It's Legal
How Public Opinion Constrains the U.S. Supreme Court
Christopher Casillas, Peter Enns & Patrick Wohlfarth
American Journal of Political Science, January 2011, Pages 74-88
Abstract:
Although scholars increasingly acknowledge a contemporaneous relationship between public opinion and Supreme Court decisions, debate continues as to why this relationship exists. Does public opinion directly influence decisions or do justices simply respond to the same social forces that simultaneously shape the public mood? To answer this question, we first develop a strategy to control for the justices' attitudinal change that stems from the social forces that influence public opinion. We then propose a theoretical argument that predicts strategic justices should be mindful of public opinion even in cases when the public is unlikely to be aware of the Court's activities. The results suggest that the influence of public opinion on Supreme Court decisions is real, substantively important, and most pronounced in nonsalient cases.
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Louis Fisher
Presidential Studies Quarterly, March 2011, Pages 177-191
Abstract:
In his articles, books, and legal memoranda for the U.S. Department of Justice, John Yoo is well known for favoring broad and even exclusive presidential power in the field of national security. Less understood is his dependence on the British model and the prerogatives it extended to the king over external affairs. In his writings, Yoo devotes little attention to the framers' rejection of British executive prerogatives. Even less does he acknowledge their commitment to a republic, a form of government in which sovereign power is vested not in an executive but in the people.
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The End of the Robinson-Patman Act? Evidence from Legal Case Data
Ryan Luchs, Tansev Geylani, Anthony Dukes & Kannan Srinivasan
Management Science, December 2010, Pages 2123-2133
Abstract:
The Robinson-Patman Act (RP), an antitrust statute aimed at protecting small businesses, limits price setting in distribution channels. To avoid costly penalties under RP, managers take a variety of precautions when pricing to retailers and wholesalers. But how likely is a court to find a defendant guilty of violating the RP? We find that this likelihood has dropped drastically as a result of recent Supreme Court rulings from more than 1 in 3 before 1993 to less than 1 in 20 for the period 2006-2010. The analysis also points to an increased success of the no harm to competition defense, which reflects the view that the courts have raised the hurdle for plaintiffs to establish competitive harm. Finally, our results indicate that smaller plaintiffs over time have fared worse than larger ones, a trend that challenges the notion that RP protects small businesses.
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Do Constitutions Have a Point? Reflections on "Parchment Barriers" and Preambles
Sanford Levinson
Social Philosophy and Policy, January 2011, Pages 150-178
Abstract:
Constitutions serve (at least) two central functions. One is to settle certain controversies by offering a definitive solution, such as adoption of a presidential or parliamentary system, a one-house or two-house legislature, or guaranteeing a certain term of years to judicial appointees. Not surprisingly, there is rarely litigation about such solutions, even if one finds them troublesome; instead, one can suggest amending the constitution or even replacing it. A second function is precisely to engender litigation by addressing certain issues - very often involving rights - that don't lend themselves to the kinds of definitive textual solutions similar to those involving structural features of a polity. If the first constitution can be described as a "constitution of settlement," this second constitution is a "constitution of legal conversation" inasmuch as lawyers constantly dispute the meanings to be assigned such terms as "equal protection," "human dignity," and the like. But how does this apply to the preambles commonly, though not always, found in constitutions? Preambles often claim to evoke what binds together the society for whom the constitution is being drafted - religion, ethnicity, histories, languages, or commitments to norms, including universalistic ones. But to what extent are such claims of unity attempts by political elites to marginalize sectors of the society that do not in fact share the attributes in question? In any event, there is nothing "innocent" about constitutional preambles, and they are well worth taking seriously whether or not they are useful to lawyers engaged in litigation.
