Exhibit A
Racing Justice: Mass Incarceration and Perceptions of Courts
Timothy O'Brien
Social Science Research, forthcoming
Abstract:
This article examines how the emergence of mass incarceration in the United States affected public perceptions of its judicial institutions. Analyses of General Social Survey data collected between 1974 and 2018 indicate that the rising incarceration rate was associated with distinctive changes to Blacks' and Whites' views of courts. As the incarceration rate increased, Blacks' confidence in courts and the legal system fell while Whites' confidence grew. The rising incarceration rate was also associated with a growing Black-White fissure in confidence in the Supreme Court. Finally, although Blacks and Whites each became more likely to believe that courts are too punitive as incarceration increased, the change in these attitudes was twice as large among Blacks than Whites. Overall these results suggest that mass incarceration contributed to a rift in Blacks' and Whites' support for judicial institutions. This article also underscores the importance of macro-level institutional contexts for understanding individuals' perceptions of institutional authorities.
Sitting One Out: Strategic Recusal on the Supreme Court
Guha Krishnamurthi
Harvard Working Paper, May 2020
Abstract:
It takes five votes to decide a case before the Supreme Court. But what has seemingly escaped broad attention is that it actually requires six Justices to move cases forward - because of the Supreme Court's statutorily defined quorum requirement. As a consequence, if four Justices cannot for some reason hear a case, then the Supreme Court too is powerless to hear it. In this Article, I provide the first comprehensive analysis of how a four-Justice minority can and should utilize the quorum requirement - which I term "sitting out." As a matter of how the law operates, I first show that, despite facing an oppositional five-Justice majority, under the right conditions a four-Justice minority can effectively sit out to significantly improve the chances of obtaining a favorable result. At best, the four-Justice minority can ensure a favorable result in the lower courts remains in force. And even if unsuccessful in stopping an unfavorable decision, the four-Justice minority can deny that decision the imprimatur of the Supreme Court. As a normative matter, I contend that sitting out has the potential to cause grave harm to our judicial and government institutions, and thus set out sufficient conditions for its use: In cases involving a fundamental right and grave harm that would impact the character and identity of the nation, where there is a significant chance that the Supreme Court will render an obviously incorrect decision and sitting out could probabilistically halt that decision, a four-Justice minority would be plausibly justified in sitting out. Finally, in support of this sufficiency framework, I proffer two hypothetical examples: opposing race-based internment and opposing election manipulation and theft.
The Paradoxical Impact of Scalia's Campaign Against Legislative History
Stuart Minor Benjamin & Kristen Renberg
Cornell Law Review, forthcoming
Abstract:
Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia's position, in line with his textualism, was that legislative history was irrelevant and judges should not invoke it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with greater support from ideological conservatives. In this Article, we consider the role that political party and timing of judicial nomination played in circuit judges' use of legislative history. Specifically, we hypothesize that Republican circuit judges were more likely to respond to the attacks on legislative history than their Democratic counterparts, and that judges who joined the bench during or after these attacks were more likely to be influenced than their counterparts who were appointed before the attacks. Utilizing a dataset containing all published federal appellate court majority opinions between 1965 and 2011 (more than 240,000 opinions), we find that, for both hypotheses, the judges whom we would expect to be more influenced by the attacks on legislative history were in fact less likely than their counterparts to cite statements from floor debates or committee hearings, traditionally regarded as among the least reliable forms of legislative history. But they were more likely than their counterparts to cite committee reports, traditionally regarded as the most reliable form of legislative history. The attacks on legislative history thus seem to have had the effect of pushing judges who might be expected to be influenced to (re)examine their treatment of legislative history but not (as Scalia had advocated) to ignore it. Instead, they adopted what had been the consensus approach for most of the twentieth century. Scalia influenced, but he did not persuade.
A majoritarian basis for judicial countermajoritarianism
James Rogers & Joseph Daniel Ura
Journal of Theoretical Politics, July 2020, Pages 435-459
Abstract:
Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don't legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities can emerge as an unintended by-product of majoritarian politics. We develop a model that includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78: Judicial protection of disfavored minorities against hostile popular majorities, and judicial protection of majority interests against legislative depredation. It is the institutional linkage between these functions that induces popular majorities, within limits, to side with judges against legislatures even when those judges protect minorities that popular majorities want to oppress.
Policy Change and Public Opinion: Measuring Shifting Political Sentiment With Social Media Data
Nicholas Joseph Adams-Cohen
American Politics Research, September 2020, Pages 612-621
Abstract:
This article uses Twitter data and machine-learning methods to analyze the causal impact of the Supreme Court's legalization of same-sex marriage at the federal level in the United States on political sentiment and discourse toward gay rights. In relying on social media text data, this project constructs a large data set of expressed political opinions in the short time frame before and after the Obergefell v. Hodges decision. Due to the variation in state laws regarding the legality of same-sex marriage prior to the Supreme Court's decision, I use a difference-in-difference estimator to show that, in those states where the Court's ruling produced a policy change, there was relatively more negative movement in public opinion toward same-sex marriage and gay rights issues as compared with other states. This confirms previous studies that show Supreme Court decisions polarize public opinion in the short term, extends previous results by demonstrating opinion becomes relatively more negative in states where policy is overturned, and demonstrates how to use social media data to engage in causal analyses.
