Rule of Lawyers

Kevin Lewis

January 22, 2021

Textualism and the Duck-Rabbit Illusion
Cass Sunstein
California Law Review, November 2020, Pages 463-478


Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.

Religious Exemptions Increase Discrimination Towards Same-Sex Couples: Evidence from Masterpiece Cakeshop
Netta Barak Corren
Journal of Legal Studies, forthcoming


In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple due to his religious beliefs. This article examines the behavioral effect of this decision in an experiment (N=1,155 businesses) that measured discrimination towards same-sex couples in the field of wedding services shortly before and after Masterpiece. I find that Masterpiece significantly reduced the agreement to provide services to same-sex couples as compared with heterosexual couples, even among vendors that provided this service before the decision. Considering the variety and number of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination post-Masterpiece between 61% and 85%. The effect is significantly more pronounced in religiously dense environments. These results discredit the frequently-made argument that religious exemptions will not expand discrimination. Instead, the Masterpiece experiment shows that even a narrowly construed exemption can have a significant and robust, even if inadvertent impact on a market and its customers. I discuss the implications of these results for the research on Supreme Court effects on the public.

Judicial Ideology and Business Dynamics
Mehmet Canayaz & Matthew Gustafson
Pennsylvania State University Working Paper, January 2021


Using staggered changes in U.S. circuit court ideology, we examine the effect of judicial ideology on U.S. business dynamics. We find evidence that shifts toward more liberal courts, which are commonly viewed as less pro-business, lead to immediate increases in economic turnover that persist for decades. Changes toward more liberal courts lead to more new establishments and business startups, but also more exits. On net, liberal courts lead to establishment growth and shift the composition of firms toward younger businesses and industries exposed to lower litigation, intellectual property, and labor risks.

An Experimental Investigation of the Effect of Supreme Court Justices’ Public Rhetoric on Perceptions of Judicial Legitimacy
Logan Strother & Colin Glennon
Law & Social Inquiry, forthcoming


Public support for the US Supreme Court has been trending downward for more than a decade. High-profile decisions and hotly contested nominations have drawn the Court into our polarized politics. Recently, some justices have spent considerable time and energy giving interviews, speeches, and the like, assuring the public that the Court is an apolitical, neutral arbiter of disputes, distinct from the “political” branches. In this context, we turn to an understudied potential source of judicial legitimacy: the off-bench public rhetoric of Supreme Court justices. In this article, we present evidence from three original survey experiments to argue that Supreme Court justices’ off-bench rhetoric can powerfully influence public perceptions of the Court’s institutional legitimacy. Furthermore, these studies show that performance approval is key to changes in legitimacy: respondents who disapprove of a Court decision were immune to the effects of justices’ rhetoric.

Measuring Racial Discrimination in Algorithms
David Arnold, Will Dobbie & Peter Hull
NBER Working Paper, December 2020


There is growing concern that the rise of algorithmic decision-making can lead to discrimination against legally protected groups, but measuring such algorithmic discrimination is often hampered by a fundamental selection challenge. We develop new quasi-experimental tools to overcome this challenge and measure algorithmic discrimination in the setting of pretrial bail decisions. We first show that the selection challenge reduces to the challenge of measuring four moments: the mean latent qualification of white and Black individuals and the race-specific covariance between qualification and the algorithm’s treatment recommendation. We then show how these four moments can be estimated by extrapolating quasi-experimental variation across as-good-as-randomly assigned decision-makers. Estimates from New York City show that a sophisticated machine learning algorithm discriminates against Black defendants, even though defendant race and ethnicity are not included in the training data. The algorithm recommends releasing white defendants before trial at an 8 percentage point (11 percent) higher rate than Black defendants with identical potential for pretrial misconduct, with this unwarranted disparity explaining 77 percent of the observed racial disparity in algorithmic recommendations. We find a similar level of algorithmic discrimination with regression-based recommendations, using a model inspired by a widely used pretrial risk assessment tool.

Seeking Information: When the Court Wants More
Natalie Rogol & Matthew Montgomery
Journal of Law and Courts, forthcoming


The State of the Union represents (SOTU) an opportunity for the president to share his policy goals with other political actors. Thus, the SOTU can proxy how much information the Court has about executive preferences when receiving a case. We find that the less time a president devotes to a policy area the more likely the Court is to issue a request for a brief in a case dealing with that issue area. This finding indicates that the Court is cognizant of presidential signals of policy preferences and actively seeks to supplement their understanding of the executive’s preferences.

