Misjudged
Is Justice Really Blind? Race and Reversal in US Courts
Maya Sen
Journal of Legal Studies, January 2015, Pages S187-S229
Abstract:
I use two newly collected data sets to demonstrate that black federal district judges are consistently overturned on appeal more often than white district judges, with a gap in reversal rates of up to 10 percentage points. This gap is robust and persists after taking into account previous professional and judicial experience, educational background, qualification ratings assigned by the American Bar Association, and differences in appellate panel composition. In total, I find that approximately 2,800 additional cases authored by black judges have been reversed over the last 12 years. This study is among the first to explore how higher-court judges evaluate opinions written by judges of color, and it has clear implications: despite attempts to make the judiciary more reflective of the general population, racial disparities in the legal system appear to persist.
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Possibility of Death Sentence Has Divergent Effect on Verdicts for Black and White Defendants
Jack Glaser, Karin Martin & Kimberly Kahn
Law and Human Behavior, forthcoming
Abstract:
When anticipating the imposition of the death penalty, jurors may be less inclined to convict defendants. On the other hand, minority defendants have been shown to be treated more punitively, particularly in capital cases. Given that the influence of anticipated sentence severity on verdicts may vary as a function of defendant race, the goal of this study was to test the independent and interactive effects of these factors. We conducted a survey-embedded experiment with a nationally representative sample to examine the effect on verdicts of sentence severity as a function of defendant race, presenting respondents with a triple murder trial summary that manipulated the maximum penalty (death vs. life without parole) and the race of the defendant. Respondents who were told life-without-parole was the maximum sentence were not significantly more likely to convict Black (67.7%) than White (66.7%) defendants. However, when death was the maximum sentence, respondents presented with Black defendants were significantly more likely to convict (80.0%) than were those with White defendants (55.1%). The results indicate that the death penalty may be a cause of racial disparities in criminal justice, and implicate threats to civil rights and to effective criminal justice.
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Facial Trustworthiness Predicts Extreme Criminal-Sentencing Outcomes
John Paul Wilson & Nicholas Rule
Psychological Science, forthcoming
Abstract:
Untrustworthy faces incur negative judgments across numerous domains. Existing work in this area has focused on situations in which the target's trustworthiness is relevant to the judgment (e.g., criminal verdicts and economic games). Yet in the present studies, we found that people also overgeneralized trustworthiness in criminal-sentencing decisions when trustworthiness should not be judicially relevant, and they did so even for the most extreme sentencing decision: condemning someone to death. In Study 1, we found that perceptions of untrustworthiness predicted death sentences (vs. life sentences) for convicted murderers in Florida (N = 742). Moreover, in Study 2, we found that the link between trustworthiness and the death sentence occurred even when participants viewed innocent people who had been exonerated after originally being sentenced to death. These results highlight the power of facial appearance to prejudice perceivers and affect life outcomes even to the point of execution, which suggests an alarming bias in the criminal-justice system.
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Judicial Decision Making: A Dynamic Reputation Approach
Alma Cohen, Alon Klement & Zvika Neeman
Journal of Legal Studies, January 2015, Pages S133-S159
Abstract:
We seek to contribute to an understanding of how judicial elections affect the incentives and decisions of judges. We develop a theoretical model suggesting that judges who are concerned about their reputation will tend to decide against their prior decisions as they approach elections. That is, judges who imposed a large number of severe sentences in the past and are thus perceived to be strict will tend to impose less severe sentences prior to elections. Conversely, judges who imposed a large number of light sentences in the past and are thus perceived to be lenient will tend to impose more severe sentences prior to elections. Using data from the Pennsylvania Commission on Sentencing, we test, and find evidence consistent with, the predictions of our model.
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The Roberts Court and Criminal Justice: An Empirical Assessment
Christopher Smith, Madhavi McCall & Michael McCall
American Journal of Criminal Justice, June 2015, Pages 416-440
Abstract:
An empirical examination of decisions by the Roberts Court can illuminate the contemporary Supreme Court's impact on criminal justice. The Court's decisions and the voting patterns of its justices confirm the Roberts Court's generally conservative reputation with respect to criminal justice. However, contrary to commentators' assertions about a five-member conservative majority actively reshaping criminal justice law in a rights-restricting fashion, the deeply-divided Court actually produces a notable number of rights-protective liberal decisions. Indeed, when the Roberts Court is most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record places him at the Court's center. Justices Antonin Scalia and Clarence Thomas have also made important contributions to liberal decisions in divided cases. Generalizations about the Roberts Court's conservatism and judicial activism in criminal justice are overstated without recognition of the voting patterns that have contributed to the production of rights-maintaining and rights-expanding liberal decisions.
