Court of last resort

Kevin Lewis

September 21, 2018

The Conditional Effectiveness of Legislative Threats: How Court Curbing Alters the Behavior of (Some) Supreme Court Justices
Alyx Mark & Michael Zilis
Political Research Quarterly, forthcoming


The separation-of-powers literature focuses on how the preferences of one branch constrain the behavior of its counterparts. Yet, in much of this work, scholars do not address how responsive behavior varies across particular members. Focusing on Court curbing legislation in Congress, we develop a model of heterogeneous responsiveness. Our theory identifies two distinct mechanisms that underpin responsiveness in judicial behavior, implying that the chief justice and the most moderate (swing) justice are more likely than their colleagues to adjust their behavior in response to external threats from Congress. We find that these two justices are significantly less likely to vote to invalidate legislation than their colleagues during periods of heightened Court curbing and provide evidence that distinct mechanisms shape their behaviors. In addition, we offer justice-specific evidence using a pre-post promotion analysis, demonstrating that Justice Rehnquist became responsive to Court curbing only after becoming chief justice. Our model highlights the micro-level underpinnings of judicial responsiveness to inter-institutional politics and, most broadly, speaks to the need for separation-of-powers models to differentiate the preferences of individual political actors when seeking to understand inter-institutional responsiveness.

Why Judges Don't Recuse Themselves and Attorneys Don't Ask Them To: A Randomized Field Experiment Testing the Efficacy of Recusal and Disclosure
Dane Thorley
Columbia University Working Paper, July 2018


This Article reviews the two most prominent procedural approaches to addressing judicial conflicts of interest - judicial recusal and in-court disclosure - and contends that they fail to account for the legal and institutional dynamics that surround the relationship between judges and attorneys. It argues that judges do not recuse themselves, that attorneys will not ask them to, and that if we understand both the legal and extra-legal incentives at play in these decisions, this should not surprise us. The shortcomings of recusal and disclosure are particularly salient in the context of judicial campaign finance, where judges often face the acute dilemma of being assigned to preside over cases in which one of the parties or attorneys has contributed to their election campaign. To support these claims, this Article presents the results of a randomized field experiment in which we identify active Wisconsin and Texas civil cases that feature donor-attorneys and randomly assign a portion of the judges presiding over these cases to receive a letter from an NGO identifying the potential conflict and requesting recusal. The empirical findings support the growing skepticism surrounding judicial recusal and raise doubts that judicial disclosure is an efficacious remedy. Building on these results, the Article suggests that academics and policy makers spend fewer resources attempting to “fix” the current recusal regime, and it explores two potential remedies - one institutional and one procedural - that account for the realities of judicial conflicts of interest and the incentives of court actors.

Political Discrimination in the Law Review Selection Process
Adam Chilton, Jonathan Masur & Kyle Rozema
University of Chicago Working Paper, February 2018


The career trajectories of law professors and the dissemination of knowledge depend on the publication decisions of law review editors. However, these publication decisions are shrouded in mystery, and little is known about the factors that affect them. In this article, we investigate one potentially important factor: political ideology. To do so, we match data on the political ideology of student editors from 15 top law reviews over a twenty-year period to data on the political ideology of the authors of accepted articles. We find that editors accept articles in part because of shared political ideology with authors. That is, conservative editors are more likely to accept articles written by conservative authors, and liberal editors are more likely to accept articles written by liberal authors. We then investigate potential explanations for this ideological discrimination. One possibility is that student editors simply have a preference for publishing articles that promote their political ideology. Another possibility is that student editors are objectively better at assessing the contribution of articles written by authors with shared ideology. We find evidence that the ideological discrimination is driven by student editors' superior ability to ascertain the quality of articles that match their own ideology.

The Effect of Own-Gender Juries on Conviction Rates
Mark Hoekstra & Brittany Street
NBER Working Paper, September 2018


This paper examines the extent to which criminal conviction rates are affected by the similarity in gender of the defendant and jury. To identify effects, we exploit random variation in both the assignment to jury pools and the ordering of potential jurors. We do so using detailed administrative data on the juror selection process and trial proceedings for two large counties in Florida. Results indicate that own-gender juries result in significantly lower conviction rates on drug charges, though we find no evidence of effects for other charges. Estimates indicate that a one standard deviation increase in expected own-gender jurors (~10 percentage points) results in an 18 percentage point reduction in conviction rates on drug charges, which is highly significant even after adjusting for multiple comparisons. This results in a 13 percentage point decline in the likelihood of being sentenced to at least some jail time. These findings highlight how drawing an opposite-gender jury can impose significant costs on defendants, and demonstrate that own-gender bias can occur even in settings where the importance of being impartial is actively pressed on participants.

