See you in court

Kevin Lewis

March 03, 2017

Peer Effects on the United States Supreme Court

Richard Holden, Michael Keane & Matthew Lilley

Harvard Working Paper, February 2017

Using data on essentially every US Supreme Court decision since 1946, we estimate a model of peer effects on the Court. We consider both the impact of justice ideology and justice votes on the votes of their peers. To identify these peer effects we use two instruments. The first is based on the composition of the Court, determined by which justices sit on which cases due to recusals or health reasons for not sitting. The second utilizes the fact that many justices previously sat on Federal Circuit Courts and are empirically much more likely to affirm decisions from their “home” court. We find large peer effects. Replacing a single justice with one who votes in a conservative direction 10 percentage points more frequently increases the probability that each other justice votes conservative by 1.63 percentage points. In terms of votes, a 10 percentage point increase in the probability that a single justice votes conservative leads to a 1.1 percentage increase in the probability that each other justice votes conservative. Finally, a single justice becoming 10% more likely to vote conservative increases the share of cases with a conservative outcome by 3.6 percentage points – excluding the direct effect of that justice – and reduces the share with a liberal outcome by 3.2 percentage points. In general, the indirect effect of a justice’s vote on the outcome through the votes of their peers is typically several times larger than the direct mechanical effect of the justice’s own vote.


Human Decisions and Machine Predictions

Jon Kleinberg et al.

NBER Working Paper, February 2017

We examine how machine learning can be used to improve and understand human decision-making. In particular, we focus on a decision that has important policy consequences. Millions of times each year, judges must decide where defendants will await trial — at home or in jail. By law, this decision hinges on the judge’s prediction of what the defendant would do if released. This is a promising machine learning application because it is a concrete prediction task for which there is a large volume of data available. Yet comparing the algorithm to the judge proves complicated. First, the data are themselves generated by prior judge decisions. We only observe crime outcomes for released defendants, not for those judges detained. This makes it hard to evaluate counterfactual decision rules based on algorithmic predictions. Second, judges may have a broader set of preferences than the single variable that the algorithm focuses on; for instance, judges may care about racial inequities or about specific crimes (such as violent crimes) rather than just overall crime risk. We deal with these problems using different econometric strategies, such as quasi-random assignment of cases to judges. Even accounting for these concerns, our results suggest potentially large welfare gains: a policy simulation shows crime can be reduced by up to 24.8% with no change in jailing rates, or jail populations can be reduced by 42.0% with no increase in crime rates. Moreover, we see reductions in all categories of crime, including violent ones. Importantly, such gains can be had while also significantly reducing the percentage of African-Americans and Hispanics in jail. We find similar results in a national dataset as well. In addition, by focusing the algorithm on predicting judges’ decisions, rather than defendant behavior, we gain some insight into decision-making: a key problem appears to be that judges respond to ‘noise’ as if it were signal. These results suggest that while machine learning can be valuable, realizing this value requires integrating these tools into an economic framework: being clear about the link between predictions and decisions; specifying the scope of payoff functions; and constructing unbiased decision counterfactuals.


The Impact of Judicial Elections in the Sentencing of Black Crime

Kyung Park

Journal of Human Resources, forthcoming

This paper explores the possibility that criminal court judges engage in discriminatory sentencing in response to judicial elections. I use a research design that 1) distinguishes between the effects of judicial elections versus preferences and 2) separates the effects of judicial elections versus the electoral pressures of other public officials. I find that incarceration rates rise by 2.4 percentage points in the final six months of the election cycle, but only for black not white felons. These effects are more pronounced in districts where the median voter is expected to have higher levels of racial prejudice towards blacks.


The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power

Nicholas Parrillo

Yale Working Paper, January 2017

Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years. These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply? What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power. The efficacy of litigation against agencies rests on a widespread perception that federal officials simply do not disobey court orders and a concomitant norm that identifies any violation as deviant. Contempt findings, regardless of sanctions, are a means of weaponizing that norm by designating the agency and official as violators and subjecting them to shame. But if judges make too many such findings, and especially if they impose (inevitably publicity-grabbing) sanctions, they may risk undermining the perception that officials always comply and thus the norm that they do so. The judiciary therefore may sometimes pull its punches to preserve the substantial yet limited norm-based power it has.


