Legal advice
Supreme Court Justices’ Loyalty to the President
Lee Epstein & Eric Posner
Journal of Legal Studies, June 2016, Pages 401-436
Abstract:
A statistical analysis of voting by Supreme Court justices from 1937 to 2014 provides evidence of a loyalty effect — justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican justices are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.
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The Signaling Effect of Pro se Status
Victor Quintanilla, Rachel Allen & Edward Hirt
Law & Social Inquiry, forthcoming
Abstract:
When claimants press their claims without counsel, they fail at virtually every stage of civil litigation and overwhelmingly fail to obtain meaningful access to justice. This research program harnesses psychological science to experimentally test a novel hypothesis: mainly, a claimant's pro se status itself sends a signal that biases decision making about the claimant and her claim. We conducted social psychological experiments with the public (N = 157), law students (N = 198), and employment discrimination lawyers (N = 39), holding the quality and merit of a Title VII sex discrimination case constant. In so doing, we examined whether a claimant's pro se status itself shapes stereotypes held about the claimant and biases decision making about settlement awards. These experiments reveal that pro se status influences stereotypes of claimants and settlement awards received. Moreover, the signaling effect of pro se status is exacerbated by socialization in the legal profession. Among law-trained individuals (i.e., law students and lawyers), a claimant's pro se status generates negative stereotypes about the claimant and these negative stereotypes explain the adverse effect of pro se status on decision making about settlement awards.
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Holger Spamann & Lars Klöhn
Journal of Legal Studies, June 2016, Pages 255-280
Abstract:
We experimentally investigate the determinants of judicial decisions in a setting resembling real-world judicial decision making. We gave US federal judges 55 minutes to adjudicate a real appeals case from an international tribunal, with minor modifications to accommodate the experimental treatments. The fictitious briefs focused on one easily understandable issue of law. Our 2 × 2 between-subject factorial design crossed a weak precedent and legally irrelevant defendant characteristics. In a survey, law professors predicted that the precedent would have a stronger effect than the defendant characteristics. In actuality, the precedent had no detectable effect on the judges’ decisions, whereas the two defendants’ affirmance rates differed by 45 percent. Judges’ written reasons, on the other hand, did not mention defendant characteristics, focusing instead on the precedent and other legalistic and policy considerations.
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Sleepy Punishers Are Harsh Punishers: Daylight Saving Time and Legal Sentences
Kyoungmin Cho, Christopher Barnes & Cristiano Guanara
Psychological Science, forthcoming
Abstract:
The degree of punishment assigned to criminals is of pivotal importance for the maintenance of social order and cooperation. Nonetheless, the amount of punishment assigned to transgressors can be affected by factors other than the content of the transgressions. We propose that sleep deprivation in judges increases the severity of their sentences. We took advantage of the natural quasi-manipulation of sleep deprivation during the shift to daylight saving time in the spring and analyzed archival data from judicial punishment handed out in the U.S. federal courts. The results supported our hypothesis: Judges doled out longer sentences when they were sleep deprived.
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Police reports of mock suspect interrogations: A test of accuracy and perception
Saul Kassin et al.
Law and Human Behavior, forthcoming
Abstract:
A 2-phased experiment assessed the accuracy and completeness of police reports on mock interrogations and their effects on people’s perceptions. In Phase 1, 16 experienced officers investigated a mock crime scene, interrogated 2 innocent suspects — 1 described by the experimenter as more suspicious than the other — and filed an incident report. All 32 sessions were covertly recorded; the recordings were later used to assess the reports. In Phase 2, 96 lay participants were presented with a brief summary of the case and then either read 1 police report, read 1 verbatim interrogation transcript, or listened to an audiotape of a session. Results showed that (a) Police and suspects diverged in their perceptions of the interrogations; (b) Police committed frequent errors of omission in their reports, understating their use of confrontation, maximization, leniency, and false evidence; and (c) Phase 2 participants who read a police report, compared to those who read a verbatim transcript, perceived the process as less pressure-filled and were more likely to misjudge suspects as guilty. These findings are limited by the brevity and low-stakes nature of the task and by the fact that no significant effects were obtained for our suspicion manipulation, suggesting a need for more research. Limitations notwithstanding, this study adds to a growing empirical literature indicating the need for a requirement that all suspect interrogations be electronically recorded. To provide a more objective and accurate account of what transpired, this study also suggests the benefit of producing verbatim transcripts.
