Under the law

Kevin Lewis

September 11, 2017

Lawyer, Interrupted: Gender Bias in Oral Arguments at the US Supreme Court
Dana Patton & Joseph Smith
Journal of Law and Courts, Fall 2017, Pages 337-361


We examine gender bias in political institutions through a novel lens: oral arguments at the US Supreme Court. We ask whether female lawyers are afforded less speaking time during oral arguments compared to male lawyers. We posit that justices, while highly educated and more aware than most of laws requiring equal treatment, may be influenced by gender schemas that result in unconscious biased treatment of male and female lawyers. Applying automated content analysis to the transcripts of 3,583 oral arguments, we find that female lawyers are interrupted earlier, allowed to speak for less time between interruptions, and subjected to more and longer speeches by the justices compared to their male counterparts. However, this pattern is reversed during oral arguments involving gender-related cases. Our most novel and significant theoretical finding is that gender negates the well-documented positive effect of being on the winning side of a case.

Someone like Me: Descriptive Representation and Support for Supreme Court Nominees
Alex Badas & Katelyn Stauffer
Political Research Quarterly, forthcoming


Extant research on public support for judicial nominees finds that ideological congruence with the nominee is the most important factor in an individual’s decision to support a nominee. The research presented in this article develops the theory that for individuals from underrepresented groups, a shared descriptive identity with the nominee will moderate the negative effect of ideological distance. We test our theory using the nominations of Clarence Thomas, Elena Kagan, and Sonia Sotomayor. Furthermore, we conduct placebo tests to determine whether the effect of ideology is moderated for underrepresented groups when a shared descriptive identity is not present. We find that in the context of the Thomas nomination, a shared racial identity led to increased support for Thomas among liberal African Americans. We find similar effects in the case of Kagan and conservative women. In the case of Sotomayor, we find that a shared ethnic identity led to increased support among conservative Latinos, regardless of gender. We conclude by discussing the implications our findings have for descriptive representation and presidential selection of judicial nominees.

The Negative Effect Fallacy: A Case Study of Incorrect Statistical Reasoning by Federal Courts
Ryan Enos, Anthony Fowler & Christopher Havasy
Journal of Empirical Legal Studies, September 2017, Pages 618–647


This article examines the negative effect fallacy, a flawed statistical argument first utilized by the Warren Court in Elkins v. United States. The Court argued that empirical evidence could not determine whether the exclusionary rule prevents future illegal searches and seizures because “it is never easy to prove a negative,” inappropriately conflating the philosophical and arithmetic definitions of the word negative. Subsequently, the Court has repeated this mistake in other domains, including free speech, voting rights, and campaign finance. The fallacy has also proliferated into the federal circuit and district court levels. Narrowly, our investigation aims to eradicate the use of the negative effect fallacy in federal courts. More broadly, we highlight several challenges and concerns with the increasing use of statistical reasoning in court decisions. As courts continue to evaluate statistical and empirical questions, we recommend that they evaluate the evidence on its own merit rather than relying on convenient arguments embedded in precedent.

Friends You Can Trust: A Signaling Theory of Interest Group Litigation Before the U.S. Supreme Court
Lucia Manzi & Matthew Hall
Law & Society Review, September 2017, Pages 704–734


How do interest groups influence U.S. Supreme Court justices to vote in favor of their preferred outcomes? Following prior research on the influence of the Solicitor General, we develop and expand on the signaling theory of interest group influence via amicus curie briefs. We argue that an interest group's ideological reputation and the nature of the ideological signal it sends in its brief both function as powerful heuristics that convey information to the justices depending on the justices' own ideological preferences. When an organization files an amicus brief advocating for an outcome seemingly contrary to its traditional preferences (i.e., an unexpected signal), this signal should be more noticeable and credible than a signal in accordance with a group's conventional views (i.e., an expected signal). However, unexpected signals should have greater influence on justices who share the brief filer's preferences. We test our signaling theory on the terms from 1991 through 2002. We find that unexpected signals (but not expected signals) are associated with Supreme Court voting, and the influence of unexpected signals appears to be particularly strong among justices who share the ideological preferences of the brief filer.