The Racial Politics of Due Process Protection: Does Partisanship or Racial Composition Influence State-Level Adoption of Recorded Interrogation Policies?

Jason Carmichael & Stephanie Kent

Criminal Justice Review, March 2017, Pages 58-76

Discoveries of wrongful convictions have increased substantially over the last several decades. During this period, practitioners and scholars have been advocating for the adoption of policies aimed at reducing the likelihood of convicting a person for a crime they did not commit. Implementing such policies are vitally important not only because they help ensure that the innocent do not receive unwarranted sanctions or that the guilty go unpunished but also because cases of wrongful conviction can erode public confidence in the criminal justice system and trust in the rule of law. To avoid such outcomes, many states have adopted policies through legislation that aim to reduce system errors. It remains unclear, however, why some states appear more willing to provide due process protections against wrongful convictions than others. Findings suggest that dimensions of racial politics may help explain the reluctance of some states to adopt protections against wrongful convictions. Specifically, interaction terms show that states with a Republican governor and a large African American population are the least likely to adopt policies aimed at protecting against wrongful convictions. We thus identify important differences in the political and social context between U.S. states that influence the adoption of criminal justice policies.


Unintended Consequences: The Regressive Effects of Increased Access to Courts

Anthony Niblett & Albert Yoon

Journal of Empirical Legal Studies, March 2017, Pages 5–30

Small claims courts enable parties to resolve their disputes relatively quickly and cheaply. The court's limiting feature, by design, is that alleged damages must be small, in accordance with the jurisdictional limit at that time. Accordingly, one might expect that a large increase in the upper limit of claim size would increase the court's accessibility to a larger and potentially more diverse pool of litigants. We examine this proposition by studying the effect of an increase in the jurisdictional limit of the Ontario Small Claims Court. Prior to January 2010, claims up to $10,000 could be litigated in the small claims court. After January 2010, this jurisdictional limit increased to include all claims up to $25,000. We study patterns in nearly 625,000 disputes over the period 2006–2013. In this article, we investigate plaintiff behavior. Interestingly, the total number of claims filed by plaintiffs does not increase significantly with the increased jurisdictional limit. We do find, however, changes to the composition of plaintiffs. Following the jurisdictional change, we find that plaintiffs using the small claims court are, on average, from richer neighborhoods. We also find that the proportion of plaintiffs from poorer neighborhoods drops. The drop-off is most pronounced in plaintiffs from the poorest 10 percent of neighborhoods. We explore potential explanations for this regressive effect, including crowding out, congestion, increased legal representation, and behavioral influences. Our findings suggest that legislative attempts to make the courts more accessible may have unintended regressive consequences.


Being Part of the “Home Team”: Perceptions of Professional Interactions with Outsider Attorneys

Todd Collins, Tao Dumas & Laura Moyer

Journal of Law and Courts, Spring 2017, Pages 141-171

Understanding how attorneys’ perceptions of “insider” and “outsider” status affect negotiations is of both theoretical and practical importance for understanding the judicial system. We utilize a comprehensive survey of attorneys from one state to explore views of trustworthiness and negotiations. Overall, as attorneys become more embedded in their in-group, they increasingly report lower trust levels and less effective negotiations with outsiders. These relationships do vary somewhat by the scope and location of the attorney’s practice. Our findings provide insight into one possible causal mechanism underlying the “repeat player” advantage; they also suggest new directions for research on case outcomes.


Preferences Toward Leniency under Mandatory Criminal Sentencing Guidelines: Role-in-the-Offense Adjustments for Federal Drug Trafficking Defendants

Andrew Nutting

B.E. Journal of Economic Analysis & Policy, forthcoming

This paper tests whether judges and/or prosecutors manipulated mandatory federal sentencing guidelines to shorten prison sentences. It finds that, among drug traffickers convicted under the federal guidelines’ former mandatory sentencing system, those who faced harsher underlying charges were found to have played significantly lower-level roles in their conspiracies. This is consistent with guideline manipulation to help defendants facing longer sentences. Women received significantly larger role-in-the-offense reductions related to harsher underlying charges than men. Effects were insignificant if defendants were eligible for lower-cost alternative methods of sentence reduction, namely substantial assistance departures and safety-valve reductions from mandatory minimum sentences.


