The Verdicts Are In

Kevin Lewis

August 26, 2021

Race, witness credibility, and jury deliberation in a simulated drug trafficking trial
Emily Shaw et al.
Law and Human Behavior, June 2021, Pages 215–228

Method: We recruited 822 nonstudent jury-eligible participants assigned to 144 jury groups. Each group was assigned to one of four conditions where defendant race (Black or White) and informant race (Black or White) was manipulated. Each group watched a realistic audio-visual trial presentation, then deliberated as a group to render a verdict.

Results: Contrary to expectations, the conditions depicting a Black defendant yielded lower conviction rates compared to those with a White defendant -- at both the predeliberation individual (odds ratio [OR] = 1.54) and postdeliberation group level (OR = 2.91) -- while the informant race did not influence verdict outcomes. We also found that jurors rated the government witnesses as more credible when the defendant was White compared to when he was Black. Credibility ratings and verdict outcomes were also predicted by jurors’ own race, although juror race did not interact with the race conditions when predicting verdicts.

Campaign Donations, Judicial Recusal, and Disclosure: A Field Experiment
Jonathan Krasno et al.
Journal of Politics, forthcoming

This article reports results from a field experiment exploring how judicial behavior is affected by complaints about conflicts of interest. The conflicts of interest studied here arise in Wisconsin civil trial cases. Using public records, we identify instances in which one party’s attorney contributed to the presiding judge’s previous election campaign. We send a random subset of these judges a letter identifying the potential conflict and requesting recusal. We find that highlighting the potential conflict and asking judges to recuse sharply increases the rate at which judges disclose this relationship in court records but does not lead them to recuse. Furthermore, treated judges are no more likely to disclose or recuse in subsequent cases that present a similar conflict of interest. This experiment, which is the first to test possible remedies to judicial conflicts of interest, suggests that light touch interventions are insufficient to change judges’ behavior.

Sex Ambiguity in Early Modern Common Law (1629–1787)
Maayan Sudai
Law & Social Inquiry, forthcoming

Prior to the modern understanding of sex as fundamentally biological, a person’s sex status — that is, whether they were male or female — was largely a legal issue. How was this legal fact established in cases of doubt? To answer that question, this article tells the story of the regulation of cases of doubtful sex (the cases of people who were then referred to as hermaphrodites) between 1629 and 1787 in England and Colonial America. Trials of doubtful sex from this period show that, rather than being based on a single piece of evidence (such as genital appearance), determining a person’s sex required a rich and context-sensitive evaluation by witnesses and juries. However, toward the end of the eighteenth century, scientific and medical authorities gradually sought to classify hermaphrodites according to their “true sex” and to remove any doubt from that classification. Ultimately, this article demonstrates that the early modern common law tradition did not conceptualize sex as purely binary and did not hinge on medical opinions throughout most of the eighteenth century. These findings highlight the continuous engagement of courts in actively shaping the meaning and ontology of sex rather than merely reflecting it in their decisions.

Perceptions of custody: Similarities and disparities among police, judges, social psychologists, and laypeople
Fabiana Alceste & Saul Kassin
Law and Human Behavior, June 2021, Pages 197–214

Method: Police officers (n = 223), trial judges (n = 219), social psychologists (n = 228), and laypeople (n = 205) read a vignette of a police-suspect encounter that presented high-, ambiguous, or low-levels of custody and indicated their perceptions of the suspect’s freedom to leave.

Results: Participants perceived the most freedom in the low-custody vignettes, followed by ambiguous and high-custody vignettes, and all groups differed significantly from each other (ηp2 = .39). Police and judges overestimated how free they thought the suspect would feel compared to social psychologists and laypeople, who did not differ from each other (ηp2 = .085). Participants in general saw the suspect as objectively freer than they thought he felt, and themselves as feeling freer than they believed the suspect did (ηp2 = .35). Police defined a “reasonable person” as someone who is mentally stable, whereas judges were more likely to cite a person of average intelligence.

Anger Damns the Innocent
Katherine DeCelles et al.
Psychological Science, August 2021, Pages 1214-1226

False accusations of wrongdoing are common and can have grave consequences. In six studies, we document a worrisome paradox in perceivers’ subjective judgments of a suspect’s guilt. Specifically, we found that people (including online panelists, n = 4,983, and working professionals such as fraud investigators and auditors, n = 136) use suspects’ angry responses to accusations as cues of guilt. However, we found that such anger is an invalid cue of guilt and is instead a valid cue of innocence; accused individuals (university students, n = 230) and online panelists (n = 401) were angrier when they are falsely relative to accurately accused. Moreover, we found that individuals who remain silent are perceived to be at least as guilty as those who angrily deny an accusation.

How policy influence varies with race and gender in the US courts of appeals
Rachael Hinkle
Research & Politics, July 2021

Even when women and people of color achieve positions of political power, institutional norms may combine with social constructions of difference to create a system in which power is distributed disproportionately. Such a pattern is evident in the US courts of appeals. Each case is resolved by a panel of three judges who also decide whether the opinion should be binding precedent (i.e., published) or not. I theorized that the variety of views and extended deliberation often attributed to diversity in a small-group environment depressed the rate of publication if judges were willing to compromise on the outcome but less willing to publish an opinion after such compromise. Using a massive original dataset of virtually all dispositive circuit opinions from 2002 to 2012, I found that homogeneous panels (98% of which are composed of white men) shaped policy more frequently than diverse panels.

