Legal independence

Kevin Lewis

July 04, 2017

Judging the "Vapid and Hollow Charade": Citizen Evaluations and the Candor of U.S. Supreme Court Nominees
Philip Chen & Amanda Bryan
Political Behavior, forthcoming

Supreme Court confirmation hearings have been famously called a "vapid and hollow charade" by Elena Kagan. Indeed, perceptions of nominees' refusal to answer questions about pending cases, prominent political issues, or give any hint of their ideological leanings have become a cornerstone of the modern confirmation process. We investigate the extent to which this reticence to speak of their ideological views, or candor, influences how individuals evaluate the nominee. To this end, we present the results of a survey experiment which examines how support for a hypothetical Supreme Court nominee is affected by information, especially when a nominee is presented to be very forthright or very reticent in answering ideological questions during the confirmation hearings. We find that while partisan compatibility with the president is the main determinant of support for a nominee, nominees who refuse to answer ideological questions can bolster support from respondents who would not support them on partisan grounds. We supplement these findings with observational state-level support data from real nominees over the last 40 years.

The Effect of Terrorism on Judicial Confidence
Steven Miller
Political Research Quarterly, forthcoming

Independent judiciaries prevent democratic reversals, facilitate peaceful transitions of power, and legitimate democracy among citizens. We believe this judicial independence is important for citizen-level judicial confidence and faith in democratic institutions. I challenge this and argue that citizens living under terror threats lose confidence in their independent judiciaries. Terror threats lead citizens to enable the state leader to provide counterterrorism for their security, which has important implications for interbranch relations between the executive and the judiciary. Citizens lose confidence in independent judiciaries that provide due process for suspected terrorists. I test my argument with mixed effects models that incorporate the Global Terrorism Database and four waves of European Values Survey. The analyses demonstrate the negative effects of terror threats on judicial confidence when interacting terror threats with measures of judicial independence. My findings have important implications for the study of democratic confidence and the liberty-security dilemma.

The Process is the Punishment: Juror Demographics and Case Administration in State Courts
Jean Lee
American Law and Economic Review, forthcoming

Between 1976 and 1999, twelve states passed laws requiring that lists of eligible jurors for state trials be created by selecting at random from publicly available sources, limiting the discretion of jury commissioners to exclude African Americans from jury service. A difference-in-difference analysis suggests these reforms led to a 5-6 percentage point drop in the share of new admissions to prison accounted for by African Americans and other minorities, and lower rates of exercise of the death penalty overall.

Racial Bias in Bail Decisions
David Arnold, Will Dobbie & Crystal Yang
NBER Working Paper, May 2017

This paper develops a new test for identifying racial bias in the context of bail decisions - a high-stakes setting with large disparities between white and black defendants. We motivate our analysis using Becker's (1957) model of racial bias, which predicts that rates of pre-trial misconduct will be identical for marginal white and marginal black defendants if bail judges are racially unbiased. In contrast, marginal white defendants will have a higher probability of misconduct than marginal black defendants if bail judges are racially biased against blacks. To test the model, we develop a new estimator that uses the release tendencies of quasi-randomly assigned bail judges to identify the relevant race-specific misconduct rates. Estimates from Miami and Philadelphia show that bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We also find that both black and white judges are biased against black defendants. We argue that these results are consistent with bail judges making racially biased prediction errors, rather than being racially prejudiced per se.

Race and the Death Penalty in Louisiana: An Actuarial Analysis
Tim Lyman
Northeastern University Working Paper, May 2017

This analysis of race and the death penalty in Louisiana looks at death-eligible cases, half of which were reduced to non-murder final charges, in addition to death penalty cases. It finds that black-on-black cases are under-represented in every category of outcome, and black-on white cases over-represented, leading all variances, at every outcome; whereas white defendant cases are mixed, over or under depending on outcome severity. Odds of a death sentence for a black defendant are eleven times greater if the victim is white rather than black. Death-eligible cases in five jurisdictions that are disparate in race mix and population density are found to have these same race category traits of variance in each, traits also shared by the death penalty cases. The hypothesis of race neutrality must be rejected in every jurisdiction, and a new hypothesis of uniformity of variance patterns, even with the death penalty group, is found viable. Felony aggravator homicide data is gathered inconsistently by jurisdictions, and the only sure aggravators, the 41% of aggravators coming from a coroner, show white-on-white over-representation leading the variance. Thus, race-of-victim analysis masks extreme differences between white victim cases, such as the fact that 31% of black-on-white homicides result in overcharged cases (death eligible cases finishing with non-murder charges), whereas only 11% of white-on-white cases do.