Justice Is (Change) Blind: Applying Research on Visual Metacognition in Legal Settings

Christopher Brett Jaeger, Daniel Levin & Evan Porter

Psychology, Public Policy, and Law, forthcoming

Research has demonstrated striking failures of visual awareness. For example, participants have failed to notice gorillas passing through basketball games, money dangling from trees in front of them, and even sudden substitutions of conversation partners. Findings such as these are interesting in part because they conflict strongly with the intuition that most visual objects and events are easily detectable. Indeed, research in metacognition reveals that people overestimate their ability to detect visual stimuli in a variety of contexts. These errors in visual metacognition have legal implications, as they may cause decision makers to misweigh evidence about visual experience. We describe 4 experiments that bridge the gap between lab studies of visual metacognition and 1 relevant legal context: negligence litigation. In the first 2 experiments, we expand on the existing visual metacognition research by demonstrating that participants’ overestimation persists when they are asked what an observer should see and what an observer can be blamed for failing to see. Then, we examine the extent to which participants treat their presumptions that someone should have seen a stimulus like evidence of verified visual detection. Finally, we use vignettes of negligence cases modeled on existing change blindness and inattention blindness research to drive home the potential legal consequence of visual metacognitive errors: defendants may be found negligent for failing to detect stimuli that most people in the defendants’ position would not have seen.


Judging Guilt and Accuracy: Highly Confident Eyewitnesses are Discounted When They Provide Featural Justifications

Chad Dodson & David Dobolyi

Psychology, Crime & Law, forthcoming

Jurors are heavily swayed by confident eyewitnesses. Are they also influenced by how eyewitnesses justify their level of confidence? Here we document a counter-intuitive effect: When eyewitnesses identified a suspect from a lineup with absolute certainty (“I am completely confident”) and justified their confidence by referring to a visible feature of the accused (“I remember his nose”), participants judged the suspect as less likely to be guilty than when eyewitnesses identified a suspect with absolute certainty but offered an unobservable justification (“I would never forget him”) or no justification at all. Moreover, people perceive an eyewitness’s identification as nearly 25% less accurate when the eyewitness has provided a featural justification than an unobservable justification or simply no justification. Even when an eyewitness’s level of confidence is clear because s/he has expressed it numerically (e.g., “I am 100% certain”) participants perceive eyewitnesses as not credible (i.e., inaccurate) when the eyewitness has provided a featural justification. However, the effect of featural justifications – relative to a confidence statement only – is maximal when there is an accompanying lineup of faces, moderate when there is a single face and minimal when there is no face at all. The results support our Perceived-Diagnosticity account.


Judicial Independence and US State Bond Ratings: An Empirical Investigation

John Dove

Public Budgeting & Finance, forthcoming

Significant research has assessed how judicial independence influences a number of economic outcomes, however, less has been done to evaluate how financial institutions perceive an independent judiciary. Therefore, this paper considers how greater judicial independence across US states may affect state bond ratings. Overall, the results suggest that states with relatively more independent judiciaries do in fact have higher bond ratings, which translates into lower borrowing costs. The results are robust to a number of specifications and suggest the role that an independent judiciary plays in contract enforcement along with several other important implications for future research.


Comparing Apples to Oranges: Differences in Women's and Men's Incarceration and Sentencing Outcomes

Kristin Butcher, Kyung Park & Anne Morrison Piehl

NBER Working Paper, January 2017

Using detailed administrative records, we find that, on average, women receive lighter sentences in comparison with men along both extensive and intensive margins. Using parametric and semi-parametric decomposition methods, roughly 30% of the gender differences in incarceration cannot be explained by the observed criminal characteristics of offense and offender. We also find evidence of considerable heterogeneity across judges in their treatment of female and male offenders. There is little evidence, however, that tastes for gender discrimination are driving the mean gender disparity or the variance in treatment between judges.


