Lawfare
The Political Court: Newspaper Coverage, Appointment Politics, and Public Support of the United States Supreme Court, 1980-2023
Joshua Boston & Christopher Krewson
Political Communication, forthcoming
Abstract:
The public expects courts to behave as legal institutions. But news media coverage of courts often contradicts that expectation. We argue that political framing -- the media's use of political, ideological, and partisan language -- in news coverage of the United States Supreme Court has increased, and that political framing harms Court support. We employ a novel dataset of Court media coverage from five newspapers of record from 1980 to 2023. Observational data demonstrate (1) an increase in the use of political terms in news coverage of the Court over time, and (2) an unmistakable and abrupt increase in political framing in 2016 following the death of Justice Antonin Scalia. Using a survey experiment, we establish the validity of our measurement approach as well as the causal implications of these trends for public perceptions of the Court. This study makes clear that Justice Scalia's death, and the intense politics it initiated, introduced a level of political coverage of the Supreme Court that has not been observed for at least two generations. The stark change in how the news media covers the Court has important implications for the public's attitudes toward judges, perceptions of the proper judicial role, and support for courts.
Lifting the American Supreme Court Veil: Identifying Authorship in Unsigned Opinions
Ronen Avraham et al.
Journal of Legal Analysis, 2025, Pages 2-13
Abstract:
The Supreme Court of the United States (SCOTUS) issues 10-15% of its opinions unsigned, concealing authorship. Traditionally, unveiling authors required the posthumous release of Justices' personal papers. We trained our AI algorithm to achieve real-time authorship probabilistic identification, encompassing 17 Justices and 4,069 opinions from 1994 to 2024. Our algorithm identified the likely authors of the March 2024 Trump v. Anderson case, which enabled Donald Trump to run for office. Moreover, our algorithm unveiled the likely authorship in significant unsigned COVID-19 era cases, estimated with high probability individual parts of the joint dissent in the Obamacare Case (2012), and discerned the likely authors of the landmark cases of Bush v. Gore (2000). Applications range from legal research to decoding SCOTUS internal dynamics. Compared to prior methods, our study demonstrates a substantially higher accuracy rate of 91 per cent over a much longer period of time, offering timely insights into the nuances of SCOTUS decision-making. To facilitate further research, we provide a public web server at https://raminass.github.io/SCOTUS_AI/.
How the Gentry Won: Property Law's Embrace of Stasis
David Schleicher & Roderick Hills
Texas Law Review, forthcoming
Abstract:
Until the 1970s, American property law differed sharply from its English antecedents. English law was dominated by a land-owning gentry class who favored stability of ownership and dynastic control of landed estates using perpetuities and trusts, generous compensation for condemnees, and irregular lot lines based on local custom that impeded land's alienability. After World War II, the same gentry-driven culture imposed greenbelts and local restrictions that shut down new housing construction for the preservation of rural land. By contrast, the central focus of American law from the early republic to the 1970s was to make land easy to buy and develop, even at the expense of incumbent owners' interests in stability, local landowner control, and prevention of externalities. That focus on development, however, has changed since the 1970s. We demonstrate how different aspects of real property law and regulation have increasingly prioritized "stasis" -- protecting existing owners, limiting change, and preserving local control -- over "development" -- promoting growth, liquid markets, and cosmopolitanism. This shift extends beyond well-documented changes in zoning to areas like covenants, conservation easements, forms of ownership, and property taxation. The Article provides evidence of this trend through several examples: the rise of effectively permanent homeowners' association covenants that limit future land use changes; the explosion of conservation easements that permanently restrict development; the failure to reform archaic forms of ownership that inhibit efficient land use; and property tax reforms that discourage property turnover and new development. We further argue that this shift toward stasis has imposed substantial economic costs, contributing to housing crises and reduced growth, without providing sufficient offsetting benefits. While some degree of stability in property rights is necessary, the Article concludes that property law has tilted far too far toward protecting incumbent interests at the expense of development and change. It suggests various reforms across property law domains to restore a better balance between stability and growth.