The Politics of Selecting Chevron Deference
Kent Barnett, Christina Boyd & Christopher Walker
Journal of Empirical Legal Studies, September 2018, Pages 597-619


In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies - not judges - policy‐making space within statutory interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is largely driven by political dynamics, with judges adopting a less deferential standard when their political preferences do not align with the agency's decision. To provide insight, we analyze circuit court decisions from 2003 until 2013 that review agency statutory interpretations. Our results - from the largest and most comprehensive database of its kind - provide partial confirmation of our expectations. When courts reviewed liberal agency interpretations, all panels - liberal, moderate, and conservative - were equally likely to apply Chevron. However, when reviewing conservative agency interpretations, liberal panels selected the Chevron deference framework significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron's domain.

Judicial Conflicts and Voting Agreement: Evidence from Interruptions at Oral Argument
Tonja Jacobi & Kyle Rozema
Boston College Law Review, forthcoming


This Article asks whether observable conflicts between judges in a case - interruptions between Supreme Court justices during oral arguments - are associated with future breakdowns in voting agreement among the judges in the case. To do so, we built a dataset containing justice-to-justice interruptions in cases between 1960 to 2015, and employ a framework for measuring case outcomes that treats the outcomes as a set of agreements and disagreements between pairs of justices. We find that on average a judicial pair is 7 percent less likely to vote together in a case for each interruption that occurs in the case between the judicial pair in the oral argument. While a conflict between judges that leads to both interruptions and a breakdown in voting of the coalition is one possible explanation of the finding, it is not the only; an interruption could instead just reflect something about cases that are more prone to disagreement or something about the way the interrupting justice views the case. We set out an empirical strategy that isolates the conflict explanation from these and other possible explanations and find that the conflict inherent in interruptions explains over half of the relationship between interruptions and disagreement.

Perpetually stigmatized: False confessions prompt underlying mechanisms that motivate negative perceptions of exonerees
Kyle Scherr, Christopher Normile & Heidi Putney
Psychology, Public Policy, and Law, August 2018, Pages 341-352


Even in the fortunate instances of being exonerated of their wrongful convictions, exonerees often struggle to assimilate back into society. Although research has established that exonerees experience stigma and a general lack of reintegration support, little is known about underlying reasons that motivate such negative perceptions. This research examined whether the evidence and crime associated with a wrongful conviction could initiate a process that alters people’s perceptions of exonerees’ intelligence and mental health status, and, in turn, undermine people’s judgments of exonerees’ guilt and subsequent willingness to support reintegration services. Participants (N = 253) read a news story about an exoneree who was wrongfully convicted of either murder or grand theft auto resulting from either a false confession or eyewitness misidentification. Participants then offered their perceptions of the exoneree’s intelligence and mental health followed by guilt-confidence judgments. Last, participants indicated their willingness to support reintegration services (psychological counseling, career counseling, and job training). Results indicated that wrongful convictions stemming from a false confession caused people to perceive the exoneree as less intelligent and these judgments, in turn, were associated with perceptions that the exoneree suffered from mental health issues which, subsequently, influenced participants’ uncertainty of the exoneree’s innocence. The string of perceptions and judgments consequently undermined people’s willingness to support each of the reintegration services. The observed effects provide empirical evidence for reforms that automatically guarantee support services for exonerees in order to overcome potential biases aimed as those who have been wrongfully convicted.

A novel paradigm for examining alibi corroboration and evidence interaction: Does a confession affect the likelihood of alibi corroboration for friends and strangers?
Megan Kienzle & Lora Levett
Psychology, Public Policy, and Law, August 2018, Pages 353-364


We examined the possibility that hearing about a confession could influence potentially exonerating information proffered by a familiar or unfamiliar alibi corroborator. College students (N = 268) brought a friend to a team building session. After the team building session, we asked participants to corroborate an alibi for either their friend or a stranger accused of theft. We also manipulated whether the suspect confessed and the timing of when the confession information was presented to participants. Friends were more likely than strangers to be alibi corroborators across multiple scales and dependent measures. Further, potential corroborators who heard about the suspect’s confession were less likely than those who did not know of the confession to be willing to serve as an alibi corroborator; hearing about a suspect’s confession after making an initial alibi corroboration caused participants to change their decisions. Qualitative analyses also suggest several possible motivations given by corroborators and noncorroborators. Implications for police procedure and research design are discussed.

