Justice is blindfolded

Kevin Lewis

July 12, 2019

The Mask of Neutrality: Judicial Partisan Calculation and Legislative Redistricting
Jordan Carr Peterson
Law & Policy, forthcoming

Do judges ruling on redistricting litigation increase electoral competition in congressional races, while simultaneously drawing districts favoring their party's congressional candidates? I offer a novel theory of judicial partisan calculation, arguing judges draw more competitive districts than legislatures or commissions, but that judge‐drawn districts favor electoral interests of their copartisans. These claims are reconcilable because judges target districts held by contrapartisan legislators to maximize their copartisans' fortunes. I find Democratic judges draw competitive districts by adding Democratic voters to Republican‐held House constituencies. Court‐administered redistricting increases competitiveness, ostensibly due to judicial neutrality. This mask of neutrality, however, conceals sophisticated partisan calculation.

Legal Uniformity in American Courts
Deborah Beim & Kelly Rader
Journal of Empirical Legal Studies, forthcoming

Intercircuit splits occur when two or more circuits on the U.S. Courts of Appeals issue different legal rules about the same legal question. When this happens, federal law is applied differently in different parts of the country. Intercircuit splits cause legal nonuniformity, are an impediment to lawyering and judging, and have practical consequences for U.S. law. Despite intercircuit splits’ importance, there is almost no quantitative research about them. We created a unique original dataset that includes intercircuit splits that arose between 2005 and 2013. For each intercircuit split, we identified every circuit and every case involved. These data reveal that one‐third of intercircuit splits are resolved by the Supreme Court. Two‐thirds are not. We show that those that will be resolved are resolved within three years after they arise and that splits are more likely to be resolved when they exhibit contemporaneous and growing disagreement. However, many such splits are never resolved by the Supreme Court. Those that are not resolved by the Supreme Court continue to yield litigation and do not dissipate on their own. The likelihood of resolution does not rise as time passes.

Getting a Lawyer While Black: A Field Experiment
Brian Libgober
Lewis and Clark Law Review, forthcoming

In this Article, I present new evidence that African-Americans face unique impediments in obtaining access to counsel. Using a randomized audit design, I show that those with black-sounding names receive only half the responses of those with white-sounding names regarding requests for legal representation. I design a larger, follow-up experiment to evaluate variations on the theory of “statistical discrimination,” that lawyers are merely responding to economically-relevant signals correlated with race. I find no evidence supporting the expectations of the statistical discrimination theory, but some evidence that racial preferences matter. I conclude by presenting a more nuanced theory of racialized service rationing that is consistent with the body of experimental evidence presented and is supported by observational data. I discuss the implications of these theories for potential policy responses, including debates about affirmative action and the size of the legal profession.

Evaluative Spillovers from Technological Change: The Effects of “DNA Envy” on Occupational Practices in Forensic Science
Beth Bechky
Administrative Science Quarterly, forthcoming

Most studies of technologies’ impact on occupational change focus on occupational groups’ adoption and use of particular technologies in a field or workplace. Drawing on an 18-month ethnographic study of a crime laboratory, I focus instead on “evaluative spillovers”: the comparisons that occupations encounter when technologies change the work of neighboring occupations in their field. I explore what happened when DNA profiling was held up as the “gold standard” of forensic evidence, resulting in scientific, public, and legal scrutiny of other forensic science occupational groups. Comparisons with DNA profiling challenged the working techniques and the values of firearms examiners, toxicologists, and narcotics analysts, but each group responded differently, either embracing or resisting changes to their work practices. Their responses were predicated on the institutional pathways that evaluative spillovers traveled through the field in locales such as professional association meetings and court proceedings. These three aspects of the occupational system — technique, values, and institutional pathways — influenced how workers negotiated the impact of technological change in the field of forensic science.

