Full Court Press
Who Controls the Content of Supreme Court Opinions?
Cliff Carrubba et al.
American Journal of Political Science, forthcoming
Abstract:
Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court's median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.
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Confessions that Corrupt: Evidence from the DNA Exoneration Case Files
Saul Kassin, Daniel Bogart & Jacqueline Kerner
Psychological Science, forthcoming
"Confessions are highly incriminating, leading fact finders to infer guilt despite retraction and the availability of alternative attributions. Basic research suggests that confessions may exert influence not only by tainting jurors' perceptions of the defendant but by corrupting lay and expert witnesses. Experiments have shown that a confession can bias professional polygraph examiners, fingerprint experts, and mock eyewitnesses. To determine if this phenomenon might also occurs in actual cases, we compared wrongful convictions that did or did not contain a confession. Consistent with the corruption hypothesis, multiple errors were more likely to exist in confession cases than in non-confession cases; confessions were most often accompanied, in order of frequency, by invalid or improper forensic science, eyewitness identifications, and informants; and in cases containing multiple errors, confessions were more likely to be obtained early rather than later in the investigation."
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Voluntary, knowing, and intelligent pleas: Understanding the plea inquiry
Allison Redlich & Alicia Summers
Psychology, Public Policy, and Law, forthcoming
Abstract:
When defendants plead guilty, they are asked a series of questions (the plea inquiry) in open court to ascertain whether pleas are made knowingly, intelligently, and voluntarily. There is a wealth of research on adjudicative competence, but little to none on the plea inquiry. Whereas competence is relevant to whether one has the ability to make knowing, intelligent, and voluntary decisions, the plea inquiry is relevant to whether one actually made such a decision. In the present study, 99 adult defendants who just pled guilty were interviewed and tested about aspects of the plea process. We found that whereas almost all defendants had little or no adjudicative competence deficits and claimed to have made a knowing plea decision, plea comprehension was generally poor. Two thirds of our sample was correct on less than 60% of questions.
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Lay Judgments of Judicial Decision Making
Dan Simon & Nicholas Scurich
Journal of Empirical Legal Studies, December 2011, Pages 709-727
Abstract:
This study examined laypeople's evaluations of judicial decision making, specifically of the judicial decision-making process and the judiciary's legitimacy. Seven-hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure. Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and to evaluate the legitimacy of the decisionmaker, all regardless of their outcomes. The study yielded four findings. First, laypeople's judgments were highly contingent on the outcome of the judges' decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges' decision, but deemed them relatively unacceptable when they disagreed with them. Second, participants were indifferent to the modes of reasoning offered by the judges when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges' decisions frustrated their preferred outcomes. Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason. Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.
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Tort Reform and Access to Justice: How Legal Environments Shape Lawyers' Case Selection
Mary Nell Trautner
Qualitative Sociology, December 2011, Pages 523-538
Abstract:
How do lawyers decide which cases to accept? Previous studies suggest that they use a simple risk/return formula to make such decisions. I argue, however, that legal environments also shape lawyers' decisions. Analyses of in-depth interviews with lawyers across four states demonstrate that lawyers make different decisions about cases in different legal environments. Lawyers in states without tort reform emphasize the importance of how "likeable" a client may be to a potential jury, whereas lawyers in states with tort reform instead focus on the defendant's "liability." These differences have important implications for who has access to the civil justice system, and for consumer and medical protections more generally.
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When Organizations Rule: Judicial Deference to Institutionalized Employment Structures
Lauren Edelman et al.
American Journal of Sociology, November 2011, Pages 888-954
Abstract:
This article offers a theoretical and empirical analysis of legal endogeneity - a powerful process through which institutionalized organizational structures influence judicial conceptions of compliance with antidiscrimination law. It finds that organizational structures (e.g., grievance and evaluation procedures, antiharassment policies) become symbolic indicators of rational governance and compliance with antidiscrimination laws, first within organizations, but eventually in the judicial realm as well. Lawyers and judges tend to infer nondiscrimination from the mere presence of those structures. Judges increasingly defer to organizational structures in their opinions, ultimately inferring nondiscrimination from their presence. Legal endogeneity theory is tested by analyzing a random sample of 1,024 federal employment discrimination opinions (1965-99) and is found to have increased over time. Judicial deference is most likely when plaintiffs lack clout and when the legal theories require judges to rule on unobservable organizational attributes. The authors argue that legal endogeneity weakens the impact of law when organizational structures are viewed as indicators of legal compliance even in the face of discriminatory actions.
