Stricter Scrutiny
The Supreme Court as an Electoral Issue: Evidence from Three Studies
Alex Badas & Elizabeth Simas
Political Science Research and Methods, forthcoming
Abstract:
Judicial nominations, particularly those to the Supreme Court, have been a salient topic in recent presidential and senate elections. However, there has been little research to determine whether judicial nominations motivate political behavior. Across three studies we demonstrate the important role judicial nominations play in influencing political behavior. In Study 1, we analyze the extent to which voters perceive judicial nominations as an important electoral issue. We find that Republicans -- and especially strong Republicans -- are more likely to perceive judicial nominations as important. In Study 2, we analyze how congruence with an incumbent Senator's judicial confirmation votes influences voters' decision to vote for the incumbent. We find that congruence with a Senator's judicial confirmation votes is a strong predictor of vote choice. Finally, in Study 3, we analyze data from an original conjoint experiment aimed at simulating a Senate primary election where voters must select among co-partisans. We find that Republican subjects are more likely to select a primary candidate who prioritizes confirming conservative Supreme Court nominees. Among Democratic subjects, however, we find that Democratic candidates who prioritize the Court might actually suffer negative electoral consequences. Overall, our results demonstrate the importance of judicial nominations as an electoral issue.
Ascriptive Characteristics and Perceptions of Impropriety in the Rule of Law: Race, Gender, and Public Assessments of Whether Judges Can Be Impartial
Yoshikuni Ono & Michael Zilis
American Journal of Political Science, forthcoming
Abstract:
Perceptions of procedural fairness influence the legitimacy of the law and because procedures are mutable, reforming them can buttress support for the rule of law. Yet legal authorities have recently faced a distinct challenge: accusations of impropriety based on their ascriptive characteristics (e.g., gender, ethnicity). We study the effect of these traits in the context of the U.S. legal system, focusing on the conditions under which citizens perceive female and minority judges as exhibiting impropriety and how this compares with perceptions of their white and male counterparts. We find that Americans use a judge's race and gender to make inferences about which groups the judge favors, whether she is inherently biased, and whether she should recuse. Notably, we find drastically different evaluations of female and Hispanic judges among the political right and left.
The Attorneys' Gender: Exploring Counsel Success before the U.S. Supreme Court
Jonathan Hack & Clinton Jenkins
Political Research Quarterly, forthcoming
Abstract:
Stereotypes are powerful heuristics structuring decision-making, with research suggesting that gender-based stereotypes place women at a professional disadvantage. This paper tests whether attorneys' gender influences Supreme Court outcomes. We construct an attorney-focused data set combining personal and professional attributes with case-level characteristics from 1946 to 2016. Our approach brings clarity to previous findings, enabling a longitudinal analysis of women participation before the Court. We find that attorney gender does not influence party success. In doing so, we show that a more nuanced approach is needed when studying the intersection between judicial outcomes and attorney traits.
Campaign Contributions, Independent Expenditures, and the Appearance of Corruption: Public Opinion vs. the Supreme Court's Assumptions
Matthew DeBell & Shanto Iyengar
Election Law Journal, forthcoming
Abstract:
We use survey experiments to test the validity of judicial assumptions underlying campaign finance regulation. Our evidence supports the key assumption that "appearance of corruption" is directly related to the monetary value of campaign contributions. Contrary to the Court's reasoning in Buckley v. Valeo and Citizens United v. FEC, independent expenditures are more likely to elicit the appearance of corruption than direct contributions, and direct contributions well below the legal limit also create the appearance of corruption. Our findings therefore call into question key legal tenets underlying campaign finance regulation and suggest that the amounts raised by virtually every federal election campaign exceed the threshold required to elicit widespread public perceptions of corruption.
The Evolution of Judicial Standards: Evidence from Litigated Merger Trials
Jeffrey Macher et al.
