Legal issues

Kevin Lewis

November 17, 2017

Appointing Extremists
Michael Bailey & Matthew Spitzer
American Law and Economics Review, forthcoming


Given their long tenure and broad powers, Supreme Court justices are among the most powerful actors in American politics. In this paper, we present a model of the nomination process that highlights the how uncertainty about a potential justice's preferences can lead a president to prefer a nominee with extreme preferences. In certain cases, Senators may also prefer extreme nominees, leading to the nomination and confirmation of justices whose preferences seem to diverge from those of elected officials. While our focus in this paper is on the Supreme Court, the analysis extends in many ways to other multimember appointed bodies as well.

The Joint Effects of Race, Ethnicity, Gender, and Age on the Incarceration and Sentence Length Decisions
Tina Freiburger & Alyssa Sheeran
Race and Justice, forthcoming


The current study adds to the literature examining the effects of race, ethnicity, gender, and age on sentencing decisions. The results indicate that Black and male defendants were more likely to be incarcerated in jail as opposed to receiving a probation sentence than White and female defendants. When race, ethnicity, and gender interactions were considered, it appeared that the race effect was driven by Black males' reduced likelihood to receive probation as opposed to jail. Black females were the least likely to be jailed. Age interactions revealed that being young disadvantaged Black males but advantaged other groups. The decision to incarcerate a defendant in jail versus prison was not significantly influenced by race, ethnicity, or gender. When sentence length was examined, Black males received significantly shorter jail sentences than all groups except Black females. When age was considered, Hispanic defendants 30-39 received longer jail sentences than almost every group.

Minority Groups and Judicial Legitimacy: Group Affect and the Incentives for Judicial Responsiveness
Michael Zilis
Political Research Quarterly, forthcoming


This paper introduces a new perspective into the literature on judicial legitimacy by examining the incentives for courts to cater to a popular majority and offering a novel model of legitimacy that has consequences for judicial responsiveness. The account integrates into the literature classic research on how strategic social groups shape public opinion. I theorize that citizens use their perceptions of the judiciary's support for various social groups as a means to assess the institution overall. From this insight, I derive specific expectations about the conditions under which the Supreme Court's protection of minority groups like gays and immigrants can damage its legitimacy. Using national survey data, I demonstrate that dislike for the beneficiaries of recent Court rulings systematically diminishes the institution's legitimacy. The influence of these group-based considerations shapes individual-level attitude change and can be observed at various points in time.

Equal Right to the Poor
Richard Re
University of Chicago Law Review, Summer 2017,  Pages 1149-1216


By law, federal judges must swear or affirm that they will "do equal right to the poor and to the rich." This frequently overlooked oath, which I call the "equal right principle," has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle's text, context, and history. This Article argues that the equal right principle supplies at least a plausible basis for federal judges to consider substantive economic equality when implementing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor's disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnerable groups. The equal right principle should also inform what qualifies as a compelling or legitimate governmental interest within campaign finance jurisprudence, as well as whether to implement "underenforced" equal protection principles. More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. Through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges' legal and moral commitments toward the poor.

The Influence of Confessions on Guilty Pleas and Plea Discounts
Allison Redlich et al.
Psychology, Public Policy, and Law, forthcoming


The influence on confession evidence in trials is quite strong; triers of fact who hear confession evidence find these self-incriminating statements hard to ignore and in turn, vote to convict more often. However, most cases do not see the inside of a courtroom, but rather are resolved via plea bargains. In the present study, we examined how confessions, whether partial or full, influence guilty plea rates and plea discounts (the difference between sentence received at trial if convicted and sentence received as part of the plea). We coded more than 500 district attorney case files for defendant statement type (i.e., not questioned by police, questioned but denied guilt, questioned and partially confessed, questioned and fully confessed), case disposition (guilty plea, trial, dismissal), and other pertinent information (e.g., initial charges, perceived strength of evidence). We found that whereas those who denied guilt were the least likely to plead guilty, when they did plead, they enjoyed the largest plea discounts. In addition, partial and full confessors were found to be equally likely to plead guilty (both at near-ceiling levels), but partial confessors received the smallest plea discounts by far. Our findings have implications for theories of remorse and punishment, and plea decision-making.

