Let the record show
Ryan Black & Ryan Owens
American Journal of Political Science, forthcoming
Abstract:
We examine whether circuit court judges sacrifice policy purity for career goals. We compare the behavior of contender judges-those most likely to be elevated to the Supreme Court-during vacancy periods with their behavior outside vacancy periods. We also examine the behavior of noncontender judges during those same times. The data show that during vacancy periods, contender judges are more likely to vote consistently with the president's preferences, to rule in favor of the United States, and to write dissenting opinions. Noncontender judges fail to evidence such behavior. These findings provide empirical support for the argument that federal judges adapt their behavior to specific audiences, and provide new avenues for research into judges' goals and the role of audiences in judicial decision making.
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Media Influence on Courts: Evidence from Civil Case Adjudication
Claire Lim
American Law and Economics Review, forthcoming
Abstract:
This paper quantitatively assesses media influence on civil case adjudication in U.S. state courts. It shows that media influence substantially mitigates disparity in damage awards across political orientation of districts. That is, in areas with frequent newspaper coverage of courts, there is little difference in damage awards between conservative and liberal districts. In contrast, in areas with little newspaper coverage, liberal districts tend to grant substantially larger damage awards than do conservative ones. This result suggests that the presence of active media coverage may enhance consistency in the civil justice system.
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Rob Tillyer, Richard Hartley & Jeffrey Ward
Criminal Justice and Behavior, forthcoming
Abstract:
Past research indicates that men and women are treated differently at the sentencing phase, but the specifics of this relationship have not been fully explicated. The current study draws on the chivalry and evil woman hypotheses to examine how a defendant's gender may interact with criminal history to affect sentence length in federal narcotics cases. Results indicate that gender's effect on sentence length is nuanced, complex, and dependent on a defendant's criminal history score; thus, conditional support is found for both the chivalry and evil woman hypotheses. Specifically, female defendants with lower criminal history scores received more lenient treatment (relative to male defendants) whereas those with higher criminal history scores received more severe sentences. These findings suggest that further exploration of interactions between extralegal and legal factors is necessary to uncover the complex ways in which gender influences court outcomes.
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Precinct or Prejudice? Understanding Racial Disparities in New York City's Stop-and-Frisk Policy
Sharad Goel, Justin Rao & Ravi Shroff
Stanford Working Paper, March 2015
Abstract:
Recent studies have examined racial disparities in stop-and-frisk, a widely employed but controversial policing tactic. The statistical evidence, though, has been limited and contradictory. We investigate by analyzing three million stops in New York City over five years, focusing on cases where officers suspected the stopped individual of criminal possession of a weapon (CPW). For each CPW stop, we estimate the ex-ante probability that the detained suspect would have a weapon. We find that in 44% of cases, the likelihood of finding a weapon was less than 1%, raising concerns that the legal requirement of "reasonable suspicion" was often not met. We further find that blacks and Hispanics were disproportionately stopped in these low hit rate contexts, a phenomenon largely attributable to lower thresholds for stopping individuals in high-crime, predominately minority areas, particularly public housing. Even after adjusting for location effects, however, we find that stopped blacks and Hispanics were still less likely than similarly situated whites to possess weapons, indicative of racial bias in stop decisions. We demonstrate that by conducting only the 6% ex-ante highest hit rate stops, one can both recover the majority of weapons and mitigate racial disparities. Finally, we develop stop heuristics that can be implemented as a simple scoring rule, and have comparable accuracy to our full statistical models.
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The Death Penalty: Should the Judge or the Jury Decide Who Dies?
Valerie Hans et al.
