Precedent setting

Kevin Lewis

February 26, 2016

Judicial Retirements and the Staying Power of U.S. Supreme Court Decisions

Stuart Minor Benjamin & Georg Vanberg

Journal of Empirical Legal Studies, March 2016, Pages 5–26

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique data set of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the justices who supported a decision retire from the Court. Importantly, this effect exists over and above the impact of retirements on the ideological makeup of the Supreme Court.


Hypothetical Sentencing Decisions Are Associated With Actual Capital Punishment Outcomes: The Role of Facial Trustworthiness

John Paul Wilson & Nicholas Rule

Social Psychological and Personality Science, forthcoming

Recent research has highlighted a relationship between perceptions of trustworthiness from faces and capital sentencing outcomes. Here, we extended those findings by replicating the relationship between trustworthiness and the death penalty among a new sample of targets convicted of capital murder in Arkansas and by demonstrating that facial trustworthiness guides naive sentencing decisions. First, trustworthiness differentiated convicted murderers sentenced to life from those sentenced to death using a novel stimulus population. Next, we found experimental evidence that people used inferences of trustworthiness from faces when making hypothetical capital sentencing judgments for noncriminal targets presented as murderers. Finally, naive participants viewing photographs of actual convicted criminals without any additional information allocated hypothetical sentences that matched those that were actually received in court. Facial trustworthiness, but not other inferences (i.e., Afrocentricity, attractiveness, and maturity), accounted for this relationship. These data therefore suggest that perceptions of trustworthiness guide individuals’ decisions about legal punishment.


Does the Chief Justice Make Partisan Appointments to Special Courts and Panels?

Maxwell Palmer

Journal of Empirical Legal Studies, March 2016, Pages 153–177

The Chief Justice of the Supreme Court has the exclusive and independent power to appoint federal judges to various special courts and panels, including the Foreign Intelligence Surveillance Court (FISC), the court that oversees all domestic surveillance for national security, including domestic data collection by the National Security Agency (NSA). This article examines the propensity of Chief Justices to appoint co-partisan judges to these panels. Such appointments may serve to produce decisions and policies that align with the Chief Justice's preferences. I use computational simulations to model the appointment decisions made by Chief Justices. I find that there is less than a 1 percent chance that a neutral Chief Justice would appoint as many Republicans to the FISC as have been appointed in the last 36 years. I further show that the Chief Justice is not selecting appointees on other observable judicial characteristics, such as age, experience, gender, senior status, or caseload. These results have important implications for the creation of judicial institutions, the internal politics of the judiciary, legislative delegation, and the powers and oversight of the national security state.


Keep It Secret, Keep It Safe: An Empirical Analysis of the State Secrets Doctrine

Daniel Cassman

Stanford Law Review, May 2015, Pages 1173- 1217

The state secrets doctrine provides both an evidentiary privilege and a categorical bar against litigation that implicates national security concerns. The U.S. government has invoked the state secrets doctrine to insulate certain programs, including rendition and surveillance operations, from oversight by the courts. Despite a surge of interest in the state secrets doctrine after September 11, 2001, few scholars have used statistical analysis to evaluate courts’ treatment of the issue. This Note employs a dataset containing over 300 state secrets cases — larger and more complete than in any previous statistical study — to explore state secrets jurisprudence. I find that the state secrets doctrine has been asserted much more frequently after September 11 than it was before. However, in cases to which the government is a party, courts tend to uphold and deny those assertions at roughly the same rate. In litigation between private parties, courts have mostly avoided ruling on state secrets issues since September 11, a dramatic change from the pre-September 11 era. I also identify and analyze two other important trends: First, courts appear to be more skeptical of state secrets claims in Fourth Amendment cases than in most other types of cases. Second, criminal defendants have particular difficulty in overcoming state secrets privilege claims, especially after September 11. Through case analysis, I conclude that the data alone reveal no obvious abuse of the state secrets doctrine by either the executive or the judiciary. Nonetheless, the frequency with which courts uphold the government’s invocation of the state secrets privilege, and the circumstances under which they do so, suggest that the state secrets doctrine often conflicts with some of our most fundamental democratic principles.


