May it please the court
Do Lawyers Really Believe Their Own Hype, and Should They? A Natural Experiment
Zev Eigen & Yair Listokin
Journal of Legal Studies, June 2012, Pages 239-267
Abstract:
Research suggests that attorneys are too confident in the merits of their clients' cases. But attorneys often self-select (1) the area of law in which they practice, (2) the side on which to practice within that area, (3) law firms with whom they practice, and (4) the clients they represent. We exploit a natural experiment involving participants in moot court competitions at four U.S. law schools over 2 years to explore whether, after stripping away these selection biases through random assignment to the role of petitioner or respondent, legal advocates are still overconfident in their clients' claims. We find that, following participation in moot court contests, students overwhelmingly perceive that the legal merits favor the side that they were randomly assigned to represent. We also find that overconfidence is associated with poorer performance in advocacy as measured by legal writing instructors.
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Symbol and Substance: Effects of California's Three Strikes Law on Felony Sentencing
John Sutton
Law & Society Review, March 2013, Pages 37-72
Abstract:
California's "three strikes and you're out" law is the most notorious example of the wave of mandatory sentencing policies that many states enacted beginning in the late 1970s. While advocates and critics predicted the law would have profound effects on aggregate punishment trends and individual case outcomes, Feeley and Kamin's analysis of previous sentencing reforms suggested the law's impact would be mainly symbolic because local officials would ignore, subvert, or nullify its major provisions. While aggregate analyses have tended to confirm this argument, so far there has been no systematic test of the law's effect on individual cases. This analysis uses multilevel models applied to case-level data from 12 urban California counties to test hypotheses about shifts in average punitiveness, the relative influence of legal and extralegal factors on sentencing, and the uncertainty of sentencing outcomes. Results mostly support Feeley and Kamin's symbolic interpretation, but also reveal important substantive impacts: since Three Strikes, sentences have become harsher, particularly in politically conservative counties, and black felons receive longer prison sentences.
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Hemant Sharma & Colin Glennon
Politics & Policy, April 2013, Pages 267-297
Abstract:
The desirability of complete judicial independence has been debated in several recent works. At issue is whether democratic theory is compatible with policy making by the unelected U.S. Supreme Court justices, particularly as their service becomes further removed from the time when elected officials played a role in their appointment. We examine the relationship between appointing presidents and Supreme Court justices. Relying on ideal points that place all actors in the same scale, our regression models show that a justice will drift from the ideology of an appointing president with each additional term served, even after controlling for ideological shifts in political climate. The beginning of the eleventh term is when ideological drift becomes significant. The connection between justices and democratically elected officials begins to wane after this point in a justice's tenure - a finding that is likely to be germane for proponents of term limits for Supreme Court justices.
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Do Judges Vary in Their Treatment of Race?
David Abrams, Marianne Bertrand & Sendhil Mullainathan
Journal of Legal Studies, June 2012, Pages 347-383
Abstract:
Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African American and white defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, in which race does not influence judicial sentencing. In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.
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The Effects of Legal and Extralegal Factors on Detention Decisions in US District Courts
Angela Reitler, Christopher Sullivan & James Frank
Justice Quarterly, March/April 2013, Pages 340-368
Abstract:
The Bail Reform Act of 1984 changed the law dictating release and detention decisions in federal court. Since its passage, few studies have examined judicial decision-making in this context. Legal research enables us to account for the structure and interpretation of federal detention laws and to analyze previously neglected measures of legal factors in our analyses. We use US Sentencing Commission data on a sample of defendants who were sentenced in 2007 (N = 31,043). We find that legal factors - particularly length of criminal history, having committed a violent or otherwise serious offense, and having committed the offense while under supervision of the criminal justice system - have the strongest relationships with the presentence detention outcome. A defendant's age, race, and ethnicity have weaker relationships with detention. When we compare defendants who are similarly situated with respect to legal factors, the probability of detention is similar regardless of age, race, and ethnicity.
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Kevin Beaver et al.
Personality and Individual Differences, July 2013, Pages 29-34
Abstract:
One of the most consistent findings in the criminological literature is that African American males are arrested, convicted, and incarcerated at rates that far exceed those of any other racial or ethnic group. This racial disparity is frequently interpreted as evidence that the criminal justice system is racist and biased against African American males. Much of the existing literature purportedly supporting this interpretation, however, fails to estimate properly specified statistical models that control for a range of individual-level factors. The current study was designed to address this shortcoming by analyzing a sample of African American and White males drawn from the National Longitudinal Study of Adolescent Health (Add Health). Analysis of these data revealed that African American males are significantly more likely to be arrested and incarcerated when compared to White males. This racial disparity, however, was completely accounted for after including covariates for self-reported lifetime violence and IQ. Implications of this study are discussed and avenues for future research are offered.
