Lawyered up

Kevin Lewis

February 28, 2013

Lawyers as Agents of the Devil in a Prisoner's Dilemma Game: Evidence from Long Run Play

Orley Ashenfelter, David Bloom & Gordon Dahl
NBER Working Paper, February 2013

Do the parties in a typical dispute face incentives similar to those in the classic prisoner's dilemma game? In this paper, we explore whether the costs and benefits of legal representation are such that each party seeks legal representation in the hope of exploiting the other party, while knowing full well that failing to do so will open up the possibility of being exploited. The paper first shows how it is possible to test for the presence of such an incentive structure in a typical dispute resolution system. It then reports estimates of the incentives for the parties to obtain legal representation in wage disputes that were settled by final-offer arbitration in New Jersey. The paper also reports briefly on similar studies of data from discharge grievances, court-annexed disputes in Pittsburgh, and child custody disputes in California. In each case, the data provide evidence that the parties face strong individual incentives to obtain legal representation which makes the parties jointly worse off. Using our New Jersey data, we find that expert agents may well have played a productive role in moderating the biases of their clients, but only early on in the history of the system. Over time, the parties slowly evolved to a non-cooperative equilibrium where the use of lawyers becomes nearly universal, despite the fact that agreeing not to hire lawyers is cheaper and does not appear to alter arbitration outcomes.


Political Beliefs and Tort Awards: Evidence of Rationally Political Jurors from Two Data Sets

Scott Wentland
Review of Law & Economics, December 2012, Pages 619-656

To better understand jury decision-making, this paper explores the extent to which jurors' political beliefs impact real world trial outcomes. The key finding of this study is a strong empirical link between a jury pool's political leanings and tort awards, robust across two distinct data sets, namely pooled panels from the Civil Justice Survey of State Courts and Jury Verdict Research data. I find that a one standard deviation (12%) increase in a jury pool's Democratic vote (in presidential elections) increases tort awards by approximately $157,600 (or 30%) on average. This general relationship remains consistent through county and time fixed effects estimations, and controlling for a number of socioeconomic demographics. While the empirics presented here do not establish a definitive causal link, the data lends evidence to the case for what I call a "rationally political juror," suggesting further examination into juror incentives and decision-making.


Interpreting Circuit Court Voting Patterns: A Social Interactions Framework

Joshua Fischman
Journal of Law, Economics, and Organization, forthcoming

Many empirical studies have found that circuit judges' votes are significantly influenced by their panel colleagues. Although this influence is typically measured in terms of colleagues' characteristics, this article argues that it is better understood as an effect of colleagues' votes. Applying the latter interpretation, this article reanalyzes 11 prior studies of panel voting, as well as three novel data sets, and reveals the impact of colleagues' votes to be strikingly uniform. In almost every type of case, each colleague's vote increases the likelihood that a judge will vote in the same direction by roughly 40 percentage points. This result is consistent with a strong norm of consensus and can account for nearly all of the perceived impact of colleagues' party, gender, and race. This finding raises questions about strategic and deliberative models of panel voting and helps clarify measurement issues regarding the relationship between judicial characteristics and voting behavior


An Economic Analysis of Black-White Disparities in NYPD's Stop and Frisk Program

Decio Coviello & Nicola Persico
NBER Working Paper, February 2013

We analyze data on NYPD's "stop and frisk program" in an effort to identify racial bias on the part of the police officers making the stops. We find that the officers are not biased against African Americans relative to whites, because the latter are being stopped despite being a "less productive stop" for a police officer.


The Effect of Punishment Severity on Plea Bargaining

Richard Boylan
Journal of Law and Economics, August 2012, Pages 565-591

This study examines whether criminal suspects facing more severe punishments are more likely to go to trial. Sample selection makes it difficult to obtain valid proxies for severity; for instance, I expect severity to be positively related to the prosecutor's decision to indict, to indict in federal court (versus state court), and to try the suspect. Theoretical and empirical findings indicate that in samples containing only indicted, convicted, or tried suspects, reasonable proxies for severity may be negatively related to actual severity. The assignment of defendants to judges randomizes the severity of punishment in a manner that is unrelated to sample selection. Thus, by examining the effect of these assignments, I find that a 10-month increase in prison sentences raises trial rates by 1 percentage point.