Behavioral Economics and Framing Effects in Guilty Pleas: A Defendant Decision Making Experiment
Laura Garnier-Dykstra & Theodore Wilson
Justice Quarterly, forthcoming

With over 90% of convictions resulting from guilty pleas, it is of great importance to examine factors influencing the likelihood of plea acceptance. Prior research suggests individuals are risk-seeking in the domain of losses, prompting questions related to why potentially innocent defendants would plead guilty. Birke suggests defendants may view pleas as a gain, making them more risk-averse. The current study uses an experiment to explore how the framing of a plea bargain impacts the likelihood of plea acceptance. Undergraduate criminal justice students (n = 501) were presented with two plea bargaining scenarios with the guilty plea randomly assigned to be framed as a gain, loss, or neutral. Results indicate that framing a plea as a gain (as compared to neutral or loss) induces the innocent and discourages the guilty to plead guilty across every appraised subgroup based on individual-level factors. Implications for future research and defendant decision-making are discussed.

Vote Influence in Group Decision-Making: The Changing Role of Justices' Peers on the Supreme Court
Maxwell Mindock & Glen Waddell
University of Oregon Working Paper, April 2019

We consider the voting behavior of Supreme Court Justices, finding evidence of co-dependencies in their votes. Coincident with changes in the party imbalance of the Court over time, sharp discontinuities in these dependencies are evident. Overall, the patterns suggest a tradeoff between co-dependencies around political affiliations and individual ideologies, with more-equal party representation on the Court encouraging greater party awareness in Justice voting, and less-equal party representation allowing Justices across party lines but with similar ideologies to inform each other's votes.

Jurors’ cognitive depletion and performance during jury deliberation as a function of jury diversity and defendant race
Liana Peter-Hagene
Law and Human Behavior, June 2019, Pages 232-249

Racial diversity in juries, meant to ensure representation of minority voices, can also reduce racial bias in verdicts and improve group performance during deliberation (Sommers, 2006). Although jury diversity might increase cognitive depletion because it involves interracial interactions (Richeson & Shelton, 2003), it might also reduce racial disparity in verdicts and deliberation quality by improving the quality of deliberation for Black defendants. In 6-person juries that included 2 White or 2 Black confederates, White jurors viewed trial evidence including a defendant race manipulation (White, Black) and completed measures of cognitive depletion and case facts recall. Deliberation transcripts were coded for the number of total, correct, and new case facts mentioned by jurors. As predicted, jurors in diverse versus all-White juries were more depleted after deliberation, but depletion was not related to deliberation performance. For the Black defendant, jurors on diverse (vs. homogeneous) juries discussed more case facts; for the White defendant, the effect was not significant. Jurors on all-White juries discussed more case facts when they judged a White (vs. Black) defendant, but this difference was not significant for jurors on diverse juries. Thus, jury diversity reduced racial disparity in the quality of deliberation. Before and after deliberation, jurors were less likely to convict the Black (vs. White) defendant regardless of jury composition. These findings reinforce the importance of constructing racially diverse juries, given that they may be better equipped to evaluate trial evidence for both Black and White defendants despite the cognitive demand of deliberating within a diverse group.

You can Believe your Eyes: Measuring Implicit Recognition in a Lineup with Pupillometry
Camilla Elphick, Graham Pike & Graham Hole
Psychology, Crime & Law, forthcoming

As pupil size is affected by cognitive processes, we investigated whether it could serve as an independent indicator of target recognition in lineups. Participants saw a simulated crime video, followed by two viewings of either a target-present or target-absent video lineup while pupil size was measured with an eye-tracker. Participants who made correct identifications showed significantly larger pupil sizes when viewing the target compared with distractors. Some participants were uncertain about their choice of face from the lineup, but nevertheless showed pupillary changes when viewing the target, suggesting covert recognition of the target face had occurred. The results suggest that pupillometry might be a useful aid in assessing the accuracy of an eyewitness’ identification.

Perceived infallibility of detection dog evidence: Implications for juror decision-making
Lisa Lit et al.
Criminal Justice Studies, Summer 2019, Pages 189-206

This study focuses on the trust that potential jurors have in unsubstantiated evidence and the implications of such trust for legal decision-making. We examined whether participants’ motivation to think deeply (‘need for cognition,’ NC) and belief in science moderated their trust in potentially fallible detection dog evidence when selecting a verdict in a trial scenario. A detection dog twice indicated the presence of drugs in the scenario, yet no drugs were actually found. Those who chose a guilty verdict without drugs present featured stronger beliefs in detection dog evidence. They were also more confident that a dog alert indicated the presence of drugs, even though the scientific literature actually shows that detection dog evidence is subject to biases and other challenges to reliability. Our findings indicate that an unsubstantiated belief and trust in detection dog evidence may negatively influence juror decision-making, which may, in turn, pose consequences for fairness and justice. Participants believed that detection dogs provide powerful and reliable evidence, and these beliefs were clearly associated with stronger beliefs in science. These findings, therefore, raise serious concerns about jurors’ indiscriminate trust in forensic evidence, be it detection dog evidence or other lines of evidence presented in court.

