Controlling precedent
The Role of Gender Norms in Judicial Decision-Making at the U.S. Supreme Court: The Case of Male and Female Justices
Shane Gleason, Jennifer Jones & Jessica McBean Rae
American Politics Research, forthcoming
Abstract:
Although still a minority, the growing number of women on both the Bench and at the Bar of the U.S. Supreme Court has important implications for judicial decision-making and successful advocacy at the Court. Research in judicial behavior generally focuses on vote direction and the presence of female attorneys in a case. We offer a more nuanced account of how gender impacts both attorney success and judicial decision-making by drawing on work in social and political psychology and utilizing quantitative textual analysis to explore the tension between masculine norms of behavior that are valued in the legal profession and feminine norms of behavior that are expected of women, but devalued in the legal profession. Based on the Court’s long-standing disdain for emotional arguments, we examine how the emotional content in 601 party briefs shapes the Court’s majority opinions. Our results indicate that male justices evaluate counsel based on their compliance with traditional gender norms — rewarding male counsel for cool, unemotional arguments and rewarding female counsel for emotionally compelling arguments. However, we find no evidence that gender norms shape the opinions of female justices. Given that the justice system is supposed to be “blind,” our results highlight the durability of gendered expectations and raise questions about the objectivity of judicial decision-making.
Judicial Politics and Sentencing Decisions
Alma Cohen & Crystal Yang
NBER Working Paper, May 2018
Abstract:
This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.
The New Oral Argument: Justices as Advocates
Tonja Jacobi & Matthew Sag
Notre Dame Law Review, forthcoming
Abstract:
This Article conducts a comprehensive empirical inquiry of 55 years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court’s decision-making process.
Temperature and Decisions: Evidence from 207,000 Court Cases
Anthony Heyes & Soodeh Saberian
American Economic Journal: Applied Economics, forthcoming
Abstract:
We analyze the impact of outdoor temperature on high-stakes decisions (immigration adjudications) made by professional decision-makers (US immigration judges). In our preferred specification, which includes spatial, temporal and judge fixed effects, and controls for various potential confounders, a 10 ◦F degree increase in case-day temperature reduces decisions favorable to the applicant by 6.55%. This is despite judgments being made indoors, ‘protected’ by climate-control. Results are consistent with established links from temperature to mood and risk appetite and have important implications for evaluating the influence of climate on ‘cognitive output’.
Buying the Verdict
Lauren Cohen & Umit Gurun
NBER Working Paper, April 2018
Abstract:
We document evidence that firms systematically increase specialized, locally targeted advertising following the firm being taken to trial in that given location - precisely following initiation of the suit. In particular, we use legal actions brought against publicly traded firms over the 20 year sample period that progress to trial from 1995-2014. In terms of magnitude, the increase is sizable: targeted local advertising increases by 23% (t=4.39) following the suit. Moreover, firms concentrate these strategic increases in locations where the return on their advertising dollars are largest: in smaller, more concentrated advertising markets where fewer competitor firms are advertising. They focus their advertisement spikes specifically toward jury trials, and in fact specifically toward the most likely jury pool. Lastly, we document that these advertising spikes are associated with verdicts, increasing the probability of a favorable outcome.
Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making
Andrea Miller
Social Psychological and Personality Science, forthcoming
Abstract:
Although the influence of gender ideology on lay decision-making has been established, it is not known to what extent expertise may mitigate gendered biases and improve decision-making quality. In a set of controlled experiments, trial court judges and laypeople evaluated a hypothetical child custody case and a hypothetical employment discrimination case. The role of expertise was tested in two ways: by comparing judges’ and laypeople’s decision-making and by examining relative differences in expertise among judges. Judges were no less influenced by litigant gender and by their own gender ideology than the lay sample. Judges with greater subject-matter expertise were also no less influenced by gender ideology than other judges. In some cases, expertise was associated with greater, not less, bias. The results of this study suggest that expertise does not attenuate gendered biases in legal decision-making.
Haphazard, Systematic, or Both? An Empirical Investigation of the US Attorney Firings in 2006
Banks Miller & Brett Curry
Journal of Law and Courts, forthcoming
Abstract:
In 2006, the Bush administration directed nine US attorneys to resign. This decision was a partial cause of the attorney general’s departure from the administration, and it prompted investigations and congressional hearings. Seen as largely ad hoc, we argue that theory predicts a more systematic decision-making process. We investigate this empirically and find, consistent with literature on principal-agent theories and bureaucracy, that performance on easily monitored metrics and adverse-selection concerns predict the firings. We explore the implications of these findings for efforts to centralize decision-making in the Department of Justice and to exert political control over US attorneys.