Examining Racial Disparities in Drug Arrests

Ojmarrh Mitchell & Michael Caudy
Justice Quarterly, forthcoming

The War on Drugs popularized a set of policies and practices that dramatically increased the number of drug arrests, particularly for low-level drug offenses. The War's tactics have affected Americans of every race; however, minorities have been most dramatically affected. There are several explanations for the observed racial disparity in drug arrests, but relatively little research directly tests these explanations. In this study, we test three common explanations of racial disparities in drug arrest rates. We find that racial disparities in drug arrests cannot be explained by differences in drug offending, nondrug offending, or residing in the kinds of neighborhoods likely to have heavy police emphasis on drug offending. Our findings are most consistent with explanations focusing on racial bias in drug sanctions.


Measuring Diversity on the Supreme Court with Biodiversity Statistics

Benjamin Barton & Emily Moran
Journal of Empirical Legal Studies, March 2013, Pages 1-34

This article aims to accomplish two goals. The first is to introduce some of the more common statistical measures of biodiversity to the empirical study of law. The second is to measure the diversity of background on the current Supreme Court using diversity indices commonly used in ecology. We treat the Supreme Court as if it is an ecosystem, and life experiences and traits as if they are different species, and ask whether diversity in seven categories (race/ethnicity, religion, professional background, geographic background, economic background, education, and political party) has grown or shrunk over time. We then combine these categories to create a single overall diversity measure. The results demonstrate that although the current Supreme Court is more diverse overall than the long-term historical average, there has been a recent downward trend in overall diversity, driven by decreases in diversity of educational background, geographic background, and, to a lesser extent, religious diversity. However, diversity of professional background and of childhood economic background has remained high in recent years, and racial diversity has increased greatly.


Race and Juvenile Incarceration: A Propensity Score Matching Examination

George Higgins et al.
American Journal of Criminal Justice, March 2013, Pages 1-12

Disproportionate minority contact is an important issue in contemporary juvenile justice. Few studies have directly examined the link between race and judicial decision to incarceration. Using official data from Pennsylvania (n = 41,561), this study added to this literature in two ways. This study used propensity score matching to obtain a purer estimate of the influence race has on the decision to petition a case to juvenile court. The results indicated that prosecutors use perceptual shorthand in making this decision that hinges on race. Specifically, blacks were more 1.28 times more likely than whites to have their case petitioned to juvenile court.


False Alibi Corroboration: Witnesses Lie for Suspects Who Seem Innocent, Whether They Like Them or Not

Stéphanie Marion & Tara Burke
Law and Human Behavior, forthcoming

To test the commonly held assumption that individuals who share a personal relationship are more likely to lie for one another than are strangers, 81 undergraduate students were given the opportunity to either corroborate or refute a confederate's alibi. In either a "friendship-enhancing" or a "stranger-maintaining" condition, confederate-participant pairs completed tasks under the pretext of a problem-solving study. During the experimental session, the confederate briefly left the testing room; upon her return she either came back empty handed (evidence absent) or with money in her hands (evidence present). Later, both the confederate and participant were questioned about a purported theft in an adjacent room. When questioned by the experimenter in the presence of the participant, the confederate provided a false alibi that she was in the testing room with the participant the entire time. The experimenter later questioned the participant alone and asked whether the confederate's statement was in fact true. Although we hypothesized that participants in the friendship-enhancing condition would corroborate the false alibi more often than those in the stranger-maintaining condition, participants in both conditions were as likely to support the alibi. In the "evidence-present" condition, however, participants were much less likely to corroborate the false alibi than in the "evidence-absent" condition. The results call into question our belief that closeness and affinity toward a suspect is important in judging the truthfulness of witness statements and emphasize the need for further empirical research on alibi corroboration. The research described also introduces a new and effective paradigm to directly measure false alibi corroboration.


