefits of freestyle note taking. However, drawing on theories relating to note taking developed in educational contexts, we predicted that providing jurors with a note taking aid designed to follow the trial structure would facilitate enhanced performance on a subsequent recall task.

Method: Community-based participants served as mock jurors in a criminal trial and were permitted to take notes during the trial, using either the structured TON or plain paper ('freestyle' note taking) although participants in a control condition were not permitted to take notes. After watching the trial video, all participants reached an individual verdict and responded to cued recall questions concerning details of the trial.

Results: Mock jurors using the TON to take notes correctly recorded significantly more legally relevant details during the trial and reported more correct information in the post-trial recall task than participants who took unaided notes (or those who made no notes at all). TON participants also reported more relevant legal information correctly in the recall task and evaluated their experience of note taking more positively than those in the free note taking condition.

Conclusions: The findings are discussed in relation to differences in individual experience of taking notes and the benefits that may accrue from an innovative juror aid such as the Trial-Ordered Notebook.


Victim impact statements and crime heinousness: A test of the saturation hypothesis

Bryan Myers et al.
Psychology, Crime & Law, February 2013, Pages 129-143

In Payne v. Tennessee (1991), it was argued that the harmful effects of a victim impact statement (VIS) during sentencing are diminished as the heinousness of the crime increases. We tested this hypothesis by giving 180 mock jurors a summary of a murder trial that varied the presence/absence of VIS along with the crime heinousness (more/less). Participants gave significantly harsher sentencing ratings when VIS was present than when it was absent, and crime heinousness also significantly affected sentencing ratings. However, a significant heinousness by VIS interaction failed to emerge for sentencing, perceptions of victim suffering, or anger toward defendant.


Impact of disguise on identification decisions and confidence with simultaneous and sequential lineups

Jamal Mansour et al.
Law and Human Behavior, December 2012, Pages 513-526

Prior research indicates that disguise negatively affects lineup identifications, but the mechanisms by which disguise works have not been explored, and different disguises have not been compared. In two experiments ( Ns = 87 and 91) we manipulated degree of coverage by two different types of disguise: a stocking mask or sunglasses and toque (i.e., knitted hat). Participants viewed mock-crime videos followed by simultaneous or sequential lineups. Disguise and lineup type did not interact. In support of the view that disguise prevents encoding, identification accuracy generally decreased with degree of disguise. For the stocking disguise, however, full and 2/3 coverage led to approximately the same rate of correct identifications - which suggests that disrupting encoding of specific features may be as detrimental as disrupting a whole face. Accuracy was most affected by sunglasses and we discuss the role metacognitions may have played. Lineup selections decreased more slowly than accuracy as coverage by disguise increased, indicating witnesses are insensitive to the effect of encoding conditions on accuracy. We also explored the impact of disguise and lineup type on witnesses' confidence in their lineup decisions, though the results were not straightforward.


Judicial Review as a Constraint on Tyranny of the Majority

Robert Fleck & Andrew Hanssen
Journal of Law, Economics, and Organization, forthcoming

We develop a theoretical model to analyze the role of judicial review in preventing tyrannies of the majority. The model identifies conditions under which the court's optimal role may be to allow tyranny of the majority - and the tyrannized minority will be better off as a result. This implication hinges on the timing of two events: lifting a veil of ignorance with respect to who gains and who loses from the policy subject to judicial review, and the revelation of new information (modeled as a random shock) that affects the level of the payoffs generated by that policy. We explain how the model applies to three controversial rulings (Serrano v. Priest, Kelo v. City of New London, In re Marriage Cases). In so doing, we demonstrate how the model can help distinguish scenarios in which judicial constraints on majority rule are socially beneficial from those in which they are harmful.