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Adi Leibovitch
Journal of Legal Studies, June 2016, Pages 281-330
Abstract:
This paper presents a theory of relative judgments, suggesting that judges evaluate individual cases on the basis of how those cases are ranked in comparison to the other cases in their caseloads. Consequently, judges view a case more severely when their caseloads contain milder cases and more leniently when their caseloads contain graver cases. The paper develops a novel empirical identification strategy that exploits the properties of caseload distribution under random assignment of cases as a source of exogenous variation in judicial exposure to gravity. Using sentencing data, I construct a matched sample of judges randomly located at different ends of the caseloads distribution and demonstrate the existence of relative-judgment bias in their decisions. Judges exposed to lower levels of criminal gravity order longer sentences and are more likely to use the aggravated sentencing guidelines range or depart above the sentencing guidelines recommendations than judges exposed to higher levels of criminal gravity.
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Does raising indigent defender pay rates improve defendant outcomes? Evidence from New York
Michael Roach
Applied Economics Letters, forthcoming
Abstract:
Beginning 1 January 2004, the rates paid to assigned counsel – private attorneys who defend the indigent in criminal cases when a public defender does not – were raised from a maximum of $40 per hour to $75 per hour in the state of New York. This article examines the extent to which this relatively large pay increase affects case outcomes. Efficiency wage theory would suggest paying workers higher rates can improve their productivity, and the results of this analysis are consistent with this. Using a difference-in-difference approach, I find that after the assigned counsel rate increase, case outcomes significantly improved in counties with higher poverty rates relative to those with lower poverty rates. The likelihood of conviction and the likelihood of pleading guilty both fell by more than two percentage points in high-poverty counties compared to low-poverty counties after the rate increase, and the differences in the likelihood of being convicted are especially pronounced for cases involving violent felonies. The results suggest raising assigned counsel rates can be an effective policy tool to improve indigent defence systems that are in need of reform.
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Privatization, State Action, and Title IX: Do Campus Sexual Assault Hearings Violate Due Process?
Jed Rubenfeld
Yale Working Paper, October 2016
Abstract:
Sexual assault hearings are taking place at colleges and universities all over the country under the mandate of a 2011 Department of Education Dear Colleague letter. The procedures followed are secretive, sometimes inquisitorial, and frequently in violation of fundamental due process principles. Courts, however, have ruled that Due Process does not apply to sexual assault hearings at private schools because private schools are not state actors. These rulings are clearly mistaken. The Due Process Clause applies in full to campus Title IX sexual assault investigations and adjudications conducted under the mandate of the Dear Colleague letter.
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John Villasenor
Law, Probability and Risk, December 2016, Pages 223-237
Abstract:
Conviction in criminal trials in the USA, the UK and many other common law countries requires establishing a defendant’s guilt beyond a reasonable doubt. By contrast, in Title IX proceedings at American colleges and universities, allegations of wrongdoing are adjudicated according to a much lower ‘preponderance of the evidence’ standard. Victims’ rights advocates correctly argue that a lower burden of proof makes it easier to ensure that the guilty are punished. But there is also a mathematically inevitable corollary: a lower burden of proof increases the probability of concluding that the innocent are guilty. This article provides a framework for using information regarding false conviction probabilities in criminal trials to model the probability of false guilty verdicts in Title IX proceedings in American colleges and universities. The quantitative results presented herein show that an innocent defendant faces a dramatically increased risk of conviction when tried under the preponderance of the evidence standard as opposed to under the beyond a reasonable doubt standard.
