Making the Case

Kevin Lewis

September 17, 2020

Filibuster Change and Judicial Appointments
Jonathan Nash & Joanna Shepherd
Journal of Empirical Legal Studies, forthcoming


In this Article, we consider the effects of filibuster change on judicial appointments, judicial voting, and opinion drafting. The filibuster effectively empowers a minority of forty-one Senators by requiring sixty votes to break off debate on a nomination. We develop a game-theoretic model that explains that the elimination of the filibuster changed the relevant “pivotal Senator” whose support was necessary to secure a nomination. Freed of the power of the minority of Senators, Presidents ought to exercise freer rein in naming judicial nominees closer to their preferred ideology. Moreover, sitting judges who seek elevation to a higher court ought to alter their “signal” that they would be good candidates to match the preferences of the newly-relevant pivotal Senator. To test our hypotheses empirically, we use the 2013 elimination of the filibuster in the U.S. Senate for lower federal court judicial nominations as an exogenous shock. We explore how the change in the filibuster rule affected the characteristics of judges President Obama nominated to the federal courts. We find statistically-significant shifts in the background characteristics of judges confirmed to the federal courts of appeals after the elimination of the filibuster. Compared to the earlier Obama appointees, these judges were more likely to be female, slightly younger, and to have previously clerked for a liberal judges, but less likely to be non-white. In addition, we find that there was a statistically-significant increase in the confirmation of judges with liberal ideologies, as measured by their common space campaign finance scores. These liberal ideologies mapped onto actual votes in politically-charged cases. Compared to Obama judges confirmed before the rule change, the judges were more likely to cast pro-choice votes in abortion cases and anti-death penalty votes in death penalty cases. We also find evidence that the elimination of the filibuster had a polarizing effect on sitting federal district judges, especially those with a greater chance of promotion to the courts of appeals. Using computational content analysis, we find that, after the change in the filibuster rule, Democratic judges were more likely to use politically-charged words signaling their very liberal ideological positions in abortion opinions and Republican judges were more likely to use words signaling their conservative views. These findings are useful in assessing the desirability of restoring the judicial filibuster, as well as to the debate over the retention of the legislative filibuster.

Post-Election Chaos: A Primer
Cass Sunstein
Harvard Working Paper, September 2020


With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. When the vote is close, and when people disagree about who won, the Constitution does not sort out the respective roles of the states, the Electoral College, Congress, and the Vice President. The Electoral Count Act of 1887 is the closest thing to a roadmap for handling controversies after election day, and on many issues, it offers helpful guidance. At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity. Taken together, the Constitution and the Electoral Count Act answer numerous questions, but they also leave important ones unanswered, including the role of the House and Senate amidst allegations of fraud and the proper role of the Vice President. This brief primer identifies the main answers and the principal open questions.

Contagious Animosity in the Field: Evidence from the Federal Criminal Justice System
Imran Rasul & Brendon McConnell
Journal of Labor Economics, forthcoming


We investigate whether increased animosity towards Muslims post 9-11 had spillover effects on Black and Hispanic individuals in the federal criminal justice system. Using linked administrative data tracking defendants from arrest through to sentencing, we find that after 9-11, sentence and pre-sentence outcomes for Hispanic defendants significantly worsened. Outcomes for Black defendants were unchanged. The findings are consistent with judges and prosecutors displaying social preferences characterized by contagious animosity from Muslims to Hispanics. Our findings provide among the first field evidence of contagious animosity, so that social preferences across outgroups are interlinked and malleable.

What Can DNA Exonerations Tell Us about Racial Differences in Wrongful-Conviction Rates?
David Bjerk & Eric Helland
Journal of Law and Economics, May 2020, Pages 341-366


We show that data on DNA exonerations can be informative about racial differences in wrongful-conviction rates under some assumptions regarding the DNA-exoneration process. We argue that, with respect to rape cases, the observed data and the plausibility of the required assumptions combine to strongly suggest that the wrongful-conviction rate is significantly higher among black convicts than white convicts. By contrast, we argue that the ability of data on DNA exonerations to reveal information about racial differences in wrongful-conviction rates for murder is much more limited.

Ideology and Specific Support for the Supreme Court
Kathryn Haglin et al.
Political Research Quarterly, forthcoming


We develop and assess an account of ideological asymmetries in public support for the Supreme Court. We find that specific support for the Supreme Court is more strongly negatively related to perceptions that the Court is overly liberal than perceptions that the Court is overly conservative. Our findings provide a more complete theoretical account of dynamics in specific support for the Supreme Court and indicate a mechanism behind the recent decline in the Supreme Court’s public standing.