Law and (rec)order: Updating memory for criminal events with body-worn cameras
Delene Adams, Helen Paterson & Hamish MacDougall
PLoS ONE, December 2020


Body-worn video is increasingly relied upon in the criminal justice system, however it is unclear how viewing chest-mounted video may affect a police officer’s statement about an event. In the present study, we asked whether reviewing footage from an experienced event could shape an individual’s statement, and if so, whether reporting before reviewing may preserve an officer’s original experience. Student participants (n = 97) were equipped with chest-mounted cameras as they viewed a simulated theft in virtual reality. One week later, half of the participants recalled the event in an initial statement while the other half did not. Participants then viewed either their body-worn video or a control video. Finally, participants provided their statement (no initial statement condition) or were given the opportunity to amend their original account (initial statement condition). Results revealed that viewing body-worn video enhanced the completeness and accuracy of individuals’ free recall statements. However, whilst reviewing footage enabled individuals to exclude errors they had written in their initial statements, they also excluded true details that were uncorroborated by the camera footage (i.e., details which individuals experienced, but that their camera did not record). Such camera conformity is discussed in light of the debate on when an officer should access their body-worn video during an investigation and the influence of post-event information on memory.

Do Elections Encourage Public Actors to be More Responsive?
Bryan McCannon & Corey Williams
West Virginia University Working Paper, November 2020


In the U.S. many public services are provided by individuals who are selected in local elections. The incentives created by the election mechanism are relatively understudied. One of these public actors is the prosecutor. The U.S. is unique in the world in its use of popular elections to select and retain local prosecutors. They exercise an enormous amount of discretion, and the election mechanism serves as the primary accountability tool. Critics point to voters' poor information, weak incentives to become informed, and insufficient knowledge to properly evaluate as arguments against the ability of elections to properly incentivize prosecutors to do their job well. Nevertheless, empirical research has documented important distortions in prosecutorial decision making close to election periods. This has called into question further the institution's appropriateness. Here, we ask whether elections at least encourage local prosecutors to be responsive to citizens. We design a novel field experiment where we send an information request to a randomly selected sample of offices in the country. Whether the office responds to the request is our measurement of responsiveness. We show that offices whose head is up for re-election in 2020 are more likely to respond than offices led by prosecutors not up for re-election this year. We also show that offices in states that appoint their local prosecutors are substantially less likely to respond than a matched, similar set of offices in states that use popular elections. Thus, we provide evidence that the election mechanism encourages public actors to be more responsive.

Delegation in a multi-tier court system: Are remands in the U.S. federal courts driven by moral hazard?
Roee Sarel & Melanie Demirtas
European Journal of Political Economy, forthcoming


Appellate judges face a trade-off when deciding whether to remand cases: delegating the decision power enables to transfer effort costs to the lower court, but may be costly in terms of ideological preferences and reputation costs. Our empirical analysis of federal cases reveals that this trade-off creates a ‘Subsequent Remand Effect’: cases remanded by the Supreme Court to appellate courts are far more likely to be subsequently remanded to district courts, compared to other cases. This effect varies with judicial ideologies, suggesting that the tendency to (subsequently) remand might be driven by moral hazard problems rather than case-relevant attributes.

Latinos' Knowledge of the Supreme Court
Francisco Pedraza & Joseph Daniel Ura
Journal of Law and Courts, forthcoming


There is convincing evidence that Americans have high, stable levels of knowledge about the Supreme Court. Yet, this conclusion masks variance in political knowledge associated with ethnicity. Using data from surveys of Latinos and non-Latinos fielded before and after the Supreme Court’s rulings in Arizona v. U.S. and National Federation of Independent Business v. Sebelius, we find Latinos know less about the Court than other Americans. However, Latinos' knowledge of the Court increased significantly between the surveys, while others' Supreme Court knowledge did not. We discuss the implications of this result for the Supreme Court’s legitimacy and civic education policy.