Journal of Empirical Legal Studies, March 2015, Pages 70-99
Abstract:
This article addresses the effect of judge versus jury decision making through analysis of a database of all capital sentencing phase hearing trials in the State of Delaware from 1977-2007. Over the three decades of the study, Delaware shifted responsibility for death penalty sentencing from the jury to the judge. Currently, Delaware is one of the handful of states that gives the judge the final decision-making authority in capital trials. Controlling for a number of legally relevant and other predictor variables, we find that the shift to judge sentencing significantly increased the number of death sentences. Statutory aggravating factors, stranger homicides, and the victim's gender also increased the likelihood of a death sentence, as did the county of the homicide. We reflect on the implications of these results for debates about the constitutionality of judge sentencing in capital cases.
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Jamie Small
Law & Society Review, March 2015, Pages 109-141
Abstract:
As public awareness of and concern about sexual victimization has increased in recent decades, stigmatization of sex offenders has also increased considerably. Contemporary sex offender policies transform discrete criminal behaviors into lifelong social identities. Although there is much debate about the efficacy and constitutionality of such policies, we know little about how the category of "sex offender" is constituted in the first place. In this article, I reveal how prosecutors and defense attorneys construct sex offenders, not as monsterous or racialized as is commonly thought, but as "lower class" men. This analysis is based on 30 in-depth interviews with prosecutors and defense attorneys in Michigan. These legal actors wield disproportionate power in defining the boundaries of criminal behaviors and individuals. That they associate sexual criminality with lower class men demonstrates yet another way that class-based inequalities are reproduced in the legal field.
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The Role of Age in Jury Selection and Trial Outcomes
Shamena Anwar, Patrick Bayer & Randi Hjalmarsson
Journal of Law and Economics, November 2014, Pages 1001-1030
Abstract:
This paper uses data from more than 700 felony trials in Florida to examine the role of age in jury selection and trial outcomes. The results imply that prosecutors are more likely to use their peremptory challenges to exclude younger members of the jury pool, while defense attorneys exclude older potential jurors. To examine the causal impact of age, we employ a research design that isolates the effect of the random variation in the age composition of the pool of eligible jurors called for jury duty. Consistent with the jury selection patterns, the empirical evidence implies that older jurors are significantly more likely to convict. Results are robust to controls for county, time, and judge fixed effects. Thus, many cases are decided differently for reasons that are completely independent of the nature of the evidence in the case - that is, there is substantial randomness in the application of criminal justice.
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Lawyers Steer Clients Toward Lucrative Filings: Evidence from Consumer Bankruptcies
Frank McIntyre, Daniel Sullivan & Laura Summers
American Law and Economics Review, forthcoming
Abstract:
Consumers often rely on lawyers to make complicated legal decisions, though in many cases the lawyer's financial interests are at odds with those of the client. We consider this general problem in the context of consumers filing for bankruptcy. Lawyers advise debtors on whether to file the cheaper Chapter 7 filing or the more expensive Chapter 13 filing. Bankruptcy courts that allow lawyers to charge more for Chapter 13 bankruptcy see a significantly larger fraction of Chapter 13 filings (elasticity of 0.3). This is true controlling for a host of demographic controls at the zip code level, as well as with state fixed effects and district policy controls. Our estimates suggest that 5.4% of cross-district variation in relative Chapter 13 rates could be eliminated by harmonizing relative fees.
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Judicial Contributions to US National Policy Change since 1945
Matt Grossmann & Brendon Swedlow
Journal of Law and Courts, Spring 2015, Pages 1-35
Abstract:
How often, at what times, and on what issues do courts directly make policy or indirectly influence policy making by other branches of government? We assess the judicial contribution to policy change using 268 policy histories covering 14 issue areas of US domestic policy making from 1945 to 2004. Contrary to the prominent view that courts are relatively inconsequential policy-making institutions, we find that federal courts made or influenced nearly one in four significant federal policy changes. Courts directly made almost as many significant policies as the executive branch and indirectly influenced about as many significant policies in other branches as Congress. We also find that judicial policy making and influence are concentrated in a few time periods and issue areas.
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Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis
Michael Greve et al.