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Now or later? A dynamic analysis of judicial appointments
Jinhee Jo
Journal of Theoretical Politics, January 2017, Pages 149-164
Abstract:
Observing substantial variations in Senate confirmation durations, existing studies have tried to explain when the Senate takes more or less time to confirm presidential nominees. However, they have largely ignored the president’s incentives to nominate someone who he expects will be delayed and do not specify conditions under which delay occurs. To improve on existing literature, I develop a dynamic model of presidential appointments in which the Senate decides whether to delay as well as whether to confirm the nominee. The model shows that the president rationally chooses a nominee who he expects the Senate will delay if the status quo belongs to a certain interval in a one-dimensional policy space. Moreover, the president sometimes chooses a nominee who may fail to gain confirmation after a delay. Finally, the effects of important factors on expected confirmation duration are analyzed: most interestingly, as presidential popularity increases, the Senate takes longer to confirm the nominee.
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Stéphanie Marion & Tara Burke
Behavioral Sciences & the Law, forthcoming
Abstract:
Police investigators, judges, and jurors are often very skeptical of alibi witness testimony. To investigate when and why individuals lie for one another, we conducted two studies in which witnesses' support of a false alibi was observed. We varied the level of social pressure exerted on witnesses and the level of affinity between suspect–witness pairs. During a study session purportedly intended to investigate dyadic problem-solving ability, a mock theft was staged. When questioned, participants were provided the opportunity to either corroborate or refute a confederate's false alibi that the latter was with them when the theft occurred. Participants were more likely to lie for the confederate when the latter explicitly asked participants to conceal his/her whereabouts during the time of the theft (Study 1). How much participants liked the suspect did not impact lying; however, participants lied for a confederate more often when the latter was a friend rather than a stranger (Study 2). Results show that alibi witnesses often lie and that investigators and jurors may not accurately estimate the likelihood that such witnesses will lie for one another. Witnesses who lied also reported doing so more often because they believed that the suspect was innocent rather than guilty.
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Small-Group Dynamics, Ideology, and Decision Making on the US Courts of Appeals
Banks Miller & Brett Curry
Law & Policy, forthcoming
Abstract:
There is some evidence that judges who specialize in particular legal areas vote in more ideologically consistent ways than do nonspecialists. Upon replicating those individual results across multiple legal areas in the US courts of appeals, we assess how this increasing reliance on ideology by specialists affects decision making by others on a three-judge panel. We find that judges who serve with a specialist are especially likely to vote in a manner consistent with the ideological position of the specialist with whom they serve. These results suggest that specialization has the potential to facilitate panel effects across numerous legal policy areas.
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Tell It to the Judge: Procedural Justice and a Community Court in Brooklyn
Avram Bornstein et al.
PoLAR: Political and Legal Anthropology Review, November 2016, Pages 206–225
Abstract:
Based on direct observation inside and outside the courts and on interviews with one hundred residents and two hundred previous offenders, this article examines the performance of procedural justice in a community court in the Red Hook neighborhood in Brooklyn, New York. Results show that the community court is widely praised compared to the downtown Brooklyn courts and in sharp contrast to police enforcement. The content of this praise suggests that the community court cultivates legitimacy by treating people respectfully and by helping to mitigate problems with powerful institutions such as the police and the New York City Housing Authority. In light of these results, this article considers intertwined debates about procedural justice and how these ideas articulate with legal anthropologists’ understanding of hegemony.
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Homeowner Representation in the Foreclosure Crisis
Emily Taylor Poppe
Journal of Empirical Legal Studies, December 2016, Pages 809–836
Abstract:
The dramatic increase in the number of homeowners entering the foreclosure process over the past decade has been well documented. While some of these cases end in foreclosure, many homeowners are able to secure alternate outcomes. There is reason to believe that legal representation may help homeowners to achieve more favorable outcomes. However, other aspects of the foreclosure process, particularly those instituted to increase court oversight and homeowner participation, may circumscribe the benefits of legal representation. In this article, I investigate whether homeowners with legal representation are more likely to avoid foreclosure than those who are unrepresented, taking into account procedural reforms that might shape the effectiveness of legal representation. Using a representative sample of residential foreclosure cases initiated in New York City between 2007 and 2011, I find that cases where the homeowner has legal representation less frequently end in foreclosure. However, after accounting for the enactment of reforms to the foreclosure process, the probability of foreclosure is not significantly different for cases where the homeowner has legal representation. The results suggest that the characteristics of the foreclosure process may be consequential for the resolution of foreclosure cases and the benefit of legal representation. This research contributes to scholarship on the use and effect of lawyers by considering the role of legal representation for homeowners facing foreclosure in the context of the rapid social and economic changes of the Great Recession.