A Silent Corrupting Force? Criminal Sentencing and the Threat of Recall
Sanford Gordon & Sidak Yntiso
NYU Working Paper, June 2020
Abstract:
39 U.S. states authorize recall elections, but the incentives they create are not well understood. We examine how changes in the perceived threat of recall alter the behavior of one set of officials: judges. In 2016, outrage over the sentence imposed on a Stanford athlete following his sexual assault conviction sparked an ultimately successful drive to recall the presiding judge. Using data on over 22,000 sentences from six California counties and matched arrest records for a subset of more than 12,000, we examine whether critical events in the recall campaign were accompanied by corresponding changes in other judges' sentences. We find a large, discontinuous increase in punitiveness associated with the campaign's announcement, but not the recall itself -- suggesting the announcement shifted judges' beliefs about their political environment. The increase may have indirectly produced a disproportionate burden for minority defendants. Our findings are the first to document incentive effects of recall, and suggest that targeted political campaigns may have far-reaching, unintended consequences.
Republican-Majority Appellate Panels Increase Execution Rates for Capital Defendants
Deborah Beim, Tom Clark & Benjamin Lauderdale
Journal of Politics, forthcoming
Abstract:
We use the quasi-random assignment of cases to three-judge panels on the US Courts of Appeals to assess the consistency of adjudication of death penalty appeals. We find clear evidence that panels apply different standards depending on whether a majority of the panel was appointed by Democratic or Republican presidents. Unlike previous work on panel effects in the US Courts of Appeals, we show that these effects persist to the end of the process of adjudication. Since the early 1980s, the probability of ultimate execution has been increased for inmates when their first Court of Appeals case was assigned to a panel with a majority of Republican appointees.
Escaping the Long Arm of the Law? Racial Disparities in the Effect of Failure-to-Pay License Suspension
Sian Mughan & Joanna Carroll
Arizona State University Working Paper, June 2020
Abstract:
This paper studies the unintended consequences of failure-to-pay driver's license suspensions, a common policy used to compel payment of outstanding court debts. Unlike other traffic enforcement papers which focus on the public benefit to increases in enforcement we focus on the private returns. Drawing on a unique administrative data set and institutional features that result in as-good-as random assignment of license suspension we estimate how suspension effects the probability a driver receives additional tickets in the future. We find a small, negative effect among White drivers but an increase of approximately nine percentage points among Black drivers. A series of supplemental analyses fail to detect differences in driving behavior across racial groups, leading us to conclude that our results are suggestive of differential treatment of black motorists by law enforcement.
Can we reduce facial biases? Persistent effects of facial trustworthiness on sentencing decisions
Bastian Jaeger et al.
Journal of Experimental Social Psychology, forthcoming
Abstract:
Trait impressions from faces influence many consequential decisions even in situations in which decisions should not be based on a person's appearance. Here, we test (a) whether people rely on trait impressions when making legal sentencing decisions and (b) whether two types of interventions - educating decision-makers and changing the accessibility of facial information - reduce the influence of facial stereotypes. We first introduced a novel legal decision-making paradigm. Results of a pretest (n = 320) showed that defendants with an untrustworthy (vs. trustworthy) facial appearance were found guilty more often. We then tested the effectiveness of different interventions in reducing the influence of facial stereotypes. Educating participants about the biasing effects of facial stereotypes reduced explicit beliefs that personality is reflected in facial features, but did not reduce the influence of facial stereotypes on verdicts (Study 1, n = 979). In Study 2 (n = 975), we presented information sequentially to disrupt the intuitive accessibility of trait impressions. Participants indicated an initial verdict based on case-relevant information and a final verdict based on all information (including facial photographs). The majority of initial sentences were not revised and therefore unbiased. However, most revised sentences were in line with facial stereotypes (e.g., a guilty verdict for an untrustworthy-looking defendant). On average, this actually increased facial bias in verdicts. Together, our findings highlight the persistent influence of trait impressions from faces on legal sentencing decisions.
Gender differences in the prosecution of police assault: Evidence from a natural experiment in Sweden
Kristine Eck & Charles Crabtree
PLoS ONE, July 2020
Abstract:
States often seek to regulate the use of police force though citizen complaint systems. This paper examines these systems, specifically, whether patterns of bias found in other juridical contexts are mirrored in the adjudication of police assault. The analysis focuses on prosecutors as the first instance of adjudication who determine whether to move forward with investigation, effectively deciding the majority of cases. We ask whether prosecutor sex is associated with the probability that a police assault claim will be investigated. We leverage a natural experiment in Sweden where prosecutors are assigned through a modified lottery system, effectively randomizing appointment. Our findings suggest that prosecutor gender plays a role in judicial outcomes: women prosecutors are 16 percentage points more likely to investigate claims of police assault than their male counterparts. These findings have implications for scholars interested in state human rights abuses, democratic institutions, and judicial inequality.