Who Gets a Second Chance? Effectiveness and Equity in Supervision of Criminal Offenders
Evan Rose
Quarterly Journal of Economics, forthcoming


Most convicted offenders serve their sentences under “community supervision” at home instead of in prison. Under supervision, however, a technical rule violation such as not paying fees can result in incarceration. Rule violations account for 25% of prison admissions nationally and are significantly more common among black offenders. I test whether technical rules are effective tools for identifying likely reoffenders and deterring crime and examine their disparate racial impacts using administrative data from North Carolina. Analysis of a 2011 reform reducing prison punishments for technical violations on probation reveals that 40% of rule breakers would go on to commit crimes if spared harsh punishment. The same reform also closed a 33% black-white gap in incarceration rates without substantially increasing the black-white reoffending gap. These effects combined imply that technical rules target riskier probationers overall, but disproportionately affect low-risk black offenders. To justify black probationers’ higher violation rate on efficiency grounds, their crimes must be roughly twice as socially costly as that of white probationers. Exploiting the repeat-spell nature of the North Carolina data, I estimate a semiparametric competing-risks model that allows me to distinguish the effects of particular types of technical rules from unobserved probationer heterogeneity. Rules related to the payment of fees and fines, which are common in many states, are ineffective in tagging likely reoffenders and drive differential impacts by race. These findings illustrate the potentially large influence of ostensibly race-neutral policies on racial disparities in the justice system.

Do Judge-Lawyer Relationships Influence Case Outcomes?
Tianwang Liu & David Hao Zhang
Harvard Working Paper, October 2020


We examine whether law school alumni relationships between the lawyers and judges affect case outcomes. We show that in the context of medical malpractice lawsuits in Florida, the plaintiff lawyer sharing the same law school as the judge increases the chances of recovery by 2%. Furthermore, the effect is confined to younger lawyers who see a 4% increase in the likelihood of recovery from having been to the same law school as the judge, and is absent in older lawyers. We interpret our results as evidence that lawyers gain school-specific human capital from their law schools which helps in their interactions with judges that graduated from the same school, and that this school-specific human capital become less important further on in the lawyers' careers.

Lawyer Networks and Corporate Bankruptcies
Vidhan Goyal, Joshua Madsen & Wei Wang
University of Minnesota Working Paper, November 2020


We exploit a setting where lawyers are selected before the assignment of a judge and find that large Chapter 11 bankruptcy filings resolve 16%-21% faster when at least one lead counsel lawyer for the debtor has a connection to the judge. The most effective connections arise through previous clerkships and in-court interactions, and the effects concentrate in cases with smaller legal teams where connected lawyers have more influence. We find no evidence that connections lead to judge favoritism or pro-debtor biases. The results suggest that lawyers use knowledge of judges’ judicial discretion to improve the efficiency of court processes.

The Effect of Deliberation on Jurors’ Attitudes toward Jury Service in Criminal Cases
Liana Pennington & Matthew Dolliver
Law & Social Inquiry, forthcoming


Jury service is one important way that citizens actively involve themselves in the criminal justice system. At a time when criminal justice and legal institutions are suffering from declining levels of public trust, it is crucial to understand the effects of jury service on individuals’ views of the jury system and whether these views vary across different racial groups. This article uses survey data from 248 deliberating and prospective jurors on criminal cases with matched data before and after jury service to examine jurors’ views of jury service. Unlike most research in this area, actual jurors were surveyed both at the beginning and at the end of the jury process to measure changes in attitudes concerning jury participation. Deliberating jurors’ changes in views were compared with a group of prospective jurors not selected for a trial. We found a significant difference between deliberating jurors and prospective jurors concerning their belief that the jury system is the fairest way to decide criminal cases, suggesting that jury service positively affects jurors’ views of the jury system. Racial group membership did not significantly influence change from pretrial to posttrial views, with views of jury service becoming more positive for both white and nonwhite jurors.

A hidden cost of convenience: Disparate impacts of a program to reduce burden on probation officers and participants
Jessica Saunders et al.
Criminology & Public Policy, forthcoming


Criminal justice practitioners increasingly seek out efficient means of community supervision supplanting face‐to‐face interactions with practices that are less onerous to administrators and clients. We examined the differential impact of remote supervision for low‐risk probationers by race. Remote reporting greatly reduces or eliminates in‐person meetings where race would be salient; however, it also creates conditions where an officer may rely more heavily on heuristics. We found the program drastically reduced violations, but also exacerbated the racial discrepancy in reporting high discretion violations.


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.