Court Fights

Kevin Lewis

February 18, 2022

The Subtle Effects of Implicit Bias Instructions
Mona Lynch, Taylor Kidd & Emily Shaw
Law & Policy, forthcoming

Judges are increasingly using “implicit bias” instructions in jury trials in an effort to reduce the influence of jurors’ biases on judgment. In this paper, we report on findings from a large-scale mock jury study that tests the impact of implicit bias instructions on judgment in a case where defendant race was varied (Black or White). Using an experimental design, we collected and analyzed quantitative and qualitative data at the individual and group levels obtained from 120 small-groups who viewed a simulated federal drug conspiracy trial and then deliberated to determine a verdict. We find that while participants were sensitized to the importance of being unbiased, implicit bias instructions had no measurable impact on verdict outcomes relative to the standard instructions. Our analysis of the deliberations, however, reveals that those who heard the implicit bias instructions were more likely to discuss the issue of bias, potentially with both ameliorative and harmful effects on the defendant. Most significantly, we identified multiple instances where, in an effort to avoid bias, participants who heard the implicit bias instructions interfered with their own or other participants’ appropriate assessments of witness credibility. 

Attitudes Towards LGBT Individuals After Bostock v. Clayton County: Evidence From a Quasi Experiment
Jack Thompson
Political Research Quarterly, forthcoming

Do United States Supreme Court decisions on LGBT rights shape attitudes towards LGBT individuals among the mass public? In this paper, I conduct an empirical test of the effect of quasi-random exposure to the announcement of Bostock v. Clayton County -- a landmark case which held that an employer who fires their employee because of their sexual orientation or gender identity violates Section VII of the 1964 Civil Rights Act -- on favorability towards LGBT individuals. Relying on data from Phase 2 of the Democracy Fund/UCLA Nationscape survey, I find that quasi-random exposure to the announcement of Bostock engendered increases in favorability towards LGBT individuals among the wider American public. Subgroup analyses also indicate that the largest increases in favorability were among Democratic partisans and the religiously unaffiliated, while minimal changes in favorability were detected among those who are among the most likely to oppose LGBT rights, including Republicans and Evangelical Protestants. The findings speak to the validity of the legitimacy model and highlight the limitations of the backlash model in the post-Obergefell era of public opinion towards LGBT rights. 

The Limitations of Social Science as the Arbiter of Blame: An Argument for Abandoning Retribution
Alexa Tullett
Perspectives on Psychological Science, forthcoming

The U.S. criminal-justice system has consequentialist and retributivist goals: It considers what is best for society as well as how to punish people in a manner proportional to their crimes. In deciding on the degree of retribution that is called for, the system attempts to determine the blameworthiness -- or culpability -- of the people involved, weighing factors such as their ability to think rationality, their freedom from coercion, and whether their actions were out of character. These determinations hinge on social-scientific research that is not strong enough to justify such decisions. In this article, I challenge the social-scientific basis for determining culpability on three grounds: replicability, generalizability, and inferential strength. In light of the limitations of this research, I argue that the criminal-justice system should abandon its retributive goals and pursue a more consequentialist -- and more reparative -- form of justice. 

How Many Cases Are Easy?
Joshua Fischman
Journal of Legal Analysis, 2021, Pages 595–656

Because judges are expected to decide cases through the impartial application of existing law, they are often reluctant to admit that they must make law in hard cases. Many judges claim that such hard cases are rare, constituting roughly 10 percent of cases. In stark contrast, economic models of the selection of disputes for litigation predict that easy cases will settle, so that only hard cases would remain in trial and appellate courts. Empirical indicators, such as dissent rates or voting differences between Democratic and Republican appointees, have yielded muddled conclusions about the proportion of easy and hard cases in appellate courts. In fact, none of these crude statistics relate directly to the proportion of easy cases. This article develops a new approach for empirically analyzing the proportion of easy cases. Although the easiness and hardness of cases are subjective, it is possible to estimate feasible combinations of the proportion of hard cases and clear errors. This approach relies only on the basic premise that reasonable judges should not disagree in easy cases. The article then illustrates this approach using two datasets of appeals. An analysis of asylum appeals in the 9th Circuit finds widespread disagreement, implying high proportions of hard cases, clear errors, or both. By contrast, voting data from labor and environmental cases in the D.C. Circuit is consistent with the claim that 90 percent of cases are easy and 1 percent of decisions are clear errors. 