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Rob Tillyer & Robin Engel
Crime & Delinquency, April 2013, Pages 369-395
Abstract:
Recent research has demonstrated that minority drivers receive disparate traffic stop outcomes compared with similarly situated White drivers. This research, however, is often not grounded within a theoretical framework and fails to examine specific combinations of driver demographics. This study addresses those shortcomings by examining research questions based on the social conditioning model and investigating the relationship between specific combinations of drivers' race/ethnicity, gender, and age, and traffic stop outcomes. Using alternative measures of stop outcomes and robust official traffic stop data collected from a state law enforcement agency, the results demonstrate that warnings and citations, but not arrests, are differentially issued to young, Black male drivers. The findings also confirm the influence of legal factors on police decision making during traffic stops. Research and policy implications are discussed.
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Sentencing Native Americans in US Federal Courts: An Examination of Disparity
Travis Franklin
Justice Quarterly, March/April 2013, Pages 310-339
Abstract:
Existing sentencing literature largely focuses on the study of white, African-American, and to a lesser extent, Hispanic offenders. Unfortunately, very little is known about the sentencing of Native American offenders, especially in the federal courts. To address this shortcoming, the current study employs United States Sentencing Commission data for the fiscal years 2006-2008 to examine the comparative punishment of Native Americans. Consistent with the focal concerns perspective and its reliance on perceptions of race-based threat, findings demonstrate that Native Americans are often sentenced more harshly than white, African-American, and Hispanic offenders. Moreover, race-gender-age interactions indicate that during the incarceration decision, young Native American males receive the most punitive sentences, surpassing the punishment costs associated with being a young African-American or Hispanic male. These findings highlight the importance of directing increased attention toward the sentencing of this understudied offender population.
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Implementation of Anti-Discrimination Policy: Does Judicial Selection Matter?
Timothy Besley & Abigail Payne
American Law and Economics Review, Spring 2013, Pages 212-251
Abstract:
Legislation to limit workplace discrimination is among the most common reforms in labor market policy of the past 50 years. Its effectiveness depends on enforcement of the legislation by state and federal agencies and, ultimately, the courts. This paper uses information on discrimination charges in the United States between 1973 and 2000 to analyze whether the number of charges filed is correlated with the method by which state judges are selected. We find evidence that states that appoint their judges have significantly fewer anti-discrimination charges being filed.
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A Fundamental Enforcement Cost Advantage of the Negligence Rule over Regulation
Steven Shavell
Harvard Working Paper, February 2013
Abstract:
Regulation and the negligence rule are both designed to obtain compliance with desired standards of behavior, but they differ in a primary respect: compliance with regulation is ordinarily assessed independently of the occurrence of harm, whereas compliance with the negligence rule is evaluated only if harm occurs. It is shown in a stylized model that because the use of the negligence rule is triggered by harm, the rule enjoys an intrinsic enforcement cost advantage over regulation. Moreover, this advantage suggests that the examination of behavior under the negligence rule should tend to be more detailed than under regulation (as it is).
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The Disappearance of Civil Trial in the United States
John Langbein
Yale Law Journal, December 2012, Pages 522-572
Abstract:
Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so rapidly. For the litigants, a civil procedure system serves two connected functions: investigating the facts and adjudicating the dispute. The better the system investigates and clarifies the facts, the more it promotes settlement and reduces the need to adjudicate. The Anglo-American common law for most of its history paid scant attention to the investigative function. This Article points to the role of the jury system in shaping the procedure and restricting the investigative function. Pleading was the only significant component of pretrial procedure, and the dominant function of pleading was to control the jury by narrowing to a single issue the question that the jury would be asked to decide. This primitive pretrial process left trial as the only occasion at which it was sometimes possible to investigate issues of fact. Over time, the jury-free equity courts developed techniques to enable litigants to obtain testimonial and documentary evidence in advance of adjudication. The fusion of law and equity in the Federal Rules of Civil Procedure of 1938 brought those techniques into the merged procedure, and expanded them notably. The signature reform of the Federal Rules was to shift pretrial procedure from pleading to discovery. A new system of civil procedure emerged, centered on the discovery of documents and the sworn depositions of parties and witnesses. Related innovations, the pretrial conference and summary judgment, reinforced the substitution of discovery for trial. This new procedure system has overcome the investigation deficit that so afflicted common law procedure, enabling almost all cases to be settled or dismissed without trial. Pretrial procedure has become nontrial procedure by making trial obsolete.
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Trying to Get What You Want: Heresthetical Maneuvering and U.S. Supreme Court Decision Making
Ryan Black, Rachel Schutte & Timothy Johnson
Political Research Quarterly, forthcoming
Abstract:
Riker famously theorized that political actors faced with suboptimal outcomes might be able to garner a more desirable one by adding issues to the agenda. To date, limited support for Riker's theory of heresthetics exists, primarily consisting of case studies and anecdotal evidence. We offer a systematic analysis of heresthetical maneuvers in the context of Supreme Court decision making. We argue justices who oppose a potential case outcome may add alternative issues to the record in an effort to restructure the terms of debate. Data from justices' behavior during oral argument support Riker's theory.
