Judicial review
Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing
Carlos Berdejó & Noam Yuchtman
Review of Economics and Statistics, forthcoming
Abstract:
We present evidence that Washington State judges respond to political pressure by sentencing serious crimes more severely. Sentences are around 10% longer at the end of a judge's political cycle than at the beginning; judges' discretionary departures above the sentencing guidelines range increase by 50% across the electoral cycle, accounting for much of the greater severity. Robustness specifications, non-linear models, and falsification exercises allow us to distinguish among explanations for increased sentencing severity at the end of judges' political cycles. Our findings inform debates over judicial elections, and highlight the interaction between judicial discretion and the influence of judicial elections.
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Michael Evans & Shanna Pearson-Merkowitz
American Politics Research, forthcoming
Abstract:
Using digital text analysis methods, we analyze over 3800 newspaper articles covering U.S. Supreme Court judicial appointments between 1981 and 2009 to measure the level of (in)congruence between the Court's agenda and the issues emphasized by the media. We find that newspapers highlight "culture war" issues at the expense of other important issues addressed much more frequently by the Court. Moreover, abortion in particular receives attention in more articles and in much greater depth than any other issue. With a few minor deviations, these patterns are consistent across nominations. These findings raise normative concerns regarding the didactic function of the print media in American democracy and shed empirical light on positive theories of media behavior.
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Stuart Minor Benjamin & Bruce Desmarais
Journal of Legal Analysis, forthcoming
Abstract:
Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author's ideal holding? If the author's objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding either ideological breadth or a new member to the majority coalition results in an opinion that is less likely to be overruled, criticized, or questioned by a later court. Our findings contradict the conventional wisdom regarding the coalition-building strategy of a rational and strategic opinion author, establishing that the author has an incentive to go beyond the four most ideologically proximate Justices in building a majority coalition. And because of later interpreters' negative reactions to narrow coalitions, the law ends up being less ideological than the Justices themselves.
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A Built-In Advantage: The Office of the Solicitor General and the U.S. Supreme Court
Ryan Black & Ryan Owens
Political Research Quarterly, forthcoming
Abstract:
The Office of the Solicitor General wins the vast majority of Supreme Court cases in which it participates. Does it enjoy a built-in advantage, or does it win because it employs experienced litigators, enjoys resource advantages, or carries the executive's sword? To answer these questions, we employ cutting edge matching methods. After matching OSG lawyers with nearly identical non-OSG lawyers in nearly identical cases, we find that OSG attorneys still are more likely to win their cases. We discuss possible reasons for this built-in advantage along with some practical implications of our findings.
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How Much Should Judges Be Paid? An Empirical Study on the Effect of Judicial Pay on the State Bench
James Anderson & Eric Helland
Stanford Law Review, May 2012, Pages 1277-1342
Abstract:
How much should judges be paid? We first survey the considerable history of the debate and identify the implicit causal claims made about the effect of judicial pay. We find that claims about the effect of pay on the composition and quality of the judiciary have remained remarkably similar over the past two hundred years. In contrast, claims about the effect of pay on judicial independence have changed as the meaning of judicial independence itself has shifted. We take advantage of the large variation in real salaries and opportunity costs for state appellate court judges across states from 1977 to 2007 to empirically test these claims. We find that judicial salaries have a small but significant effect on the likelihood of exit and thus the length of judicial tenure, and a small effect on the background of judges that join the appellate bench. A more limited analysis of California trial court judges finds far more sensitivity to pay, however, suggesting that trial and appellate court judges may behave differently.
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The Origins of the Elected Prosecutor
Michael Ellis
Yale Law Journal, April 2012, Pages 1528-1569
Abstract:
The United States is the only country in the world where voters elect prosecutors. But the American prosecutor did not start as an elected official. After the Revolutionary War, most states gave their governors, judges, or legislators the power to appoint prosecutors. Starting with Mississippi in 1832, however, states adopted new constitutions, statutes, or amendments that made prosecutors elected officials. By 1861, nearly three-quarters of the states in the Union elected their prosecutors. This Note is the first detailed study of when, how, and why American state and local prosecutors became elected officials. It shows that fairness and efficiency concerns were largely absent from the debates over whether to make prosecutors elected. Instead, supporters of elected prosecutors were responding to governors and legislators who used the appointment system for political patronage. As prosecutors gained discretionary power over criminal prosecutions, mid-nineteenth-century political reformers believed it was crucial to remove prosecutors from partisan politics. Many also hoped elected prosecutors would be more accountable to the voters and the local communities they served. Not long after prosecutors became elected, however, prosecutors quickly became involved in and co-opted by partisan politics.