Judges, Juveniles and In-group Bias

Briggs Depew, Ozkan Eren & Naci Mocan

NBER Working Paper, February 2016

We investigate the existence of in-group bias (preferential treatment of one’s own group) in court decisions. Using the universe of juvenile court cases in a U.S. state between 1996 and 2012 and exploiting random assignment of juvenile defendants to judges, we find evidence for negative racial in-group bias in judicial decisions. All else the same, black (white) juveniles who are randomly assigned to black (white) judges are more likely to get incarcerated (as opposed to being placed on probation), and they receive longer sentences. Although observed in experimental settings, this is the first empirical evidence of negative in-group bias, based on a randomization design outside of the lab. Explanations for this finding are provided.


A Critical Examination of “Being Black” in the Juvenile Justice System

Jennifer Peck & Wesley Jennings

Law and Human Behavior, forthcoming

The current study examined the role of race in juvenile court outcomes across 3 decision-making stages. This analysis was conducted with a random sample of all delinquent referrals in a Northeast state from January 2000 through December 2010 (N = 68,188). In addition to traditional logistic regression analysis, a propensity score matching (PSM) approach was utilized to create comparable samples of Black and White youth and provide a more rigorous methodological test of the relationship between race and juvenile court processing. Results indicated that even after the use of PSM techniques, race was still found to influence the likelihood of intake (OR = 1.54; 95% C.I. = 1.48–1.62, p < .001), adjudication (OR = 0.80; 95% C.I. = 0.76–0.84, p < .001), and disposition (OR = 1.64; 95% C.I. = 1.54–1.76, p < .001) outcomes. The findings show that Black youth received disadvantaged court outcomes at 2 of the 3 stages, even after balancing both groups on a number of confounders. Black youth were treated harsher at intake and judicial disposition, but received leniency at adjudication compared with similarly situated Whites. These relationships were the most evident at the stage of judicial disposition. The findings impact both researchers’ and policymakers’ strategies to more fully understand the complex relationship between race and social control. They also reaffirm the noticeable role that selection bias can play in the research surrounding race differences in juvenile court outcomes, and highlight the importance of utilizing a more stringent statistical model to control for selection bias.


The Intersection of Crime Seriousness, Discretion, and Race: A Test of the Liberation Hypothesis

William Hauser & Jennifer Peck

Justice Quarterly, forthcoming

Spohn and Cederblom’s interpretation of the liberation hypothesis asserts that with trivial crimes, judges are “liberated” to consider extra-legal attributes such as race when making sentencing decisions. The current study posits that this perspective may be too theoretically simplistic because it fails to distinguish between the concepts of discretion and uncertainty. In light of this argument, we examine the sentencing decisions of felony cases in the Florida circuit courts. Results indicate that blacks and Hispanics are more likely to be imprisoned than whites, and males more so than females. Contrary to expectations, this disparity increases with crime seriousness. Consistent with the imprisonment model, blacks and males receive longer sentences and the effect increases with case seriousness. We found no evidence that the effect of offender extra-legal attributes depends upon the characteristics of the judges handling the cases. Suggestions for future research and implications for the liberation hypothesis are discussed.


