What's left of the law

Kevin Lewis

November 09, 2018

Ideas Have Consequences: The Impact of Law and Economics on American Justice
Elliott Ash, Daniel Chen & Suresh Naidu
Columbia University Working Paper, October 2018


This paper provides a quantitative analysis of the effects of the early law and economics movement on the U.S. judiciary. Using the universe of published opinions in U.S. Circuit Courts and 1 million District Court criminal sentencing decisions linked to judge identity, we estimate the effect of attendance in the controversial Manne economics training program, an intensive course attended by almost half of federal judges between 1976 and 1999. After attending economics training, participating judges use more economics language, render more conservative verdicts in economics cases, rule against regulatory agencies more often, and render longer criminal sentences. These results are robust to adjusting for a wide variety of covariates that predict the timing of attendance. Comparing non-Manne and Manne judges prior to program start and exploiting variation in instructors further assuage selection concerns. Non-Manne judges randomly exposed to Manne peers on previous cases increase their use of economics language in subsequent opinions, suggesting economic ideas diffused throughout the judiciary, with economic ideas moving from regulatory cases to subsequent criminal ones.

Politics From the Bench?: Ideology and Strategic Voting in the U.S. Supreme Court
Tom Clark, Pablo Montagnes & Jörg Spenkuch
Emory University Working Paper, September 2018


Supreme Court justices often vote along ideological lines. Is this due to a genuinely different interpretation of the law, or does it reflect justices' desire to resolve politically charged legal questions in accordance with their personal views? To learn more about the nature of decision-making in the Court, we differentiate between votes that were pivotal and those that were not. When a justice's choice decides the outcome of a case, her ideology plays an even greater role in determining her vote — both relative to her choices on other cases and relative to other justices voting on the same case. We develop and empirically assess a model of voting in which judges trade off expressive and instrumental concerns. The evidence we present suggests that justices vote strategically, at least in part, to affect precedent.

Save this Honorable Court: Shaping Public Perceptions of the Supreme Court Off the Bench
Christopher Krewson
Political Research Quarterly, forthcoming


Scholars believe that justices on the U.S. Supreme Court strategically respond to — but rarely shape — public opinion. This article provides a new perspective on judicial behavior. Looking “off the bench,” I find evidence that justices actively shape perceptions of the Court through their public speeches. In particular, I employed a randomized field experiment and a randomized survey experiment to analyze the causal effects of attending a speech and reading about it in the news. For the field experiment, I assigned law students with reservations to a public speech by Justice Sotomayor to take a survey just before or just after the event. For the separate survey experiment, I assigned individuals in a treatment group to read news coverage of the speech before responding to survey questions. I find that, among attendees, justices improve their own favorability and change beliefs about the importance of law in judicial decision making. Among those who read of the speech, justices also change perceptions of the politicization of the Court and strengthen institutional loyalty. These findings have important implications for our understanding of judicial behavior and public perceptions of the Court.

Police Discretion and Racial Disparity in Organized Retail Theft Arrests: Evidence from Texas
Michael Braun, Jeremy Rosenthal & Kyle Therrian
Journal of Empirical Legal Studies, December 2018, Pages 916-950


When definitions of two distinct criminal offenses overlap, power to decide which definition to apply to an arrest devolves to local law enforcement agencies. This discretion can lead to unequal treatment and denial of due process, especially when disadvantaged populations are arrested for nonviolent property crimes. We present a Bayesian analysis of arrests under a vaguely worded statutory scheme for retail theft in Texas, in which a shoplifter who is guilty of property theft is also guilty of organized retail theft. Using arrest data from the Texas Department of Public Safety, we find wide variation across law enforcement agencies in initial charging categories, with black and Hispanic arrestees being charged for the more serious crime more often than white arrestees. The racial discrepancy is greater for agencies serving cities with higher per‐capita income. These results highlight consequences of ambiguous provisions of criminal codes and suggest a method for identifying agencies whose policies may have disparate impact across racial and ethnic groups.