Catching liars: Training mental health and legal professionals to detect high-stakes lies

Julia Shaw, Stephen Porter & Leanne ten Brinke
Journal of Forensic Psychiatry & Psychology, forthcoming

Although the ability to detect deception is critical in many professional contexts, most observers (including professional lie-catchers) are able to identify deceivers at the level of chance only. Further, almost all studies of deception detection have used low-stakes deception scenarios in determining deceptive behavior and training effectiveness. We evaluated the effectiveness of a comprehensive, empirically based full-day training workshop in improving the ability of 42 legal and mental health professionals to detect extremely high-stakes emotional lies. Their ability to discriminate sincere and insincere pleaders was measured at baseline and post-training. Overall, accuracy increased significantly from M = 46.4 to 80.9%. We cautiously suggest that training professionals to apply empirically validated methods to deception detection can increase their ability to correctly discriminate between liars and truth-tellers. Strategies to facilitate the detection of deception via the development of training programs are discussed.


Remorse in oral and handwritten false confessions

Gina Villar, Joanne Arciuli & Helen Paterson
Legal and Criminological Psychology, forthcoming

Purpose: The search for objective markers of a true versus false confession is an important but under-researched area. In the first study of its kind, we examined the utility of expressions of remorse as a marker of a true compared with a false oral versus written confession.

Methods: We elicited both written and oral false confessional statements and true accounts from 85 participants.

Results: Results showed that the proportion of remorseful words that participants produced was significantly higher in their true compared with their false confessions, in both oral and written confession modalities. Furthermore, an acoustic analysis of oral confessions revealed that participants' remorseful utterances were significantly louder in their true compared with their false confessions.

Conclusions: These findings suggest that the presence and nature of remorseful utterances in oral and written statements are useful in the identification of true versus false confessions.


Conviction Odds in Chicago Homicide Cases: Does Race/Ethnicity Matter?

Christine Martin
Journal of Ethnicity in Criminal Justice, Winter 2013, Pages 22-43

This study investigates disparity as it exists in the conviction of Latino, African American, and White offenders in Chicago homicide cases. The study participants were adults who had been identified by the Chicago Police Department as suspects in homicide incidents for the years 1990 through 1995. Information about the offender, victim, homicide incident, and adjudication of the homicide case in court was collected from police and court records. Logistic regression modeling was used to determine the odds of conviction for Latino, African American, and White homicide offenders at the adjudication decision point of criminal case processing. Results indicated that in Chicago homicide cases, when deciding guilt or no guilt for Class M Felony murder, neither race nor ethnicity mattered; what did matter the most was the offender-victim relationship, the number of charges filed against the offender, and the mode of conviction. This study continues the important tradition in racial and ethnic disparity studies of measuring the effect of offender-victim dyads on case outcomes. It builds on prior research in 2 ways: (a) by measuring the impact of the offender-victim dyad's race and ethnicity on conviction odds and (b) by expanding the scope of case-processing research through examining decision making at the pre-sentence adjudication stage, a point researchers have heretofore rarely examined.


For whom the bell (curve) tolls: Cortisol rapidly affects memory retrieval by an inverted U-shaped dose-response relationship

Thomas Schilling et al.
Psychoneuroendocrinology, forthcoming

Stress and cortisol are generally considered to impair declarative memory retrieval, although opposite results have also been reported. Dose-dependent effects and differences between genomic and non-genomic cortisol effects are possible reasons for these discrepancies. The aim of the current experiment was to assess the non-genomic effects of escalating doses of intravenous cortisol on cued recall of socially relevant information in humans. 40 participants (age range 20-30 years; 20 females) learned associations between male faces with a neutral facial expression and descriptions of either positive or negative social behaviors and were tested one week later in a cued recall paradigm. Escalating doses of cortisol (0, 3, 6, 12, 24 mg) were administered 8 min before testing according to a between-subjects design. An inverted U-shaped dose-response relationship between salivary cortisol levels and recall performance was observed, with moderate elevation of salivary cortisol resulting in the best recall performance. This is the first study in humans demonstrating that cortisol rapidly modulates declarative memory retrieval via a dose-dependent, non-genomic mechanism that follows an inverted U-shaped curve. Our result further emphasizes the importance of fast cortisol effects for human cognition.