Why are There So Few Conservatives and Libertarians in Legal Academia? An Empirical Exploration of Three Hypotheses

James Phillips

Harvard Journal of Law and Public Policy, Winter 2016, Pages 153-207

There are few conservatives and libertarians in legal academia. Why? Three explanations are usually provided: the Brainpower, Interest, and Greed Hypotheses. Alternatively, it could be because of Discrimination. This paper explores these possibilities by looking at citation and publication rates by law professors at the 16 highest-ranked law schools in the country. Using regression analysis, propensity score matching, propensity score reweighting, nearest neighbor matching, and coarsened exact matching, this paper finds that after taking into account traditional correlates of scholarly ability, conservative and libertarian law professors are cited more and publish more than their peers. The paper also finds that they tend to have more of the traditional qualifications required of law professors than their peers, with a few exceptions. This paper indicates that, at least in the schools sampled, conservative and libertarian law professors are not few in number because of a lack of scholarly ability or professional qualifications. Further, the patterns do not prove, but are consistent with, a story of discrimination. The downsides to having so few conservatives and libertarians in the legal academy are also briefly explored.


An Evaluation of the Federal Legal Services Program: Evidence from Crime Rates and Property Values

Jamein Cunningham

Journal of Urban Economics, March 2016, Pages 76–90

This paper uses the city-level roll-out of legal service grants to evaluate their effects on crime. Using Uniform Crime Reports from 1960 to 1985, the results show that there is a short-run increase of 7 percent in crimes reported and a 16 percent increase in crimes cleared by arrest. Results show an increase in the staffing of police officers in cities that received legal services. These cities are also associated with having higher median property values 10 years later. This supports the narrative that legal services changed police behavior through litigation or threats of litigation.


Nuclear Fallout: Investigating the Effect of Senate Procedural Reform on Judicial Nominations

Christina Boyd, Michael Lynch & Anthony Madonna

The Forum, December 2015, Pages 623–641

On November 21, 2013, U.S. Senate Democrats utilized the long threatened “nuclear option,” thereby allowing a simple-majority of the chamber to end debate on lower federal court judicial nominations. Formal theory predicts that this change should permit the president to nominate more ideologically extreme nominees. By comparing President Obama’s nominees before and after the Senate’s change to the confirmation process, we are able to provide the first comprehensive examination of how the nuclear option is likely to impact the ideological makeup of the lower federal courts. We additionally examine the impact of the nuclear option on time to confirmation and nominee success. Our results indicate, while post-nuclear option nominees are not significantly more liberal, they are being confirmed more often and more quickly, allowing Obama and Senate Democrats to more efficiently fill the federal judiciary with Democratic-leaning judges.


Is the Expert Admissibility Game Fixed?: Judicial Gatekeeping of Fire and Arson Evidence

Rachel Dioso-Villa

Law & Policy, January 2016, Pages 54–80

Anecdotal evidence claims that in criminal cases, trial judges admit the prosecution's expert witnesses more readily than the defendants', and in civil cases the reverse is true; judges exclude plaintiffs' experts more often than civil defendants' experts. This occurs despite the fact that, with few exceptions, the same rules of admissibility apply to all parties and, in most jurisdictions, across criminal and civil cases. This article empirically tests this differential by reviewing judicial decisions to admit or exclude evidence holding the type of expert testimony constant, fire and arson evidence, across criminal and civil cases in the United States. The study examines the admissibility of fire and arson investigation experts in criminal and civil cases across all legal parties in fifty-seven federal and state opinions in the United States. The findings offer empirical support of a bias in criminal cases and in civil cases which present expert witnesses at trial, and is less pronounced, but still evident, on appeal. Specifically, the role of the party that offers the evidence has a profound effect on whether arson evidence is admitted, even when factors around the judge's political affiliation, attorney experience, expert qualifications, and rules of evidence are taken into account.


Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence

Adam Feldman

University of Southern California Working Paper, February 2016

Who are the most successful attorneys in the Supreme Court? A novel way to answer this question is by looking at attorneys' relative influence on the course of the law. This article performs macro and micro-level analyses of the most successful Supreme Court litigators by examining the amount of language shared between nearly 9,500 Supreme Court merits briefs and their respective Supreme Court opinions from 1946 through 2013. The article also includes analyses of the most successful law firms according to the same metric.