‘All eyes are on you’: Gender, race, and opinion writing on the US Courts of Appeals
Laura Moyer et al.
Law & Society Review, September 2021, Pages 452-472

Because stereotyping affects individual assessments of ability and because of socializing experiences in the law, we argue that women and judges of color, while well-credentialed, feel pressure to work harder than their white male peers to demonstrate their competence. Using an original dataset of published appellate court opinions from 2008–2016, we find that majority opinions authored by female and non-white judges go farther to explain and justify their rulings, when compared to opinions written by white male peers. In comparison to other judges, opinions by white men are about 6% shorter, with 11% fewer citations, and 17% fewer extensively discussed citations. Our findings suggest that norms about crafting judicial opinions are gendered and racialized in ways that create higher workloads for women and judges of color.

Citizenship and Sentencing: Assessing Intersectionality in National Origin and Legal Migration Status on Federal Sentencing Outcomes
Doyun Koo, Ben Feldmeyer & Bryan Holmes
Journal of Research in Crime and Delinquency, forthcoming

Method: The authors use annual United States Sentencing Commission (USSC) Monitoring of Federal Criminal Sentences (MFCS) datasets (2011–2016) to examine the impact of defendant’s (1) national origin and (2) legal versus illegal migration status on incarceration and sentence length decisions in federal criminal courts. In addition, in order to account for effects of immigration cases, supplemental analyses are conducted for (1) non-immigration offenses and (2) immigration-only offenses.

Results: For the incarceration decision, noncitizen defendants have higher odds of incarceration than U.S. citizens, net of other factors. These effects are less consistent in the sentence length decision. These relationships systemically differ across national origin and legal migration status.

The Exception as the Rule: Negligent Hiring Liability, Structured Uncertainty, and the Rise of Criminal Background Checks in the United States
David McElhattan
Law & Social Inquiry, forthcoming

The threat of negligent hiring lawsuits is thought to play an important role in the widespread use of criminal background checks among US employers. This article examines the construction of negligent hiring within the trade literature of the human resources (HR) field using a qualitative content analysis. While courts tend to view criminal record checks as unnecessary for occupations that do not carry foreseeable risks, the article finds that the HR field has broadly endorsed criminal record checks as the default practice for screening job candidates. The article argues that this divergence stems from the structured uncertainty of compliance under the common law tort of negligent hiring, which shapes organizational behavior in ways that defy the substantive clarity of relevant case law.

Prosecutors, court communities, and policy change: The impact of internal DOJ reforms on federal prosecutorial practices
Mona Lynch, Matt Barno & Marisa Omori
Criminology, forthcoming

The current study examines how key internal U.S. Department of Justice (DOJ) policy changes have been translated into front-line prosecutorial practices. Extending courts-as-communities scholarship and research on policy implementation practices, we use U.S. Sentencing Commission data from 2004 to 2019 to model outcomes for several measures of prosecutorial discretion in federal drug trafficking cases, including the use of mandatory minimum charges and prosecutor-endorsed departures, to test the impact of the policy changes on case processing outcomes. We contrast prosecutorial measures with measures that are more impervious to discretionary manipulation, such as criminal history, and those that represent judicial and blended discretion, including judicial departures and final sentence lengths. We find a significant effect of the policy reforms on how prosecutorial tools are used across DOJ policy periods, and we find variation across districts as a function of contextual conditions, consistent with the court communities literature. We also find that a powerful driver of changes in prosecutorial practices during our most recent period is the confirmation of individual Trump-appointed U.S. Attorneys at the district level, suggesting an important theoretical place for midlevel actors in policy translation and implementation.

The Supreme Court, Ideology, and the Decision to Cite or Borrow from Amicus Curiae Briefs
Kayla Canelo
American Politics Research, forthcoming

Scholars have sought to understand the dual characterization of Supreme Court justices as both legal and political actors. One way to further uncover this complexity is to assess how the justices engage with the interest groups that file amicus curiae or “friend-of-the-Court” briefs. Scholars have revealed that the justices often “borrow language” from these briefs in their opinions. However, much less often, they cite the amici. These two uses are distinct in that one is revealed to the reader while the other is not. So which interest groups do the justices decide to cite and which do they borrow language from? I find the justices borrow more language from ideologically similar interests, but that ideology plays a less central role in the decision to cite. Specifically, I find that the justices are less likely to cite briefs filed by ideologically overt interests, but this only extends to the most ideologically “extreme” groups. Further, the justices are not more likely to cite briefs filed by interests that are ideologically similar to their own preferences. These findings provide insight into how the justices balance policy and legitimacy goals.

Busy Bankruptcy Courts and the Cost of Credit
Karsten Müller
Journal of Financial Economics, forthcoming

This paper estimates the effect of bankruptcy court caseload on access to credit by exploiting firms’ plausibly exogenous exposure to the largest recorded drop in court backlog in the United States following the 2005 consumer bankruptcy reform. I show that a drop in court congestion reduces the time firms spend in bankruptcy and increases recovery values, which is priced into credit spreads and loan maturities. Consistent with a shock to credit supply, less congested courts increase firm leverage but leave default risk unchanged. A back-of-the-envelope calculation suggests that backlog in bankruptcy courts costs corporate borrowers at least $740 million per year in interest payments.

A Trojan Horse Inside the Gates? Knowledge Spillovers during Patent Litigation
Kiran Sharad Awate & Mona Makhija
Academy of Management Journal, forthcoming

While patent litigation is an important appropriability mechanism for protecting firms’ proprietary knowledge, through the litigation process, valuable knowledge may unintentionally spill over from firms defending their patents to those they accuse of patent infringement. We examine whether such spillover subsequently enhances the innovation of accused firms by analyzing over 3000 patent litigation cases from 1998 through 2015 in the U.S. pharmaceutical industry. We find that firms accused of infringement have higher levels of innovation following litigation relative to other similar firms. Furthermore, litigation of patents that build on recent and heterogeneous knowledge and those of greater scope more strongly enhanced the accused firms’ subsequent innovation. These findings support the argument that patent litigation can facilitate knowledge spillover.


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