Electoral Sentencing Cycles
David Abrams et al.
Journal of Law, Economics, and Organization, forthcoming

We add to our understanding of the optimal method of judicial selection by exploiting an unusual feature in North Carolina: judges rotate location every 6 months. This allows us to identify the existence and source of sentencing variation over the electoral cycle. We show that when elections approach, felony sentences rise. This increase is found exclusively when judges are sentencing in their district of election, and only when elections are contested. When judges hear cases outside their home district, sentences do not significantly vary over the electoral cycle. Our results show that electoral sentencing cycles can be explained by strategic sentencing by judges in an attempt to please voters. The unique setting allows us to reject alternative behavioral or contextual explanations for the rise in sentences as elections approach. 

Workplace disruptions, judge caseloads, and judge decisions: Evidence from SSA judicial corps retirements
Clayson Shumway & Riley Wilson
Journal of Public Economics, January 2022

We exploit judge retirements from the Social Security Disability Insurance judicial corps to document how remaining judges respond to workplace disruptions. When a peer judge retires, the remaining judges see a 5 percent increase in dispositions and decisions that lasts 6 months. Institutional features of the disability appeal process allow us to estimate what happens to judge decisions when caseloads increase, holding the composition of cases fixed. Increased caseloads are accompanied by a 1 percent decrease in the judges’ share of favorable decisions, suggesting 16,600 claimants in-sample were not awarded disability insurance who would have been, absent the workplace disruption. 

Judges in the Lab: No Precedent Effects, No Common/Civil Law Differences
Holger Spamann et al.
Journal of Legal Analysis, 2021, Pages 110–126

In our lab, 299 real judges from seven major jurisdictions (Argentina, Brazil, China, France, Germany, India, and USA) spend up to fifty-five minutes to judge an international criminal appeals case and determine the appropriate prison sentence. The lab computer (i) logs their use of the documents (briefs, statement of facts, trial judgment, statute, precedent) and (ii) randomly assigns each judge (a) a horizontal precedent disfavoring, favoring, or strongly favoring defendant, (b) a sympathetic or an unsympathetic defendant, and (c) a short, medium, or long sentence anchor. Document use and written reasons differ between countries but not between common and civil law. Precedent effect is barely detectable and estimated to be less, and bounded to be not much greater than, that of legally irrelevant defendant attributes and sentence anchors. 

The continuing unfairness of death qualification: Changing death penalty attitudes and capital jury selection
Craig Haney, Eileen Zurbriggen & Joanna Weill
Psychology, Public Policy, and Law, forthcoming

The present research examines whether and how the biasing effects of the death qualification process — the unique procedure by which prospective jurors are screened for eligibility on the basis of their death penalty attitudes — have been affected by the changing landscape of opinions about capital punishment. In-depth telephone surveys were conducted with statewide representative samples of persons eligible for jury service in three distinctly different states — California, New Hampshire, and Florida. Despite differences in geographical location, demographic make-up, and death penalty history and politics, very similar patterns of death qualification bias were observed. Persons whose death penalty attitudes “qualified” them to serve on a capital jury were more punitive overall, less well-informed about the system of death sentencing, more willing to use aggravating factors to impose death and less willing to use mitigating factors to impose life in prison without the possibility of parole, and less racially diverse than persons who would be “excluded” by death qualification. The implications of these results are discussed, including the need for legal authorities to formally acknowledge and to effectively address these serious biasing effects. 