Cass Sunstein
Harvard Working Paper, October 2017


Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory - for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off-limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no helpful precedents or traditions with which to work, and because the original meaning is (at least) pretty good on the merits. These points are brought to bear on recent defenses of originalism; on conflicts between precedents and the original meaning; on conflicts between traditions and original meaning; and on nonoriginalist approaches, used shortly after ratification.

Disagreeable Rhetoric and the Prospect of Public Opposition: Opinion Moderation on the U.S. Supreme Court
Justin Wedeking & Michael Zilis
Political Research Quarterly, forthcoming


Elite rhetoric is an important aspect of democracy, and understanding why elites alter their rhetorical tone is vital to understanding the nature of public-elite interaction. In this paper, we identify the conditions under which insulated elites respond to public opinion by changing the amount of disagreeable rhetoric they emphasize. We examine Supreme Court opinions and theorize that the majority limits the use of disagreeable rhetoric - language with harsh, unpleasant, or negative connotations - in salient cases with the intention of dulling public opposition to rulings. We test our expectations on two levels, the first using a broad measure of public mood on a large sample of cases and the second using a small sample with issue-specific public opinion measures. We find that as public opinion diverges from the Court, the majority tones down its disagreeable rhetoric, but only in salient cases.

Executing Humanity: Legal Consciousness and Capital Punishment in the United States, 1915-1940
Daniel LaChance
Law and History Review, November 2017, Pages 929-976


From the 1830s to the 1930s, elites across the United States increasingly privatized executions and standardized execution protocols. These changes reflected and reinforced a more bureaucratic image of the state as an abstract entity run by professionals operating in rule-bound roles rather than particular actors governing in an unsystematic way. After this period of change, the aesthetics of the execution ceremony had so thoroughly changed that the death penalty had the potential to inspire critiques of the modern state as cold, detached, and callous. It rarely did, however. Changes to state killing threatened to diminish the recognition of human dignity in the nation's execution chambers were countered by melodramatic popular renderings of executions that preserved their sacred, traditional character. Toward the end of this period of change, from 1915 to 1940, playwrights, screenwriters, and journalists maintained executions as events in which the humanity of the state that killed and the condemned who died was constantly foregrounded, even as execution modes and protocols became rationalized and machine-like. Reflecting this ethos, images of condemned men in the nation's collective imagination became disproportionately white.

Race-Crime Congruency Effects Revisited: Do We Take Defendants' Sexual Orientation Into Account?
Christopher Petsko & Galen Bodenhausen
Social Psychological and Personality Science, forthcoming


Decades ago, social psychologists documented a juror decision-making bias called the race-crime congruency effect: a tendency to condemn Black men more than White men for stereotypically Black crimes but to do the reverse for stereotypically White crimes. We conducted two high-powered experiments (N = 2,520) to see whether this pattern replicates and to examine whether it is attenuated when the defendant is gay. When participants reported on what the average American juror would do (Experiment 1), we observed greater harshness toward Black defendants accused of stereotypically Black crimes but not the previously documented reversal for stereotypically White crimes. Defendant sexual orientation did not moderate this pattern. When participants reported their own judgments about the same criminal cases (Experiment 2), they expressed greater harshness toward White (vs. Black) defendants and toward heterosexual (vs. gay) defendants. These effects were not moderated by crime type. Implications for the race-crime congruency effect are discussed.

Disproportionate minority contact in the juvenile justice system: An investigation of ethnic disparity in program referral at disposition
Nordia Campbell et al.
Journal of Ethnicity in Criminal Justice, forthcoming


Historically, minority youth have experienced harsher punishments and more negative outcomes than White youth even when risk assessment is used. The current study investigated the role of ethnicity in an understudied dispositional decision - program referral - and the outcomes associated with said referral using a sample of juvenile offenders (N = 2,678). The study used the Youth Level of Service/Case Management Inventory (YLS/CMI) to determine (1) if ethnicity predicted program referral when accounting for risk assessment and (2) if program referral predicted recidivism. Results indicated that ethnicity predicted program referral, and program referral predicted recidivism. Future directions for Disproportionate Minority Contact (DMC) research and implications for court officials are discussed.