Examining the Relationship Between Race and Juvenile Court Decision-Making: A Counterfactual Approach
Shaun Gann
Youth Violence and Juvenile Justice, forthcoming


Prior research has found that disproportionate minority contact (DMC) is a problem at various decision-making points in the juvenile justice system. This study addresses two limitations often found in prior DMC research: (1) a focus on a single court and/or a single stage of the juvenile court process and (2) methodological problems in comparing youth of different races who are otherwise similarly situated. Nearest neighbor matching is used to examine the relationship between race and five juvenile court outcomes — pre-adjudication detention, case dismissal, adjudication, secure confinement, and waiver to criminal court — in a sample of over 50,000 youth referred to seven juvenile courts. After matching youth on multiple legal and extralegal variables, results indicate that non-White youth were significantly more likely than White youth to be detained prior to adjudication, placed in a secure confinement facility postadjudication, and waived to criminal court.

Reassessing the Supreme Court: How Decisions and Negativity Bias Affect Legitimacy
Dino Christenson & David Glick
Political Research Quarterly, forthcoming


While the Supreme Court’s legitimacy is generally considered essential to its influence, scholars continue to debate whether the Court’s decisions affect individuals’ assessments of it. The last week of the 2013 term provides an unusual opportunity to evaluate these issues because the Court made a conservative decision concerning the Voting Rights Act (VRA) only one day before it made a liberal one about same-sex marriage. We use original panel data of individuals’ views throughout this period, including a wave collected on the day between the two decisions, to investigate the links among decisions and legitimacy. We find that diffuse support for the Court is sensitive to decisions in these two salient cases conditional on individuals’ ideological distance to the Court and their policy support. Moreover, the negative effects of an unfavorable decision are stronger than the positive effects of a favorable one.

From Wall Street to Main Street: A Multidimensional Map of the Impact of Magistrate Judges on Federal Courts
Christina Boyd, Tracey George & Albert Yoon
Vanderbilt University Working Paper, October 2018


District courts are treated as synonymous with district judges despite the fact that nearly half of their judges are magistrate judges. Magistrate judges are selected by a district’s judges and serve for a renewable term. Doctrinal and empirical studies of federal trial courts largely ignore magistrate judges, assuming that, like law clerks, they do not play a salient role in the work of district courts. We test that assumption by using a wide-angle lens as well as two telephoto ones. We examine a public dataset of all courts and all cases to gain a panoramic view of federal trial courts that shows the active involvement of magistrate judges across the country. We then use two unique datasets to zoom in on the specific nature of the work and the intra-court dynamics. The resulting multidimensional map of magistrate judge work reveals not only that districts courts grant meaningful responsibility and discretion to magistrate judges but that districts vary wildly in their practices across districts and within them. Thus, while scholarship must account for the presence of term judges who operate with meaningful authority in a range of matters, the impact is not uniform across districts. Theories of federal courts must grapple with the sizable role played by judges who are outside the Article III processes and protections.

Modelling the effects of crime type and evidence on judgments about guilt
John Pearson et al.
Nature Human Behaviour, November 2018, Pages 856–866


Concerns over wrongful convictions have spurred an increased focus on understanding criminal justice decision-making. This study describes an experimental approach that complements conventional mock-juror experiments and case studies by providing a rapid, high-throughput screen for identifying preconceptions and biases that can influence how jurors and lawyers evaluate evidence in criminal cases. The approach combines an experimental decision task derived from marketing research with statistical modelling to explore how subjects evaluate the strength of the case against a defendant. The results show that, in the absence of explicit information about potential error rates or objective reliability, subjects tend to overweight widely used types of forensic evidence, but give much less weight than expected to a defendant’s criminal history. Notably, for mock jurors, the type of crime also biases their confidence in guilt independent of the evidence. This bias is positively correlated with the seriousness of the crime. For practising prosecutors and other lawyers, the crime-type bias is much smaller, yet still correlates with the seriousness of the crime.

Jury diversity in the age of mass incarceration: An exploratory mock jury experiment examining felon-jurors’ potential impacts on deliberation quality
James Binnall
Psychology, Crime & Law, forthcoming


Today, nineteen million American citizens bear the mark of a felony conviction, far more than in any prior era. With that mark comes a host of record-based restrictions that curtail access to various political, social, and civic institutions. One such restriction impacts convicted felons’ eligibility for jury service. Forty-nine states, the federal government, and the District of Colombia statutorily limit convicted felons’ opportunities to serve as jurors. Justifying these restrictions, lawmakers and courts suggest that convicted felons, if allowed to serve, would diminish the quality of the deliberation process. This exploratory mock jury experiment is the first to assess jury deliberations that include felon-jurors, comparing 1) homogenous juries comprised entirely of non-felon-jurors to diverse juries comprised of both non-felon and felon-jurors and 2) non-felon-jurors to felon-jurors. Results suggest that on theoretically derived measures of deliberation structure, deliberation content, and juror perceptions, diverse juries performed as well as homogenous juries. Data also tend to demonstrate few statistically significant differences between felon-jurors and non-felon-jurors. Notably, on measures of novel case facts covered and time spoken as a proportion of deliberation duration, felon-jurors outperformed their non-felon counterparts, perhaps calling into question the necessity of blanket felon-juror exclusion policies.

