Of Counsel
Measuring Lawyer Well-Being Systematically: Evidence from the National Health Interview Survey
Yair Listokin & Ray Noonan
Journal of Empirical Legal Studies, forthcoming
Abstract:
Conventional wisdom says that lawyers are uniquely unhappy. Unfortunately, this conventional wisdom rests on a weak empirical foundation. The “unhappy lawyers” narrative relies on nonrandom survey data collected from volunteer respondents. Instead of depending on such data, researchers should study lawyer mental health by relying on large microdata sets of public health data, such as the National Health Interview Survey (NHIS) administered by the U.S. Centers for Disease Control. The NHIS includes data from 100-200 lawyers per year. By aggregating years, an adequate sample size of lawyers can readily be obtained, with much greater confidence that the lawyers in the sample resemble the true population of U.S. lawyers. When we examine the NHIS data, we find that, contrary to the conventional wisdom, lawyers are not particularly unhappy. Indeed, they suffer rates of mental illness much lower than the general population. Lawyer mental health is not significantly different than the mental health of similarly-educated professionals, such as doctors and dentists. Rates of problematic alcohol use among lawyers, however, are high, even when compared to the general population. Moreover, problematic use of alcohol among lawyers has grown increasingly common over the last fifteen years. These sometimes surprising and nuanced findings demonstrate the value of relying on more reliable data such as the NHIS.
Judicial Selection and Criminal Punishment: Trial Court Elections, Sentencing, and Incarceration in the States
Travis Taylor
Journal of Law and Courts, forthcoming
Abstract:
This paper develops and tests a theory that states with elections for trial judge retention will be more punitive than states without elections. Leveraging a dataset previously unused in the judicial politics literature, I estimate time-series regressions of state sentencing and incarceration rates over a 38-year period while distinguishing between types of elections to establish support for the theory. I find that states where trial judges are re-elected are generally more punitive than states without judicial elections, and this punitiveness is in response to the public's ideological preferences, indicating that elections serve as an important judicial accountability mechanism for citizens.
Pretrial Detention and the Value of Liberty
Megan Stevenson & Sandra Mayson
University of Virginia Working Paper, February 2021
Abstract:
How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous — and which has looked to algorithmic risk assessments to quantify danger — has brought this question to the fore. Constitutional doctrine authorizes pretrial detention when the government’s interest in safety “outweighs” an individual’s interest in liberty, but it does not specify how to balance these goods. If detaining ten presumptively innocent people for three months is projected to prevent one robbery, is it worth it? This Article confronts the question of what degree of risk justifies pretrial preventive detention if one takes the consequentialist approach of current law seriously. Surveying the law, we derive two principles: 1) detention must avert greater harm (by preventing crime) than it inflicts (by depriving a person of liberty) and 2) prohibitions against pretrial punishment mean that the harm experienced by the detainee cannot be discounted in the cost-benefit calculus. With this conceptual framework in place, we develop a novel empirical method for estimating the relative harms of incarceration and crime victimization that we call “Rawlsian cost-benefit analysis”: a survey method that asks respondents to choose between being the victim of certain crimes or being jailed for varying time periods. The results suggest that even short periods of incarceration impose grave harms, such that a person must pose an extremely high risk of serious crime in order for detention to be justified. No existing risk assessment tool is sufficient to identify individuals who warrant detention. The empirical results demonstrate that the stated consequentialist rationale for pretrial detention cannot begin to justify our current detention rates, and suggest that the existing system veers uncomfortably close to pretrial punishment. The degree of discord between theory and practice demands a rethinking of pretrial law and policy.
Cognitive bias in forensic pathology decisions
Itiel Dror et al.
Journal of Forensic Sciences, forthcoming
Abstract:
Forensic pathologists’ decisions are critical in police investigations and court proceedings as they determine whether an unnatural death of a young child was an accident or homicide. Does cognitive bias affect forensic pathologists’ decision‐making? To address this question, we examined all death certificates issued during a 10‐year period in the State of Nevada in the United States for children under the age of six. We also conducted an experiment with 133 forensic pathologists in which we tested whether knowledge of irrelevant non‐medical information that should have no bearing on forensic pathologists’ decisions influenced their manner of death determinations. The dataset of death certificates indicated that forensic pathologists were more likely to rule "homicide" rather than "accident" for deaths of Black children relative to White children. This may arise because the base‐rate expectation creates an a priori cognitive bias to rule that Black children died as a result of homicide, which then perpetuates itself. Corroborating this explanation, the experimental data with the 133 forensic pathologists exhibited biased decisions when given identical medical information but different irrelevant non‐medical information about the race of the child and who was the caregiver who brought them to the hospital. These findings together demonstrate how extraneous information can result in cognitive bias in forensic pathology decision‐making.
Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr
Logan Sawyer
Journal of Policy History, January 2021, Pages 32-59
Abstract:
Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other conservative southerners explain to outsiders and to themselves why they shifted from support for an interventionist state powerful enough to enforce segregation to an ideology founded on individual rights and liberty. It thus eased the South’s integration with the emerging New Right.
Race, Ambivalent Sexism, and Perceptions of Situations When Police Shoot Black Women
Jazmin Brown-Iannuzzi et al.