Facial Profiling: Race, Physical Appearance, and Punishment
Brian Johnson & Ryan King
Criminology, forthcoming

We investigate the associations among physical appearance, threat perceptions, and criminal punishment. Psychological ideas about impression formation are integrated with criminological perspectives on sentencing to generate and test unique hypotheses about the associations among defendant facial characteristics, subjective evaluations of threatening appearance, and judicial imprisonment decisions. We analyze newly collected data that link booking photos, criminal histories, and sentencing information for more than 1,100 convicted felony defendants. Our findings indicate that Black defendants are perceived to be more threatening in appearance. Other facial characteristics, such as physical attractiveness, baby-faced appearance, facial scars, and visible tattoos, also influence perceptions of threat, as do criminal history scores. Furthermore, some physical appearance characteristics are significantly related to imprisonment decisions, even after controlling for other relevant case characteristics. These and other findings are discussed as they relate to psychological research on impression formation, criminological theories of court actor decision-making, and sociological work on race and punishment.

Race, criminal justice professionals, and intellectual authority in fictional crime dramas
Gayle Rhineberger-Dunn & Nicole Rader
Journal of Ethnicity in Criminal Justice, Spring 2017, Pages 205-225

The purpose of this research is to extend the existing media and crime literature by discussing how minority criminal justice personnel are granted or not granted intellectual authority in fictional crime dramas by their representation as presenters of crime and non-crime fact-based statements. An analysis of 117 episodes from four fictional crime dramas appearing in the top 20 Nielson ratings from 2003 to 2010 indicate that Black characters are not given the same intellectual authority as White characters, and therefore are imbued with less power and status than their White counterparts. In some cases, Black characters are not even given intellectual authority within their respective intellectual fields.

Examining Federal Criminal Sentencing of White-Collar and Common Property Offenders: The Case of Embezzlement and Larceny
Alexander Testa
Criminal Justice Policy Review, forthcoming

This study addresses the question of whether those charged with embezzlement - an offense characterized as a white-collar crime - are punished leniently, severely, or approximately the same compared with similarly situated larceny offenders - an offense characterized as a non-white-collar property crime - in federal criminal proceedings. To assess this question, the current study uses propensity score matching techniques to create a comparable sample of embezzlement and larceny offenders. Using data from the United States Sentencing Commission on individuals sentenced from years 2005 to 2010, the current study finds embezzlement offenders are more likely to be sentenced to incarceration relative to larceny offenders. In addition, the findings suggest that embezzlement offenders did not have a significantly higher likelihood of receiving a sentence of incarceration in the years following the onset of the Global Financial Crisis.

The Specter of Supreme Court Criticism: Public Opinion and Unilateral Action
Dino Christenson & Douglas Kriner
Presidential Studies Quarterly, forthcoming

The conventional wisdom suggests that the judicial constraint on presidential unilateralism is weak: judicial challenges are rare and successful ones rarer still. However, we argue that courts have grown increasingly assertive in checking important unilateral policy initiatives in both the foreign and domestic arenas. This judicial reassertion also raises the prospect that courts may exert a more informal constraint on presidential power. Utilizing two experiments embedded on nationally representative surveys, we find evidence that even speculation about a judicial challenge can erode public support for unilateral action. For some issues the effect may be conditional on diffuse support for the Court. Anticipations of these political costs may help explain the relative paucity of major unilateral actions.

