Kevin Lewis

February 24, 2023

Doesn't everybody jaywalk? On codified rules that are seldom followed and selectively punished
Jordan Wylie & Ana Gantman
Cognition, February 2023 


Rules are meant to apply equally to all within their jurisdiction. However, some rules are frequently broken without consequence for most. These rules are only occasionally enforced, often at the discretion of a third-party observer. We propose that these rules -- whose violations are frequent, and enforcement is rare -- constitute a unique subclass of explicitly codified rules, which we call ‘phantom rules’ (e.g., proscribing jaywalking). Their apparent punishability is ambiguous and particularly susceptible to third-party motives. Across six experiments, (N = 1440) we validated the existence of phantom rules and found evidence for their motivated enforcement. First, people played a modified Dictator Game with a novel frequently broken and rarely enforced rule (i.e., a phantom rule). People enforced this rule more often when the “dictator” was selfish (vs. fair) even though the rule only proscribed fractional offers (not selfishness). Then we turned to third person judgments of the U.S. legal system. We found these violations are recognizable to participants as both illegal and commonplace (Experiment 2), differentiable from violations of prototypical laws (Experiments 3) and enforced in a motivated way (Experiments 4a and 4b). Phantom rule violations (but not prototypical legal violations) are seen as more justifiably punished when the rule violator has also violated a social norm (vs. rule violation alone) -- unless the motivation to punish has been satiated (Experiment 5). Phantom rules are frequently broken, codified rules. Consequently, their apparent punishability is ambiguous, and their enforcement is particularly susceptible to third party motives.

Some Are More Equal Than Others: U.S. Supreme Court Clerkships
Tracey George, Albert Yoon & Mitu Gulati
University of Virginia Working Paper, January 2023 


The most elite and scarce of all U.S. legal credentials is serving as a justice on the U.S. Supreme Court. A close second is clerking for a justice. Only 36 serve each year. Most of the 36,000 law students who graduate each year dream of doing so. A Court clerkship is considered a prize as well as a ticket to future success. Rich accounts about clerking – including by clerks – fill bookshelves and journal pages. Yet, we lack a clear story about who wins the 1-in-1000 clerkship lottery. For this Essay, we seek to provide that story. Our analysis relies on new datasets of all clerks who served between 1980 and 2020, including the details of their path to the high court and their road after. We amend and expand on theories of success in this important labor market. We find that educational pedigree, as opposed to academic performance or any other qualification, has an overwhelming impact on attainment. The Court clerkship selection process proves to be a blend of status and merits where status often prevails. Our analysis does not end there, however. We go on to look at where this forty-year cohort is currently working and confirm that once attained, a Court clerkship does lead to a bounty of opportunities including a return to the Court as a justice. Thus, the Court clerkship lottery is an important labor market not only to lawyers but also to society writ large. In the elite legal labor market, some people are, in fact, more equal than others.

SCOTUS in the Time of COVID: The Evolution of Justice Dynamics during Oral Arguments
Eve Ringsmuth et al.
Law & Policy, forthcoming


We assess changes in oral arguments at the US Supreme Court precipitated by the COVID-19 pandemic and the degree to which those changes persisted once the justices acclimated to the new procedures. To do this, we examine whether key attributes of these proceedings changed as the Court experimented with telephonic hearings and subsequently returned to in-person oral arguments. We demonstrate that the initial telephonic forum changed the dynamics of oral argument in a way that gave the chief justice new power and reconfigured justices’ engagement during these proceedings. However, we also show that the associate justices adapted to this new institutional landscape by changing their behavior. The findings shed light on the consequences of significant, novel disruptions to institutional rules and norms in the government and legal system.

When (Non)Differences Make a Difference: The Roles of Demographic Diversity and Ideological Homogeneity in Overcoming Ideologically Biased Decision Making
Brittany Solomon & Matthew Hall
Organization Science, forthcoming


Increasing demographic diversity is undoubtedly important and can aid in debiasing decision makers. Yet, the promises of demographic diversity are not always realized due to social integration problems. We consider why and for whom differences combined with homogeneity make a difference for groups in terms of integratively complex thinking and ideological decision making. Although research has shown that decision makers often rely on political biases, that work has not addressed when and why decision-making groups are able to overcome these biases -- a pervasive concern in today’s politically polarized social milieu. Drawing on the common in-group identity model and research on integrative complexity, we theorize that demographic diversity ultimately yields less ideological decision making because it prompts integrative complexity; however, demographic diversity only accrues this benefit in the presence of ideological homogeneity. We also reason that the relationship between integrative complexity and reduced ideological decision making emerges for more conservative (versus more liberal) groups. We find support for our expectations using a natural experiment of judges on the U.S. Courts of Appeals. Supplemental analyses indicate that working within a demographically diverse and ideologically homogeneous group also positively predicts integrative complexity in future decision-making groups. Finally, we find that demographic and ideological diversity can substitute for one another, but no additional integrative complexity benefits accrue when both are present. We discuss implications of this research in light of the ongoing conversation about the value of diversity and today’s polarized political climate.