Social Psychological and Personality Science, forthcoming
Abstract:
The current research investigates people’s attitudes toward an ambiguous situation of police violence against a woman suspect. We hypothesize that the suspect’s race and participants’ ambivalent sexism, particularly benevolent sexism, will jointly inform perceptions of the suspect’s femininity, and in turn, perceptions of the suspect’s pain, judgments of who is to blame, and perceptions the officer was justified in using force against the suspect. Across two studies, we found support for our hypotheses: participants who reported more benevolent sexism thought the suspect were more feminine, but this association was only present when the suspect was White, as opposed to Black. Perceived femininity, in turn, predicted perceptions the suspect felt more pain, was less blameworthy for the situation, and perceptions that the officer’s use of force was less justified (Study 2).
Slow lies: Response delays promote perceptions of insincerity
Ignazio Ziano & Deming Wang
Journal of Personality and Social Psychology, forthcoming
Abstract:
Evaluating other people’s sincerity is a ubiquitous and important part of social interactions. Fourteen experiments (total N = 7,565; 10 preregistered; 11 in the main article, three in the online supplemental materials; with U.S. American and British members of the public, and French students) show that response speed is an important cue on which people base their sincerity inferences. Specifically, people systematically judged slower (vs. faster) responses as less sincere for a range of scenarios from trivial daily conversations to high stakes situations such as police interrogations. Our findings suggest that this is because slower responses are perceived to be the result of the responder suppressing automatic, truthful thoughts, and fabricating a novel answer. People also seem to have a rich lay theory of response speed, which takes into account a variety of situational factors. For instance, the effect of response delay on perceived sincerity is smaller if the response is socially undesirable, or if it can be attributed to mental effort. Finally, we showed that explicit instructions to ignore response speed can reduce the effect of response speed on judgments on sincerity. Our findings not only help ascertain the role of response speed in interpersonal inference making processes, but also carry important practical implication. In particular, the present study highlights the potential effects that may be observed in judicial settings, because the response speed of innocent suspects may mislead people to judge them as insincere and hence guilty.
The Role of Place and Sociodemographic Characteristics on the Issuance of Temporary Civil Protection Orders
Anne Groggel
Law & Society Review, March 2021, Pages 38-69
Abstract:
Civil protection orders are one of the most widely used legal interventions for intimate partner violence. Every American state has legislation that allows victims to seek legal remedies through protection orders such as preventing abusers from contacting them, requiring perpetrators to stay away from specific locations, and ordering removal of firearms. However, judges do not grant every petition for a protection order. This study analyzed over 1000 civil protection order cases from Nebraska to identify how factors not prescribed in the legal statute contribute to a determination of whether victims receive protection. The results suggest that victims' gender and the counties in which they file influence victims' chances of obtaining a protection order. Male victims, victims with children with their abuser, and married victims are significantly less likely to receive protection orders, even after controlling for the severity, recency, and type of abuse. Both male and female victims who file their cases in metropolitan counties are more likely to receive protection orders than their nonmetropolitan counterparts.
The Costs of Going Global: Lower Court Response to Constitutional Cross-Fertilization
Maureen Stobb
Journal of Law and Courts, forthcoming
Abstract:
Supreme Court influence depends greatly on the responses of lower court judges to its precedent. Justices employ numerous strategies to obtain lower court deference to their decisions, including the provocative practice of relying upon foreign law. Referred to as “constitutional cross-fertilization” when used in constitutional interpretation, this practice is labelled by critics as a threat to American democracy. Research suggests that the Court uses such references strategically to prop up controversial and ideologically charged decisions, and that they obtain a benefit in the form of increased citations. These studies do not tell us if the Court gains lower court deference. I contend that, in constitutional cases, lower court judges will not find reliance upon such sources persuasive; rather, they will regard these references with disdain. My findings support my argument. Contrary to the justices’ intentions, reliance upon foreign law in constitutional cases is associated with an increased probability of negative, as opposed to positive, treatment. Justices incur significant costs from participating in the global rights dialogue.
Judge, jurors, and gendered instructions to disregard evidence: Stereotype-congruent judicial instructions increase compliance
Mark Oakes et al.
Psychology, Crime & Law, forthcoming
Abstract:
An umbrella study, consisting of two university samples (N = 196), examined mock jurors’ decisions after being presented with a trial summary (and accompanying audio) about the murder of the defendant’s wife and neighbor. As part of the simulated trial, jurors were asked to disregard incriminating, but unreliable, wiretap evidence from a judge who was male or female. When the judge simply admonished jurors to disregard the evidence, participants in the female judge condition were more likely to rate the defendant as guilty compared to the male judge condition, suggesting the former considered the inadmissible evidence more. However, this pattern was reversed when, in addition to the disregard instruction, an collaborative explanation for why one should disregard the evidence was provided: specifically, participants in the female judge condition rated the defendant as less guilty than those in the male judge condition. These findings suggest that gender-congruent behaviors (i.e. female judge providing a collaborative explanation) by an individual occupying an incongruent social role may elevate that individual’s level of authority.
Swineherds and Hogs on Ice: Leadership Impacts for State Chief Judges
Thomas Gray & Banks Miller
American Politics Research, forthcoming
Abstract:
Chief judges stand as visible leaders of their courts. Analyses of the Supreme Court focus on the role of the chief justice as an institution-builder seeking out public-facing consensus to protect Court legitimacy. Studying the powers of chief judges and political leadership in general is difficult. Analyzing all 50 states over 16 years we find no evidence that the identity of chief judges explains consensus behavior any better than random chance. This is true even among the subset of chief judges with additional institutional powers like opinion assignment. We show that court structures explain consensus, while leader features do not. Being chief judge correlates with an elevated likelihood of being in the majority, particularly in cases decided by one vote. These results add to our understanding of leadership on courts and imply that the office of chief judge at the state level is more symbolic than uniquely powerful.