Judge Peer Effects in the Courthouse
Ozkan Eren & Naci Mocan
NBER Working Paper, August 2020


Although there exists a large literature analyzing whether an individual’s peers have an impact on that individual’s own behavior and subsequent outcomes, there is paucity of research on whether peers influence a person’s decisions and judgments regarding a third party. We investigate whether consequential decisions made by judges are impacted by the gender composition of these judges’ peer group. We utilize the universe of decisions on juvenile defendants in each courthouse in Louisiana between 1998 and 2012. Leveraging random assignment of cases to judges, and variations in judge peer composition generated by elections, retirements, deaths and resignations, we show that an increase in the proportion of female peers in the courthouse causes a rise in individual judges’ propensity to incarcerate, and an increase in the assigned sentence length. This effect is fully driven by female judges. Further analysis suggests that this behavior is unlikely to be a reflection of an effort to conform to evolving norms of judicial stringency, measured by peers’ harshness in sentencing, but that it is due to the sheer exposure to female colleagues.

Geographic arbitrariness? County court variation in capital prosecution and sentencing in Pennsylvania
Jeffery Ulmer, Gary Zajac & John Kramer
Criminology & Public Policy, forthcoming


The death penalty remains one of the most controversial issues of criminal punishment not only because of racial/ethnic disparities, wrongful convictions, and inadequate defense representation but also because of the potential for geographic arbitrariness. The key empirical proposition embedded in the concept of geographic arbitrariness is that localities react to legally and procedurally equal capital cases in much different ways. This study assesses whether this key proposition is observed. We use data on 880 capital murder cases, nested in 18 counties in Pennsylvania from 2000 to 2010, to examine between‐county differences in (a) prosecutors’ filing of specific aggravating circumstances, (b) prosecutors’ filings to seek the death penalty, (c) prosecutors’ decisions to retract a death filing, and (d) court (judges’ or juries’) decisions to impose the death penalty. First, we found that counties differed substantially in their decisions connected to the same statutory aggravators and murder characteristics. Second, propensity score weighting models demonstrated meaningful and sometimes huge differences between specific counties in prosecutorial decisions to file to seek the death penalty, and to retract those filings. We also found meaningful differences in the likelihood of defendants being sentenced to death across counties, although differences were not as large as those for the prosecutorial decisions. Little evidence exists that county partisan composition accounts for differences between counties in death penalty outcomes, and some limited evidence points to county size as a factor that shapes death penalty outcomes. Overall, however, results point to the idiosyncrasy of specific counties in their likelihood of exposing and sentencing defendants to the death penalty.

Gauging detention dosage: Assessing the impact of pretrial detention on sentencing outcomes using propensity score modeling
Christopher Campbell et al.
Journal of Criminal Justice, forthcoming

Methods: We employ a quasi-experimental design using propensity score modeling to assess the effects of being detained through disposition and detention dosage on sentence type and length. Using a sample of 3390 criminal defendants from nine Oregon counties, we use a doubly robust approach to modeling the effects of pretrial detention.

Results: Our analyses reveal that detained defendants possess odds of being sentenced to prison are twice that of those released prior to their disposition. Additionally, the longer one spends in pretrial detention the greater the likelihood receiving a sentence of incarceration.

The Influence of Personalized Knowledge at the Supreme Court: How (Some) Former Law Clerks Have the Inside Track
Ryan Black & Ryan Owens
Political Research Quarterly, forthcoming


When arguing at the U.S. Supreme Court, former High Court law clerks enjoy significant influence over their former justices. Our analysis of forty years of judicial votes reveals that an attorney who formerly clerked for a justice is 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who never clerked. What is more, an attorney who formerly clerked for a justice is 14 to 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who previously clerked for a different justice. Former clerk influence is substantial, targeted, and appears to come from clerks’ personalized information about their justices. These results answer an important empirical question about the role of attorneys while raising normative concerns over fairness in litigation.

Factoring the Role of Eyewitness Evidence in the Courtroom
Brandon Garrett et al.
Journal of Empirical Legal Studies, September 2020, Pages 556-579


A pressing concern with the eyewitness testimony used in many criminal cases is that jurors may be swayed by the high confidence of an eyewitness and, as a result, may disregard other factors that provide more diagnostic information. Mock jurors were surveyed using a large national sample of 1,684 laypeople, selected to be representative of the U.S. population (age, race, gender, geographic region), using mock trial videos of eyewitness testimony. To explore the relationship between courtroom confidence and other factors, we used a fractional factorial design, permitting examination of the relationships among seven factors. Among these seven factors, we found that jurors gave most weight to the confidence of eyewitnesses, especially that expressed in the courtroom, irrespective of the eyewitness's testimony about confidence (low or high) at the initial police lineup. Jurors' assessments were not sensitive to the other factors or their interactions in the experiment: crime type (burglary or sexual assault), the race of the defendant and eyewitness, or information provided in judicial instructions or by expert testimony. The disproportionate importance of the eyewitness's expressed confidence has implications for the effectiveness of legal efforts to inform jurors about factors affecting eyewitness memory.