Judicial Elections, Public Opinion, and Decisions on Lower‐Salience Issues
Brandice Canes‐Wrone, Tom Clark & Amy Semet
Journal of Empirical Legal Studies, December 2018, Pages 672-707


Scholarship finds that in states with judicial elections, public opinion affects judges’ decisions on hot‐button campaign issues such as the death penalty or marijuana legalization. Yet the literature leaves open the question of how public opinion affects judicial decisions on less salient issues, which not only dominate the dockets of state supreme courts but also encompass areas of major legal and policy significance. We consider one such issue that infrequently emerges in judicial campaigns, environmental law. Specifically, we collect an original dataset of over 5,000 judicial votes on nearly 1,000 cases heard in 40 state supreme courts from 1990–2014. We find that for the dataset as a whole, there is not a significant effect of public opinion on judicial decisions in any of the major judicial selection systems. However, in the few states in which environmental issues have been the subject of campaign attack ads, we find evidence of such a relationship during the years following the ads. These results contribute to a growing literature that suggests elections can reduce judicial independence from public opinion.

The Trouble with Trial Time Limits
Nora Freeman Engstrom
Georgetown Law Journal, April 2018, Pages 933-987


Civil trial rates are at an all-time low. Meanwhile, “trial time limits” — judicially imposed limits on the time litigants have to present their evidence at trial — seem to be at an all-time high. We have fewer trials than ever, yet we’re taking aggressive steps to curtail the few that we’ve got. This Article zeroes in on this paradox. It excavates time limits’ origins, tracks their rise, examines their administration, and raises deep questions about their fairness and utility. Trial time limits have, so far, been variously ignored or, alternatively, lauded, as a way to promote juror comprehension and as a tool to make trials cheaper and more efficient. Indeed, one court has gone so far as to call these restrictions “essential” to sensible docket management. This Article challenges that conventional story and cautions against time limits’ regular or reflexive application. In so doing, this Article seeks to begin a broader inquiry into how the American civil trial of the twenty-first century is not only disappearing; the scattered trials that remain are also changing, in subtle and hard-to-quantify but profoundly important ways.

The effects of repeatedly recalling a traumatic event on eyewitness memory and suggestibility
Elisha Chan, Helen Paterson & Celine van Golde
Memory, forthcoming


The aims of this study were to examine the effects of repeatedly recalling a traumatic event on recall performance and eyewitness suggestibility. We also investigated whether these effects were moderated by the type of details recalled and the completeness of retrieval. Participants watched a video depicting a fatal car accident and were randomly allocated to one of four conditions in which they: (1) repeatedly recalled the traumatic (central) details of the event only (trauma-focused); (2) repeatedly recalled the non-traumatic (peripheral) details of the event only (non-trauma focused); (3) repeatedly recalled the entire video (complete); or (4) did not recall the video at all (no-recall control). Results indicated that repeated complete recall was beneficial for memory retention of the entire traumatic event and that, in general, trauma-related (central) post-event information (PEI) was less likely to be reported than trauma-unrelated (peripheral) PEI. It was also found that repeated trauma-focused recall increased trauma-related confabulations. These results not only illustrate the value of repeated complete recall to best preserve the integrity of eyewitness memory, but, perhaps more critically, warn of the dangers of repeatedly questioning witnesses specifically about the central or traumatic details of an event.