Corporate lobbying and labor relations: Evidence from employee-level litigations
Omer Unsal, Kabir Hassan & Duygu Zirek
Journal of Corporate Finance, October 2017, Pages 411-441


In this study, we analyze employee litigation and other work-related complaints to examine if the judicial process favors firms that engage in lobbying. We gather data for 27,794 employee lawsuits (after their initial court hearings) filed between 2000 and 2014 and test the relationship between employee allegations and firms' lobbying strategies. We find that employee litigation increases the number of labor-related bills in our sample. We document that an increase in employee lawsuits may drive firms into lobbying to change policy proposals. We also find robust evidence that case outcomes are different for lobbying firms compared to non-lobbying rivals, which may protect shareholder wealth in the long run. Our results suggest lobbying activities may make a significant difference in the effects of employee lawsuits. Our findings highlight the benefit of building political capital to obtain biased outcomes in favor of politically connected firms.

Framed? Judicialization and the Risk of Negative Episodic Media Coverage
Jeb Barnes & Parker Hevron
University of Southern California Working Paper, October 2017


Activists on the left and the right have increasingly turned to the courts to make policy, raising questions about the potential risks of judicialization. One possibility is that litigation is more prone to negative episodic media coverage than alternative modes of policymaking. Using across and within-policy area comparisons of stories about the Federal Black Lung Program, collective asbestos litigation strategies, and individual asbestos tort suits, we find that coverage becomes steadily more episodic and critical as it focuses on policy regimes that feature increasing amounts of adversarial legalism. Moreover, even the broadest coverage of asbestos litigation fails to explain why victims of asbestos turned to the courts, how powerful interests constrained their policy options, or how judges urged Congress to act. This limited and relatively critical anecdotal reporting implies that litigation may engender less favorable media coverage than its alternatives and that activists should weigh this risk when deciding to litigate.

Consumer Litigation Funding and Medical Malpractice Litigation: Examining the Effect of Rancman v. Interim Settlement Funding Corporation
Jean Xiao
Journal of Empirical Legal Studies, December 2017, Pages 886-915


Consumer litigation funding, a growing industry in the United States, is an alternative credit source for cash-strapped tort plaintiffs. Financiers give plaintiffs nonrecourse loans that are premised on lawsuit outcomes. This article is the first to empirically examine the effect of consumer litigation funding. Specifically, I explore the impact of nonrecourse loans on medical malpractice litigation outcomes by exploiting the variation in timing and geography from two Ohio policy changes: the Ohio Supreme Court's 2003 ban of funding in Rancman v. Interim Settlement Funding Corporation and the state's subsequent legislative legalization of funding in 2008. Using closed-claim data from the National Practitioner Data Bank, I find evidence that the availability of funding increases claim payment and claim duration.

Variation in Boilerplate: Rational Design or Random Mutation?
Stephen Choi, Mitu Gulati & Robert Scott
American Law and Economics Review, forthcoming


Standard contract doctrine presumes that sophisticated contracting parties choose their terminology carefully because they want courts or counterparts to understand the precise meaning they intend to convey. The implication of this "rational design" model of commercial contracting behavior is that courts should pay close attention to the plain or ordinary meaning of the language in a standardized term and interpret observed changes in terminology as embodying new meaning that varies from the original formulation. Using a study of the sovereign bond market, we examine the rational design model as applied to standard-form contracting. In NML v. Argentina, federal courts in New York attached great weight to the precise phrasing of the boilerplate contract terms at issue. The industry promptly condemned the decision for endorsing a supposedly erroneous interpretation of a variant of a hoary boilerplate clause. Utilizing data on how contracting practices responded to the courts' decisions, we ask whether the market response indicates that parties in fact intended the variations in their standard contract language to embody different meanings. The data support a model of evolution of boilerplate language that is closer to random mutation rather than rational design.

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