George Mason University Working Paper, February 2015
Abstract:
This article presents an empirical analysis of the Rehnquist Court's and the Roberts Court's decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices' voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have assumed a distinctly ideological flavor. Preemption cases are much more likely to be contested than they were in earlier decades; and in those cases, once-rare judicial bloc voting has become common.
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Appellate Caseload and the Switch to Comparative Negligence
Jef De Mot, Michael Faure & Jonathan Klick
International Review of Law and Economics, June 2015, Pages 147-156
Abstract:
The switch from contributory to comparative negligence is thought to have been motivated primarily out of a concern for justice. We offer a different perspective. Language in state supreme court decisions suggests that some judges thought the switch would reduce appeal rates. We hypothesize that courts were more likely to make the switch when their appellate caseloads are relatively high. To examine this, we estimate hazard models, showing that states with appellate courts where caseloads grew relatively faster made the switch more quickly, and the effect was more pronounced for the switch to the pure, as opposed to the modified, form of comparative negligence.
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Travis Franklin
Crime & Delinquency, forthcoming
Abstract:
Numerous studies have examined the influence of offender characteristics on sentencing outcomes, yet little attention has been afforded to offenders' educational attainment. The focal concerns theory provides reason to suspect that greater educational attainment may insulate offenders from the effects of criminal stereotypes linked to extralegal factors, including race/ethnicity, age, and sex. The current analysis employs a sample of 115,674 federal offenders to test this assumption on the in/out and sentence length decisions. Results of the in/out models demonstrate a general pattern where the effects of several extralegal factors (i.e., race, ethnicity, age, sex, and detention) are reduced, and in some cases fully moderated, by offenders' educational attainment. This pattern, however, is not apparent during the sentence length decision.
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Leveling the Odds: The Effect of Quality Legal Representation in Cases of Asymmetrical Capability
Banks Miller, Linda Camp Keith & Jennifer Holmes
Law & Society Review, March 2015, Pages 209-239
Abstract:
How much does attorney quality influence the outcome of cases in which one litigant is significantly more capable than the other? Using a unique dataset of all asylum merits decision from 1990 to 2010, we find that high quality representation evens the odds for asylum applicants and that not being represented by legal counsel is actually better than being represented by a poor lawyer. In this analysis, we draw on a modified party capability theory and create new measures of attorney capability. We find that variation in attorney capability is a primary driver of the disparity in asylum outcomes in U.S. immigration courts and that a likely causal mechanism for this influence is the judge-specific reputation of an attorney.
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Adam Bonica & Maya Sen
Harvard Working Paper, January 2015
Abstract:
The American judiciary has increasingly come under attack as polarized and politicized. Using a newly collected dataset that captures the ideological positioning of nearly half a million judges and lawyers who have made campaign contributions, we present empirical evidence showing politicization through various tiers of the judicial hierarchy. We show that the higher the court, the more conservative and more polarized it becomes, in contrast with the broader population of attorneys, who tend to be liberal. These findings suggest that political actors not only appear to rely on ideology in the selection of judges, but that they strategically prioritize higher courts. To our knowledge, our study is the first to provide a direct ideological comparison across tiers of the judiciary and between judges and lawyers, and also the first to document how - and why - American courts are politicized.
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Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use
John Calhoun
Yale Law Journal, November 2014, Pages 484-526
Abstract:
Recent research argues that the increasing use of dictionaries in Supreme Court and circuit court opinions may pose risks to the legitimacy, credibility, and accuracy of federal appellate court judgments. However, it is hard to understand why dictionary use has grown so much over the last thirty years, because existing data on Justices' and judges' dictionary use is insufficient. This Note introduces a comprehensive dataset covering dictionary usage in every Supreme Court and circuit court opinion from 1950 to 2010. The dataset allows one to test leading theories about Supreme Court dictionary usage by seeing how those same theories fare in light of circuit court dictionary usage trends. Such comparisons suggest that the Supreme Court's increasing dictionary usage reflects, among other factors, fear of charges of judicial activism, the rising popularity of originalism and textualism, the persuasive power of Justice Scalia, and an increased number of criminal law cases on the Court's docket.
