Precedential
Ideology and Participation: Examining the Constitutional Convention of 1787
David Gelman
Political Research Quarterly, forthcoming
Abstract:
This article looks at the effect of ideology on delegate participation at the Federal Convention of 1787. Making use of an original data set on delegate verbosity and delegate speeches at the Constitutional Convention, analysis reveals that ideologically extreme Convention delegates were more likely to participate at the Convention. This leads to two conclusions. First, ideology affected delegate participation in a meaningful way. Second, claims made about the intent of the writers of the Constitution based on Convention records are biased in favor of ideologically extreme Convention delegates, as extreme delegates were more likely to be recorded.
Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals
Abbe Gluck & Richard Posner
Harvard Law Review, March 2018, Pages 1298-1373
Abstract:
This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now-boring, textualism-versus-purposivism debate. None of the judges we interviewed was willing to associate himself or herself with “textualism” without qualification. All consult legislative history. Most eschew dictionaries. All utilize at least some canons of construction, but for reasons that range from “window dressing,” to the use of canons to assist in opinion writing, to a view that they are useful decision tools. Most of the judges we interviewed are not fans of Chevron, except for the judges on the D.C. Circuit, which hears the bulk of Chevron cases. Some of the judges interviewed believe that understanding Congress is important to a judge’s work, while others do not see how judges can use such understanding to decide cases. Most express doubt that the Supreme Court’s interpretive methodology binds the lower courts. The younger judges, who attended law school and practiced during the ascendance of textualism, are generally more formalist and accepting of the canons of construction, regardless of political affiliation. The older judges are less focused on canons, take a broader view of their delegated authority, and appear to grapple more with questions of judicial legitimacy. The approach that emerged most clearly from our interviews might be described as intentional eclecticism. Most of the judges we spoke to are willing to consider many different kinds of argument and evidence, and defend that approach as the only democratically legitimate one. Yet at the same time many observe a gap between how they actually decide cases and how they write opinions, a gap they attribute to the disconnect between the expectations of the public and the realities of judicial decisionmaking.
The Constitutionality of Income-Based Fines
Alec Schierenbeck
University of Chicago Law Review, forthcoming
Abstract:
When Americans break the law — whether it’s a minor offense like littering or a serious crime like felony assault — they tend to face the same financial penalties, no matter their income. The consequence is a system that puts low-income offenders in a cycle of debt and jail while letting rich offenders break the law without financial consequence, and which fails to meet basic goals of the justice system: to treat like offenders alike, punish the deserving, and encourage respect for the law. Outside the United States, however, systems that assess fines based on earnings have been around for nearly 100 years. The most common model — known as the “day fine” — scales penalties according to a person’s daily income. These models are credited with ensuring proportionality in sentencing, improving the effectiveness of fines as a sanction, and even allowing fines to serve as an alternative to incarceration. But by their very nature, day fine systems can lead to startling results: in 2015, for instance, a €54,000 speeding ticket was assessed to a Finnish businessman caught going 65 miles per hour in a 50 zone. This article is the first in-depth attempt to examine the constitutionality of a system of income-based fines that would levy significant financial penalties on the wealthy. Ultimately, it concludes that potential constitutional obstacles — arising primarily from the Excessive Fines Clause of the Eighth Amendment — are navigable, especially if a U.S. system caps how high fines can go. As more people awaken to the burden that criminal justice debt imposes on the poor, the article suggests that now may be an opportunity for a larger reconceptualization of financial sanctions — away from the inflexible fine and toward income proportionality.
Quality of Judicial Institutions, Crimes, Misdemeanors, and Dishonesty
Naci Mocan, Samantha Bielen & Wim Marneffe
NBER Working Paper, March 2018
Abstract:
We investigate the extent to which the quality of judicial institutions has an impact on individuals’ propensity for criminal and dishonest behavior and on their views regarding the acceptability of dishonesty and law-breaking. We use micro data on residents of 25 European countries and employ alternative measures of judicial quality. Acknowledging that the quality of judicial institutions is endogenous, we employ as an instrument the procedures with which prosecutors and judges are appointed to their posts in each country. The results reveal that an increase in the quality of judicial institutions, such as an improvement in judicial independence or the impartiality of the courts, has a deterrent effect on dishonest and criminal acts. A higher quality judicial system makes individuals less likely to find acceptable a variety dishonest and illicit behaviors, suggesting that institutions help shape the beliefs of the society.
Sexual Assault Case Outcomes: Disentangling the Overlapping Decisions of Police and Prosecutors
Cassia Spohn & Katharine Tellis
Justice Quarterly, forthcoming
Abstract:
The rape reform movement of the 1970s and 1980s was designed to improve the likelihood of prosecution and conviction in sexual assault cases. However, there is evidence that the attrition rate for sexual assaults reported to the police remains high, and that the locus of case attrition is arresting and charging decisions. In this paper, we analyze police and prosecutorial decision-making in sexual assault cases using quantitative data on sexual assaults reported to the Los Angeles Police Department and the Los Angeles County Sheriff’s Department in 2008. We argue that decisions made by police and prosecutors should not be examined in isolation from one another and that researchers who analyze arrest decisions by examining only cases that are formally cleared by arrest or who focus only on charging decisions that follow the arrest of a suspect may be ignoring important aspects of police and prosecutorial decision-making. This is confirmed by the results of our study, which reveal that a significant proportion of cases in which the police appear to have probable cause to make an arrest do not result in the arrest of the suspect and that a substantial number of cases are rejected for prosecution by the district attorney before an arrest is made. Moreover, the factors that predict arrest and charging vary depending upon the way in which the outcome is operationally defined. These results have a number of important policy implications for police and prosecutors handling sexual assault cases.