Does anyone else look familiar? Influencing identification decisions by asking witnesses to re-examine the lineup
Mitchell Eisen et al.
Law and Human Behavior, August 2018, Pages 306-320


Two experiments were conducted to see if asking witnesses to take another look at the lineup after they voiced their identification decisions would alter their choices, and if confirming feedback could then be used to solidify the selections they shifted to. Participants watched a simulated crime and were asked to identify the culprit from a photographic lineup. After voicing their identification decisions, participants were prompted to re-examine the lineup. Half of the participants then received confirming feedback for their decisions, regardless of whether they shifted to a new picture or not. Later on, a different experimenter escorted participants to a second room and administered the same lineup again. In Experiment 1 (N = 432), biased instructions were used to encourage choosing, and when participants were prompted to re-examine the lineup, 70% changed their identification decisions and selected a different picture. When that new selection was reinforced with feedback and participants were given a second opportunity to identify the culprit at a later time, 72% selected the picture they shifted to as the culprit. Participants who made their decisions more quickly were less likely to shift, but accuracy did not predict shifting. This general pattern of findings was replicated using unbiased instructions in Experiment 2 (N = 237). Results suggest that prompting witnesses to re-examine the lineup can often lead witnesses to change their identification decisions, and when the altered choice is reinforced, they will often stay with that influenced decision over time, asserting it with a high degree of confidence.

Prior knowledge influences interpretations of eyewitness confidence statements: ‘The witness picked the suspect, they must be 100% sure'
Jesse Grabman & Chad Dodson
Psychology, Crime & Law, forthcoming


When an eyewitness identifies a suspect from a lineup, it is important to know how certain they are about the decision. Even though eyewitnesses are likely to express certainty with words, past research shows that verbal confidence statements (e.g. ‘I’m pretty sure’) are prone to systematic misinterpretation. Until now, no one has examined how an evaluator's prior knowledge, such as which lineup member is the police suspect, influences their interpretation of eyewitness confidence about a lineup identification. Experiments 1 and 3 show that participants perceived the identical statement of confidence as meaning a higher and lower level of certainty, respectively, when the eyewitness's selection either matched or mismatched the police's suspect. Experiment 2 shows that these effects generally persist when the bias manipulation is manipulated between-subjects. Finally, Experiment 3 finds that clarifying the witness's statement with numeric information (e.g. I’m 80% sure) does not eliminate the influence of biasing information.

Should jurors be allowed to discuss trial evidence before deliberation?: New research evidence
Norbert Kerr & Jiin Jung
Law and Human Behavior, forthcoming


Traditionally, jurors are not permitted to discuss trial evidence with one another prior to jury deliberation. Allowing such discussions, at least in civil trials, is a jury innovation that has become increasingly popular. Prior field research has generally supported the assumption that this innovation is benign and, in particular, introduces no systematic bias in jury verdicts. These issues are examined again here within an experimental jury simulation study. The opportunity for predeliberation juror discussion (PJD) between the plaintiff and defense cases-in-chief was manipulated. The results revealed that PJD biased jury verdicts. The nature of this bias was not, as commonly suspected, a commitment to evidence heard prior to PJD, but rather a greater weight placed on evidence heard following the PJD. One good explanation of this bias was that jurors acted as if evidence heard prior to PJD had “already been covered” during the PJD, and so primary attention was given to post-PJD evidence in jury deliberations. Little evidence was found to corroborate several other purported benefits or drawbacks of PJD.

The media’s impact on the right to a fair trial: A content analysis of pretrial publicity in capital cases
Shirin Bakhshay & Craig Haney
Psychology, Public Policy, and Law, August 2018, Pages 326-340


This study examines whether and how the right to a fair and impartial jury may be compromised by prejudicial news media coverage of death penalty cases. Using a unique data set of historic newspaper coverage of 20 capital cases in California in which defendants filed change of venue motions, we conducted a detailed content analysis of 1,831 newspaper articles to examine the nature and extent of the pretrial publicity in each case. We used a detailed coding scheme with 27 content categories to describe the types of information conveyed; analyze the relative amounts of negative, positive, and neutral content in the publicity; and determine whether the publicity included the kind of information that has been shown to bias prospective jurors. The publicity was overwhelmingly negative and we identified a number of highly prejudicial aspects, including heavy reliance on law enforcement and prosecution sources, numerous instances of sensationalized descriptions of the crime and criminal defendant, and the inclusion of legally excludable material. Despite the potentially biasing effects of the publicity analyzed, venue was rarely changed. Moreover, the trial courts’ decisions appeared largely unrelated to the substantial amount and prejudicial content of the pretrial publicity. Implications for a capital defendant’s right to an impartial jury, due process protections, and the adequacy and availability of effective legal remedies are discussed.