Originalism, Pragmatic Conservatism, and Living Document Judicial Philosophies: Explaining Variation in U.S. Supreme Court Votes in Criminal Procedure Cases for the 1994–2014 Terms of Court

Kevin Buckler & Elizabeth Gilmore

American Journal of Criminal Justice, March 2017, Pages 28–54

Prior research on U.S. Supreme Court justice votes and case outcomes has examined a variety of hypotheses to explain variation in voting and case decisions in criminal procedure matters. Largely ignored by prior work, however, is the notion that the effects of the measures used to examine these prior hypotheses may vary for the justices based on the judicial philosophy espoused and followed by the justice. This article identifies three distinct overarching judicial philosophies of law interpretation that have guided the justices for much of the Rehnquist Court and the entirety of the Roberts Court: Originalism, Pragmatic Conservatism, and Living Document. It contextualizes the Information, Affected Groups, and Legal Issue hypotheses in a framework that considers their potential effects across Originalist, Pragmatic Conservative, and Living Document justices on the Court for the 1994 through 2014 terms. The study finds that enhanced activity by special interest organizations (the Affected Groups Hypothesis) in support of the non-government other party impacts vote direction among Pragmatic Conservative and Living Document justices but not for the Originalist justices. It also finds more case type (Legal Issue) effects for Originalist justices than for Pragmatic Conservative and Living Document justices in that for Originalist justices a vote for the government is less likely in cases that concern statutory meaning (relative to constitutional meaning). Implications are discussed.


The Differential Effect of War on Liberal and Conservative Judges on the US Courts of Appeals

Susanne Schorpp & Rebecca Reid

Journal of Law and Courts, Spring 2017, Pages 1-31

Recent research reveals judicial tendencies to decide cases more conservatively during times of war. Building on studies in political psychology, we use the observed movement in favor of increased security versus liberty in times of war on the courts to investigate differences in how liberals and conservatives are motivated by threat concerns. We find that war mainly conditions decision making by liberal judges in criminal and civil liberties cases. The results furthermore suggest that ideological differences play little role in wartime decision making for civil liberties cases.


Jurors' Subjective Experiences of Deliberations in Criminal Cases

Alix Winter & Matthew Clair

Law & Social Inquiry, forthcoming

Research on jury deliberations has largely focused on the implications of deliberations for criminal defendants' outcomes. In contrast, this article considers jurors' outcomes by integrating subjective experience into the study of deliberations. We examine whether jurors' feelings that they had enough time to express themselves vary by jurors' gender, race, or education. Drawing on status characteristics theory and a survey of more than 3,000 real-world jurors, we find that the majority of jurors feel that they had enough time to express themselves. However, blacks and Hispanics, and especially blacks and Hispanics with less education, are less likely to feel so. Jurors' verdict preferences do not account for these findings. Our findings have implications for status characteristics theory and for legal cynicism among members of lower-status social groups.


The Politics of the U.S. Federal Judiciary's Requests for Institutional Reform

David Hughes, Richard Vining & Teena Wilhelm

Social Science Quarterly, forthcoming

Objectives: We ask whether the requests the federal judiciary makes to Congress are conditioned either on political factors or on its actual institutional needs.

Methods: We build a new measure of the yearly well-being of the federal courts from 1978 through 2013 using factor analysis. We specify two formal models to generate testable hypotheses that help to untangle equilibria behavior resulting from competing claims on judicial preferences for court reforms. We test these claims using data from the chief justice's Year-End Reports on the Federal Judiciary.

Results: We find that requests are not conditioned upon the courts' actual institutional needs but instead upon their ideological proximity to the Senate.


Memory Errors in Alibi Generation: How an Alibi Can Turn Against Us

William Crozier, Deryn Strange & Elizabeth Loftus

Behavioral Sciences & the Law, forthcoming

Alibis play a critical role in the criminal justice system. Yet research on the process of alibi generation and evaluation is still nascent. Indeed, similar to other widely investigated psychological phenomena in the legal system – such as false confessions, historical claims of abuse, and eyewitness memory – the basic assumptions underlying alibi generation and evaluation require closer empirical scrutiny. To date, the majority of alibi research investigates the social psychological aspects of the process. We argue that applying our understanding of basic human memory is critical to a complete understanding of the alibi process. Specifically, we challenge the use of alibi inconsistency as an indication of guilt by outlining the “cascading effects” that can put innocents at risk for conviction. We discuss how normal encoding and storage processes can pose problems at retrieval, particularly for innocent suspects that can result in alibi inconsistencies over time. Those inconsistencies are typically misunderstood as intentional deception, first by law enforcement, affecting the investigation, then by prosecutors affecting prosecution decisions, and finally by juries, ultimately affecting guilt judgments. Put differently, despite the universal nature of memory inconsistencies, a single error can produce a cascading effect, rendering an innocent individual's alibi, ironically, proof of guilt.