Friends with Bankruptcy Protection Benefits
Kristoph Kleiner, Noah Stoffman & Scott Yonker
Journal of Financial Economics, forthcoming


We show information spillovers limit the effectiveness of targeted debt relief programs. We study individuals who learn about the likelihood of debt relief from the recent experiences of workplace peers filing for bankruptcy protection. Peers granted bankruptcy can discharge debts, while peers facing dismissal lose all protections. Exploiting the random assignment of judges to bankruptcy cases, we determine that individuals with a “dismissed peer” are significantly less likely to file for bankruptcy or enter foreclosure. We highlight a novel channel relating social networks to household finances and identify additional costs of granting individual debt relief imposed on lenders.

Slippery scales: Cost prompts, but not benefit prompts, modulate sentencing recommendations in laypeople
Eyal Aharoni et al.
PLoS ONE, July 2020


Do people punish more than they would if the decision costs were more transparent? In two Internet-based vignette experiments, we tested whether juvenile sentencing recommendations among U.S. adults are responsive to variation in the salience of the taxpayer costs and public safety benefits of incarceration. Using a 2 Cost (present vs. absent) x 2 Benefit (present vs. absent) factorial design, Experiment 1 (N = 234) found that exposure to information about the direct costs of incarcerating the juvenile offender reduced sentencing recommendations by about 28%, but exposure to the public safety benefits had no effect on sentences. Experiment 2 (N = 301) manipulated cost-benefit salience by asking participants to generate their own list of costs of incarceration, benefits of incarceration, or an affectively neutral, unrelated word list. Results revealed a similar selective effect whereby sentencing recommendations were reduced in the cost condition relative to the benefits and control conditions, but sentences in the benefit condition did not differ from the control. This combined pattern suggests that laypeople selectively neglect to factor cost considerations into these judgments, thereby inflating their support for punishment, unless those costs are made salient. These findings contribute to the debate on transparency in sentencing.

Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity
Adam Samaha, Michael Heise & Gregory Sisk
Journal of Empirical Legal Studies, September 2020, Pages 519-555


The relationship between judicial inputs and outputs remains opaque. Conventional wisdom is plentiful but useful evidence is not. This study examines civil appeals in three federal appellate courts, concentrating on the briefing, the attorneys, and the complexity of the case. We find no evidence that short briefs are more persuasive, while the evidence in favor of long briefs on the appellant's side is provocative. We also find suggestive evidence that the experience of the lead lawyer on the appellee's side matters. However, “Big Law” firms and large teams of lawyers do not seem to perform better on appeal, all else equal. Finally, different kinds of case complexity point in different directions. The presence of a cross‐appeal is associated with judge votes to reverse - but not necessarily in favor of the cross‐appellant. At the same time, complex trial‐level proceedings may be associated with judge votes to affirm.

Loyalty over Fairness: Acceptance of Unfair Supreme Court Procedures
Miles Armaly
Political Research Quarterly, forthcoming


Evidence of procedural fairness leads individuals to support Supreme Court decisions, even ones with which they disagree. Yet, in some settings, unfair behavior is seen as acceptable, even praiseworthy, if it yields a pleasing outcome for one’s group. The loyalty norm occasionally trumps the fairness norm, and group loyalty has taken on increasing importance in American politics. I use a nationally representative survey with an embedded experiment, and a convenience sample survey experiment, to relate group (i.e., partisan) loyalty and perceptions of (un)fair behavior to support for the Court. I find that when group concerns are unclear, individuals tend to punish the Court for unfair behavior. However, despite conventional wisdom regarding fairness and support, individuals fail to censure unfair behavior when their group benefits from the Court’s impropriety. These effects hold when integrating preferences regarding specific case outcomes. Perceived unfair procedures do not universally harm evaluations of the Supreme Court.

Presence of Administrators Differentially Impacts Eyewitness Discriminability for Same‐ and Other‐Race Identifications
Jesse Rothweiler, Kerri Goodwin & Jeff Kukucka
Applied Cognitive Psychology, forthcoming


Best practice guidelines recommend that eyewitness lineup administrators be blind to a suspect's identity, but no research has investigated whether the mere presence of a lineup administrator impacts eyewitness identification decisions. Informed by social facilitation theory, we predicted that the presence of an audience would differentially impact identification accuracy for same‐ and other‐race identifications. Participants (N = 191) viewed same‐ and other‐race lineups either with an audience or alone. Although the presence of an audience did not directly impact identification accuracy, significant indirect effects indicated that the audience provoked evaluation apprehension which hindered other‐race identification accuracy and improved same‐race identification accuracy. We suggest that using double‐blind lineup procedures may not sufficiently protect eyewitness identification accuracy when making other‐race lineup decisions in the presence of others.


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