Big Law
Legal Markets
Gillian Hadfield
Journal of Economic Literature, December 2022, Pages 1264-1315
Abstract:
The existence of an effective legal system is assumed throughout economic analysis, and yet there has been little study of the economics of legal markets themselves. Research to date has focused narrowly on the economics of markets for lawyers. In this review, I distinguish legal markets from the market for lawyers and show how excessive regulation of our legal markets -- by lawyers themselves -- distorts economic activity and growth. It does so primarily by inhibiting investment in the legal and regulatory technologies needed to respond to the transformation of the economy wrought by globalization, digitization, aspirations for inclusion, and the coming of artificial intelligence.
Motivational drivers for serial position effects: Evidence from high-stakes legal decisions
Ori Plonsky et al.
Journal of Applied Psychology, forthcoming
Abstract:
Experts and employees in many domains make multiple similar but independent decisions in sequence. Often, the serial position of the case in the sequence influences the decision. Explanations for these serial position effects focus on the role of decision-makers’ fatigue, but these effects emerge also when fatigue is unlikely. Here, we suggest that serial position effects can emerge due to decision-makers’ motivation to be or appear consistent. For example, to avoid having inconsistencies revealed, decisions may become more favorable toward the side that is more likely to put a decision under scrutiny. As a context, we focus on the legal domain in which many high-stakes decisions are made in sequence and in which there are clear institutional processes of decision scrutiny. We analyze two field data sets: 386,109 U.S. immigration judges’ decisions on asylum requests and 20,796 jury decisions in 18th century London criminal court. We distinguish between five mechanisms that can drive serial position effects and examine their predictions in these settings. We find that consistent with motivation-based explanations of serial position effects, but inconsistent with fatigue-based explanations, decisions become more lenient as a function of serial position, and the effect persists over breaks. We further find, as is predicted by motivational accounts, that the leniency effect is stronger among more experienced decision-makers. By elucidating the different drivers of serial position effects, our investigation clarifies why they are common, when they are expected, and how to reduce them.
Is the taint argument real? Public perceptions of juries that include felon-jurors
James Binnall, Olivia Smith & Cassandra Flick
Psychology, Crime & Law, forthcoming
Abstract:
In forty-nine states, the federal system, and the District of Columbia, individuals with a felony conviction are statutorily restricted from serving as jurors. Proponents of felon-juror exclusion justify the practice by suggesting that those with a felony criminal history lack character, and if allowed to serve, would ‘taint’ the appearance of the jury system. This study assesses that claim by measuring the public’s opinion of juries that include a juror with a felony criminal history. Using a two-by-two vignette design and drawing on a sample of 200 participants, we vary two experimental factors: the presence of a felon-juror on the jury and the verdict rendered by the jury (guilty/not guilty). Results show that participants’ views of ‘illicit’ juries do not differ statistically from homogeneous juries without a felon-juror, for either verdict condition, undermining the ‘taint’ argument. Results also suggest that under certain conditions, the inclusion of a felon-juror may bolster views of the jury and resulting verdicts. Adding to a growing literature on felon-juror exclusion, these findings call into question the character rationale for felon-juror exclusion and suggest that diversity of experience in the form of a criminal history does not undermine the appearance of the jury.
Leveled odds? Attorney capability, team litigation, and outcomes in administrative patent cases
Banks Miller & Brett Curry
Law & Policy, October 2022, Pages 388-407
Abstract:
We examine the impact of legal representation in an administrative setting. Focusing on adversarial proceedings within the United States Patent and Trademark Office and employing new data on patent litigation, we investigate patent rights -- a legal area dominated by specialized, upper-hemisphere litigation teams that generally represent parties with ample resources. Even in an environment with substantial parity in representational capability, we find that litigation team quality matters. Perceived firm quality and litigation team size both enhance the likelihood of victory; these findings are robust under a number of different approaches used to account for the ability of attorneys to select their clients.
Appellate Court Influence over District Courts in the United States
Michael Olson & Albert Rivero
Journal of Political Institutions and Political Economy, Summer 2022, Pages 183-213
Abstract:
The vast majority of U.S. federal litigation occurs in U.S. District Courts, which are the first -- and for most, the last -- courts in which a case is heard. While these lower courts’ judges are insulated from outside influence by their life tenure, they may have incentives to heed the preferences of those above them in the judicial hierarchy. Using data on politicized district court decisions and the ideological preferences of circuit court judges in a two-way fixed effects design, we show that district court judges are responsive to changes in the ideological composition of the circuit court above them. We show that lower court responsiveness is increasing in the rate of appellate review and reversal that these courts face. We find no evidence, however, that this responsiveness is motivated by workload reduction or progressive ambition.