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From Commemoration to Conviction: Prosecuting Edgar Ray Killen for the "Mississippi Burning" Murders
Claire Whitlinger
Race and Justice, forthcoming
Abstract:
Despite the growing number of civil rights era cold cases brought to trial over the past 20 years, surprisingly little social scientific research has examined how these cases emerged. This article examines one such case - the 2005 prosecution of Edgar Ray Killen for the 1964 murder of civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner. Using event structure analysis and drawing on archival sources, media accounts, and interview data, this study finds that the trial would not have occurred without the 40th anniversary commemoration in Philadelphia, Mississippi. Furthermore, this study suggests that commemorations can serve as mechanisms connecting collective memory with broader social change by catalyzing mnemonic entrepreneurship and cultivating organizational structures and resources necessary to achieve positive legal outcomes. Such outcomes, however, can only occur when political opportunities are favorable and potential jurors have been primed through the "memory of commemoration."
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Race Differences in Drug Offending and Drug Distribution Arrests
Ojmarrh Mitchell & Michael Caudy
Crime & Delinquency, forthcoming
Abstract:
The War on Drugs' emphasis on apprehending low-level drug offenders dramatically increased the number of arrests for drug distribution and exacerbated racial and ethnic disparities in such arrests. Although these disparities have been the topic of much discussion, they rarely have been the subject of multivariate empirical scrutiny. This research examines the degree to which race differences in drug offending, nondrug offending, and community context explain race differences in the likelihood of experiencing a drug distribution arrest in a longitudinal sample of youthful respondents (age 12-29). Our results indicate that in comparison with White drug offenders, Hispanic drug offenders' greater likelihood of arrest is largely due to differences in community context; however, African Americans' greater likelihood of arrest is not explained by differences in offending or community context. The policy implications of these findings are discussed.
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U.S. Latino Arrest: An Analysis of Risk by Nativity and Origin
Mike Tapia
Hispanic Journal of Behavioral Sciences, February 2015, Pages 37-58
Abstract:
This article examines the impact of Latino nativity and origin on the risk of arrest. Survey data are used to compare the odds of arrest within and between various U.S. race-ethnic groups over one decade. Net of legal, demographic, and social correlates of arrest in teen and young adult samples, Blacks consistently experience higher odds of arrest than other groups. Puerto Rican arrest risk approximates that of Blacks while foreign-born Latinos consistently experienced a lower arrest risk than Whites. This effect was nearly indistinguishable from that of U.S.-born Latinos. The study has implications for the life-course perspective in terms of how arrest correlates change for all groups over time. For Latinos, findings also inform acculturation and segmented assimilation perspectives.
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Ryan Owens et al.
State Politics & Policy Quarterly, forthcoming
Abstract:
High-profile advocates are pushing states to move away from judicial elections and toward a "merit" method because it purportedly produces the best quality judges. Quality, however, is difficult to measure empirically. Rather than attempt to measure quality, we examine whether certain types of state supreme courts are more forward-looking than others. States are likely to desire forward-looking behavior among judges because it can protect judicial legitimacy, help states to control policy, and could be more efficient than myopic behavior. Using a recent innovation in matching called covariate-balancing propensity scores, we find that the U.S. Supreme Court is equally likely to review and reverse decisions by judges regardless of their selection or retention methods. These results suggest that state supreme court justices, no matter their paths of getting to (and staying on) their courts, are roughly equal in terms of forward-looking behavior.