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The insured victim effect: When and why compensating harm decreases punishment recommendations
Philippe van de Calseyde, Gideon Keren & Marcel Zeelenberg
Judgment and Decision Making, March 2013, Pages 161-173
Abstract:
An insurance policy may not only affect the consequences for victims but also for perpetrators. In six experiments we find that people recommend milder punishments for perpetrators when the victim was insured, although people believe that a sentence should not depend on the victim's insurance status. The robustness of this effect is demonstrated by showing that recommendations can even be more lenient for crimes that are in fact more serious but in which the victim was insured. Moreover, even when harm was possible but did not materialize, people still prefer to punish crimes less severely when the (potential) victim was insured. The final two experiments suggest that the effect is associated with a change in (1) compassion for the victim and (2) perceived severity of the transgression. Implications of this phenomenon are briefly discussed.
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Speech style and occupational status affect assessments of eyewitness testimony
Sean Jules & Dawn McQuiston
Journal of Applied Social Psychology, April 2013, Pages 741-748
Abstract:
This study examined how speech style and occupational status affect mock jurors' assessments of eyewitness testimony. Mock jurors (n = 120) watched a video of a man testifying about witnessing an attempted robbery. The eyewitness exhibited either a powerless or powerful speech style and reported either a high or low (or no) status occupation during his testimony. Results indicated that high occupation status and powerful speech style led to more favorable evaluations of the eyewitness's testimony and of the case against the defendant than powerless speech style and low/no occupation status. Implications of these results on considerations of eyewitness testimony and future research are discussed.
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Nicola Persico
Journal of Legal Studies, June 2012, Pages 321-346
Abstract:
This paper develops a decision-theoretic model of evidence production in the context of a discrimination trial. Producing evidence is assumed to be costly, and the cost can vary depending on what type of defendant behavior (and plaintiff characteristics) the evidence bears upon. The goal of the trial is to uncover a possible behavioral bias in the defendant (intent to discriminate). I then ask how a social planner would structure the production of evidence in a trial in order to best achieve this objective, taking into account the cost of evidence production. I show that it is sometimes efficient to sequence the production of different kinds of evidence (burden shifting) or even to allow a decision based on limited evidence (for example, disparate impact alone, as a proxy for intent to discriminate). A key variable is the availability of evidence concerning the productivity of the plaintiff.
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National Policy Preferences and Judicial Review of State Statutes at the United States Supreme Court
Stefanie Lindquist & Pamela Corley
Publius, Spring 2013, Pages 151-178
Abstract:
This article explores the determinants of U.S. Supreme Court justices' voting behavior in cases involving constitutional challenges to state statutes, with a particular focus on the degree to which majoritarian influences - as reflected in state participation and congressional preferences - affect the justices' votes. We find that the scope of the Court's decision - in terms of its impact on similar state laws and the expressed interest of states as amicus - strongly affects the justices' willingness to vote to invalidate a state statute. Moreover, at least in the Burger Court, the justices were constrained by congressional preferences over the ideological direction of the constitutional challenge. Justices on the Rehnquist Court, however, appear to have been more impervious to congressional preferences when evaluating the constitutionality of state legislation.
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Can Drug Courts Help to Reduce Prison and Jail Populations?
Eric Sevigny, Harold Pollack & Peter Reuter
ANNALS of the American Academy of Political and Social Science, May 2013, Pages 190-212
Abstract:
Drug courts have been widely praised as an important tool for reducing prison and jail populations by diverting drug-involved offenders into treatment rather than incarceration. Yet only a small share of offenders presenting with drug abuse or dependence are processed in drug courts. This study uses inmate self-report surveys from 2002 and 2004 to examine characteristics of the prison and jail populations in the United States and assess why so many drug-involved offenders are incarcerated. Our analysis shows that four factors have prevented drug courts from substantially lowering the flow into prisons and jails. In descending order of importance, these are: drug courts' tight eligibility requirements, specific sentencing requirements, legal consequences of program noncompliance, and constraints in drug court capacity and funding. Drug courts will only be able to help lower prison and jail populations if substantial changes are made in eligibility and sentencing rules.
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The Role of Medicolegal Systems in Producing Geographic Variation in Suicide Rates
Joshua Klugman, Gretchen Condran & Matt Wray
Social Science Quarterly, forthcoming
Objectives: In this analysis, we ask whether there is systematic variation in the reporting of suicide by medicolegal system and if so whether this biases estimated effects of social correlates on suicide.
Methods: With cause of death records (1999-2002) and 2000 Census data, we use negative binomial regression to analyze the effects of medicolegal system on suicide and nonsuicide mortality aggregated at county of occurrence.
Results: We find that elected coroners have slightly lower official suicide rates than medical examiners (MEs; all of whom are appointed) and appointed coroners. In addition, we find that omitting medicolegal system does not bias estimates of the social determinants of suicide.
Conclusion: Contrary to arguments that MEs' greater scientific training makes them more likely to underreport suicides, we conclude that appointed death investigators (MEs and appointed coroners) underreport suicide to a lesser degree than elected coroners, who are subject to greater public pressures that result in the misclassification of suicides.