Human Capital in Court: The Role of Attorney Experience in US Supreme Court Litigation
Michael Nelson & Lee Epstein
Journal of Law and Courts, forthcoming

Human capital theory suggests that work experience acquired through on-the-job-training primes people to be more successful. Empirical validations of this hypothesis are numerous, but limited evidence of the relevance of human capital for courtroom advocacy exists. We examine whether the outcomes obtained by experienced attorneys are significantly better than the outcomes they would have obtained as novices. Adopting a strategy for credible causal inference that could be applied to almost any peak court, the analysis shows that attorneys with experience, relative to first timers, are significantly and consistently more likely to win their cases and capture the votes of judges. 

Machine Advice with a Warning about Machine Limitations: Experimentally Testing the Solution Mandated by the Wisconsin Supreme Court
Christoph Engel & Nina Grgić-Hlača
Journal of Legal Analysis, 2021, Pages 284–340

The Wisconsin Supreme Court allows machine advice in the courtroom only if accompanied by a series of warnings. We test 878 US lay participants with jury experience on fifty past cases where we know ground truth. The warnings affect their estimates of the likelihood of recidivism and their confidence, but not their decision whether to grant bail. Participants do not get better at identifying defendants who recidivated during the next two years. Results are essentially the same if participants are warned in easily accessible language, and if they are additionally informed about the low accuracy of machine predictions. The decision to grant bail is also unaffected by the warnings mandated by the Supreme Court if participants do not first decide without knowing the machine prediction. Oversampling cases where defendants committed violent crime does not change results either, whether coupled with machine predictions for general or for violent crime. Giving participants feedback and incentivizing them for finding ground truth has a small, weakly significant effect. The effect becomes significant at conventional levels when additionally using strong graphical warnings. Then participants are less likely to follow the advice. But the effect is counterproductive: they follow the advice less if it actually is closer to ground truth. 

Does the Mafia Hire Good Accountants?
Pietro Bianchi et al.
Florida International University Working Paper, December 2021

We investigate if organized crime groups (OCG) are able to hire good accountants. We use data about criminal records to identify Italian accountants with connections to OCG. While the work accountants do for the OCG ecosystem is not observable, we can determine if OCG hire “good” accountants by assessing the overall quality of their work as external monitors of legal businesses. We find that firms serviced by accountants with OCG connections have higher quality audited financial statements compared to a control group of firms serviced by accountants with no OCG connections. The findings provide evidence OCG are able to hire good accountants, despite the downside risk of OCG associations. Results are robust to controls for self-selection, for other determinants of auditor expertise, direct connections of directors and shareholders to OCG, and corporate governance mechanisms that might influence auditor choice and audit quality. 

False confessions predict a delay between release from incarceration and official exoneration
Kyle Scherr & Christopher Normile
Law and Human Behavior, February 2022, Pages 67–80

Little empirical research has examined postconviction processes associated with the unique legal events of release from incarceration and official exoneration. Across various models, we tested the influence of risk factors associated with wrongful convictions (false confessions, faulty or misleading forensic evidence, inadequate legal defense, mistaken eyewitness identifications, official misconduct, and perjury) and relevant alternative factors (e.g., presence of DNA, false guilty pleas, and race) on the exoneration process, with a particular focus on the role of false confessions.

Using data from documented exonerations of murder, attempted murder, and accessory to murder in the National Registry of Exonerations (N = 1,074), we examined the association of risk factors and alternative predictors with the time between exonerees’ wrongful conviction and release from incarceration and the time between release from incarceration and official exoneration.

Overall, five of the six risk factors predicted the time between wrongful conviction and release from incarceration, but of the risk factors, only false confessions predicted the time between release and exoneration (d = 0.28; 95% CI [0.13, 0.43]), even when we controlled for relevant alternative factors (d = 0.29; 95% CI [0.14, 0.43]). 