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The Intersection of Victim Race and Gender: The "Black Male Victim Effect" and the Death Penalty
Alicia Girgenti
Race and Justice, forthcoming
Abstract:
Previous research on race and the death penalty has shown that victim race is a significant predictor of whether a jury imposes a death sentence. However, less attention has been given to the effects of victim gender and to the combined effects of victim race and gender. With a growing scholarly interest in intersectionality, it is crucial to consider the interaction effect of victim race and gender on death sentencing outcomes. Data from the Capital Jury Project were used to examine whether the intersection of victim race and gender is associated with an increased odds of defendants receiving a death sentence and whether a "White female victim effect" exists. This study instead reveals a significant "Black male victim" effect. Black male victim cases are the least likely to be perceived by jurors as involving brutality, heinousness, and victim suffering. Results indicate that a defendant's odds of receiving a death sentence in a White female victim case is 3.8 times greater and 3.6 times greater in a White male victim case than in a Black male victim case. Victim race rather than victim gender appears to be the factor most strongly influencing jury decision making in capital cases.
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Plaintiphobia in State Courts Redux? An Empirical Study of State Court Trials on Appeal
Theodore Eisenberg & Michael Heise
Journal of Empirical Legal Studies, March 2015, Pages 100-127
Abstract:
Prior federal and state civil appeals studies show that appeals courts overturn jury verdicts more than bench decisions and that defendants fare better than plaintiffs on appeal. Attitudinal and selection effect hypotheses may help explain an appellate court tilt that favors defendants. This study builds on and extends our prior work on state civil appeals and examines a comprehensive state court civil appeals data set to test leading theories on appellate outcomes as well as to explore the relation between plaintiff success at trial and on appeal. Using data from 40 different states and 141 counties on 8,872 completed civil trials and 646 concluded appeals, we find that appellate reversal rates for jury trials and defendant appeals exceed reversal rates for bench trials and plaintiff appeals. The reversal rate for plaintiff appeals is 21 percent, compared with 40.9 percent for defendant appeals. The reversal rate for jury trials is 33.1 percent, compared with 25 percent for bench trials. Both the attitudinal and selection effect hypotheses find some level of support in our descriptive analyses and results from more formal models. Finally, we find little correlation between how plaintiffs fare at trial and how they fare on appeal.
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Automated insights: Verbal cues to deception in real-life high-stakes lies
Sarah McQuaid et al.
Psychology, Crime & Law, forthcoming
Abstract:
This study differentiated between the language of deceptive and genuine pleaders who were pleading for the return of a missing loved one during a televised press conference. The Wmatrix (Rayson, 2008) linguistic analysis tool was used to examine the language of 78 pleaders. Approximately half (n = 35) of these individuals were deceptive and were responsible for the disappearance. Transcripts of the pleas were analyzed for various linguistic cues, and a separate analysis was conducted across gender. Results revealed that deceptive pleaders used the word 'they', singular indefinite pronouns (e.g., 'anybody', 'somebody'), and exclusivizers/particularizers (e.g., 'just') significantly more than genuine pleaders, while genuine pleaders used more temporal words (e.g., 'days', 'weeks'), and the word 'we' more frequently in their pleas. Specific gender differences were also revealed across credible and deceptive pleaders. Our analysis of linguistic differences across pleader veracity provides an enhanced understanding of the verbal elements of high-stakes deception and what differentiates truths from deceptions in high-stakes cases. It also provides further validation of the use of automated linguistic tools like the Wmatrix in forensic contexts.
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How Do Case Law and Statute Differ? Lessons from the Evolution of Mortgage Law
Andra Ghent
Journal of Law and Economics, November 2014, Pages 1085-1122
Abstract:
This paper traces the history of mortgage law in the United States. I explore the history of foreclosure procedures, redemption periods, restrictions on deficiency judgments, and foreclosure moratoria. The historical record shows that the most enduring aspects of mortgage law stem from case law rather than statute. In particular, the ability of creditors to foreclose nonjudicially is determined very early in states' histories, usually before the Civil War, and usually in case law. In contrast, the aspects of mortgage law developed through statute change more frequently. This finding calls into question whether common law is inherently more flexible than the civil-law system used in some other countries. However, case law tends to be less responsive to populist pressures than statutes. My findings suggest that the reason common law favors financial development is unlikely to be its greater flexibility relative to law made by statute.