Juror Decision-making in Death Penalty Sentencing when Presented with Defendant's History of Child Abuse or Neglect

Lisa Bell Holleran, Tyler Vaughan & Donna Vandiver

Behavioral Sciences & the Law, November/December 2016, Pages 742–766

Previous studies have found aggravating, mitigating, and null effects of defendant histories of abuse and neglect on punishment preferences in capital sentencing. Perceiving these defendants as more dangerous, jurors may be more likely to favor the death penalty when such evidence is presented. This is counter to the intuition that abuse or neglect reduces culpability, and therefore mitigates the severity of punishment. We investigated the effect of defendant childhood physical abuse, sexual abuse, or neglect on the probability of a prospective juror preferring the death penalty in an between-subject experimental design. Using vignettes and two large samples (students and jurors), defendant histories were found to mitigate the probability that the hypothetical defendant received the death penalty, with sexual abuse having the most salient effect. Further, the effects were conditioned by preference for the death penalty – larger mitigating effects were observed among individuals who favor the death penalty. These findings suggest that initial judgments of abuse and neglect are related to juror leniency, and further research on the interaction of jury instructions and defendant histories is needed.


Criticism from Below: The Supreme Court’s Decision to Revisit Cases

Christopher McMillion & Kevin Vance

Journal of Law and Courts, Spring 2017, Pages 81-103

The Supreme Court sometimes chooses to use its limited time to revisit earlier decisions. In doing so, the justices signal the importance of reasserting, correcting, or reconsidering their arguments. We find that the likelihood of the Supreme Court revisiting a case in a given year increases significantly as the number of circuit courts critical of that opinion increases. These results suggest that an acknowledgment of the important role of the circuit courts influences the decision to revisit cases. Even if the Court merely clarifies or reinforces earlier opinions, criticism in the circuits prompts the Court to take some action. Though the Supreme Court’s word is final, barring a constitutional amendment or legislative override in nonconstitutional cases, the mechanism of criticism in the circuits allows reconsideration of many issues already decided by the Court and sheds light on the importance of institutional structures to the maintenance of the rule of law.


The Ties that Bind Beyond the Battlefield: An Examination of the Diffusion Patterns of Veterans Treatment Courts

Bianca Easterly

Social Science Quarterly, forthcoming

Objectives: The growing number of veterans on court dockets with mental health and substance abuse issues has resulted in the proliferation of veterans treatment courts (VTCs). Given the ubiquity of substance abuse and mental illness across communities, it is unclear why some local courts innovate and, more importantly, why some do so earlier than others.

Methods: Using data from 2008 to 2014, the study applies event history modeling to investigate the extent to which, if any, presiding judges’ connection to the armed forces, either personally or through immediate family members (e.g., parents, children), accelerates the adoption of states’ initial VTCs.

Results: Findings show significant support for both the hastening effect of personal knowledge of the military and, to a lesser extent, the increased presence VA Community-Based Outpatient Clinics have on VTC innovation.

Conclusions: Judges’ social group membership and the availability of government resources in a community influence court organization innovation.


The Impact of Angry Versus Sad Victim Impact Statements on Mock Jurors’ Sentencing Decisions in a Capital Trial

Narina Nuñez et al.

Criminal Justice and Behavior, forthcoming

The present study tested the effects of angry and sad victim impact statements (VIS) on jury eligible participants’ decisions. Death qualified participants (N = 581) watched the penalty phase of a capital trial that varied the presence and emotional content of the VIS (angry, sad, or no VIS) along with the strength of mitigating evidence (weak or strong). Results revealed that Angry VIS led to an increase in death sentences, whereas Sad VIS did not. Furthermore, participants who reported becoming angry during the trial were more likely to render a death sentence, but participants who became sad during the trial were not. No interaction was found between VIS and strength of mitigating evidence, but participants exposed to the angry VIS did rate the mitigating evidence as less important to their decisions. The results indicate that VIS are not inherently biasing, nor are all emotions equally impactful on sentencing decisions.

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