Arbitration About Arbitration
David Horton
Stanford Law Review, February 2018, Pages 363-441
Abstract:
The U.S. Supreme Court’s interpretation of the Federal Arbitration Act (FAA) has nearly eliminated consumer and employment class actions, sparking vigorous debate. But another important development in federal arbitration law has flown largely under the radar. Traditionally, judges granted motions to compel arbitration only after confirming that the parties had formed a valid agreement to arbitrate that applied to the underlying lawsuit. But now, through the use of “delegation clauses,” businesses are giving arbitrators the exclusive power to decide these issues. Increasingly, critical questions about the arbitration — including whether the process is fair — are being resolved in the arbitration itself. This Article gives this trend the attention it deserves. It demonstrates that courts once regarded agreements to arbitrate about arbitration with greater skepticism than agreements to arbitrate the merits of a case. However, in 2010, the Supreme Court seemed to cast doubt on this distinction in Rent-A-Center West, Inc. v. Jackson by opining that delegation clauses are their own freestanding arbitration clauses: (1) agreements to arbitrate disputes (2) over the broader agreement to arbitrate the underlying complaint. Seen this way, delegation clauses are entitled to the same extraordinary deference enjoyed by conventional arbitration provisions. This Article challenges that account of delegation clauses. Drawing on the FAA’s text and history and reading Rent-A-Center carefully, it argues that agreements to arbitrate the scope or enforceability of an arbitration clause should not enjoy the same exalted status as agreements to arbitrate substantive claims. Instead, delegation clauses should be understood as watered-down arbitration clauses that are more amenable to regulation than industrial-strength agreements to arbitrate a cause of action. Finally, this Article explains how its thesis would help resolve many of the questions about arbitral power that are currently dividing courts.
Gender Effects Across Place: A Multilevel Investigation of Gender, Race/Ethnicity, and Region in Sentencing
Melanie Holland & Ariane Prohaska
Race and Justice, forthcoming
Abstract:
Previous empirical research has indicated that women receive less punitive sentencing outcomes, compared to their male counterparts, while controlling for legally relevant case characteristics. This advantage persists at the federal level, despite the implementation of sentencing guidelines. However, drawing from the “intersectionalities” literature, it does not appear as though all women are equal beneficiaries of this courtroom leniency. Specifically, women of color are less inclined to receive sentencing benefits in response to the differential stereotyping of this demographic. Furthermore, due to differing sociohistorical contexts and gender ideologies, the influence of gender on sentencing outcomes will likely vary across place. This study contributes to the existing sentencing literature by examining whether, and to what extent, gender leniency is moderated by race/ethnicity and geographic region. Using data from the 2015 Monitoring of Federal Criminal Sentences, this study finds that women receive shorter sentence lengths than men. However, contrary to expectation, women of color receive shorter sentences than White women. Additionally, women who are adjudicated in the southern and border districts receive significantly longer sentences. These findings demonstrate the importance of contextualizing and disaggregating female criminal justice outcomes as well as the need to limit research and discourse that imply a singular shared experience among all women.
Is Your Lawyer a Lemon? Incentives and Selection in the Public Provision of Criminal Defense
Amanda Agan, Matthew Freedman & Emily Owens
NBER Working Paper, May 2018
Abstract:
Governments in the U.S. must offer free legal services to low-income people accused of crimes. These services are frequently provided by assigned counsel, who handle cases for indigent defendants on a contract basis. Court-assigned attorneys generally garner worse case outcomes than privately retained attorneys. Using detailed court records from one large jurisdiction in Texas, we find that the disparities in outcomes are primarily attributable to case characteristics and within-attorney differences across cases in which they are assigned versus retained. The selection of low-quality lawyers into assigned counsel and endogenous matching in the private market contribute less to the disparities.