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Media Influence on Courts: Evidence from Civil Case Adjudication
Claire Lim
Cornell University Working Paper, July 2012
Abstract:
This paper quantitatively assesses media influence on civil case adjudication in U.S state courts. It shows that media influence substantially mitigates disparity in damage awards across political orientation of jurisdictions. That is, in the areas with frequent newspaper coverage of courts, there is little difference in the amount of damage awards between conservative and liberal jurisdictions. In contrast, in the areas with little newspaper coverage, liberal jurisdictions tend to yield substantially larger damage awards in civil litigation than do conservative ones. This result suggests that media may enhance fairness in civil justice system.
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Identifying the Bad Guy in a Lineup Using Confidence Judgments Under Deadline Pressure
Neil Brewer et al.
Psychological Science, forthcoming
Abstract:
Eyewitness-identification tests often culminate in witnesses not picking the culprit or identifying innocent suspects. We tested a radical alternative to the traditional lineup procedure used in such tests. Rather than making a positive identification, witnesses made confidence judgments under a short deadline about whether each lineup member was the culprit. We compared this deadline procedure with the traditional sequential-lineup procedure in three experiments with retention intervals ranging from 5 min to 1 week. A classification algorithm that identified confidence criteria that optimally discriminated accurate from inaccurate decisions revealed that decision accuracy was 24% to 66% higher under the deadline procedure than under the traditional procedure. Confidence profiles across lineup stimuli were more informative than were identification decisions about the likelihood that an individual witness recognized the culprit or correctly recognized that the culprit was not present. Large differences between the maximum and the next-highest confidence value signaled very high accuracy. Future support for this procedure across varied conditions would highlight a viable alternative to the problematic lineup procedures that have traditionally been used by law enforcement.
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When Forensic Examiners Disagree: Bias, or Just Inaccuracy?
Douglas Mossman
Psychology, Public Policy, and Law, forthcoming
Background: Previous investigators have suggested that bias might account for the disparate rates at which examiners conclude that defendants are competent to stand trial (CST). This article describes three computer studies of how biases and imperfect accuracy might affect rates of disagreement.
Methods: Study 1 assumed that examiners could discriminate between competent and incompetent accurately (effect size = 1.81, receiver operating characteristic area = 0.90) and used computer simulation of 20,000 pairs of CST evaluations to determine how different judgment thresholds (e.g., thresholds exemplifying biases toward opinions that defendants were competent or incompetent) would elevate disagreement rates above those expected through chance error alone. Studies 2 and 3 evaluated the assumptions of Study 1 using previously published data to make inferences about examiner accuracy and threshold locations.
Results: Imperfect accuracy alone would often explain much between-examiner disagreement, even if examiners approached evaluations with distinct biases. Results from Studies 2 and 3 suggested that assumptions used in Study 1 were reasonable.
Conclusion: Many instances of between-examiner disagreement might be attributable to imperfect accuracy that expresses itself in random errors, rather than to examiner biases that imply different thresholds for judging defendants' competence.
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Jurors' Use of Standards of Proof in Decisions about Punitive Damages
William Douglas Woody & Edie Greene
Behavioral Sciences & the Law, forthcoming
Abstract:
Standards of proof define the degree to which jurors must be satisfied that a fact is true, and plaintiffs in civil lawsuits assume the burden of proving their claims to the requisite standard of proof. Three standards - preponderance of evidence, clear and convincing evidence, and beyond a reasonable doubt - are used by different jurisdictions in trials involving liability for punitive damages. We investigated whether individual mock jurors apply these standards appropriately by instructing them to read two personal injury trial summaries and to use one of three standards in either qualitative or quantitative format when deciding punitive liability. Results showed that jurors tended not to incorporate the standard into their judgments: defendants were just as likely to be found liable when the plaintiff's burden was high ("beyond a reasonable doubt") as when the burden was low ("preponderance of evidence"). The format of the instruction also had a negligible effect. We suggest that nonuse of the standard of proof is related to jurors' preferences for less effortful or experiential processing in situations involving complicated or ambiguous material.