Racial bias as a multi-stage, multi-actor problem: An analysis of pretrial detention 
Joshua Grossman, Julian Nyarko & Sharad Goel
Journal of Empirical Legal Studies, March 2023, Pages 86-133 


After arrest, criminal defendants are often detained before trial to mitigate potential risks to public safety. There is widespread concern, however, that detention decisions are biased against racial minorities. When assessing potential racial discrimination in pretrial detention, past studies have typically worked to quantify the extent to which the ultimate judicial decision is conditioned on the defendant's race. Although often useful, this approach suffers from three important limitations. First, it ignores the multi-stage nature of the pretrial process, in which decisions and recommendations are made over multiple court appearances that influence the final judgment. Second, it does not consider the multiple actors involved, including prosecutors, defense attorneys, and judges, each of whom have different responsibilities and incentives. Finally, a narrow focus on disparate treatment fails to consider potential disparate impact arising from facially neutral policies and practices. Addressing these limitations, here we present a framework for quantifying disparate impact in multi-stage, multi-actor settings, illustrating our approach using 10 years of data on pretrial decisions from a federal district court. We find that Hispanic defendants are released at lower rates than white defendants of similar safety and nonappearance risk. We trace these disparities to decisions of assistant US attorneys at the initial hearings, decisions driven in part by a statutory mandate that lowers the procedural bar for moving for detention of defendants in certain types of cases. We also find that the Pretrial Services Agency recommends detention of Black defendants at higher rates than white defendants of similar risk, though we do not find evidence that these recommendations translate to disparities in actual release rates. Finally, we find that traditional disparate treatment analyses yield more modest evidence of discrimination in pretrial detention outcomes, highlighting the value of our more expansive analysis for identifying, and ultimately remediating, unjust disparities in the pretrial process. We conclude with a discussion of how risk-based threshold release policies could help to mitigate observed disparities, and the estimated impact of various policies on violation rates in the partner jurisdiction.

Public support for second look sentencing: Is there a Shawshank redemption effect?
Kellie Hannan et al.
Criminology & Public Policy, forthcoming 


Washington, DC has implemented second look sentencing. After serving a minimum of 15 years in prison, those convicted of a serious offense committed while under the age of 25 years can petition a judge to take a “second look” and potentially release them from incarceration. To examine both global and specific support for second look sentencing, we embedded experiments in a 2021 MTurk survey and in a follow-up 2022 YouGov survey. Two key findings emerged. First, regardless of whether a crime was committed under 18 years or under 25 years of age, a majority of the public supported second look sentencing. Opposition to the policy was low, even for petitioners convicted of murder. Second, as revealed by vignette ratings, respondents were more likely to support release when a petitioner “signaled” their reform (e.g., completed a rehabilitation program, received a recommendation from the warden) and had the support of the victim (or their family).

Echoes of the Feminine Mystique: Female Judges and Intergenerational Change in the United States Courts of Appeal
Isaac Unah, Ryan Williams & Stephanie Zaino
Journal of Law and Politics, forthcoming


Is there an intergenerational gap in decision-making among female judges? Do female judges from United States Supreme Court Justice Ruth Bader Ginsburg’s generation hold a different orientation to law and policy as compared to judges from younger generations? Reviewing different theoretical perspectives regarding gender and judging, we examine the significance of intergenerational change among female judges whose political coming-of-age occurred at different historical intervals. We explore how this change informs decisional outcomes in the U.S. courts of appeals. To designate a temporal marker of intergenerational change, we use Betty Friedan’s publication of The Feminine Mystique in 1963. Our analysis indicates that despite the traditionalistic culture in which they grew up, female judges who came of age prior to publication of The Feminine Mystique voted with significantly higher progressive inclinations compared to female judges who came of age after the book’s emergence. We explore the implications of this finding for judicial decision-making.

Asymmetric review of qualified immunity appeals
Alexander Reinert
Journal of Empirical Legal Studies, March 2023, Pages 4-85 


This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. They show that qualified immunity, when deployed, often bars relief for plaintiffs. Moreover, they show that courts of appeals reverse decisions to deny qualified immunity far more often than they reverse decisions to grant qualified immunity, and that this asymmetric review is correlated with traditional indicators of judicial ideology, among other variables. Significantly, the data also suggest that the asymmetric review that characterizes appellate decisions is also present in the Supreme Court's certiorari practice.

Life After Death: A Field Experiment with Small Businesses on Information Frictions, Stigma, and Bankruptcy
Shai Bernstein et al.
NBER Working Paper, February 2023 


In an RCT with US small businesses, we document that a large share of firms are not well-informed about bankruptcy. Many assume that bankruptcy necessarily entails the death of a business and do not know about Chapter 11 bankruptcy, where debts are renegotiated so that the business can continue operating. Small businesses are also unaware of a recent major reform that lowered the costs of bankruptcy procedures to enhance their protection. In addition, they exhibit substantial stigma related to bankruptcy, believing that bankruptcy is embarrassing, a sign of failure, and a negative signal to employees and customers. Randomly providing short educational videos that address information or stigma gaps leads to increased firm knowledge about bankruptcy and decreased perceptions of stigma, both immediately and durably over 4 months. The videos also increase reported interest in using Chapter 11 bankruptcy and increase firms' intended debt and investment. However, we do not find long-term evidence of real effects. We then conduct a survey of bankruptcy attorneys and judges, who point to entrepreneurs' overconfidence and, to a lesser extent, excessive perceived legal fees as first-order frictions explaining the limited real impact of treatments that only address information and stigma. Our findings help inform the design of policies targeting the limited use of bankruptcy protection by small businesses.


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