Using Appellate Decisions to Evaluate the Impact of Judicial Elections
Gregory DeAngelo & Bryan McCannon
West Virginia University Working Paper, June 2017

We investigate judicial election's impact on criminal case handling. Data from appeals of felony convictions in New York state are used to measure the accuracy of lower court outcomes. We also account for judicial election pressures and career paths. A theoretical model is developed where to guide the empirical analysis judges face a trade-off between exerting time and effort in criminal and civil cases. We show that during a re-election campaign, when the importance of good decision making in both types of cases is heightened, if the civil case outcomes are sufficiently more important, then error rates in criminal cases can increase. This effect is reversed for those who have a greater intrinsic interest in criminal justice. Results from the empirical analysis conform to the hypotheses derived from the theoretical model. Convictions that occur during the judge's re-election campaign are less likely to be upheld if appealed. The effect is concentrated in those who did not previously work in a prosecutor's office. In fact, judges who are former prosecutors experience higher affirmation rates with an additional escalation in success when up for re-election. We also differentiate judges who handle more civil cases and show that re-election distortions are greater. Finally, we also consider those who receive greater campaign support from special interest groups. Those who receive financial support have reduced accuracy. These additional results are consistent with the theory that it is the trade-off between criminal and civil cases that is driving decision making. Our results suggest that the criminal justice system is impacted by the interaction between a judge's characteristics and re-election incentives.

Gaming the Chevron Doctrine?
Kent Barnett, Christina Boyd & Christopher Walker
University of Georgia Working Paper, June 2017

Do federal circuit courts consistently apply Chevron deference's framework when reviewing agency statutory interpretations? Or do political dynamics result in courts gaming the Chevron doctrine? To answer these questions, we empirically 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 - confirm longstanding intuition and earlier, more limited studies: courts do not consistently apply Chevron. Our findings, nevertheless, offer some surprising insights into the political dynamics of applying Chevron. When courts reviewed liberal agency interpretations, all panels - liberal, moderate, and conservative - were equally likely to apply Chevron. But when reviewing conservative agency interpretations, liberal panels applied Chevron 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.

Taking on the Boss: Informative Contests in Prosecutor Elections
Bryan McCannon & Joylynn Pruitt
West Virginia University Working Paper, February 2017

The United States is unique in that most states select their prosecutors using popular election. An interesting feature of prosecutor elections is that the pool of potential challengers to an incumbent comes primarily from subordinates within the office. We develop a signaling model that analyzes whether entry into the political race by a subordinate provides voters with useful information. We challenge the commonly-held presumption that the election mechanism is ineffective. Exploring the decision of an insider to challenge the boss, we demonstrate that a challenger can strategically convey information about the incumbent's quality by entering the race. Anticipating this, poor incumbents exit. Thus, the model matches empirical observations of rare contested elections and rather modest vacancy rates. Compared to the situation where outsiders challenge the incumbent, the election mechanism is effective.

How Political Signals Affect Public Support for Judicial Nominations: Evidence from a Conjoint Experiment
Maya Sen
Political Research Quarterly, June 2017, Pages 374-393

How do Americans evaluate potential US Supreme Court candidates? Using a novel, two-part conjoint experiment, I show that respondents put high importance on the political leanings of potential Court candidates, a finding in contrast with the scholarly view that the public views the Court as different from other, more political institutions. Indeed, when respondents are given information about a nominee's partisan leanings, they rely extensively on that information in deciding whether to support the candidate, whether they trust the candidate, and whether they find the candidate qualified. By contrast, when partisan information is withheld, respondents appear to use other kinds of signals, such as race, to fill in the gaps. Those who are most knowledgeable about the Court are most influenced by these partisan signals, providing further support for the importance of political heuristics. The results suggest that the public's evaluation of judicial nominees is more in line with how it evaluates other political actors. They also suggest that even candidates with excellent qualifications need not garner bipartisan public support.