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Drawing on Liars' Lack of Cognitive Flexibility: Detecting Deception Through Varying Report Modes
Drew Leins, Ronald Fisher & Aldert Vrij
Applied Cognitive Psychology, July/August 2012, Pages 601-607
Abstract:
The present experiment examined the role of cognitive flexibility in the consistency of truth tellers' and liars' reports. We expected liars to be less flexible (less able to report an experience in different ways) and hence less consistent than truth tellers when asked to describe an event in different ways (e.g. verbally and pictorially). In the experiment, truth tellers entered a room and performed several tasks, whereas liars did not enter the room or perform the tasks but attempted to convince an interviewer that they did. Truth tellers and liars were interviewed twice about the room and tasks, and were asked to express their answers either the same way on both interviews (e.g. verbally then again verbally) or in different ways (e.g. verbally then pictorially). In support of the cognitive flexibility hypothesis, liars' reports were less consistent than truth tellers' reports, particularly when reporting in different ways across interviews. Theoretical and practical implications are discussed.
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Eye-closure improves memory for a witnessed event under naturalistic conditions
Annelies Vredeveldt & Steven Penrod
Psychology, Crime & Law, forthcoming
Abstract:
Eye-closure may help people remember live and videotaped mundane events and videotaped violent events. The present study extended this research by examining memory for a forensically relevant live event (a staged verbal altercation) and by interviewing witnesses under naturalistic conditions. Ninety-six witnesses were interviewed either inside in a quiet setting or outside on a busy street, with eyes open or closed. In free recall, eye-closure significantly increased the number of correct details reported, without harming testimonial accuracy. These benefits were significant for witnesses interviewed inside but not for witnesses interviewed outside. This finding highlights the potential role of spontaneous mental context reinstatement in the eye-closure effect. In cued recall, eye-closure improved fine-grain correct recall of visual details for both groups of witnesses. From an applied perspective, the findings suggest that police interviewers should instruct witnesses to close their eyes, both during initial statements taken on the street and during full interviews conducted at the police station.
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Too exhausted to see the truth: Ego depletion and the ability to detect deception
Marc-André Reinhard, Martin Scharmach & Dagmar Stahlberg
British Journal of Social Psychology, forthcoming
Abstract:
In two experiments, recent findings showing the detrimental role of regulatory depletion in decision making are extended to the field of deception detection. In both experiments, the state of ego depletion was induced by having judges inhibit versus non-inhibit a dominant response while transcribing a text. Subsequently they judged true or deceptive messages of different stimulus persons with regard to their truthfulness. In both experiments, ego-depleted judges scored significantly lower on detection accuracy than control judges. Signal detection measures showed that this effect was not due to differences in judgmental bias between the two conditions. In Experiment 2, it was shown that the lower detection accuracy in the state of ego depletion was due to a feeling of difficulty of relying on verbal content information. Practical implications of the current findings are discussed.
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Social Indicators of Deception
James Driskell, Eduardo Salas & Tripp Driskell
Human Factors, August 2012, Pages 577-588
Objective: This study addresses a practical homeland security issue of considerable current concern: In a situation in which the opportunity exists to question or interview concurrently two or more suspects, how does one determine truth or deception at a social level?
Background: Recent world events have led to an increased emphasis on the capacity to detect deception, especially in military, security, and law enforcement settings. In many screening or checkpoint situations, the opportunity exists to question two or more suspects regarding their involvement in some activity, yet investigators know very little regarding characteristics of speech or behavior that are exhibited between two suspects that indicate truth or deception.
Method: We conducted an empirical study in which pairs of police officers and firefighters who had served together as partners took part. In the "truth" conditions, each dyad described a recent event in which they had actually taken part, and in the "deceptive" conditions, each dyad fabricated a story that did not take place. We expected that the officers in the truth-telling dyads would be able to draw on shared or transactive memory of the actual event they had participated in and would describe this event in a more interactive manner than would those in deceptive dyads.