Why Do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates?

Theodore Eisenberg & Henry Farber
American Law and Economics Review, forthcoming

Multiple studies find that plaintiffs who lose at trial and subsequently appeal are less successful on appeal than are losing defendants who appeal. The studies attribute this to a perception by appellate judges that trial courts are biased in favor of plaintiffs. However, at least two alternative explanations exist. First, losing plaintiffs may appeal at higher rates independent of the potential merits. Second, if plaintiffs tend to pursue to trial lawsuits where they should win on the merits less than half the time, then potentially reversible outcomes at trial will be more likely to be adverse to defendants. This study revisits the analysis of the appellate process with a statistical model that ties together win rates at trial, appeals rates, and success rates on appeal. The model can distinguish the competing explanations for differential appellate success rates, and we estimate this model using matched data on Federal District Court trials and appeals to the U.S. Circuit Courts of Appeal. We find consistent evidence that the lower plaintiff success rate on appeal is due to plaintiffs' pursuing lawsuits where they should win on the merits (which we define to be an outcome that would not be reversed or remanded on appeal) less than half the time. We find no evidence that asymmetric success on appeal is attributable either to trial courts favoring plaintiffs or to higher rates of appeal by losing plaintiffs.


The effectiveness of eye-closure in repeated interviews

Annelies Vredeveldt, Alan Baddeley & Graham Hitch
Legal and Criminological Psychology, forthcoming

Purpose: Closing the eyes during recall can help witnesses remember more about a witnessed event. This study examined the effectiveness of eye-closure in a repeated recall paradigm with immediate free recall followed 1 week later by both free and cued recall. We examined whether eye-closure was more or less effective during the second free-recall attempt compared with the first, whether eye-closure during the first recall attempt had an impact on subsequent free- and cued-recall performance, and whether eye-closure during the second free recall could facilitate the recall of new, previously unreported, information (reminiscence).

Method: Participants witnessed a videotaped event and participated in a first free-recall attempt (with eyes open or closed) a few minutes later. After a week, they provided another free recall, followed by a cued-recall interview (with eyes open or closed).

Results: Eye-closure during the first free-recall attempt had no significant effect on performance during any of the recall attempts. However, eye-closure during the second session increased the amount of correct visual information reported in that session by 36.7% in free recall and by 35.3% in cued recall, without harming testimonial accuracy. Crucially, eye-closure also facilitated the recall of new, previously unreported visual information.

Conclusions: The findings extend previous research in showing that the eye-closure instruction can still be effective when witnesses are interviewed repeatedly, and that it can facilitate the elicitation of new information. Thus, the eye-closure instruction constitutes a simple and time-efficient interview tool for police interviewers.


Executive Branch Socialization and Deference on the U.S. Supreme Court

Rob Robinson
Law & Society Review, December 2012, Pages 889-921

Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model.


Judicial Impartiality, Campaign Contributions, and Recusals: Results from a National Survey

James Gibson & Gregory Caldeira
Journal of Empirical Legal Studies, March 2013, Pages 76-103

Legal scholars have of late become quite worried about how citizens form their impressions of the fairness of courts. This concern reflects the changing environments of courts, especially elected state courts, and what might generally be termed the politicization of the judiciary. The purpose of this article is to assess the effectiveness of judicial recusals at rehabilitating a court/judge tainted by perceived conflicts of interest associated with campaign activities by litigants. Based on an experimental design embedded in a nationally representative sample, our data first confirm that direct campaign contributions undermine perceptions of fairness; but, unexpectedly, so, too, does independent support for the candidate. Most important, recusal does indeed restore some perceived fairness; unfortunately, the repair to public perceptions is not to the level enjoyed when no conflict of interest exists. In a post-Citizens United world, these findings therefore point to significant threats to the legitimacy of elected state courts.