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Frederick Schauer & Barbara Spellman
Journal of Legal Analysis, forthcoming
Abstract:
In ordinary life, people who assess other people’s judgments typically take into account the other judgments of those they are assessing in order to calibrate the judgment presently being assessed. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. Such information allows a user to see whether a particular rating comes from a rater who is enthusiastic about every place she patronizes, or instead from someone who is incessantly hard to please. And even when less systematized, as in assessing a letter of recommendation or college transcript, calibration by recourse to the decisional history of those whose judgments are being assessed is ubiquitous. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges in reviewing legislative or administrative decisions, magistrates in evaluating search warrant representations, or jurors in assessing witness perception. In most legal domains, calibration by reference to the prior decisions of the reviewee is invisible, either because it does not exist or because reviewing bodies are unwilling to admit using what they in fact know and employ. Assisted by insights from cognitive psychology and philosophy, this article examines law’s aversion to overt calibration and explores what this says about the nature of law and legal decision-making.
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Diana Evans et al.
Social Science Quarterly, forthcoming
Methods: Using repeated measures from surveys conducted in Texas in 2006 and 2011, we use ordered logit analysis to estimate the impact of the Sotomayor appointment on approval of the U.S. Supreme Court among Latinos and Anglos.
Results: At all levels of political knowledge, Latinos were more aware of the Sotomayor appointment than Anglos. Moreover, Latinos’ approval of the Court increased dramatically after the appointment, while Anglos’ approval was unchanged.
Conclusions: We find a political empowerment effect among Latinos, but find no evidence that Anglos considered the appointment a threat. Additionally, given that the Latinos in our sample are overwhelmingly of Mexican origin and Justice Sotomayor is Puerto Rican, we find evidence of pan-ethnic effects.
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A Multilevel Test of the Racial Threat Hypothesis in One State’s Juvenile Court
Patrick Lowery, John Burrow & Robert Kaminski
Crime & Delinquency, forthcoming
Abstract:
Noting the paucity of research on the racial threat hypothesis in the juvenile courts, this study examined the interplay of defendant characteristics and country-level characteristics on dispositions. Data were retrieved from the Department of Juvenile Justice files in South Carolina and were analyzed using multinomial logistic hierarchical linear modeling. Results revealed support for the racial threat hypothesis, as racial inequity operated in a different manner (more punitively) for Black defendants. Larger Black populations in counties also led to an increased use of punitive sanctions. In addition, concentrated disadvantage effects were found, and heightened levels of teenage population led to higher incarceration rates for Black defendants. Limitations of this study, implications for stakeholders/practitioners, and directions for future research are discussed.
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Socializing Distrust of the Justice System through the Family in Juvenile Delinquency Court
Liana Pennington
Law & Policy, forthcoming
Abstract:
Juvenile delinquency courts in the United States generally require parents to attend all court hearings, but little is known about how parents' experiences in the court process affect their discussions of the justice system with their court-involved children. Using multiperspectival and longitudinal data combining observations with interviews of parents and youth in two courts, this research finds that many parents discuss the legal process in negative terms with their children when parents are outside the presence of legal authorities. This research adds to the literature on legal socialization by examining how parents' perceptions of law and their experiences with the court become part of the socializing content provided by parents to their court-involved children. Creating a more meaningful role for parents in the juvenile justice process may potentially lead to more positive discussions of the court process between parents and juvenile defendants.