The Law's Delay: A Test of the Mechanisms of Judicial Peer Effects

Thomas Miles
Journal of Legal Analysis, Winter 2012, Pages 301-327

The presence of "peer effects" - that an ideologically homogenous panel decides a case in a more characteristically partisan way than an ideologically diverse panel - is a standard finding in studies of appellate decision-making, but the mechanisms that generate peer effects are not well understood. This article examines a previously overlooked implication that the leading theories of peer effects hold for the speed of judicial decision-making. One set of theories asserts that peer effects result from preference-revealing interactions among judges, such as deliberation or negotiation. These interactions are potentially time-consuming. Other theories, such as whistleblowing and dissent aversion, claim that peer effects result from a judge's response to existing knowledge of her colleagues' preferences. These responses are potentially instantaneous. A simple prediction is that if bargaining or deliberation, rather than whistleblowing or dissent aversion, causes peer effects, ideologically mixed panels should be slower to render decisions than ideologically homogenous panels. The article tests this prediction against a sample of administrative law decisions that have previously been shown to exhibit strong peer effects. The article's main estimates show that the ideological diversity of a panel does not correlate with the speed of decision-making. This finding suggests that preference-revealing interactions do not cause judicial peer effects. But, the results show that law, specifically deference standards, influence the speed of decision-making. A court is substantially quicker when validating rather than invalidating an agency decision, regardless of the panel's affinity for the substance of the agency decision.


Tracking Inconsistent Judicial Behavior

Anthony Niblett
International Review of Law and Economics, June 2013, Pages 9-20

This paper explores the phenomenon of inconsistent judicial decisions. We analyze inconsistency in 174 legal decisions from the California Court of Appeal that determine whether or not an arbitration provision in a contract is enforceable as written. We map the facts of cases and introduce a new methodology for measuring inconsistency, directly comparing each case with every precedent. Our results indicate that cases are inconsistent with about one-quarter of relevant precedents. Inconsistency is highly correlated with conflicting political ideology of the judges on the benches that hear the two cases. Inconsistency also correlates with the publication of cases and the non-publication of precedents.


Selecting the Select Few: The Discuss List and the U.S. Supreme Court's Agenda-Setting Process

Ryan Black & Christina Boyd
Social Science Quarterly, forthcoming

Objective: We investigate whether informational cues differentially affect a petition for review at each stage of the U.S. Supreme Court's agenda-setting process. We specifically test how the cost of identifying a cue and the degree of information provided within it affect the cue's impact.

Methods: We use a random sample of archival data obtained from the private papers of Justice Harry A. Blackmun to jointly analyze the Court's discuss list and final outcome decisions.

Results: Confirming our expectations, we find that both positive cues and negative cues play different roles across the two stages of the Court's agenda-setting process.

Conclusions: These findings are noteworthy since they suggest that the impact of some commonly studied case attributes differs between when a case is selected for the initial level of review versus when it is added to the Court's plenary docket.


Legislative style and judicial discretion: The case of guardianship law

Lawrence Solan
International Journal of Law and Psychiatry, September-December 2012, Pages 464-472

The criteria for appointment of a guardian, and the powers that the guardian will be given depend upon how a particular political entity balances respect for the individual's right to autonomy on the one hand, against society's desire to protect those who cannot manage their own affairs, on the other. In recent decades, the balance has tipped from concern about protection to concern about autonomy. This shift, in turn, has resulted in an evolution in the linguistic style of the laws enacted. This article examines many different guardianship statutes from around the United States, demonstrating that subtle linguistic maneuvers in the style of drafting affects the degree of discretion given to decision makers. Using advances in the psychology of concepts and categories, the article demonstrates the descriptive inadequacy of the classical distinction of rules versus standards in legislative drafting, and adds prototype-based laws and laws dependent upon enriched mental models to types of laws that legislators employ. The goal of the article is to build a self-conscious awareness of the tools available to policy-makers in their efforts to hone legislation in this important area of mental health law.


Adjudicatory Oversight and Judicial Decision Making in Executive Branch Agencies

Christina Boyd & Amanda Driscoll
American Politics Research, forthcoming

Adjudications are an important, though understudied, means through which administrative agencies create policies that have a lasting impact. We argue that executive branch agency heads utilize their oversight of agency adjudications to advance agency goals. Relying on an original data set of adjudications appealed to the U.S. Department of Agriculture's agency head's adjudication delegee, our empirical results indicate a substantial positive effect on the probability that the agency head will reverse an administrative law judge (ALJ) when he receives the appeal of an antiagency ALJ decision. However, the agency's adjudication oversight is conditional on political constraints, including partisanship differences between an agency and the litigated law and whether the case is being heard during a time of presidential transition. These results have clear implications for the use and effectiveness of agency adjudications as a political tool.

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