Defense Use of Digital Discovery in Criminal Cases: A Quantitative Analysis
Michael Braun, Ronald Wright & Jenia Turner
Justice Quarterly, forthcoming
Abstract:
Recent criminal court reforms have required prosecutors to provide defense attorneys with broader and earlier discovery of evidence. For these discovery reforms to fulfill their aims of improved fairness and efficiency, defense attorneys must take advantage of the evidence disclosed by the prosecution. Prior studies suggest, however, that a range of factors, including low pay and high caseloads, impede effective defense representation in general. If similar factors hinder defense attorneys from reviewing discovery, discovery reforms would fail to meet their goals, and defendants would receive sub-standard representation. The recent adoption of digital evidence platforms by local jurisdictions allows us to study whether defense attorneys consistently fulfill their duty to review discovery. Analyzing data from digital evidence platforms used in felony cases in four Texas counties between 2018 and 2020, we examine whether and when defense attorneys fail to access evidence disclosed by the prosecution. We find that a substantial number of defense attorneys never access the discovery. The access rate varies by county, offense seriousness, attorney category, attorney experience, and file type. Drawing on review of prior scholarship and Bayesian analysis of the data, we discuss plausible interpretations of these variations.
Suppressing myside bias in civil litigation
Mihael Jeklic
Law and Human Behavior, October-December 2024, Pages 564-579
Method: Two between-subjects experimental studies using students of law (n = 164, Mage = 24.21 years, 53% female; n = 181, Mage = 20.89 years, 61% female) compared the participants' award estimates and argument ratings in a simulated civil dispute. The interventions (a) manipulated the advocates to think they represented the opposing side during initial information processing (side-switch condition), (b) required the participants to generate and evaluate arguments for both sides (dialectical condition), and (c) affected the participants' motivations by threatening dismissal in case of estimation error (goal states condition).
Results: Baseline groups in both studies displayed significant myside bias in award estimates (all ds ? 1.12) and argument ratings (all ds ? 1.29). In Study 1, the side-switch intervention eliminated bias in argument ratings (d = 0.73 and 0.72) but only reduced (d = 0.35) rather than eliminated bias in award estimates. In Study 2, the dialectical intervention reduced bias in argument ratings (d = 0.74 and 0.58) but did not eliminate it; it also failed to reduce bias in award estimates. The goal states intervention suppressed myside bias in both argument ratings (d = 0.76 and 0.82) and award estimates (d = 0.78).
How Does Judges' Personal Exposure to Financial Fraud Affect White-Collar Sentencing?
Trung Nguyen, Aneesh Raghunandan & Alexandra Scherf
Journal of Accounting Research, May 2025, Pages 989-1029
Abstract:
We study whether federal judges' personal exposure to financial fraud affects their professional behavior, in the form of sentencing outcomes in white-collar cases. Following the methodology outlined in our registered report, we construct a novel measure of financial fraud exposure based on judges' direct shareholdings in firms that commit financial fraud. Using this measure, we exploit the random assignment of cases to judges to examine whether judges exposed to fraud in one firm are (1) less likely to rule in favor of defendants in white-collar cases involving other firms and (2) less likely to grant favorable pretrial motions to defendants. We find minimal evidence in support of either (1) or (2), concluding that for all but the most serious frauds, judges are unlikely to let their personal victimhood experience affect their professional sentencing behavior with respect to related cases. Our study broadens our understanding of the spillover effects of financial fraud enforcement and contributes to the literature on how judges' personal experiences can shape judicial decision-making.
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Racial Disparities and Bias in Consumer Bankruptcy
Bronson Argyle et al.