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Thomas Baker
Race and Justice, January 2017, Pages 87-102
Abstract:
Using survey data from a sample of White, Black, and Hispanic male offenders (n = 311), this study examines whether the relationship between procedural justice and obligation to obey the law is substantiated among a sample of offenders. Further, this study explores the impact that sharing the race/ethnicity of the defense attorney, prosecutor, and judge in their most recent conviction has on male offenders’ perceptions of court procedural justice and their perceived obligation to obey the law. The findings reveal that male offenders who perceive the courts as more procedurally just report a significantly greater obligation to obey the law. In addition, Black and Hispanic offenders who shared the race/ethnicity of the prosecutor in their case perceived the courts as significantly more just. Implications and directions for future research are discussed.
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Timothy Luke et al.
Journal of Police and Criminal Psychology, December 2016, Pages 270–278
Abstract:
The Strategic Use of Evidence (SUE) approach is a framework for planning and executing suspect interviews with the aim of facilitating judgments of truth and deception. US law enforcement officers (N = 59) either received training in the SUE approach or did not. Each officer interviewed a mock suspect (N = 59) who had either committed a simulated security breach or had completed a benign task. The officers who received SUE training interviewed in line with the training: They questioned the suspect systematically, withheld the evidence and critical case information until after questioning, and relied on statement-evidence inconsistency to detect deceit. Consequently, SUE-trained interviewers achieved a higher deception detection accuracy rate (65%) compared to untrained interviewers (43%).
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Rebecca Helm, Andrew Wistrich & Jeffrey Rachlinski
Journal of Empirical Legal Studies, December 2016, Pages 666–692
Abstract:
Empirical research has confirmed the correctness of the legal realists’ assertion that “judges are human.” It demonstrates that judicial decisions are sometimes tainted by bias, ideology, or error. Presumably, arbitrators are “human” in that sense too, but that conclusion does not necessarily follow. Although arbitrators and judges both umpire disputes, they differ in a variety of ways. Therefore, it is possible that arbitrators’ awards are either better or worse than judges’ decisions. This article reports the results of research conducted on elite arbitrators specializing in resolving commercial disputes. Our goal was to determine whether, like judges, arbitrators are subject to three common cognitive illusions — specifically, the conjunction fallacy, the framing effect, and the confirmation bias. We also wanted to find out whether, like judges, arbitrators exhibit a tendency to rely excessively on intuition that may exacerbate the impact of cognitive illusions on their decision making. Our results reveal that “arbitrators are human,” and indicate that arbitrators perform about the same as judges in experiments designed to detect the presence of common cognitive errors and excessive reliance on intuition. This suggests that arbitrators lack an inherent advantage over judges when it comes to making high-quality decisions. Whether the situation in which arbitrators make their awards is more conducive to sound decision making than the setting in which judges make their rulings, however, remains unclear.
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Unraveling the conjunction paradox
Mark Spottswood
Law, Probability and Risk, December 2016, Pages 259-296
Abstract:
The conjunction paradox arises when a claim requires proof of multiple elements and the likelihood of some elements are at least partially independent of the likelihood of others. In that situation, probability theory may dictate that the conjunction of the elements is less likely than their disjunction, implying that a defendant should not be found liable, even though each element is probably true when considered in isolation. Nonetheless, American jury instructions reject this implication, and many scholars of proof have sought to construct normative theories to justify that rejection. This article collects and critiques two families of arguments about the conjunction paradox. First, I explain why an explanatory conception of proof cannot eliminate the paradox. Second, I show why various mathematical alternatives to standard probability theory are normatively deficient when applied to legal fact-finding. Instead, I suggest that the best way to resolve the paradox is through instructions that encourage juries to make appropriate adjustments for conjunctive and disjunctive likelihoods without having to frame their analyses in mathematical terms.
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Matching with Moral Hazard: Assigning Attorneys to Poor Defendants
Behrang Kamali Shahdadi
American Economic Journal: Microeconomics, forthcoming
Abstract:
We model the problem of assigning counsel to poor defendants as a matching problem. A novel aspect of this matching problem is the moral hazard component on the part of counsel. Within the model, we show that holding the total expenditure for counsel fixed and changing the matching procedure to accommodate defendants' and attorneys' preferences, i.e., switch from random matching to stable matching, defendants become worse off because a stable matching exacerbates the moral hazard problem on the part of counsel. In addition, we show that under suitable conditions random matching is the efficient way to allocate defendants to counsel.