Police tactics and guilt status uniquely influence suspects’ physiologic reactivity and resistance to confess
Christopher Normile & Kyle Scherr
Law and Human Behavior, forthcoming


Research has identified numerous factors that influence suspects during police interrogations. However, the dynamics between individuals’ physiologic reactivity and their confession decision making is in its infancy. This research sought to advance the interrogation literature by examining the relationships among different interrogation tactics, suspects’ resistance to confess, and their physiologic reactivity during a mock interrogation. After manipulating innocence and guilt, participants (N = 154) were accused and interrogated using either a minimization or false evidence tactic. Participants’ physiologic reactivity was operationalized using their systolic blood pressure, and confession resistance was quantified as the number of times participants refused to confess. Results demonstrated that participants exhibited more physiologic reactivity after being confronted with false evidence ploys than minimization. Furthermore, innocent participants resisted confessing more than guilty participants, but innocents confronted with false evidence resisted confessing to a greater extent than innocents confronted with minimization. Moreover, a moderated-mediation analysis indicated that although innocents resisted confessing more when confronted with false evidence than those confronted with minimization, these innocents sustained a significantly higher level of physiologic reactivity. The results of the conditional indirect relationship suggest that innocents who are confronted with false evidence may resist the most but at a cost — their greater resistance may exhaust them and undermine subsequent decision making. These results offer support for reforms aimed at reducing the length of interrogations and the use of interrogation tactics that unnecessarily increase false confession rates.

The Independence of Judges Reduced Legal Development in England, 1600-1800
Peter Murrell
University of Maryland Working Paper, October 2018


Conventional wisdom on English development confers iconic status on the clause of the Act of Settlement (1701) that mandated secure tenure for judges. Because the Act's effect on tenure was partial, the effect of tenure on judicial decisions can be identified. The paper estimates how the awarding of tenure changed the number of citations to judges' decisions, a measure of judicial quality. The empirics uses two new databases, one on judges' biographies and one recording citations in the English Reports to earlier decisions. Several strategies aid identification. A court-year panel permits difference-in-differences. Controls capture judges' human capital and the importance of litigation. Instrumental-variable estimates use judge life-expectancy and political vicissitudes as instruments. Tenure has a strong, significant, and deleterious effect on the quality of associate-judge decisions. Tenure has no effect for chief judges. The Act of Settlement reduces citations by 20% in the 18th century. The results are interpretable in terms of the incentives provided by a powerful legal profession that could protect vulnerable judges in a politically volatile era.

Risk assessment communication difficulties: An empirical examination of the effects of categorical versus probabilistic risk communication in sexually violent predator decisions
Daniel Krauss, Gabriel Cook & Lukas Klapatch
Behavioral Sciences & the Law, forthcoming


Expert testimony concerning risk and its communication to the trier of fact has important implications for some of the most significant legal decisions. In a simulated sexual violent predator hearing, we examined how mock jurors interpret and use recidivism risk expert testimony communicated either categorically, using verbal labels, or probabilistically, using numeric values. Based upon the STATIC‐99R, we compared mock jurors' decision‐making and verdicts when we manipulated the style of risk communication across four different risk levels. In terms of verdict decisions, we found that higher risk levels were associated with more commitment decisions, but that this relationship only existed for the categorical risk‐communication format. We also replicated previous research demonstrating that participants overestimate recidivism risk in general, especially when higher risk is communicated categorically. Finally, our participants did not differentiate well between the four levels of risk offered, instead apparently employing a more simplistic dichotomy between “low” or “high” risk for both their verdict decisions and their thresholds for commitment. The legal and policy implications of our findings are discussed, as well as suggestions for more effective presentation of expert risk testimony.

Current status of forensic lie detection with the comparison question technique: An update of the 2003 National Academy of Sciences report on polygraph testing
William Iacono & Gershon Ben-Shakhar
Law and Human Behavior, forthcoming


Fifteen years have elapsed since a report was released by the National Academy of Sciences (NAS) on the scientific status of polygraph testing. The NAS report concluded that the scientific basis of the comparison question technique (CQT) was weak, the extant research was of low quality, the polygraph profession’s claims for the high accuracy of the CQT were unfounded, and, although the CQT has greater than chance accuracy, its error rate is unknown. Polygraph proponents argue that current research indicates that the CQT has 90% or better accuracy, the National Research Council of the National Academy of Sciences’ (2003) analysis supports this accuracy claim, and the CQT qualifies as legally admissible scientific evidence. We review the scientific literature that has appeared since the appearance of the NAS publication, including a new method for estimating polygraph accuracy. We show that the NAS report has been misrepresented and misinterpreted by those who support use of the CQT in forensic settings. We conclude that the quality of research has changed little in the years elapsing since the release of the NAS report, and that the report’s landmark conclusions still stand.

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