NBER Working Paper, March 2025
Abstract:
We document substantial racial disparities in consumer bankruptcy outcomes and investigate the role of racial bias in contributing to these disparities. Using data on the near universe of US bankruptcy cases and self-reported and manually-identified measures of race, we show that minority filers are unconditionally 12.7 and 2.3 percentage points more likely to have their bankruptcy cases dismissed without debt relief in Chapters 13 and 7, respectively. We uncover strong evidence of racial homophily: in Chapter 13, where trustees have more discretion, minority filers are 2.3 percentage points more likely to be dismissed when randomly assigned to a White bankruptcy trustee than to a minority trustee. Black and Hispanic Chapter 13 filers are the most negatively affected by homophily. To interpret our findings, we develop a general decision model and new identification results relating homophily to bias. Our homophily approach is particularly useful in settings where traditional outcome tests for bias are not feasible because the decision-maker's objective is not well defined or decision-relevant outcomes or risk factors are unobserved. Applying this framework to our homophily estimate implies that at least 15% of the unconditional Chapter 13 dismissal gap and 53% of the conditional dismissal gap for minority filers is due to either taste-based or inaccurate statistical discrimination.
Are forensic evaluators more likely to conclude that Black or White defendants are malingering?
Lucy Guarnera et al.
Law and Human Behavior, October-December 2024, Pages 545-563
Method: In Study 1, we reviewed a large statewide sample of trial competence reports, of which 558 identified the defendant's race as Black or White. We coded feigning/malingering opinion and defendant race to assess associations. In Study 2, we randomly assigned forensic clinicians (N = 136; 78.7% identified as White only; 93.3% held a clinical doctoral degree; M = 10.7 years since earning highest degree) to read a mock competence report identifying the defendant's race as Black or White. Participants then provided opinions about malingering, competence, and other clinical judgments.
Results: Study 1 demonstrated that one prolific real-world evaluator identified Black defendants as feigning/malingering five times more often than White defendants, although there was no racial disproportionality in the overall sample after accounting for this one evaluator's influence. In Study 2, defendant race was not significantly associated with malingering opinions or virtually any other clinical judgments. Hospital-based evaluators opined malingering more often than evaluators in private practice, and novice evaluators opined malingering more often than experienced evaluators.
Framing Biases in Plea Bargaining Decisions in Those With and Without Criminal Involvement: Tests of Theoretical Assumptions
Valerie Reyna et al.
Journal of Behavioral Decision Making, April 2025
Abstract:
About 95% of criminal convictions in the United States are obtained through plea decisions, a growing global practice. Courts justify these convictions based on defendant choice -- defendants, as rational agents, can freely choose to plead guilty or go to trial. However, a fundamental axiom of rational choice -- descriptive invariance -- has never been effectively tested for plea decisions. To test this axiom, we manipulated gain-loss framing of plea options. The shadow-of-trial model, the leading theory of plea decision-making, is predicated on expected utility theory which is in turn predicated on the invariance axiom; if the axiom is falsified, the entire structure collapses. Thus, framing effects are important as a test of fundamental assumptions undergirding practice and as an empirical phenomenon revealing effects of context. We tested framing effects in students and community members including those with criminal involvement for whom plea bargaining has personal relevance. Varying subtle changes in wording of outcomes, we produced pronounced differences in choices to accept a plea rather than proceed to trial. These framing effects were robust to age, sex, educational attainment, risk propensity (DOSPERT and sensation seeking), and loss aversion. Perceived fairness of the legal system increased acceptance and risk propensity decreased it (each about 32%). However, controlling for those effects, loss (compared to gain) framing increased the odds of going to trial by 664%. Criminal involvement did not account for additional variance. These results are consistent with prospect theory and fuzzy-trace theory, but they challenge the legal theory of bargaining in "the shadow of trial."
Public support for universal second look sentencing, a research note
Paula Smith et al.
Criminology, February 2025, Pages 280-293
Abstract:
Based on a 2023 national YouGov survey (N = 800), we explored public support for universal second look sentencing-the view that all incarcerated individuals, not just those who committed their crimes before they were age 25, should be eligible to have lengthy sentences revisited by judges after serving 15 to 20 years in prison. A majority of Americans supported a universal policy, with only 1 in 5 respondents opposed. Multivariate analyses showed that redeemability is not static but dynamic. It can be earned if incarcerated people signal their reformation by completing rehabilitation programs and receiving a positive recommendation from the warden. Support from the victim (or their family) also matters. Given the public's endorsement, second look sentencing may be a viable policy to address mass incarceration and the problem of extreme prison terms.