What's legal

Kevin Lewis

August 03, 2018

Closing with emotion: The differential impact of male versus female attorneys expressing anger in court
Jessica Salerno et al.
Law and Human Behavior, August 2018, Pages 385-401 


Emotion expression is a key part of trial advocacy. Attorneys are advised to gain credibility with juries by demonstrating conviction through anger expression. In 3 experiments, we tested whether expressing anger in court makes attorneys more effective and whether this depends on their gender. We randomly assigned participants (n = 120 undergraduates) to view a male or female attorney presenting the same closing argument in either a neutral or angry tone (Experiment 1). They reported their impressions of the attorney and how likely they would be to hire the attorney. People used the positive aspects of anger (e.g., conviction, power), to justify hiring an angry male attorney. Yet, they used the negative aspects of anger (e.g., shrill, obnoxious), to justify not hiring a female attorney. We replicated this effect in Experiment 2 with a community sample (n = 294). Experiment 3 (n = 273) demonstrated that the attorney anger by gender interaction generalized to perceptions of effectiveness across a set of additional attorney targets. Finally, a high-powered analysis collapsing across experiments confirmed that when expressing anger relative to when calm, female attorneys were seen as significantly less effective, while angry male attorneys were seen as significantly more effective. Women might not be able to harness the persuasive power of expressing anger in the courtroom, which might prevent female attorneys from advancing in their careers.

Do Justices Defend the Speech They Hate? An Analysis of In-Group Bias on the US Supreme Court
Lee Epstein, Christopher Parker & Jeffrey Segal
Journal of Law and Courts, forthcoming


For decades now, experiments have revealed that we humans tend to evaluate the views or activities of our own group and its members more favorably than those of outsiders. To assess convergence between experimental and observational results, we explore whether US Supreme Court justices fall prey to in-group bias in freedom-of-expression cases. A two-level hierarchical model of all votes cast between the 1953 and 2014 terms confirms that they do. Although liberal justices are (overall) more supportive of free-speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the speech’s ideological grouping and not solely an underlying taste for (or against) greater protection for expression. These results suggest the importance of new research programs aimed at evaluating how other cognitive biases identified in experimental work may influence judicial behavior in actual court decisions.

Defendant stereotypicality moderates the effect of confession evidence on judgments of guilt
Laura Smalarz, Stephanie Madon & Anna Turosak
Law and Human Behavior, August 2018, Pages 355-368


This research examined whether criminal stereotypes - i.e., beliefs about the typical characteristics of crime perpetrators - influence mock jurors’ judgments of guilt in cases involving confession evidence. Mock jurors (N = 450) read a trial transcript that manipulated whether a defendant’s ethnicity was stereotypic or counterstereotypic of a crime, and whether the defendant had confessed to the crime or not. When a confession was present, the transcript varied whether the confession had been obtained using high-pressure or low-pressure interrogation tactics. Consistent with the hypothesis, the presence of a confession (relative to no confession) increased perceptions of the defendant’s guilt when the defendant was stereotypic of the crime, regardless of the interrogation tactics that had been used to obtain it. When the defendant was counterstereotypic of the crime, however, the presence of a confession did not significantly increase perceptions of guilt, even when the confession was obtained using low-pressure interrogation tactics. These findings demonstrate the potentially powerful effects of criminal stereotypes on legal judgments and suggest that individuals who fit a criminal stereotype may be disadvantaged over the course of the criminal justice process.

Due Process and Homicide: A Cross-National Analysis
Erin Terese Huebert & David Brown
Political Research Quarterly, forthcoming


As democracy advances in many regions throughout the world, it is often accompanied by increasing violence. Most cross-national analyses find that an inverted U-shaped relationship exists between homicide and democracy: homicide rates are highest in hybrid regimes and lowest in authoritarian and democratic regimes. While a fairly robust empirical result, little is known about why it exists. We identify a specific institution - due process - that cuts across regime types and effectively explains homicide. Due process generates a legitimacy that encourages individuals to use the justice system to settle disputes. A more effective criminal justice system also deters crime in the first place. Using a cross-national sample of eighty-nine countries between 2009 and 2014, we find a strong negative relationship between due process and homicide. Put simply, how states fight crime explains their success.