Georgetown University Working Paper, March 2021
Abstract:
Monday-morning assessments of antitrust merger trial outcomes are common. Critics of a court decision blocking a merger may opine that the outcome is an indication that the judiciary has become overzealous in its interpretation of the Clayton Act's prohibition of mergers whose effects "may be to substantially lessen competition, or tend to create a monopoly." Similarly, in the wake of an adjudicated merger that is allowed to proceed, critics may argue that the judiciary has become too lax in its interpretation of the Clayton Act. Less common are attempts to systematically assess the body of merger outcomes to determine judicial trends and tendencies. This void is particularly salient because in recent years a substantive narrative has emerged that judicial application of the antitrust laws - overly influenced by the Chicago School - has become increasingly hostile toward antitrust authorities' (Agencies') challenges of mergers over time. A corollary of this narrative is the claim that the shifting composition of the judges hearing merger cases has also contributed to the propensity of the courts to deny the Agencies' merger challenges. In this paper, we first describe the historical context within which the current narrative has arisen. Although this narrative builds upon certain developments in merger enforcement over the years, we find that a more complete assessment of the evolution of merger enforcement and judicial outcomes yields a substantially more ambiguous interpretation of the evolution of judicial standards than has been proffered. That is, the current narrative does not provide an unambiguous basis upon which to draw conclusions regarding shifts in judicial standards in litigated merger cases. Given this ambiguity, the paper then develops a theoretical model designed to capture the essence of the interplay among merging firms, antitrust authorities and the courts. The model yields clear predictions on shifts in judicial standards from the outcomes of both litigated mergers cases and those that settle prior to trial. The paper then provides an empirical investigation of litigated merger outcomes based on the population of all merger challenges in the United States over 1979-2019. Two-stage econometric methods are employed to account for the potential that the set of litigated mergers is a non-random sample of all merger challenges. This empirical analysis reveals that, contrary to the current narrative, judicial standards have shifted in favor of the Agencies over time. The probability that merger challenges proceed to trial has declined over time while the probability that antitrust agencies win trials has increased over time - both results are indicative of judicial standards applied to merger challenges that have grown increasingly pro-enforcement over time. We find no statistically significant evidence that the outcomes of antitrust merger cases vary according to whether the judges involved were appointed by Republican or Democratic presidents.
Constitutional Off-loading at the City Limits
Sarah Swan
Harvard Law Review, forthcoming
Abstract:
The most constitutionally divisive issues in the United States today often play out literally on the ground, in the realm of land use. For instance, towns that have proclaimed themselves to be 'sanctuary cities for the unborn' do not want abortion clinics opening up in neighborhood medical complexes, localities with "small town values" do not want strip clubs sprouting up on Main Street, and cities that support gun control do not want new firing ranges coming to their commercial districts. When municipalities try to exclude these constitutionally-protected uses, however, a perennially perplexing question arises: does it matter that whatever is being limited can be easily accessed beyond a locality's borders? In other words, can one municipality constitutionally justify its exclusion of a particular service or facility by pointing to availability in a neighboring town? The answer, it turns out, largely depends on size. Across multiple constitutional contexts, courts frequently allow small localities to look beyond their borders and exclude particular facilities, yet typically prohibit large cities from doing that exact same thing. When mapped onto the political geography of the United States, this "horizontal tailoring" effectively means that small conservative "red" towns can maintain and even deepen their conservative community character through exclusions, while large "blue" cities are prohibited from crafting their community character through similar exclusionary methods. The tailored approach thus appears to privilege the self-determination of small localities over that of big cities, with potentially partisan political consequences. This Article argues, however, that this is not the end of the story. This Article shows that the ability to engage in constitutional off-loading comes at substantial cost for small localities, while the prohibition on constitutional off-loading comes with a corresponding benefit for big cities. When courts look beyond a locality's borders, they undermine the significance of those borders and highlight the fundamental interconnectedness and interdependencies of that locality with other areas in the region. This vision profoundly undermines the version of localism espoused in cases like Miliken v. Bradley and Warth v. Seldin, and weakens the arguments of small localities that they should be taken seriously as independent constitutional actors. Conversely, the inability of cities to engage in constitutional off-loading comes with a corresponding benefit. By reinforcing the meaning of a city's borders, and applying the same rule to cities as applies to states (i.e. that neither can engage in constitutional off-loading beyond their territorial borders), the constitutional off-loading jurisprudence strengthens and fortifies arguments for recognizing a "big city localism" and pushes toward recognition of a constitutional status for large cities. The correlated benefits and burdens of constitutional off-loading may therefore ultimately push towards a more balanced localism for all.
Safeguard or Barrier: An Empirical Examination of Bar Exam Cut Scores
Michael Frisby, Sam Erman & Victor Quintanilla
University of Southern California Working Paper, February 2021
Abstract:
In 2019 more than forty percent of aspiring law school graduates failed the bar exam. Nearly thirty thousand test-takers otherwise qualified to practice law were, given the score threshold required to pass the exam (the "cut score"), lost to the profession. Had the cut score been lower, many would now be lawyers. This exclusion disproportionately affects members of underrepresented and disadvantaged groups who stand to benefit most from entry into the legal profession. A common defense for retaining or raising cut scores is that doing so prevents lawyer malfeasance. But the bar exam is not designed for these purposes. This paper enters this scholarly and regulatory conversation by testing whether states' bar exam scores predict lawyer misconduct. If they do not, it would remove one argument against lowering bar exam cut scores to promote diversity and growth of the legal profession. Using data comprising states' bar exam cut scores and disciplinary records from the American Bar Association between 2013 and 2018, we employ statistical modeling to evaluate the relationship between cut scores and attorney discipline. We find no evidence that higher bar exam cut scores produce fewer complaints, charges, or disciplinary actions.
