Law of the land

Kevin Lewis

August 30, 2019

The Influence of Home-State Reputation and Public Opinion on Federal Circuit Court Judges
Ryan Owens & Patrick Wohlfarth
Journal of Law and Courts, forthcoming

At least four observationally equivalent theories argue that federal judges follow public opinion when they decide cases. Yet there is mixed empirical support for these theories. Using recently released data on public opinion, we discover that state public opinion exerts a meaningful impact on the votes of federal circuit court judges. Perhaps more important, we leverage a number of different empirical approaches to identify which theory the data support. The data suggest that circuit court judges may change along with society but also that they follow public opinion because they care about their reputations in their home states.

Latino Judges on the Federal District Court: ¿Cómo Deciden?
Scott Hofer & Jason Casellas
American Politics Research, forthcoming

As the Latino population in the United States grows, it is increasingly important to understand how the unique experience of Latino judges translates into legal decisions. This experience has included, until recently, a bipartisan prioritization to appoint Latinos to the federal judiciary. For the first time, we analyze the judicial decision-making of Latino judges with enough observations to provide robust results. We find that the differences in priorities between the two parties have typically meant more conservative Latino judges on the bench. Using the Carp-Manning U.S. District Court Case Database, we analyze the decisions of Latino judges to determine policy areas where they diverge from their non-Latino counterparts. We find strong evidence that, under certain partisan, ideological, and policy-specific conditions, Latino judges decide differently than non-Latino judges.

Courthouse Size and Its Impact on Judicial Performance: Insights from Weber’s Theory of Rationality
Sven Smith et al.
Journal of Law and Courts, forthcoming

Sectors of the criminal justice system have bureaucratized to such an extent that their management has supplanted the values for which they were created. Weber predicted this phenomenon, arguing that substantive rationality would be replaced by formal rationality as organizations grew. We test the relationship between size and these two types of rationality with the use of judicial performance checks in arraignments created from conversations with administrative courthouse staff and pilot observations at courthouses. We measure judicial performance through arraignment checklists (n = 481). Findings from multilevel models suggest that there is a positive relationship between size and formal rationality and a negative relationship between size and substantive rationality, even when controlling for workload by research design. Results suggest that abundance of formal rationality or substantive rationality facilitates injustice. These results begin a discourse encouraging quantitatively measuring formal and substantive rationality and that size be considered regarding judicial administrative policy.

A Third Party’s Judgment in Same-Race and Cross-Race Crimes
Jungwon Lee et al.
Race and Social Problems, September 2019, Pages 253–267

Prior studies investigating racial bias in legal decisions have involved race combinations of an observer, defendant, and victim where the observers’ race was the same as either the defendants’ or victims’ race. Because of the research designs employed in those prior studies, the effects of the three actors all being of different races have not been investigated. It is timely to investigate race effects of the three actors all being different races, given that growing racial diversity in the criminal justice system makes the race combination plausible in a trial, and that race effects observed in prior studies may not generalize to the race combination. Therefore, we examined whether observers’ punitive judgments against a defendant would differ in cross-race crimes (e.g., a white observer–black defendant–Hispanic victim) and same-race crimes (e.g., a white observer–black defendant–black victim), when the observers’ race was different from both the defendant and victim. The present research demonstrated that observers rendered more punitive judgments against the defendant in same-race (vs. cross-race) crimes, particularly when the defendant and victim knew each other. We propose that observers, whose race is different from both the defendant and victim, perceive the defendant and victim in same-race (vs. cross-race) crimes as more homogeneous out-group members. This perceived homogeneity increases punitive judgments in same-race crimes.

Will jurors believe nonbelievers? Perceptions of atheist rape victims in the courtroom
Jazmin Brown-Iannuzzi et al.
Psychology of Religion and Spirituality, forthcoming

We investigated the impact of a victim’s belief in God on mock jurors’ perceptions of the victim and verdict decisions in a mock rape trial. Four hundred eighteen community members (246 women, 172 men) read a rape trial summary involving an acquaintance rape in which the victim indirectly indicated that she was an atheist, Christian, or there was no mention of religious affiliation. In addition to rendering a verdict, participants rated the victim on her level of morality and rated other aspects of the trial (e.g., victim credibility). We found that the perceived morality of the victim mediated the relationship between the victim’s religious belief and the participants’ verdict, such that participants perceived the Christian victim as more moral than the atheist victim, which predicted a higher conviction rate. In addition, we found evidence for a sequential mediation pattern such that the effect of the victim’s religious belief on participants’ verdict was sequentially mediated by morality, sympathy, credibility, responsibility, and the strength of the prosecution’s case. The results support prior research suggesting atheists are viewed as amoral and have implications for better understanding the role of victim characteristics on attributions in a rape trial.