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Paula Hannaford-Agor & Nicole Waters
Journal of Empirical Legal Studies, December 2011, Pages 762-791
Abstract:
The U.S. Constitution guarantees criminal defendants the right to an impartial jury selected from a jury pool that reflects the demographic composition of the geographic community served by the court. Yet there is little consensus in case law from state and federal courts about the most appropriate method of measuring demographic representation or the degree of underrepresentation that would violate the fair-cross-section requirement. Although the U.S. Supreme Court recently addressed these issues for the first time since Duren v. Missouri, its opinion in Berghuis v. Smith did little to settle the questions. In the present article, the authors use demographic information from the U.S. Census Bureau and information about jury operations in state courts from the National Center for State Courts to estimate the potential impact of competing proposals about how to measure demographic representation at different threshold levels of constitutional tolerance. Given the demographic composition of counties in the United States and the size of the jury pool in most courts, the authors find that a bright-line rule using either of the two most common measures of representation (absolute disparity and comparative disparity) would create "safe harbors" in which the courts in a majority of jurisdictions across the country would become effectively immune from fair-cross-section challenges.
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Mark Jonathan McKenzie & Michael Unger
Politics & Policy, October 2011, Pages 813-834
Abstract:
In this study, we explore whether perceptions of the Texas Supreme Court's legitimacy are influenced by "new style" judicial campaigns and levels of political sophistication. Using a statewide survey of Texas registered voters, we find that knowledge about the Texas judiciary and politics more generally is associated with higher levels of support for the state's supreme court. However, an embedded experiment manipulating a judicial candidate's party and issue positions does not alter individuals' perceptions of the Texas court. These results suggest that concerns over the effect of increasingly politicized judicial elections on judicial legitimacy, at least in Texas, may be exaggerated.
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Punishment without reason: Isolating retribution in lay punishment of criminal offenders
Eyal Aharoni & Alan Fridlund
Psychology, Public Policy, and Law, forthcoming
Abstract:
Research has suggested that criminal punishment decisions are driven primarily by retribution and that retributive judgments are achieved by a process of abstract moral reasoning. However, problems with construct validity limit confidence in these conclusions. Study 1 (N = 254) used experimentally manipulated vignettes to isolate retributive motives. Participants' sentencing recommendations were strongly provoked by indices of retribution (criminal intent) even when the most common consequentialist reasons for punishment (offender dangerousness and publicity of punishment) were minimized. In an exploratory fashion, Study 2 (N = 49) used a semistructured interview to examine whether participants would persist in punishing a hypothetical offender without explicit reasons. Participants persisted in their original punishment judgments even when unable to justify the reasons for these judgments. These results increase confidence that lay punishment is motivated by retribution, but also suggest that this motive may be better explained by fallible, heuristic processes than by abstract moral reasoning. Implications for legal policy are discussed.
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Dena Gromet & John Darley
Journal of Empirical Legal Studies, December 2011, Pages 830-855
Abstract:
We investigate the hypothesis that there are ideological differences in views about how crime victims can be restored. Across two studies, we found that liberal responses to victimization (Study 1) and crime (Study 2) are more reflective of a reparative mindset that directly addresses the needs and concerns of victims, whereas conservative responses are at least equally reflective of a punitive mindset that addresses victim harm through offender punishment. Furthermore, the salience of victim concerns, and whether people could carefully evaluate their judgments, affected the expression of these differing justice mindsets on people's satisfaction with the use of restoration and punishment in response to serious wrongdoing. When participants' cognitive resources were depleted, liberal satisfaction remained constant, whereas conservative satisfaction with the use of restoration decreased when victim concerns were salient. These results indicate that there are ideological differences in the adoption of both punitive and reparative justice mindsets, which can facilitate differing responses to victim concerns.
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Matthew Streb & Brian Frederick
Political Behavior, December 2011, Pages 665-684
Abstract:
Debates about the role of money in politics are commonplace. Although some critics point to the potentially negative impact spending has in elections, most recent scholarly evidence indicates that spending may actually promote greater participation in the political process. However, most of this research has uncovered this relationship in races for more visible offices; few studies have focused on whether the same linkage is present in low-information elections. For a variety of reasons, it is not altogether certain whether this relationship would exist for such offices. To test this proposition, we examine the impact of campaign spending on voter rolloff in 172 contested races for intermediate appellate courts (IAC) between 2000 and 2008. In contrast to other types of elections, combined candidate spending in these races had no effect on ballot rolloff.