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Errors in Judicial Decisions: Experimental Results
Joep Sonnemans & Frans van Dijk
Journal of Law, Economics, & Organization, forthcoming
Abstract:
In criminal cases, the task of the judge is foremost to transform the uncertainty about the facts into the certainty of the verdict. An extensive literature shows that people deviate from rationality when dealing with probability. It seems therefore unavoidable that in difficult criminal cases, miscarriages of justice occur, but this is hard to study in the field. In a laboratory experiment, we examine the relationship between evidence of which the diagnostic value is known, subjective probability of guilt and errors in verdicts for abstract criminal cases. We look at two situations: (1) all evidence is given and (2) evidence can be acquired. In both situations, verdicts are inaccurate. For given evidence, errors are biased toward the most serious type, unfounded conviction. In the situation where evidence can be acquired, participants do not acquire enough which results in many mistakes, evenly divided over unfounded convictions and unfounded acquittals. We suggest ways to reduce error.
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Strategic Defiance and Compliance in the U.S. Courts of Appeals
Chad Westerland, Jeffrey Segal, Lee Epstein, Charles Cameron & Scott Comparato
American Journal of Political Science, October 2010, Pages 891-905
Abstract:
Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal-agency theory.
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The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona)
Barry Friedman
Georgetown Law Journal, November 2010, Pages 1-63
Abstract:
Over the last few years - and especially following the 2006 Term - commentators have criticized the Supreme Court for engaging in "stealth overruling." This Article examines the phenomenon, trying to ascertain why the Justices engage in the practice and how we should feel about it. The Article focuses on the gradual overruling of Miranda v. Arizona because here tangible evidence is available about the benefits to the Justices - and costs to the rest of us - of the practice of stealth overruling. The Article demonstrates that by engaging in stealth overruling the Justices are able to see that their will is done by lower courts and public officials, yet they avoid arousing negative public opinion. While this strategy benefits the Justices, it has costs. Doctrine is rendered incoherent, and public officials are encouraged to evade federal law. Of greatest concern, stealth overruling suppresses the dialogue between the Court and the public about the proper meaning of the Constitution, leaving the course of constitutional law largely in the Justices' hands.
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The Origins of an Independent Judiciary in New York, 1621-1777
Scott Gerber
Social Philosophy and Policy, January 2011, Pages 179-201
Abstract:
Article III of the U.S. Constitution establishes an independent federal judiciary: federal courts constitute a separate branch of the national government, federal judges enjoy tenure during good behavior, and their salaries cannot be diminished while they hold office. The framers who drafted Article III in 1787 were not working from whole cloth. Rather, they were familiar with the preceding colonial and state practices, including those from New York. This essay provides a case study of New York's judicial history: the Dutch period, 1621-1664; the Ducal proprietary period, 1664-1685; the Royal period, 1685-1776; and the early state period. As will be seen, New York - among the most significant of the original thirteen states - was a state groping towards a new ideal of judicial independence: an ideal that became a reality a decade after its own constitution was enacted in 1777 and at a different level of government. Significantly, the uncertain status of New York's judiciary had profound consequences for the ultimate expression of judicial independence, judicial review.
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Jeffrey Segal1, Chad Westerland & Stefanie Lindquist
American Journal of Political Science, January 2011, Pages 89-104
Abstract:
Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current Congress for the original legislation and the Court's preferences over that legislation. We find that the Court does not appear to consider the likelihood of override in constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress.
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The effect of cross-examination on the accuracy of adult eyewitness testimony
Tim Valentine & Katie Maras
Applied Cognitive Psychology, forthcoming
Abstract:
Cross-examination permits styles of questioning that increase eyewitness error (e.g. leading questions). Previous research has shown that under cross-examination children change many of their initially accurate answers. An experiment is reported in which the effect of cross-examination on accuracy of adult eyewitness testimony was investigated. Twenty-two student witnesses watched a video of a staged theft, either in pairs, or individually. Paired witnesses discussed the video with their co-witnesses, but did not know they had seen slightly different versions. Participants in the co-witness condition demonstrated memory conformity and recalled less accurately than witnesses in the control condition. After approximately 4 weeks all participants were cross-examined by a trainee barrister. Following cross-examination there was no difference in accuracy between the two experimental groups. Witnesses in both conditions made many changes to their previous reports by altering both initially correct and incorrect answers. The results demonstrate negative effects of cross-examination on the accuracy of adult eyewitness testimony.