The Power of Technology: Examining the Effects of Digital Visual Evidence on Jurors Processing of Trial Information
Emma Rempel et al.
Applied Cognitive Psychology, forthcoming

With the emergence of ‘electronic courtrooms’ in North America, lawyers are increasingly using PowerPoint® to assist with their presentation of case evidence. The current study examined whether evidence complexity and presentation modality influenced participants’ comprehension of case evidence and verdict decisions. Participants read a trial transcript from a criminal case that contained DNA evidence which varied by complexity (simple or complex) and presentation modality (written or PowerPoint®). Participants completed comprehension questions to assess their understanding of the case evidence and rendered a verdict. Results demonstrated that neither the complexity nor the modality of the presented evidence influenced participants’ comprehension of the evidence; however, participants who viewed evidence within a PowerPoint® were significantly more likely to render guilty verdicts than those who viewed written evidence. We discuss the theoretical and practical implications of these findings, and propose suggestions for future research on the use of digital technology in the courtroom.

Does law and economics help decide cases?
Conor Clarke & Alex Kozinski
European Journal of Law and Economics, August 2019, Pages 89–111

Our answer is “less often than you might think.” We qualify and defend this answer in several steps. First, we offer some suggestive evidence that major scholarly contributions in law and economics have had relatively more influence with academics than with judges. For example, ranking articles on the basis of judicial citations rather than academic citations produces interesting results: Judges cite Ronald Coase’s “The Problem of Social Cost,” by far the most cited paper in the legal academy, much less frequently than doctrinal papers that have received relatively little attention from scholars. Second, we argue that some common features of law and economics scholarship are unappealing to judges. The broadest form of explanatory law and economics — like the hypothesis that the common law has tended to produce efficient rules — is often of little use to judges, who require reasons for making or justifying current decisions. Prescriptive law and economics, meanwhile — like various arguments that the legal system should produce efficient rules — often proceeds from ideological premises that judges don’t share, or fails to account for the institutional constraints under which judges operate. In short, much law and economics scholarship is insufficiently doctrinal to appeal to the average judge. These features of law and economics scholarship don’t prevent judges from using economics all the time. After all, economics is a basic social science, and judges encounter economic questions with some regularity. But, even here, we find little evidence that today’s judges are making greater use of concepts like “efficiency” and “incentives” than those of the past. Throughout this essay, we comment on Guido Calabresi’s “The Future of Law and Economics” (2016) and Richard Posner’s “Divergent Paths: The Academy and the Judiciary” (2016).

The Aggregate Dynamics of Lower Court Responses to the US Supreme Court
Ali Masood, Benjamin Kassow & Donald Songer
Journal of Law and Courts, forthcoming

We argue that given finite resources to review the large number of lower court decisions, Supreme Court justices should primarily be interested in aggregate responses to their precedents. We offer a theory in which the US Supreme Court drives aggregate responses to its decisions by signaling the utility of its precedents to judges on the lower courts. Specifically, we argue that lower court judges have a greater propensity to rely on a Supreme Court decision when the justices explicitly direct a lower court to consider a formally argued decision in its summary decisions. Our results demonstrate that such signals significantly increase the frequency with which the lower courts adopt the precedents of the US Supreme Court. We corroborate the causality of these links through qualitative analyses, distance matching methods, and simultaneous sensitivity analysis. Our study offers new and important insights on judicial impact and decision-making behavior in the American courts.

Understanding the Subgroup Complexities of Transfer: The Impact of Juvenile Race and Gender on Waiver Decisions
Sara Bryson & Jennifer Peck
Youth Violence and Juvenile Justice, forthcoming

While prior research has consistently found the presence of extralegal disparities in juvenile justice decision-making, less research has investigated the combined effects of a juvenile’s race and gender on the decision to transfer youth to adult court. The current study examines both the individual and joint influence of race and gender on transfer decisions of all judicial waiver-eligible youth in a Northeast state from 2004 to 2014. Results indicate that Black males had the highest likelihood of being judicially waived, followed by White males, then Black females. White females had the greatest chance of being retained in juvenile court. The findings have important implications for juvenile court processing by informing researchers, practitioners, and policyholders about potential reform efforts that target judicial waiver.

The Structure of Legal Doctrine in a Judicial Hierarchy
Claire Wofford
Journal of Law and Courts, forthcoming

Political scientists interested in the structure of legal doctrine are especially attuned to the impact of the judicial hierarchy. They generally frame the issue as whether a higher court will issue a rigid “rule” to prevent shirking or a vague “standard” to give more discretion to lower courts. This “rules versus standards” debate rests on two presumptions: jurists write doctrine, and doctrine varies in flexibility. Using the US Supreme Court, I offer an initial empirical evaluation of these presumptions. The findings reveal that the justices almost always adopt doctrine suggested to them and that these doctrines differ little in flexibility.

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