The influence of gender and other extralegal factors on student loan bankruptcy decisions
Kelsey Hess et al.
Psychology, Public Policy, and Law, forthcoming

As our nation grapples with responding to trillions of dollars in student loan debt, bankruptcy courts make daily decisions about whether to free individuals from these monetary obligations. To analyze factors that influence discharge decisions and to see whether prior findings of gender biases are replicated within the bankruptcy context, we scored and analyzed a sample of 667 student loan discharge cases for potential predictors of case outcome. Findings demonstrate that female debtors who are single parents are significantly more likely to have their student loans discharged than similarly situated male debtors, but females are significantly less likely than males to obtain a discharge when they allege a medical condition. Additionally, having attorney representation significantly increases debtors’ odds of having their student loans discharged. Results are discussed in connection with the influence of debtor gender and potential gender biases that influence judicial decision-making. 

Are Judges Randomly Assigned to Chapter 11 Bankruptcies? Not According to Hedge Funds
Kristoph Kleiner & Niklas Hüther (Huether)
Indiana University Working Paper, January 2022

The random assignment of judges to court cases promotes fairness, minimizes forum shopping, and is routinely exploited for causal identification by economists. Analyzing U.S. corporate bankruptcy filings between 2010 and 2020, we find evidence assignment is not random, but predicted by the lending decisions of hedge funds. In our setting, judges can decide whether to convert a Chapter 11 bankruptcy to a Chapter 7 liquidation, leading to significant implications for creditors. While secured creditors have a preference for liquidation, unsecured creditors generally recover more under reorganization; exploiting this distinction, we show that relative to secured hedge funds, unsecured hedge fund creditors are significantly less likely to be assigned a judge with a tendency to convert Chapter 11 cases. Effects are largest when the hedge fund has connections with the debtor's board or invested recently. Explaining these findings, we show judges are not assigned multiple large cases within a small time window, allowing hedge funds to influence the filing date and ultimately judicial assignment. 

Hanging Matters: Petty Theft, Sentence of Death, and a Lost Statute of Edward I
Henry Summerson
Law and History Review, forthcoming

This article discusses an important aspect of the law relating to theft in thirteenth-century England, and one of the ways in which that law developed. Central to it is the argument that the treatise The Mirror of Justices and references in court records and reports show that a short statute enacted early in the reign of Edward I, probably in 1278, categorically defined 12d. as the amount, whether in goods or money, at which larceny became a capital felony, incurring judgment of death. As well as setting out the evidence for this hitherto overlooked ordinance, the article also argues that the statute can be associated with some significant developments in the way petty theft was treated subsequently. In particular it had the effect of promoting the development of penal imprisonment, while since the task of valuation was given to trial juries, it further enhanced the leading role of the latter in determining the fates of the men and women whose lives depended on their verdicts. 

Distributing Attorney Fees in Multidistrict Litigation
Edward Cheng, Paul Edelman & Brian Fitzpatrick
Journal of Legal Analysis, 2021, Pages 558–594

As consolidated multidistrict litigation has come to dominate the federal civil docket, the problem of how to divide attorney fees among participating firms has become the source of frequent and protracted litigation. For example, in the National Football League (NFL) Concussion Litigation, the judge awarded the plaintiff attorneys over $100 million in fees, but the division of those fees among the twenty-six firms involved sparked two additional years of litigation. We explore solutions to this fee division problem, drawing insights from the economics, game theory, and industrial organization literatures. Ultimately, we propose a novel division method based on peer reports. Participating firms assess the relative contribution of other firms to the litigation, and then optimization or Bayesian techniques arrive at a consensus or compromise fee allocation. Our methods are intuitively easy to understand, enable broad participation, and are resistant to collusion or other strategic behavior, making them likely to be accepted by the firms involved. We thus provide courts with an important mediation tool or decision rule for these fee division disputes.


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