Quo Vadis? From the Schoolyard to the Courtroom
Maxim Sytch & Yong Kim
Administrative Science Quarterly, forthcoming
Abstract:
Existing theories exploring how companies interact with the law stop short of unveiling whether and why companies can differentially pursue, interact with, and benefit from a particular legal environment. We theorize that companies can use social structures - shared educational and professional affiliations - between lawyers and judges to strategically pursue specific legal jurisdictions, influence judges' discretion, and ultimately reap different legal outcomes from the same legal environment. Using data on such affiliations between lawyers and federal judges, we examine companies' choice of U.S. federal district courts and their legal outcomes in patent infringement litigation from 1990 to 2013. Our results reveal that companies strategically pursue courts in which their lawyers have past educational or professional affiliations with the courts' judges. If a desired judge is assigned to the case, a company leverages its lawyers' social structures to tailor any legal communication to match that judge's style. While such behavior results in a higher likelihood of winning a lawsuit, it also creates an inherent risk. In stacking their legal teams with lawyers who have connections to judges, companies often shortchange the human capital - lawyers' skillsets - required to win a case, which adversely affects legal outcomes if the desired judge is not assigned to the case.
Judge political affiliation and impacts of corporate environmental litigation
Chelsea Liu
Journal of Corporate Finance, forthcoming
Abstract:
This study examines the role of judges' political affiliation in determining the outcomes of environmental lawsuits filed against public corporations and their economic impacts on the defendant firms. Drawing on legal theories of judicial decision making, individual judges are expected to play an important role in influencing lawsuit outcomes and consequently the sued firms' shareholder wealth. This study employs a hand-collected sample of environmental lawsuits filed in the U.S. Federal District Courts against public firms during 2000-2015, utilizing the random assignment of judges to lawsuits to combat endogeneity concerns. The empirical evidence shows that lawsuits with Republican-appointed judges are approximately 12% less likely to succeed in reaching a settlement compared with those adjudicated by Democratic-appointed judges, holding constant other lawsuit-, judge-, and firm-specific factors. Further, investors of defendant firms react more favorably to the outcome of a lawsuit adjudicated by a Republican-appointed judge compared with a Democratic appointee: the difference of 0.6% of market value during the three-day period surrounding the lawsuit conclusion represents an average saving of approximately $305 million of shareholder wealth. These significant differences are not attributable to alternative explanations, such as other judge idiosyncrasies or firm characteristics, and remain robust to a series of additional analyses. These empirical findings offer new insights into the significant impacts of judge political affiliation on corporate environmental litigation and provide novel evidence on the magnitude of their economic consequences.
Framing innocence: An experimental test of the effects of wrongful convictions on public opinion
Robert Norris & Kevin Mullinix
Journal of Experimental Criminology, June 2020, Pages 311-334
Methods: We implement two survey experiments to test the effects of innocence information for criminal justice attitudes. In the first experiment, we test the impact of wrongful conviction numbers relative to a control group for death penalty support. In the second experiment, we analyze the effects-both separately and jointly-of exoneration numbers and a wrongful conviction narrative relative to a control group for attitudes toward the death penalty and police reform, trust in the justice system, and personal concern.
Results: We demonstrate that the presentation of factual numbers of exonerations reduces support for capital punishment and erodes trust in the justice system, but fails to garner support for police reforms or increase personal concern about wrongful convictions. However, a narrative about an individual wrongful conviction predictably has more pronounced effects on death penalty attitudes and increases personal concern and support for police reform, but has little effect on trust in the justice system more broadly.
Financial Dependents and Sentencing Outcomes in Federal District Courts: Variation by Race, Ethnicity, and Sex
Alexander Testa & Richard Hartley
Criminal Justice Policy Review, forthcoming
Abstract:
A voluminous literature has detailed disparities in punishment related to extra-legal characteristics such as race, ethnicity, and sex. However, less research has investigated the specific contexts and conditions under which disparities in punishment emerge. Specifically, limited research to date has examined whether family characteristics influence sentencing both directly, and in interaction with race, ethnicity, and sex. The current study investigates this question using data on federal criminal sentences from the United States Sentencing Commission for fiscal years 2015-2017. Findings demonstrate that providing support for dependents generally has a positive association with the likelihood of being incarcerated and overall sentence length. Moreover, the positive association between support for dependents and punishment severity is concentrated among Black male and Hispanic male defendants. Among minority females and White defendants, having dependents has either a negative or null association with sentencing outcomes. Findings are discussed in the context of contemporary theoretical perspectives of punishment.