Judging prosecutors: Public support for prosecutorial discretion
Michael Nelson & Taran Samarth
Research & Politics, November 2022
Abstract:
Prosecutors have immense discretion to determine which offenses to charge, which cases to take to trial, and which sentences to recommend. Yet, even though many of the prosecutors who exercise this discretion over important crimes must face the electorate to keep their jobs, we know little about how the use of this discretion affects prosecutors’ electoral fortunes. Drawing on two experiments embedded in a nationally representative survey, we demonstrate that the public is more supportive of prosecutors who issue lenient sentences for low-level crimes. The results have important implications for criminal justice reform inasmuch as they provide a linkage between progressive prosecutorial behavior and respondents’ vote intentions.
Following up after Moore and Hall: A national survey of state legislation defining intellectual disability
Daniel Flack et al.
Psychology, Public Policy, and Law, November 2022, Pages 459-478
Abstract:
Since the Supreme Court’s decision in Atkins v. Virginia (2002), state legislatures have struggled to define intellectual disability as it relates to death penalty eligibility. In Hall and Moore, the Court rejected bright-line cutoffs based on IQ score and suggested that medical definitions of intellectual disability should be consulted. With limited guidance from the Supreme Court, state definitions of intellectual disability can vary considerably. This study identified the legislative definitions of intellectual disability in all 50 states and reviewed relevant case law when applicable. Results show that definitions of intellectual disability significantly vary by state, and few states with active death penalty statutes comply with the accepted medical definitions for intellectual disability. These results have significant clinical and policy implications for defendants with intellectual disability, as well as practical implications for forensic mental health professionals who conduct evaluations of individuals facing the death penalty.
Getting Back to the Source: A New Approach to Measuring Ex Ante Litigation Risk Using Plaintiff-Lawyer Views of SEC Filings
Antonis Kartapanis & Christopher Yust
Journal of Financial and Quantitative Analysis, forthcoming
Abstract:
This study introduces a new measure of ex ante litigation risk using scrutiny of SEC filings by the source of securities litigation—plaintiffs’ lawyers—to reduce measurement error, relative to existing measures. We show that plaintiff-lawyer views proxy for the largely unobservable factors that make firms more likely to face litigation risk. Lagged views precede the public bad news revelation that triggers litigation and predict future realized litigation risk (i.e., securities class actions filings and plaintiff-lawyer investigations) and stock market outcomes. Finally, we provide new insights into the plaintiff-lawyer case selection process that otherwise cannot be observed.
Time Saver or Time Sapper? An Examination of Body-Worn Camera Impact on Case Disposition Timelines
Nicholas Pimley, Megan Parks & David Makin
Criminal Justice Review, forthcoming
Abstract:
In the last few years, a considerable volume of body-worn camera (BWC) studies has evaluated to what extent this technology influences a range of policing outcomes. However, to date, a limited body of research explores how the implementation of this technology influences court-based outcomes. Using interrupted series analysis, and a sample of 13,000 incidents from a small police department, this research evaluates to what extent the implementation of BWCs impacted the adjudication process through an analysis of time to disposition, rate of convictions, and rate of dismissals. The results of our study show partial support for claims being made about the impact of BWCs on the court system. Namely, the number of incidents being referred for prosecution and the number of guilty decisions being reached saw a marginal increase after the implementation of BWCs. Additionally, the number of days to complete adjudication saw a decrease overall during the post-implementation period. The policy implications of these findings are discussed.
The Effect of the Uniform Bar Examination on Admissions, Diversity, Affordability, and Employment Across Law Schools in the United States
Taylor Odle, Ji Yeon Bae & Manuel González Canché
Educational Evaluation and Policy Analysis, forthcoming
Abstract:
The Uniform Bar Examination (UBE) is a multijurisdictional test that law students can use to gain admission to the bar in 37 states and territories. Despite this near-universal applicability and the potential of UBE to affect law schools’ admissions, diversity, affordability, and employment outcomes, no research to date has examined the impacts of UBE. Equipped with a novel data set that we make available to future researchers, we apply a difference-in-differences design to estimate these impacts by exploiting variation in UBE adoption timing across states. We find early evidence to suggest that law schools in UBE states benefited by receiving more applications and having higher overall enrollments after UBE adoption.