Opportunity and Overrides: The Effect of Institutional Public Support on Congressional Overrides of Supreme Court Decisions
Michael Nelson & Alicia Uribe-McGuire
Political Research Quarterly, forthcoming

Existing theories of legislative-judicial relations emphasize the role of public support for the judiciary on the likelihood of legislative compliance. Although Congress can strengthen or weaken the Supreme Court's decisions after initial compliance, the role of public support for the judiciary on subsequent legislative action is unclear. We develop a theory of legislative-judicial interactions, which suggests that Congress considers the court's current level of public support when determining whether to override a Supreme Court decision. We test our theory using data on congressional overrides of US Supreme Court decisions, finding that high levels of public support for the court shield the court from hostile congressional action. The results underscore the vital role played by the public in interbranch relations, suggesting that public support plays a role in the legacy of a judicial decision beyond ensuring initial compliance.

Decisionmaking on Multimember Courts: The Assignment Power in the Circuits
Daniel Jacob Hemel & Kyle Rozema
University of Chicago Working Paper, May 2017

A standard assumption in the literature on judicial behavior holds that decisions of multimember courts conform to the preferences of the median judge. Judges and scholars have suggested, however, that contrary to the predictions of the median voter theorem, the judge with the power to assign the panel opinion wields disproportionate influence over case outcomes. In this article, we investigate whether the "assignment power" systematically affects outcomes on three-judge panels in the 13 federal circuits. We identify which judge presides over the panel in more than 126,000 cases across all circuits between 1993 and 2007. We exploit cross-circuit variation in the allocation of the assignment power to disentangle the effect of assignment from other attributes of presiding judges. We find that the judge who wields the assignment power is significantly less likely than other judges to dissent - an indication that assigning judges are more likely to be satisfied with the case outcome. We find evidence that assigning judges influence case outcomes through strategic assignment of opinions to other panel members, but no evidence that assigning judges influence case outcomes through strategic self-assignment of majority opinions. Our results suggest that decisionmaking on multimember courts is shaped not only by the composition of panels but also by the allocation of the assignment power among panel members.

Whistleblowers and Outcomes of Financial Misrepresentation Enforcement Actions
Andrew Call et al.
Journal of Accounting Research, forthcoming

Whistleblowers are ostensibly a valuable resource to regulators investigating securities violations, but whether there is a link between whistleblower involvement and the outcomes of enforcement actions is unclear. Using a dataset of employee whistleblowing allegations obtained from the U.S. government and the universe of enforcement actions for financial misrepresentation, we find that whistleblower involvement is associated with higher monetary penalties for targeted firms and employees and with longer prison sentences for culpable executives. We also find that regulators more quickly begin enforcement proceedings when whistleblowers are involved. Our findings suggest whistleblowers are a valuable source of information for regulators who investigate and prosecute financial misrepresentation.

What Counter-Majoritarian Difficulty? Experimentally Evaluating Citizens' Views of the Democratic Nature of the Supreme Court
Kyle Morgan & William Young
Rutgers University Working Paper, June 2017

Scholars have long debated the democratic credentials of courts. Some view the judiciary as a positive force for democracy (Zemans 1983, Kelemen 2012b, Almendares and Le Bihan 2015), while others claim it can get in the way of truly democratic governance (see, for example, Tushnet 1999, Kramer 2004, Hirschl 2004, Waldron 2006). One often-cited problem with courts is what Alexander Bickel (1962) called the "counter-majoritarian difficulty." Put simply, in a democracy how can it be that a group of unelected, unrepresentative judges is free to overrule the will of the people? Our paper addresses this dilemma from a novel angle. Specifically, we use a survey experiment to test whether or not Americans actually care about the counter-majoritarian nature of their Supreme Court. We present respondents with a fictitious Supreme Court ruling and test whether they react differently when it is framed as overruling majorities, either elected or public, of different sizes. We find that in general people do not care about the counter-majoritarian dilemma on its own. What often does matter to how Americans react to counter-majoritarian decisions is what they think about Congress, the institution the Court overrules whenever it strikes down a law. Most of the time, citizens' trust and confidence in Congress interacts with their views about the policy in question to determine their levels of support for the decision.


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