Capital jurors, mental illness, and the unreliability principle: Can capital jurors comprehend and account for evidence of mental illness?
Marla Sandys, Heather Pruss & Sara Walsh
Behavioral Sciences & the Law, forthcoming


Recent U.S. Supreme Court opinions have given rise to the question of whether persons suffering from a severe mental illness should be categorically exempt from the death penalty. This article presents a brief overview of relevant U.S. Supreme Court cases and the empirical evidence relevant to this question. We then present our findings on how actual capital jurors respond to and discuss engaging with evidence of mental illness, as drawn from in‐depth interviews collected as part of the Capital Jury Project. Existing research reveals that in the controlled situation of an experiment, evidence of mental illness is associated with votes for life rather than death. Similarly, actual capital jurors in our study reported anticipating that evidence of mental illness would make them less likely to vote for death. However, those jurors who dealt with mental illness in their case appeared to be less sensitive: they describe such evidence as having been overshadowed by the brutality of the crime; as indicative of the defendant's future dangerousness; as being confusing, especially as presented by experts; and as a manipulative attempt on the part of the defendant to trick the jurors. The findings suggest that capital jurors cannot reliably comprehend and account for evidence of mental illness and thus offer a compelling reason for the Court to exempt those suffering from a mental illness from the death penalty.

Investigating predictors of true and false guilty pleas
Kelsey Henderson & Lora Levett
Law and Human Behavior, forthcoming


An estimated 90% to 95% of convictions are obtained via guilty pleas, and roughly 11% of individuals exonerated with the help of the Innocence Project falsely pleaded guilty ( Despite the prevalence of guilty pleas (and the existence of false guilty pleas), relatively little scholarship has examined what influences a defendant to plead guilty (Redlich, 2010). In this study, we investigated factors that affected whether guilty and innocent students who were accused of cheating pleaded guilty or took their case before the Student Conduct Committee in a hearing (analogous to a trial). Using social psychological literature on social influence (Cialdini & Goldstein, 2004), we manipulated two legally and theoretically relevant factors: the attorney’s recommendation and the guilt of the defendant. Overall, guilty individuals were more likely to accept a guilty plea than innocent individuals. Advocate recommendation affected innocent and guilty participants’ plea decisions; however, the effect was stronger for innocent individuals. Innocent participants advised to go to trial were less likely to falsely plead guilty (M = 4%) compared with those without an advocate (M = 35%), those who were given educational information (M = 47%), or those who were advised to plead guilty (M = 58%). Overall, findings suggest that innocent individuals may be more vulnerable to the effects of social influence when considering advice from an advocate compared with guilty individuals.

Racial Bias Increases False Identification of Black Suspects in Simultaneous Lineups
Joseph Vitriol, Jacob Appleby & Eugene Borgida
Social Psychological and Personality Science, forthcoming


People are better able to correctly identify the faces of individuals who belong to their own race. Research linking the cross-race effect in face recognition to racial attitudes has been limited to explicit measures and sequential presentation formats. Using a simultaneous lineup task, our results from two studies revealed a systematic relationship between explicit racial bias and increased false identification of Black faces. We observed inconsistent evidence to suggest that individual differences in implicit attitudes impact judgments of Black faces. Nevertheless, nonconscious activation of crime-related concepts prior to encoding facial targets impaired White perceivers’ accuracy for Black faces. Nonconscious priming of crime concepts did not affect White perceivers’ judgments of White faces. Thus, among Whites, racial bias, as a function of both individual differences and contextual cues, can increase the false identification of Black faces in simultaneous lineups. Theoretical and legal implications for face recognition and eyewitness memory are discussed.

The Implementation of Supreme Court Precedent: The Impact of Arizona v. Gant on Police Searches
Ethan Boldt & Michael Gizzi
Journal of Law and Courts, forthcoming


While many scholars have focused on the relationship shared between the Supreme Court and lower courts, fewer have studied how those outside the judicial branch implement court policy. This study examines how police implemented a major shift in vehicle search law after the Supreme Court placed limits on search incident to arrest. Comprehensive traffic-stop data from two states are relied upon for time series intervention analyses to test the decision’s impact. Evidence of the Court’s influence is found in seriously limiting searches incident to arrest and expanding the use of alternative searches as a means to circumvent the ruling.

Media Coverage and Public Approval of the U.S. Supreme Court
Matthew Hitt & Kathleen Searles
Political Communication, forthcoming


When citizens believe the U.S. Supreme Court makes decisions in an insincere or politicized manner, their specific support for the institution can decline. The Court’s relative aversion to publicity means the media are the primary source of information about its decisions. We design a survey experiment that varies the type of coverage - game frame or principled. Game-frame coverage reduces agreement with and acceptance of the decision discussed. We then classify and analyze more than 1,000 transcripts of broadcast coverage of salient Court decisions from 1990-2010. Not only has game-frame coverage of the Court increased, but this coverage partially explains recent declines in specific support for the institution.

The Role of Constitutional Features in Judicial Review
Adam Brown
State Politics & Policy Quarterly, forthcoming


American state constitutions vary tremendously in their length, amendment rate, and age. These three variables - especially the first two - strongly influence the rate at which state supreme courts strike down state actions for violating the state constitution. Longer, more detailed constitutions reduce policy flexibility, increasing judicial invalidations; rarely updated constitutions may fail to address modern concerns, increasing invalidations; and recently adopted constitutions may contain fragile logrolls and similar shortcomings, also increasing invalidations. These findings add new considerations to a rich literature on judicial review in state supreme courts.