The influence of pretrial exposure to community outrage and victim hardship on guilt judgments

David Zimmerman et al.

Psychology, Crime & Law. forthcoming

Although the courts have explicitly expressed concerns about the effects of public sentiment on juries in highly publicized cases, no research has isolated the degree to which jurors’ exposure to community outrage and/or prospective social interactions in the community independently influence judgments of guilt. In the current research, jury eligible undergraduates were randomly assigned to conditions in a 2 (negative defendant facts pretrial publicity (PTP): present vs. absent) × 2 (community outrage PTP: present vs. absent) × 2 (anticipated social interaction: present vs. absent) between subjects factorial design. In an online session, participants read articles containing PTP (or not), and two days later they arrived at the lab to serve as mock jurors in a murder case – before the trial they were instructed (or not) that they would interact with people from the community in which the case was taking place. Neither PTP containing extra-evidentiary facts about the defendant nor prospective interaction with the community had main or interactive effects on guilt measures; however, mock jurors rated the defendant as more likely to be guilty when they read information about community outrage and hardships on victims. These findings suggest future avenues of PTP research focusing on community outrage and victim impacts.


Sentencing discretion and burdens of proof

Alexander Lundberg

International Review of Law and Economics, June 2016, Pages 34–42

In the US, judges typically retain sentencing discretion in criminal cases, but in some states this discretion is given to juries. One criticism of jury sentencing is that jurors will be tempted to issue “compromise verdicts,” where they return a guilty verdict but a light sentence when they are uncertain about the facts of a case. A simple expected utility model shows that any fact finder with sentencing discretion should engage in behavior that is observationally equivalent to a compromise verdict. Intuitively, the fact finder chooses a more lenient sentence than the punishment that fits the crime because he wants to mitigate the potential cost of a wrongful conviction; in turn, a lower cost of a wrongful conviction leads him to reduce his standard of proof. Although critics of jury sentencing intuit the risk of compromise, a bench trial poses the same risk for a judge. Alternatively, the jury trial format (jury verdict, judge sentence) can lessen the risk of compromise if juries are denied punishment information.


Measuring Precedent in a Judicial Hierarchy

Matthew Hitt

Law & Society Review, March 2016, Pages 57–81

Identifying the U.S. Supreme Court's most influential precedents is integral to understanding its impact on society. To make these identifications, scholars often analyze the network of citations in Supreme Court opinions. I contend that the broader jurisprudential significance of precedent can be better captured by considering how frequently a precedent is followed across the federal judicial hierarchy. In support of this contention, I present an analysis of original data on the treatment of every Court precedent 1946–2010 in all three levels of the federal judicial hierarchy. I show that a class of complex and ambiguous precedents are followed significantly less at all levels of the hierarchy. Yet these same fractious precedents exhibit high citation rates in Supreme Court opinions. The results show that different methodological choices capture strikingly different theoretical concepts, ones that are easily conflated in the study of legal precedent.


The Influence of Defendant Immigration Status, Country of Origin, and Ethnicity on Juror Decisions: An Aversive Racism Explanation for Juror Bias

Laura Minero & Russ Espinoza

Hispanic Journal of Behavioral Sciences, February 2016, Pages 55-74

This study examined prejudicial attitudes toward immigrant defendants who vary on legal status, country of origin, and ethnicity. Three hundred twenty mock juror participants read a trial transcript that varied defendants’ immigration status (documented or undocumented), defendant country of origin (Canada or Mexico), and defendant race/ethnicity (Caucasian or Latino). Dependent measures included verdict, sentencing, culpability ratings, and trait assessments. European American mock jurors found undocumented, Latino immigrants from Mexico guilty significantly more often, more culpable, and rated this defendant more negatively on various trait measures in comparison with all other conditions. Latino mock jurors did not demonstrate ingroup favoritism or outgroup bias. This study examines aversive racism as a factor of this bias. Limitations and future directions are discussed.


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