Gender and Judicial Replacement: The Case of US State Supreme Courts
Nancy Arrington
Journal of Law and Courts, Spring 2018, Pages 127-154
Abstract:
Employing a matching design on US state supreme court vacancies and replacements from 1970 to 2016, I demonstrate that patterns of judicial replacement are gendered. Vacancies made by women are filled by women at a greater rate than vacancies made by men, and vacancies made by men are filled by men at a greater rate than vacancies made by women. To examine whether these patterns of replacement have systematically suppressed or advantaged the selection of women judges, I compare judicial selections to the gender composition of lawyers. Women are selected to state supreme courts at rates that parallel the gender diversity of lawyers over time, which suggests that gendered patterns of replacement have neither advantaged nor excluded women from state supreme courts in the aggregate.
Gender, expert advice, and judicial gatekeeping in the United States
Timothy O'Brien
Social Science Research, forthcoming
Abstract:
This article investigates the role of gender in decision-making by examining trial judges' decisions to admit or exclude expert witness testimony. An analysis of civil rights cases in United States district courts (n = 198) reveals that male judges are substantially more likely than females to exclude expert evidence. Importantly, this pattern cannot be attributed to other characteristics of judges, experts, or courts that may influence judges’ rulings. These findings are consistent with theories of gender, organizations, and science that suggest that women are more likely than men to consider expert advice. These results also indicate that the organizational role of trial judge may not be enough to offset the wider effects of the gender system on perceptions of experts.
Does Merit Selection Work? Evidence from Commission and Gubernatorial Choices
Greg Goelzhauser
Journal of Law and Courts, Spring 2018, Pages 155-187
Abstract:
Does merit selection work? Existing evidence on institutional performance compares outcomes of interest across selection mechanisms, which does not account for the two-stage process that makes merit selection unique. Using information obtained from public records requests, this article analyzes the determinants of commission and gubernatorial selections from relevant candidate pools. The evidence suggests that although commissions and governors seem to select on certain qualifications, women are disadvantaged at the commission stage and partisanship is relevant at both stages. The results have important implications for our understanding of merit selection’s institutional performance and the broader judicial selection debate.
Placing the Ball in Congress’ Court: Supreme Court Requests for Congressional Action
Douglas Rice
American Politics Research, forthcoming
Abstract:
The U.S. Supreme Court’s invitations for congressional action have been the subject of extensive interest but with limited empirical study. As a result, despite the obvious political implications of the cross-institutional policy and rule construction interactions, little is understood of the factors precipitating such requests or their efficacy. In this article, I propose a legal development hypothesis. Specifically, I argue invitations are useful for the majority seeking to secure their policy preferences in the law, as the invitation serves to strategically frame subsequent debate at the Court through identifying Congress as the venue for any future reversal of the majority’s policy preferences. Utilizing an original data set of Supreme Court requests for congressional action, I find strong and consistent evidence to support the legal development hypothesis. By inviting congressional action, justices structure in their favor future debates at the Court over policy intervention.
Judicial Elections, Public Opinion, and Decisions on Lower Salience Issues
Brandice Canes-Wrone, Tom Clark & Amy Semet
Princeton Working Paper, January 2018
Abstract:
Scholarship finds that in states with judicial elections, public opinion affects justices’ decisions on hot-button campaign issues such as criminal justice. Yet the literature leaves open the question of how public opinion affects judicial decisions on less salient issues, which encompass the vast majority of cases. We consider one such issue that infrequently emerges in judicial campaigns, environmental law. Specifically, we collect an original dataset of over 5000 judicial votes on nearly 900 cases heard in 39 state supreme courts from 1990-2014. Analysis of these data suggests that public opinion on the environment does not directly affect judicial decisions in any major selection system, including ones with elections. However, in the few states in which attack advertisements have criticized a justice’s votes on environment cases, public opinion affects judicial decisions following these attacks. These results contribute to a growing literature that suggests elections can reduce judges’ independence from public opinion.
Queuing Up for Justice: Prosecutor Elections and Case Backlogs
Siddhartha Bandyopadhyay & Bryan McCannon
West Virginia University Working Paper, September 2017
Abstract:
We analyze the impact of prosecutor elections on case backlogs. Previous evidence has shown that re-election pressures result in more cases going to trial. Since trials require time and resources, one can expect an effect on the queue. Two competing theories are developed: one of signaling quality in an asymmetric information environment and one of effort exertion, each of which can explain increased trials before election, but differ in their predictions regarding the impact on backlogs. A district-level, panel data set of caseload flows in North Carolina is analyzed. We present evidence that elections, and specifically contested re-elections, are associated with a decrease in the number of cases handled.
Informational Value of Challenging an Incumbent Prosecutor
Bryan McCannon
West Virginia University Working Paper, October 2017
Abstract:
Popular elections are used to select prosecutors in most U.S. states. It has been questioned whether voters have the knowledge or incentive to identify quality individuals. In 2011, New York state instituted a series of salary increases for judges. Prosecutors' salaries are tied to judicial compensation by law so that an exogenous shock arose. I develop a simple asymmetric information model where a better informed insider can choose to contest the incumbent. Theory predicts that if voters are updating beliefs in a sophisticated manner, then in equilibrium there is not an increase in the rate at which incumbents are challenged, but when they are challenged incumbents receive more electoral support. Results from the natural experiment are consistent with the theory. It is estimated that the incumbent's vote margin grows by approximately six percentage points after the salary increase and the probability an incumbent wins a contested re-election increases by 18%.