Judge Not, Lest Ye Be Judged
Untangling the Causal Effects of Sex on Judging
Christina Boyd, Lee Epstein & Andrew Martin
American Journal of Political Science, April 2010, Pages 389-411
Abstract:
We explore the role of sex in judging by addressing two questions of long-standing interest to political scientists: whether and in what ways male and female judges decide cases distinctly - "individual effects" - and whether and in what ways serving with a female judge causes males to behave differently - "panel effects." While we attend to the dominant theoretical accounts of why we might expect to observe either or both effects, we do not use the predominant statistical tools to assess them. Instead, we deploy a more appropriate methodology: semiparametric matching, which follows from a formal framework for causal inference. Applying matching methods to 13 areas of law, we observe consistent gender effects in only one - sex discrimination. For these disputes, the probability of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant. These results are consistent with an informational account of gendered judging and are inconsistent with several others.
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Ambiguous Statutes and Judicial Deference To Federal Agencies
John Wright
Journal of Theoretical Politics, April 2010, Pages 217-245
Abstract:
The Supreme Court's Chevron decision raises questions about why Congress passes ambiguous statutes and why courts defer to agencies rather than impose their own interpretations. This article presents a model of policymaking where the legislature chooses strategically between an ambiguous and explicit statute, and where rulemaking and judicial review follow. The analysis reveals that when statutes are ambiguous, judges gain few policy advantages by deciding strategically on the basis of their policy preferences as opposed to simply following Chevron precedent. The results shows that legislative policy entrepreneurs can frequently advance their policy interests more successfully with ambiguous than with explicit language.
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Economic Crisis and the Rise of Judicial Elections and Judicial Review
Jed Handelsman Shugerman
Harvard Law Review, March 2010, Pages 1061-1151
Abstract:
Almost ninety percent of state judges today face some kind of popular election. This uniquely American institution emerged in a sudden burst from 1846 to 1853, as twenty states adopted judicial elections. The modern perception is that judicial elections, then and now, weaken judges and the rule of law. When judicial elections swept the country in the late 1840s and 1850s, however, the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become a tool of party patronage and cronyism. Legislative overspending on internal improvements and an economic depression in the early 1840s together had plunged the states into crippling debt. In response, a wave of nineteen states called constitutional conventions from 1844 to 1853. In addition to direct limits on legislative power, most of these conventions adopted judicial elections. Many delegates stated that their purpose was to strengthen the separation of powers and empower courts to use judicial review. The reformers got results: elected judges in the 1850s struck down many more state laws than their appointed predecessors had in any other decade. These elected judges played a role in the shift from active state involvement in economic growth to laissez-faire constitutionalism. Oddly, the first generation of elected judges was the first to justify judicial review in counter¬majoritarian terms, in the defense of individual and minority rights against abusive majorities and the "evils" of democracy. The Article concludes with lessons about judicial independence and democracy from this story.
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Daniel Ho & Erica Ross
Stanford Law Review, March 2010, Pages 591-668
Abstract:
While the standing doctrine is one of the most widely theorized and criticized doctrines in U.S. law, its origins remain controversial. One revisionist view argues that New Deal progressive Justices purposely invented the standing doctrine to insulate administrative agencies from judicial review. Yet existing support for this "insulation thesis" is weak. Our Article provides the first systematic empirical evidence of the historical evolution of standing. We synthesize the theory and claims underlying the insulation thesis and compile a new database of every standing issue decided, along with all contested merits votes, by the Supreme Court from 1921-2006. To overcome conventional problems of haphazard case selection, we amass, read, and classify over 1500 cases cited in historical treatments of the doctrine, assembling a database of all standing issues contested. With modern statistical methods and this new dataset-comprised of 47,570 votes for 5497 unique issues and 229 standing issues-we find compelling evidence for one version of the insulation thesis. Before 1940, progressive Justices disproportionately deny standing to plaintiffs in cases that largely involve challenges to administrative agencies. After 1940, the political valence of the standing doctrine reverses: progressives uniformly favor standing. Justices Douglas and Black, in particular, track this evolution (and valence reversal) of the standing doctrine. While the evidence for liberal insulation is strong, the historical period of unanimously decided standing cases prior to the period of insulation does not support liberal invention per se. Our results challenge legal inquiries of what claims are traditionally amenable to judicial resolution and highlight the unintended consequences of judicial innovation.
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Reasoning about social conflicts improves into old age
Igor Grossmann, Jinkyung Na, Michael Varnum, Denise Park, Shinobu Kitayama & Richard Nisbett
Proceedings of the National Academy of Sciences, 20 April 2010, Pages 7246-7250
Abstract:
It is well documented that aging is associated with cognitive declines in many domains. Yet it is a common lay belief that some aspects of thinking improve into old age. Specifically, older people are believed to show better competencies for reasoning about social dilemmas and conflicts. Moreover, the idea of aging-related gains in wisdom is consistent with views of the aging mind in developmental psychology. However, to date research has provided little evidence corroborating this assumption. We addressed this question in two studies, using a representative community sample. We asked participants to read stories about intergroup conflicts and interpersonal conflicts and predict how these conflicts would unfold. We show that relative to young and middle-aged people, older people make more use of higher-order reasoning schemes that emphasize the need for multiple perspectives, allow for compromise, and recognize the limits of knowledge. Our coding scheme was validated by a group of professional counselors and wisdom researchers. Social reasoning improves with age despite a decline in fluid intelligence. The results suggest that it might be advisable to assign older individuals to key social roles involving legal decisions, counseling, and intergroup negotiations. Furthermore, given the abundance of research on negative effects of aging, this study may help to encourage clinicians to emphasize the inherent strengths associated with aging.
