Kevin Lewis

July 10, 2024

The evolution of judicial standards: Evidence from litigated merger trials
Jeffrey Macher et al.
Journal of Law, Economics, and Organization, forthcoming

A popular narrative suggests that, in the wake of the rise of the Chicago School, the judiciary has grown increasingly lax, making it difficult for antitrust agencies to successfully challenge mergers in court. We develop a theoretical framework to yield propositions regarding merger challenges, settlements, and outcomes under varying judicial standards. We then undertake an empirical investigation of all mergers, challenges, and litigated outcomes in the United States over 1982-2021 to test for the presence of shifting judicial standards. Contrary to the popular narrative, we find evidence that judicial standards have become increasingly pro-enforcement over the past four decades.

Original Discontent
William Magnuson
Vanderbilt Law Review, forthcoming

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution's provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law. This Article argues that "original discontent," that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community. More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution's creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.

What Occupational Licensing Requirements Protect the Public? Evidence from the Legal Profession
Kyle Rozema
Northwestern University Working Paper, May 2024

I investigate the types of occupational licensing requirements that protect the public. To do so, I employ professional discipline as a measure of harm and exploit considerable state-level variation in distinctive licensing requirements for American lawyers. Using data from 34 states between 1984 and 2019, I find evidence suggesting that the only requirements that reduce harm are those that restrict entry for certain high-risk individuals. Even with these requirements, however, it takes over a decade after a lawyer obtains a license for any noticeable reduction in harm to materialize, and the cumulative impact on harm is small in absolute terms.

Examining the causal effect of pretrial detention on case outcomes: A judge fixed effect instrumental variable approach
Stephen Koppel et al.
Journal of Experimental Criminology, June 2024, Pages 439-456

Exploiting quasi-random assignment to NYC arraignment judges with varying propensities to detain, we use a judge fixed effect instrumental variable approach to estimate the impact of pretrial detention on several case outcomes: guilty plea, conviction, and carceral sentence. We find that any period of pretrial detention increases the likelihood of a guilty plea by 23 percentage points, a conviction by 24 percentage points, and a carceral sentence by 35 percentage points. Stratified analyses show differences in the size of the effect by charge severity and race: felony defendants experienced a larger effect on all case outcomes; non-Black defendants experienced a larger effect on guilty pleas and convictions; and Black defendants experienced a larger effect on carceral sentences.

Building Non-Discriminatory Algorithms in Selected Data
David Arnold, Will Dobbie & Peter Hull
NBER Working Paper, May 2024

We develop new quasi-experimental tools to understand algorithmic discrimination and build non-discriminatory algorithms when the outcome of interest is only selectively observed. These tools are applied in the context of pretrial bail decisions, where conventional algorithmic predictions are generated using only the misconduct outcomes of released defendants. We first show that algorithmic discrimination arises in such settings when the available algorithmic inputs are systematically different for white and Black defendants with the same objective misconduct potential. We then show how algorithmic discrimination can be eliminated by measuring and purging these conditional input disparities. Leveraging the quasi-random assignment of bail judges in New York City, we find that our new algorithms not only eliminate algorithmic discrimination but also generate more accurate predictions by correcting for the selective observability of misconduct outcomes.

Representative compensation and disability claimant outcomes
Cody Tuttle & Riley Wilson
Journal of Public Economics, July 2024

Many claimants of Social Security Disability Insurance (SSDI) retain legal representation to help with the approval process. The Social Security Administration imposes strict rules on representative compensation. Representatives are only paid if claimants are awarded disability, and they are paid the lesser of 25 percent of the claimant's past due benefits or a pre-specified maximum fee ($7,200 since 2022). Because past due benefits are a function of the number of months claimants wait to be awarded, representatives face incentives to delay case resolution until past due benefits push the representative fees past the fee ceiling. We use difference-in-differences to evaluate how these incentives impact SSDI claimant wait times. After the fee ceiling increased in 2002, average wait times increased by 0.85 months among claimants for whom the fee threshold is more binding, implying a 2.6-5.6 month increase for claimants with representatives. This indicates that the structure of representative compensation does matter for case outcomes, and highlights the importance of interactions with auxiliary agents so common in modern social programs.

When Privacy Protection Goes Wrong: How and Why the 2020 Census Confidentiality Program Failed
Steven Ruggles
Journal of Economic Perspectives, Spring 2024, Pages 201-226

The US Census Bureau implemented a new disclosure control strategy for the 2020 Census that adds deliberate error to every population statistic for every geographic unit smaller than a state, including metropolitan areas, cities, and counties. This article traces the evolving rationale for the new procedures and assesses the impact of the 2020 disclosure control on data quality. The Census Bureau argues that the traditional disclosure controls used for the 2010 and earlier censuses revealed the confidential responses of millions of Americans. I argue that this claim is unsupported, and that there is no evidence that anyone's responses were compromised. The new disclosure control strategies introduce unnecessary error with no clear benefit; in fact, the new procedures may actually be less effective for protecting confidentiality than the procedures they replaced. I conclude with recommendations for minimizing disclosure risk while maximizing data utility in future censuses.


from the


A weekly newsletter with free essays from past issues of National Affairs and The Public Interest that shed light on the week's pressing issues.


to your National Affairs subscriber account.

Already a subscriber? Activate your account.


Unlimited access to intelligent essays on the nation’s affairs.

Subscribe to National Affairs.