States Testing the Legal Limits: The Effect of Electoral Competition on the Constitutionality of State Statutes
Bryan Black & Laine Shay
State Politics & Policy Quarterly, forthcoming


When the U.S. Supreme Court decides to exercise judicial review on a law passed by a democratically elected institution, it can have a profound and critical impact on public policy. Furthermore, recent research shows that the Court more frequently declares state statutes unconstitutional than federal statutes. However, only a limited number of studies have extensively explored this political phenomenon. One aspect of a state that has not been considered in connection with the Supreme Court’s use of judicial review over state legislation is the electoral environment in which the laws are produced. We argue that because electoral competition affects the legislative output from a state, it could also influence the likelihood that a state has a statute invalidated by the U.S. Supreme Court. When examining all states between 1971 and 2010, we find evidence in support of our theoretical expectation. Specifically, we find that an increase in electoral competition corresponds to an increased likelihood that a state has a statute invalidated by the Supreme Court. This finding contributes to our understanding of the Supreme Court’s use of judicial review, and it also suggests that electoral pressure can incentivize states to craft unconstitutional public policy.

Racial Bias and LSI-R Assessments in Probation Sentencing and Outcomes
Evan Lowder et al.
Criminal Justice and Behavior, forthcoming


Risk assessments are now implemented in correctional settings across the United States as an evidence-based strategy to inform sentencing and supervision decisions. Despite growing research examining racial bias in the predictive validity of risk assessments, few studies have investigated racial bias in the context of judicial decision-making. We investigated the interactive contributions of race and Level of Service Inventory-Revised (LSI-R) risk assessments in predicting sentence length and probation outcomes in 11,792 Black and White probationers. Results showed White probationers at low-risk levels received longer sentences relative to Black probationers classified at the same risk levels. However, there were few differences at higher risk levels and no evidence of racial bias in the predictive accuracy of LSI-R assessments for other probation outcomes. Findings highlight the need for prospective and carefully controlled investigations into whether risk assessments improve the fairness and accuracy of sentencing and other risk management decisions.

Credible Commitments and the Right to Bear Arms: Viewing the Second Amendment from a Game-Theoretic Perspective
Jamie Levin
Journal of American Studies, forthcoming


For most of its existence, the Second Amendment was largely ignored by Constitutional scholars. Recently, a veritable cottage industry has developed in which two distinct camps have surfaced: so-called “Standard Modelers,” who argue that individuals have a right to bear arms for self-defense, the defense of the state, and, in the most extreme examples, to overthrow the government should it become tyrannical, and those who view the Second Amendment as a collective right vested in the state militias for the purposes of law enforcement, to protect against foreign aggression, to quell domestic insurrection, and as a check against federal overreach. Despite the enormous gulf between them, both sides agree that the right to bear arms provides a counterbalance against the federal government. This paper uses insights from game theory to shed new light on the adoption of the Second Amendment. The states suffered a commitment problem. They wished to cooperate with each other by founding a new republic, but feared the consequences of doing so: losing their freedom to a powerful government. The Second Amendment militated against the need for a large federal army, acted to counterbalance federal forces, and created the offensive means with which to confront a tyrannical government.

What Drives Bankruptcy Forum Shopping? Evidence from Market Data
Jared Ellias
Journal of Legal Studies, January 2018, Pages 119-149


Over the past 30 years, the majority of large firms that filed for bankruptcy did so in the US bankruptcy courts of the Southern District of New York and Delaware. Some believe these experienced courts dominate because their expertise makes bankruptcy more predictable. Critics dispute this explanation, arguing instead that “predictability” is a cloak for the true, self-interested motivation of the debtor’s managers, lawyers, and senior creditors who influence the debtor’s choice of venue. In this paper, I look for evidence supporting the views of the proponents and detractors of bankruptcy forum shopping in a large sample of market data. My results suggest that the market is better at predicting the outcomes of bankruptcy cases in New York and Delaware, consistent with the hypothesis that the law there is more predictable. I do not find evidence supporting the view that those courts are biased in favor of senior creditors.

The Rationale for Motions in the Design of Adjudication
Steven Shavell
NBER Working Paper, June 2018


The conduct of adjudication is often influenced by motions - requests made by litigants to modify the course of adjudication. The question studied in this article is why adjudication is designed so as to permit the use of motions. The answer developed is that litigants will naturally know a great deal about their specific matter, whereas a court will ordinarily know little except to the degree that the court has already invested effort to appreciate it. By giving litigants the right to bring motions, the judicial system leads litigants to efficiently provide information to courts that is relevant to the adjudicative process.


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