Sentencing on the Evidence
Esther Nir & Elizabeth Griffiths
Criminal Justice Policy Review, May 2018, Pages 365-390
Abstract:
The type and quantity of evidence in a case is a critical factor for deciding guilt but should have little or no influence on the sentencing determinations of judges post conviction; this is because case evidence goes to guilt decisions by triers of fact, whereas sentences are imposed upon those already convicted. This study examines the effects of evidentiary type and the total quantity of physical evidence in a case on length of custodial sentence. The results demonstrate that violent felony cases with forensic evidence and those cases with more varied pieces of physical evidence result in longer custodial sentences for convicted defendants. Thus, the findings indicate that inculpatory evidence in criminal trials has enduring effects post conviction and, more broadly, suggest that judicial discretion at sentencing is, at least in part, influenced by the judge’s confidence in the defendant’s guilt.
“From PI to IP”: Litigation Response to Tort Reform
Ronen Avraham & John Golden
American Law and Economics Review, Spring 2018, Pages 168–213
Abstract:
Is there a connection between state-law tort reform and the explosive growth of U.S. intellectual property (IP) litigation? The tort reform literature has established that the number of tort claims in states with tort reform has decreased. Using data gathered from multiple sources, including Lex Machina, DocketX, and the Database of State Tort Law Reforms (DSTLR 5th), we find evidence that state tort reform is associated with statistically significant and substantial increases in copyright and patent filings in U.S. district courts in the states where reform has occurred. In contrast, our study does not indicate a similarly significant increase in trademark and trade secret filings. We posit multiple potential explanations for the increase in patent and copyright filings after tort reform and the lack of such increase for trademark and trade secrets filings. These include (1) migration of in-state plaintiff’s attorneys from pursuit of state tort suits to lucrative opportunities to act as plaintiff’s lawyers in patent and copyright, (2) IP attorneys’ exploitation of less congested in-state civil dockets, and (3) in-state district courts’ adoption of plaintiff-friendly rules and practices to attract IP cases to fill those dockets.
What do the experts know? Calibration, precision, and the wisdom of crowds among forensic handwriting experts
Kristy Martire, Bethany Growns & Danielle Navarro
Psychonomic Bulletin & Review, forthcoming
Abstract:
Forensic handwriting examiners currently testify to the origin of questioned handwriting for legal purposes. However, forensic scientists are increasingly being encouraged to assign probabilities to their observations in the form of a likelihood ratio. This study is the first to examine whether handwriting experts are able to estimate the frequency of US handwriting features more accurately than novices. The results indicate that the absolute error for experts was lower than novices, but the size of the effect is modest, and the overall error rate even for experts is large enough as to raise questions about whether their estimates can be sufficiently trustworthy for presentation in courts. When errors are separated into effects caused by miscalibration and those caused by imprecision, we find systematic differences between individuals. Finally, we consider several ways of aggregating predictions from multiple experts, suggesting that quite substantial improvements in expert predictions are possible when a suitable aggregation method is used.
Demystifying Hash Searches
Dennis Martin
Stanford Law Review, February 2018, Pages 691-733
Abstract:
A hash search is a very accurate, computationally efficient technique for testing whether a computer contains illicit material. Although police have been running hash searches for many years, case law is scarce regarding whether and to what extent the Fourth Amendment permits their use. Some commentators have argued that because hash searches reveal information concerning only the presence or absence of contraband, courts shouldn’t consider them Fourth Amendment searches. Rather, courts should treat hash searches as a sort of digital dog sniff. This Note disagrees. It argues first that even accepting the analogy to digital dog sniffs, hash searches nevertheless violate the Fourth Amendment under Florida v. Jardines whenever they are used to look for evidence outside the scope of a search warrant or other permissive mechanism. It then argues that there is no limiting principle that would permit the use of hash searches but not more sophisticated algorithms — algorithms that would constitute the modern equivalents of general warrants. Accordingly, it proposes a rule that covers not only the hash searches that are being used now but also the more sophisticated forensic techniques that will be used in the near future: Police conduct a Fourth Amendment search whenever they use an algorithm to perform a task that would be a search if conducted manually by a human.
It's easier to contract than to pay: Judicial independence and US municipal default in the 19th century
John Dove
Journal of Comparative Economics, forthcoming
Abstract:
It is well established in the literature that an independent judiciary can act as a signal of credibility by a sovereign state and as a guarantor of creditor rights. However, to date there has been little systematic work analyzing how an independent judiciary reacts to fiscal stress and public-sector default. This article addresses that very question by evaluating how and if judicial independence affects default rates using US municipal data through the nineteenth century. Overall, the results do indicate that greater judicial independence is associated with a significantly lower likelihood of default. This channel largely occurs through the method by which a member of a state's court of last resort is selected (either appointment or popular election) and term length.