Mistaken eyewitness identification rates increase when either witnessing or testing conditions get worse
Andrew Smith et al.
Law and Human Behavior, August 2019, Pages 358-368

We examined how giving eyewitnesses a weak recognition experience impacts their identification decisions. In 2 experiments we forced a weak recognition experience for lineups by impairing either encoding or retrieval conditions. In Experiment 1 (n = 245), undergraduate participants were randomly assigned to watch either a clear or a degraded culprit video and then viewed either a culprit-present or culprit-removed lineup identification procedure. In Experiment 2 (n = 227), all participants watched the same clear culprit video but were then randomly assigned to either view a clear or noise-degraded lineup procedure. Half of the participants viewed a culprit-present lineup procedure and the remaining participants viewed a culprit-removed lineup procedure. Not surprisingly, degrading either encoding or retrieval conditions led to a sharp drop in culprit identifications. Critically, and as predicted, degrading either encoding or retrieval conditions also led to a sharp increase in the identification of innocent persons. These results suggest that when a lineup procedure gives a witness a weak match-to-memory experience, the witness will lower her criterion for making an affirmative identification decision. This pattern of results is troubling because it suggests that witnesses who encounter lineups that do not include the culprit might have a tendency to use a lower criterion for identification than do witnesses who encounter lineups that actually include the culprit.

The Power to Appoint: Presidential Nominations and Change on the Supreme Court
David Cottrell, Charles Shipan & Richard Anderson
Journal of Politics, July 2019, Pages 1057-1068

Can presidents use their appointment power to pull the Supreme Court closer to their own ideological preferences? Using new and novel tests of existing theories of appointments, we provide the first systematic evidence that the president is able to draw the Court median closer to his ideal point when specific theoretically identified conditions are met. Our findings hold even when we account for alternative explanations, including peer effects and the influence of public opinion, and when we leverage the uncertainty found in our data. At the same time, although the president’s power to appoint new members of the Court is constrained by Senate approval, we find that such constraints are less restrictive than existing theories predict and that presidents achieve ideological gains above and beyond what the Senate should allow.

Getting Their Way: Bias and Deference to Trial Courts
Ryan Hübert
American Journal of Political Science, forthcoming

How much do trial judges influence the law in the United States? I analyze a model of adjudication by a trial judge who engages in fact finding before deciding a case, but whose decision may be reversed. The model makes three broad points. First, it provides an informational rationale for ex post deference to biased trial judges that does not require an ex ante commitment by an appellate court to a standard of review. Second, it shows how procedural discretion can bring biased trial judges' rulings closer to appellate doctrine despite enabling trial judges to “get their way” more often. Third, de facto law as represented by trial judges' case‐by‐case adjudication will differ substantially from de jure law. As long as there are not too many extremist trial judges, de facto law will reflect the predispositions of trial judges, not legal doctrine.

Compelling Interests and Substantial Burdens: The Adjudication of Religious Free Exercise Claims in U.S. State Appellate Courts
Robert Martin
SAGE Open, May 2019

Conflicts occasionally arise between individuals’ religious obligations and requirements of the state. In America, these conflicts are often resolved in the courts. A major debate over religious freedom in America centers on whether exemptions to acts of government which may interfere with people’s free exercise of religion are permissible. This article employs multivariate statistical analysis to model how the use of different legal tests to resolve free exercise disputes is linked to variation in likelihoods of claimant success in state appellate courts between 1997 and 2011. Claims adjudicated with balancing tests, such as those mandated by state and federal religious freedom “restoration” legislation, were more likely to lead to decisions favorable to religious free exercise claimants than those adjudicated with rational basis tests. Religious minorities’ claims are generally less likely to prevail than members of more common faiths, and claims brought by formal organizations are more likely to succeed than those brought by individuals.

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