Cumulative Racial and Ethnic Inequalities in Potentially Capital Cases: A Multistage Analysis of Pretrial Disparities
Nick Petersen
Criminal Justice Review, forthcoming


To understand how racial/ethnic disparities are formed and sustained within death penalty institutions, this study tracks homicide cases through multiple stages of Los Angeles County’s criminal justice system. Drawing upon cumulative disadvantage research, this study focuses on the accumulation of racial/ethnic biases across multiple decision-making points. Logistic regressions seek to answer the following questions: (1) does victim/defendant race/ethnicity influence prosecutorial decision-making? and (2) if so, do these racial/ethnic disparities accumulate across multiple stages of the criminal justice system? Results indicate that cases with minority victims are less likely to involve a death-eligible charge or death notice. Moreover, these racial/ethnic disparities increase as cases advance through the courts, producing a Whiter pool of victims at later stages in the process. Defendant race/ethnicity is not predictive of death penalty charging decisions but does moderate the influence of victim race/ethnicity such that cases with minority defendants and White victims are treated more punitively.

The Curious Incident of the Falling Win Rate
Alexandra Lahav & Peter Siegelman
University of Connecticut Working Paper, July 2017


For 40 quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in Federal courts fell almost continuously, from 70 percent to 35 percent, where it remained — albeit with increased volatility — for the next 15 years. We explore, and largely reject, several possible explanations for this surprising finding. Although the reason for the falling win rate remains a mystery, we conclude that courts may need to justify decisions not only in individual cases, but at a systemic level.

Super Partes? Assessing the Effect of Judicial Independence on Entry
Raffaele Conti & Giovanni Valentini
Management Science, forthcoming


Incumbents can enjoy a cost advantage vis-à-vis new entrants and so deter new firm entry by establishing and leveraging connections with the judicial system. Connected firms may in fact avoid fully complying with the costly norms implied by a law, a regulation, or a contract. At the same time, they can also credibly threaten to sue new entrants. Therefore, a change in the institutional environment that diminishes the ability of incumbent firms to establish judicial connections — i.e., an increase in judicial independence — can promote entrepreneurship. Exploiting reforms that change the way in which U.S. state judges are selected, we confirm that this is the case, and we show that this effect is more salient in states and industries where the likelihood of entering into a business dispute is higher. The paper also sheds some light on the mechanisms behind this effect.

The Role of Private Legal Representation and the Implicit Effect of Defendants’ Demographic Characteristics in Setting Bail and Obtaining Pretrial Release
Rod Hissong & Gerald Wheeler
Criminal Justice Policy Review, forthcoming


Misdemeanor bail schedules use the seriousness of the alleged crime and the defendant’s criminal history. Court officials contend the schedules ensure that only legal factors are considered for bail. Using longitudinal data from randomly selected misdemeanor cases filed during the first quarter of 2012 in Harris County, Texas we use ordinary least squares (OLS) to test the influence of demographic characteristics of defendants and their ability to retain private representation on the process of setting the monetary amount for bail. We find evidence of implicit bias and a distinct advantage of private representation. Using logit analysis, we estimate how demographic factors and monetary bail influence the probability of pretrial release, and present point estimates of making bail by demographic type. Demographics matter but retaining private counsel increases the probability of bail by sevenfold. Policy recommendations include expanding the use of public defenders and allowing them access to clients much earlier in the process.