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William Hart & Dolores Albarracín
Psychological Science, forthcoming
Abstract:
Scientists have long been interested in understanding how language shapes the way people relate to others, yet it remains unclear how formal aspects of language influence person perception. We tested whether the attribution of intentionality to a person is influenced by whether the person's behaviors are described as what the person was doing or as what the person did (imperfective vs. perfective aspect). In three experiments, participants who read what a person was doing showed enhanced accessibility of intention-related concepts and attributed more intentionality to the person, compared with participants who read what the person did. This effect of the imperfective aspect was mediated by a more detailed set of imagined actions from which to infer the person's intentions and was found for both mundane and criminal behaviors. Understanding the possible intentions of others is fundamental to social interaction, and our findings show that verb aspect can profoundly influence this process.
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Aggressive Enforcement of the Single Subject Rule
John Matsusaka & Richard Hasen
Election Law Journal, December 2010, Pages 399-419
Abstract:
Most states require voter initiatives to embrace only a single subject, and courts have invalidated many initiatives for violating the single subject rule. Critics argue that the definition of a "subject" is infinitely malleable, so that if judges attempt to enforce the single subject rule aggressively, their decisions will be based on their personal views rather than neutral principles. We investigate this argument by studying the decisions of state appellate court judges in five states during the period 1997-2006. We find that judges are more likely to vote to uphold an initiative against a single subject challenge if their partisan affiliations suggest they would be sympathetic to the policy proposed by the initiative. More important, we find that partisan affiliation is highly consequential in states with aggressive enforcement of the single subject rule - the rate of voting to uphold an initiative jumps from 41 percent when a judge agrees with the policy to 83 percent when he disagrees - but not very consequential in states with restrained enforcement. The evidence suggests that it may be possible to apply the single subject rule in a neutral way when the judiciary is restrained, but with aggressive enforcement decisions are likely to be driven by the political preferences of judges.
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Remembering why: Can people consistently recall reasons for their behaviour?
Suzanne Kaasa, Erin Morris & Elizabeth Loftus
Applied Cognitive Psychology, January/February 2011, Pages 35-42
Abstract:
We explored how consistent individuals are over time in their recall of the reasons why they engaged in a past behaviour. The study was inspired by a research survey submitted in a copyright infringement case. Study participants listed the reasons why they acquired a particular CD, and repeated the survey several months later. We assessed the consistency of responses across time overall and at the individual level. Results indicate that both forgetting and memory distortion were common. Different types of inconsistencies were identified, and these responses were predicted by characteristics of the original memory and of individuals' preferences towards the CD. Implications for the legal field are discussed.
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Lauren French, Maryanne Garry & Kazuo Mori
Acta Psychologica, January 2011, Pages 119-128
Abstract:
People remember different details about the same events, and when they discuss events they exchange new - and misleading - information. Discussion can change memory, especially when the source of new information is highly credible. But we do not know whether the effects of credibility are based on absolute judgments - judging a source's credibility independently from our own credibility - or relative judgments - judging a source's credibility only in relation to our own credibility. We addressed this question by manipulating subjects' expectations, leading them to believe that they either had the same, higher or lower "visual acuity" than their partner while they watched a movie together. To create ample opportunities for the pairs to mention misleading details to one another, each member unknowingly saw a different version of the movie. The pairs then discussed some of the critical differences, but not others. Later, everyone took an independent recognition test. Subjects' susceptibility to misinformation depended on their own credibility relative to their partner's, supporting the idea that susceptibility to misinformation depends on relative differences in credibility.
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A simple remedy for overprecision in judgment
Uriel Haran, Don Moore & Carey Morewedge
Judgment and Decision Making, December 2010, Pages 467-476
Abstract:
Overprecision is the most robust type of overconfidence. We present a new method that significantly reduces this bias and offers insight into its underlying cause. In three experiments, overprecision was significantly reduced by forcing participants to consider all possible outcomes of an event. Each participant was presented with the entire range of possible outcomes divided into intervals, and estimated each interval's likelihood of including the true answer. The superiority of this Subjective Probability Interval Estimate (SPIES) method is robust to range widths and interval grain sizes. Its carryover effects are observed even in subsequent estimates made using the conventional, 90% confidence interval method: judges who first made SPIES judgments considered a broader range of values in subsequent conventional interval estimates as well.