Results: Results indicated greater evidence of synchrony of behavior as well as more interactive behaviors, such as mutual gaze and speech transitions, in truthful dyads than in deceptive dyads.
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US Supreme Court Agenda Setting and the Role of Litigant Status
Ryan Black & Christina Boyd
Journal of Law, Economics, and Organization, June 2012, Pages 286-312
Abstract:
Whether the "haves" come out ahead of the "have nots" in the judicial process is a topic of great interest for scholars of the judiciary. Although studies of lower courts have found that litigant status generally matters, research at the US Supreme Court is not of one voice, with conflicting results across several studies. Bringing a novel perspective to this debate, we analyze litigant status at the Supreme Court's agenda-setting stage. Using archival data from the articles of Justice Blackmun, we find that litigant status influences the Court's decision making but that the nature of the effect can be mitigated by the interplay between a justice's ideology and the presence of interest group support.
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Claire Lim, James Snyder & David Stromberg
Cornell University Working Paper, June 2012
Abstract:
We study the influence of media coverage on the behavior of public officials, focusing on elected and appointed U.S. state trial court judges. We develop a model where media coverage increases the responsiveness of sentencing decisions to ordinary citizens' preferences, at the expense of judges and special interests. This effect is largest for non-partisan elected judges, followed by partisan elected and appointed judges. We test this using data on 2.4 million sentences in the National Judicial Reporting Program from 1990 to 2006 and newly collected data on the coverage of 9,828 trial court judges in 1,400 newspapers. Since newspaper coverage may be endogenous, we use the match between the newspaper markets and the judicial districts to identify effects. We find that press coverage significantly increases sentence length. This is driven by non-partisan elected judges in cases with violent crimes. For partisan elected and appointed judges, there are no significant effects. Additionally, we find that that newspaper coverage does not affect the public's penal preferences.
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Contingent Fee Caps, Screening, and the Quality of Legal Services
Stephen Cotton & Rudy Santore
International Review of Law and Economics, forthcoming
Abstract:
In theory, contingent fees can reduce the effects of informational asymmetries by allowing clients to screen low-quality attorneys who obtain smaller awards in expectation. We experimentally examine whether clients possess the sophistication necessary to design screening contracts and how contingent fee caps affect a client's ability to screen. When contingent fees are unrestricted, we find that most subjects are able to design contracts that screen low-quality attorneys, resulting in an increase in the quality of legal services. However, we find that contingent fee caps decrease the frequency of screening even if the cap is non-binding. Caps on contingent fees also reduce clients' ability to extract surplus, allowing attorneys to earn greater profits.
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Rule Creation in a Political Hierarchy
Clifford Carrubba & Tom Clark
American Political Science Review, August 2012, Pages 622-643
Abstract:
Principal-agent relations are replete in politics; politicians are agents of electorates, bureaucrats are agents of executives, lower courts are agents of upper courts, and much more. Commonly, principals are modeled as the rule-making body and agents as the rule-implementing body. However, principals often delegate the authority to make the rules themselves to their agents. The relationship between the lower federal courts and the Supreme Court is one such example; a considerable portion of the law (rules) is made in the lower federal courts with the Supreme Court serving primarily as the overseer of those lower courts' decisions. In this article, we develop and test a principal-agent model of law (rule) creation in a judicial hierarchy. The model yields new insights about the relationship among various features of the judicial hierarchy that run against many existing perceptions. For example, we find a non-monotonic relationship between the divergence in upper and lower court preferences over rules and the likelihood of review and reversal by the Supreme Court. The empirical evidence supports these derived relationships. Wider implications for the principal-agent literature are also discussed.
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Robert Hume
Publius, Spring 2012, Pages 211-233
Abstract:
Legitimacy theory suggests that judges are uniquely capable of increasing public support for government policies. However, this capacity may not be universal but conditional, depending on the institutional design of courts. In the United States, institutional differences between federal and state courts may make state judiciaries less capable of increasing public support for government policies. I investigate this possibility using an original survey experiment. Respondents were randomly assigned to one of three treatments, attributing the legalization of same-sex marriage to a state court, a governor, or a state legislature. I find, generally, that state courts are no more effective than other state institutions at building public support, but that this capacity of courts is variable, depending on levels of judicial independence.