Law and moral order: The influence of legal outcomes on moral judgment
Avital Mentovich & Maor Zeev-Wolf
Psychology, Public Policy, and Law, forthcoming


The current project explores a surprisingly overlooked question regarding the influence of legal outcomes on people’s personal morality. In 4 studies utilizing different scenarios of ethically questionable behavior, we compared the influence of 4 potential legal outcomes: indictment, conviction, exoneration, and closing the case without charges (Studies 1-4); we also examined the influence of these outcomes against the benchmark of people’s default moral positions in the absence of legal information (Studies 3-4), and looked at the role of legitimacy as a potential moderator (Studies 2-3). Results revealed that, as expected, legal outcomes affected people’s personal moral judgments. More specifically, we found that: (a) exoneration and closing the case increased the moral permissibility of the conduct at stake relative to conviction and indictment (Studies 1-4); (b) there was largely no impact of judicial versus nonjudicial outcomes, such that no differences were found between closing the case without charges and exoneration, or between indictment and conviction (Studies 1-3); (c) the impact of the specific legal outcome compared with people’s default moral judgments was dependent on the issue at stake (Studies 3-4); and (d) legitimacy did not moderate the results, such that legal outcomes influenced moral judgment whether or not people held the legal system as legitimate. Taken together, this research suggests that both judicial and nonjudicial legal outcomes play an important role in influencing people’s moral judgments, which has not been previously recognized.

Juvenile Court Outcomes Following Youth’s First Arrest: A National Test of the Racial and Ethnic Threat Hypothesis
Tia Andersen & Heather Ouellette
Crime & Delinquency, forthcoming


Using nationally representative data, this research examined the associations between indicators of minority threat and juvenile justice processing following a first arrest. At intake, increasing Black presence in the community resulted in leniency, rather than severity. Once adjudicated, the size of the Black population had a nonlinear inverted-U shaped relationship with probability of placement. Increasing Hispanic presence was associated with leniency in disposition, and economic threat was not significantly related outcomes. Indicators of minority threat did not exacerbate outcomes for minority youth. These findings suggest that, contrary to the expectations of minority threat theory, the growing presence of minorities in communities may weaken social control and harsh punishments, particularly once the size of the minority population reaches a critical threshold.

Designing Remedies to Compensate Plaintiffs for Unobservable Harms
Nathan Atkinson
American Law and Economics Review, forthcoming


Despite the vast sums transferred through the legal system, the foundations of the procedures used to compensate plaintiffs for unobservable losses remain unclear. Standard remedies can compensate plaintiffs for unknown harms, but it is expensive to do so. Damage awards will generally undercompensate or overcompensate a plaintiff whose true harm is unknown, while equitable remedies that provide more tailored compensation are generally wasteful. In this article I develop a novel remedy that compensates plaintiffs for unobservable private values at the lowest possible cost to the defendant. This remedy consists of offering the plaintiff the choice between intermediate damages and an inalienable injunction that restores the underlying harm at the conclusion of the trial. I show that this remedy is robust to errors by the court and potential post judgment renegotiation. Furthermore, I demonstrate that this remedy reduces litigants’ incentives to lie during trial. Finally, I consider ex ante deterrence and show conditions under which the remedy improves social welfare relative to optimal damages.

Appeals by the Prosecution
Nancy King & Michael Heise
Journal of Empirical Legal Studies, September 2018, Pages 482-538


Scholarly and public debates about criminal appeals have largely taken place in an empirical vacuum. This study builds on our prior empirical work exploring defense‐initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploiting data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the U.S. Courts of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of noncapital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of defense representation, oral argument, and opinion type, as well judicial selection, merits review, and relief. Findings include a rate of success for state prosecutor appeals about four times greater than that for defense appeals (roughly 40 percent of appeals filed compared to 10 percent). The likelihood of success for state prosecutor‐appellants appeared unrelated to the type of crime, claim, or defense counsel, whether review was mandatory or discretionary, or whether the appellate bench was selected by election rather than appointment. State high courts, unlike intermediate courts, did not decide these appeals under conditions of drastic asymmetry. Of discretionary criminal appeals reviewed on the merits by state high courts, 41 percent were prosecutor appeals. In federal courts, prosecutors voluntarily dismissed more than half the appeals they filed, but were significantly less likely to withdraw appeals from judgments of acquittal and new trial orders after the verdict than to withdraw appeals challenging other orders. Among appeals decided on the merits, federal prosecutors were significantly more likely to lose when facing a federal defender as an adversary compared to a CJA panel attorney.

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