Learning in the Judicial Hierarchy

Deborah Beim
Princeton Working Paper, September 2012

In this paper, I develop and empirically test a theory of judicial learning. In the model, the Supreme Court uses the Courts of Appeals as laboratories of law, learning from their decisions to determine how best to advance doctrine. The model shows how the Supreme Court leverages multiple Courts of Appeals decisions to identify which cases will be most informative to review, and what decision to make upon review. Because an unbiased judge only makes an extremist decision when there is an imbalance in the parties' arguments, the Supreme Court is able to draw inferences from cases it chooses not to review. Applying two of the model's new empirical predictions to data, I show the Supreme Court is more likely to review moderate than extremist decisions, and also show that when the Supreme Court is resolving conflicts between lower courts it is more likely to strike down doctrines it reviews. Together, the results depict the judicial hierarchy as an institution focused on doctrinal development, rather than doctrinal discipline.


Overlooking coerciveness: The impact of interrogation techniques and guilt corroboration on jurors' judgments of coerciveness

Netta Shaked-Schroer, Mark Costanzo & Dale Berger
Legal and Criminological Psychology, forthcoming

Purpose: The present study investigated whether mock jurors judged the coerciveness of an interrogation differently based on whether or not a confession led to the discovery of corroborating evidence. Specifically, we examined whether jurors were likely to overlook tactics they would otherwise find objectionable if they were confident that the defendant was guilty.

Method: A 2 × 2 between-subjects design was used to examine the influence of interrogation techniques (low pressure or high pressure) and level of guilt corroboration (uncorroborated or corroborated) on mock jurors' verdicts and ratings of an interrogation. Two hundred and two jury-eligible participants read a case summary, watched a realistic video recording of an interrogation that included a confession, and read prosecution and defence closing arguments. Participants then decided on a verdict and answered a series of questions about the interrogation and confession.

Results: The interrogation was rated as significantly less coercive when the confession led to the discovery of corroborating evidence than when corroborating evidence was not found. Furthermore, participants who viewed a high-pressure interrogation rated it as less coercive when the confession was corroborated by additional evidence than when it was not. There was no difference between the corroborated and uncorroborated conditions for the low-pressure interrogation.

Conclusions: The present findings support the idea that more extreme tactics may be considered less coercive when they produce a greater certainty that the defendant is guilty. The results can be explained in terms of self-presentation theories.


Keeping the Outliers in Line? Judicial Review of State Laws by the U.S. Supreme Court

Matthew Hall & Ryan Black
Social Science Quarterly, forthcoming

Objective: Proponents of the "regime politics" approach argue that the U.S. Supreme Court tends to promote the interests of the dominant partisan coalition even while engaging in seemingly countermajoritarian behavior. These scholars suggest that the Court's invalidation of state laws is used to enforce a national consensus against outlier states. We argue this claim does not withstand empirical analysis.

Method: We employ logistic regression analysis to evaluate the relationship between the invalidation of state laws by the Court and the ideological distance between the sitting national government and the state government that enacted the law.

Results: Our analysis fails to find support for the regime enforcement hypothesis; in fact, we find evidence of a negative relationship between ideological distance and invalidation.

Conclusions: Our findings suggest that regime politics scholars have underestimated the Court's countermajoritarian role in reviewing state legislation.


State Coordinating Institutions and Agenda Setting on the U.S. Supreme Court

Greg Goelzhauser & Nicole Vouvalis
American Politics Research, forthcoming

What determines state success when petitioning the U.S. Supreme Court for review? We suggest that states can improve the likelihood of securing Supreme Court review by coordinating litigation efforts. This coordination occurs in two ways. First, some states coordinate their appellate litigation efforts internally through the creation of state solicitors general offices. Second, external coordination occurs when states join amicus briefs at the agenda setting stage urging the Supreme Court to grant review in state-filed cases. Using new data on all state-filed certiorari petitions from the 2001-2009 terms, we find that internal and external coordination is associated with an increased likelihood of the Supreme Court granting review in state-filed cases.

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