Panel Effects and Opinion Crafting in the US Courts of Appeals
Rachael Hinkle
Journal of Law and Courts, Fall 2017, Pages 313-336


Scholars have observed that federal circuit judges’ voting behavior can be influenced by even a single colleague on a three-judge panel. I explore whether such forces extend beyond voting to affect how circuit judges use binding precedent to develop circuit law, by examining whether the role of ideology is dampened when a judge writes for a panel that includes one or two colleagues from a different party. Using an original data set of published search-and-seizure opinions from 1953 to 2010, I uncover evidence that panel effects do extend beyond voting to influence opinion drafting as well.

Pre-admonition Suggestion in Live Showups: When Witnesses Learn that the Cops Caught ‘the’ Guy
Mitchell Eisen et al.
Applied Cognitive Psychology, forthcoming


Participants (N = 189) witnessed the theft of a computer and were immersed into what they were led to believe was an actual police investigation that culminated in a live showup. After the crime, an officer responded to the scene to take witness statements. Minutes after his arrival, the officer received a radio dispatch that could be heard clearly by the witnesses. The dispatch either stated that the Sherriff had ‘…caught the guy…’ or ‘…detained a suspect who matched the thief's description…’ and instructed the officer to bring the witnesses to identify the suspect. The witnesses then met with two deputies who conducted a live showup with an innocent suspect or the actual culprit. Choosers were more confident than rejecters across all conditions. Also, overhearing the suggestion that the sheriff had caught the guy significantly increased false identifications, and boosted witness confidence in these errors, but did not affect accurate suspect identifications.

The Effects of Twombly and Iqbal
William Hubbard
Journal of Empirical Legal Studies, September 2017, Pages 474–526


Ever since Twombly and Iqbal introduced the doctrine of plausibility pleading, a cottage industry of legal scholars (including myself) has undertaken to detect the effects of Twombly and Iqbal on litigants and case outcomes. Results so far have been equivocal, and it has been hard to make sense of the disparate methodologies and findings. In this article, I develop a comprehensive yet nontechnical framework for empirically testing the effects of Twombly and Iqbal on lower courts and litigants, taking into account a wide range of confounding factors and the numerous ways in which Twombly and Iqbal may have indirectly affected litigant behavior. Using this framework, I test for effects of Twombly and Iqbal on district court and litigant behavior using two datasets—one of administrative data covering over 700,000 cases, and one of detailed, hand- and machine-coded docket and complaint data covering a representative sample of nearly 2,000 cases. I also review existing findings. I find only limited evidence that Twombly and Iqbal, the two most important pleading cases in 50 years, have had a major effect on the behavior of lawyers and judges across all cases. For represented plaintiffs, rates of dismissal with prejudice have held steady, motions to dismiss remain uncommon, and settlement and filing patterns have not changed appreciably in the wake of Twombly and Iqbal. There is, however, some evidence of effects — potentially major effects — on pro se plaintiffs. Further, while case outcomes for represented plaintiffs have been largely unaffected by Twombly and Iqbal, there is evidence that lawyers changed their pleading and motion practice in the wake of those cases.

Political Rents under Alternative Forms of Judicial Review
Leyla Karakas
International Review of Law and Economics, October 2017, Pages 86-96


Opponents of bills that are approved in the legislature frequently pursue subsequent judicial challenges based on constitutional grounds in order to overturn them. Such challenges may occur through a specific legal case as in the U.S. (concrete judicial review) or through the petition of an opposition party at the constitutional court as in many parliamentary democracies (abstract judicial review). While the decision-making process of high court justices has been widely studied, the effect of anticipated judicial review on the composition of bills introduced in the legislature has received limited attention. This paper theoretically analyzes how the institutions of concrete and abstract judicial review influence the political rents associated with a bill when the justices decide solely based on the bill's ideological component. The results indicate that abstract review may lead in equilibrium to a greater diffusion of rents across the political spectrum through its anticipatory effect, while the rents under concrete review are more concentrated among the legislative winning coalition. When this is the case, abstract review improves the equilibrium payoff of the party that would be left out of the legislative winning coalition under concrete review and favors those parties that command large rents in the status-quo.


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.