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Social Attractiveness and Blame
Mark Alicke & Ethan Zell
Journal of Applied Social Psychology, September 2009, Pages 2089-2105
Abstract:
Blame attributions are influenced by various extralegal factors, although at present there is no compelling evidence to link what may be one of the most pervasive sources of bias in blame judgments - an actor's social attractiveness or likableness - to blame attributions. We conducted 2 studies that varied an actor's social attractiveness and assessed its influence on blame. Social attractiveness influenced blame ratings in both studies, and perceptions of the actor's likableness mediated this effect.
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The Costs and Benefits of Calculation and Moral Rules
Will Bennis, Douglas Medin & Daniel Bartels
Perspectives on Psychological Science, March 2010, Pages 187-202
Abstract:
There has been a recent upsurge of research on moral judgment and decision making. One important issue with this body of work concerns the relative advantages of calculating costs and benefits versus adherence to moral rules. The general tenor of recent research suggests that adherence to moral rules is associated with systematic biases and that systematic cost-benefit analysis is a normatively superior decision strategy. This article queries both the merits of cost-benefit analyses and the shortcomings of moral rules. We argue that outside the very narrow domain in which consequences can be unambiguously anticipated, it is not at all clear that calculation processes optimize outcomes. In addition, there are good reasons to believe that following moral rules can lead to superior consequences in certain contexts. More generally, different modes of decision making can be seen as adaptations to particular environments.
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Liane Young, Joan Albert Camprodon, Marc Hauser, Alvaro Pascual-Leone & Rebecca Saxe
Proceedings of the National Academy of Sciences, 13 April 2010, Pages 6753-6758
Abstract:
When we judge an action as morally right or wrong, we rely on our capacity to infer the actor's mental states (e.g., beliefs, intentions). Here, we test the hypothesis that the right temporoparietal junction (RTPJ), an area involved in mental state reasoning, is necessary for making moral judgments. In two experiments, we used transcranial magnetic stimulation (TMS) to disrupt neural activity in the RTPJ transiently before moral judgment (experiment 1, offline stimulation) and during moral judgment (experiment 2, online stimulation). In both experiments, TMS to the RTPJ led participants to rely less on the actor's mental states. A particularly striking effect occurred for attempted harms (e.g., actors who intended but failed to do harm): Relative to TMS to a control site, TMS to the RTPJ caused participants to judge attempted harms as less morally forbidden and more morally permissible. Thus, interfering with activity in the RTPJ disrupts the capacity to use mental states in moral judgment, especially in the case of attempted harms.
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Economics and the 'nonsense' of law: The case of the Chicago antitrust revolution
William Davies
Economy and Society, February 2010, Pages 64-83
Abstract:
The Law and Economics movement that emerged in the University of Chicago through the 1940s and 1950s, around Ronald Coase's example, is a manifestation of the neo-liberal project of applying neo-classical economics to state sovereignty. In the 1970s and 1980s, Law and Economics ideas revolutionized the application of antitrust laws in the United States. However, this achievement came about not through a transformation in economic orthodoxy, but through persuading legal experts to recognize the inherent 'nonsense' at work in their own normative assumptions. The Chicago antitrust revolution is therefore symptomatic of trends that Foucault viewed as definitive of neo-liberalism more broadly.
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Where Do We Draw Our Lines? Politics, Rigidity, and the Role of Self-Regulation
Mindi Rock & Ronnie Janoff-Bulman
Social Psychological and Personality Science, January 2010, Pages 26-33
Abstract:
Past research on political orientation suggests an association between conservatism and cognitive rigidity. In the area of self-regulation, cognitive rigidity has been related to avoidance motivation and cognitive flexibility to approach motivation. Furthermore, recent work suggests links between political orientation and self-regulation, with conservatism associated with (inhibition-based) avoidance motivation and liberalism with (activation-based) approach motivation. The authors therefore propose that self-regulatory differences may account for the links between political orientation and cognitive rigidity. Two studies investigate the effects of motivational prime and political orientation on rigidity, assessed by a cognitive categorization task. Across both studies, avoidance motivation moderated the relationship between conservatism and rigidity. Liberalism was associated with similar category inclusiveness across conditions, whereas conservatism was associated with greater rigidity in the avoidance condition. It appears that conservatives' cognitive rigidity is an avoidance-primed inhibitory strategy; conservatives are sensitive to avoidance motivation, which in turn accounts for their greater cognitive rigidity.