Life "With" Or "Without"? An Empirical Study of Homicide Sentencing
Michael O'Hear & Darren Wheelock
Journal of Empirical Legal Studies, forthcoming
Abstract:
The number of Americans serving sentences of life without the possibility of parole ("LWOP") has grown rapidly over the past generation and now exceeds 50,000. Yet, little empirical research has been conducted on the determinants of LWOP sentences. The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences-studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes. The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences. More specifically, we have assessed the relationship between fifty different variables and LWOP decisions in 450 homicide cases in Wisconsin between 2001 and 2018. In our final model, we find seven variables that are correlated with sentencing outcomes. Of particular note, we find that judge and prosecutor personal characteristics are statistically significant correlates of LWOP decisions. We also find a significantly greater likelihood that LWOP sentences will be imposed in counties that are more Republican. We conclude with a proposal for a new LWOP sentencing process that may help to ensure that this very severe sentence is reserved for the most serious crimes committed by the most dangerous defendants.
The Fallacy of an Airtight Alibi: Understanding Human Memory for "Where" Using Experience Sampling
Elizabeth Laliberte et al.
Psychological Science, forthcoming
Abstract:
A primary challenge for alibi-generation research is establishing the ground truth of real-world events of interest. In the current study, we used a smartphone app to record data on adult participants (N = 51) for a month prior to a memory test. The app captured accelerometry data, GPS locations, and audio environments every 10 min. After a week-long retention interval, we asked participants to identify where they were at a given time from among four alternatives. Participants were incorrect 36% of the time. Furthermore, our forced-choice procedure allowed us to conduct a conditional logit analysis to assess the different aspects of the events that the participants experienced and their relative importance to the decision process. We found strong evidence that participants confuse days across weeks. In addition, people often confused weeks in general and also hours across days. Similarity of location induced more errors than similarity of audio environments or movement types.
Marginalized legal categories: Social inequality, family structure, and the laws of intestacy
Megan Doherty Bea & Emily Taylor Poppe
Law & Society Review, June 2021, Pages 252-272
Abstract:
Social classifications are increasingly interrelated, far-reaching, and consequential for socioeconomic outcomes. We use the concept of marginalized legal categories to describe how the law disadvantages individuals or groups by transforming inherently ordered social classifications into consequential legal categories, employing intestacy laws as an illustration. Using the Survey of Consumer Finances, we find that more than 21% of American families have forms that are marginalized by intestacy classifications, and that such forms are more common among individuals of color and those with less wealth. Yet, many individuals with these family structures hold assets and lack access to intestacy-avoidance mechanisms, giving consequence to the application of these laws. We conclude by discussing implications of legal classification for inequality.
Affirming the District Judge: An Empirical Analysis of the Effect of District Judges Sitting by Designation on Circuit Court Panels
Andrew Sayer, Melanie Hess & Matthew Hall
Journal of Empirical Legal Studies, forthcoming
Abstract:
Ten of the 12 U.S. courts of appeals regularly invite district court judges to take part in appellate decisions. This practice, known as "sitting by designation," has received mixed reviews from judges and scholars. Some argue that the practice undermines democratic legitimacy and collegiality on the courts of appeals. Others contend that district court judges sitting by designation have little effect on the process because they are deferential-perhaps far too deferential-toward their circuit court brethren. Despite this ongoing debate, few studies have empirically analyzed the effects of judges sitting by designation on appellate court decision making. Here, we empirically assess whether panels that include a judge sitting by designation are more likely to affirm the district court decision. We hypothesize that judges sitting by designation are more likely to affirm district court decisions, and the panel effects associated with a judge sitting on a circuit panel will result in more "affirm" votes by circuit court judges sitting with those district court judges. Our analysis of 9,154 court of appeals decisions confirms that the presence of a judge sitting by designation does have a positive and statistically significant effect on the rate at which court of appeals judges vote to affirm district court decisions.
Plea-Bargaining Law: the Impact of Innocence, Trial Penalty, and Conviction Probability on Plea Outcomes
Miko Wilford, Gary Wells & Annabelle Frazier
American Journal of Criminal Justice, June 2021, Pages 554-575
Abstract:
Despite the prevalence of guilty pleas, we know relatively little about factors that influence the decision to plead. Replicating and extending Dervan and Edkins' Journal of Criminal Law and Criminology, 103, 1-48. https://doi.org/10.2139/ssrn.2071397, (2013), we conducted two experiments to examine the effects of guilt status, trial penalty, and conviction likelihood on plea outcomes using an adaptation of a high-stakes cheating paradigm. Students were led to believe that they were participating in a study examining team versus individual problem solving. Those randomly assigned to a guilty condition were induced to cheat on an individual problem by a study confederate (in clear violation of the study instructions). All participants were later accused of cheating in the research study, and were offered the analogue of a plea deal in an academic context. Across both experiments, guilty participants were significantly more likely to plead guilty than innocent participants. In Experiment 2, conviction probability affected plea rates only among the innocent. The trial penalty manipulation had no significant effect on plea rates. Reasons for pleading guilty differed between the innocent and the guilty, whereas the plea rejection rationales were similar across the two groups. Overall, this research highlights several avenues for further research aimed at improving the current system of pleas to reduce false guilty pleas.