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Todd Henderson & William Hubbard
Journal of Legal Studies, January 2015, Pages S87-S105
Abstract:
Section 21D(c)(1) of the Securities Exchange Act subjects courts to an unusually clear mandate: courts must make findings on whether attorneys complied with Rule 11 of the Federal Rules of Civil Procedure (which sanctions frivolous or unsupported claims) in every case arising under the act. Yet we find that courts make these required findings less than 14 percent of the time. We also find that the required Rule 11 findings are not more likely in cases where parties seek sanctions under Rule 11 but are made overwhelmingly in court orders approving settlements — the circumstance in which sanctions are least likely. To explain these surprising results, we offer an account of judicial behavior that emphasizes judicial learning, judicial effort, and the crucial ways in which the incentives of the judge and of the attorneys may interact in complex cases.
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The Joint Effects of Gender and Race/Ethnicity on Sentencing Outcomes in Federal Courts
Jill Doerner
Women & Criminal Justice, forthcoming
Abstract:
Using data from the U.S. Sentencing Commission, the present study examines the interaction effects of gender and race/ethnicity on sentencing outcomes of male and female offenders in federal courts. Findings indicate that female offenders in all racial/ethnic categories receive less severe sentence outcomes than male offenders in the same categories, even after legal, extralegal, and contextual factors are controlled. In addition, racial/ethnic differences are found within gender groups, such that Hispanic males are more likely to be incarcerated and Black males receive longer sentence terms compared to White male offenders. However, contrary to expectations, the analysis indicates that White females are more likely to be incarcerated than Black and Hispanic females and receive longer sentence terms than Hispanic females. Gender and racial/ethnic interactions are also explored across offense type (drug vs. non-drug) and type of sentencing departure (no departure, downward, or substantial assistance). Implications for future research are also discussed.
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Sean Farhang, Jonathan Kastellec & Gregory Wawro
Journal of Legal Studies, January 2015, Pages S59-S85
Abstract:
We evaluate opinion assignment and authorship on the US courts of appeals. We derive theoretical explanations and predictions for opinion assignment that are motivated by the courts of appeals' distinct institutional setting. Using an original data set of sexual harassment cases, we test our predictions and find that female and more liberal judges are substantially more likely to write opinions in sexual harassment cases. We further find that this pattern appears to result not from policy-driven behavior by female and liberal assigners but from an institutional environment in which judges seek out opinions they wish to write. Judicial opinions are the vehicles of judicial policy, and thus these results have important implications for the relationship between legal rules and opinion assignment and for the study of diversity and representation on multimember courts.
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How Uncertainty About Judicial Nominees Can Distort the Confirmation Process
Maya Sen & William Spaniel
Journal of Theoretical Politics, forthcoming
Abstract:
Judicial nominees to federal courts rarely reveal their genuine views on controversial issues. As a result, political actors -- and especially the Senate -- often have only partial information about how a nominee would vote on issues likely to come before the courts. We formulate a model that departs from the previous literature by incorporating this type of uncertainty into the nominations process. Our model shows that the absence of such information can yield suboptimal outcomes. In particular, when the President and Senate are ideologically divergent, low information about nominees' views results in the Senate occasionally rejecting acceptable nominees. Thus, even though low information allows the President to ''sneak in" more extreme candidates, it leads to both the President and the Senate being worse off than they would be with more transparency. Under such conditions, more information weakly increases both sides' welfare. Our results therefore raise questions about why nominees are permitted to keep important views private.
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Susan Miller, Eve Ringsmuth & Joshua Little
State Politics & Policy Quarterly, forthcoming
Abstract:
When the U.S. Supreme Court exercises its power of judicial review over state laws, its decisions, like the legislation it considers, frequently speak to major policy debates. Despite the Court's routine involvement with state statutes, theoretical explanations of judicial review generally do not distinguish between state laws and federal laws. The characteristics of state legislatures lead legislators in different states to have distinct perspectives and incentives, and ultimately affect the types of laws enacted in different states. We suggest that because the level of professionalism of state legislatures affects the types of laws pursued by different states, it may also affect the likelihood that a state has a law struck down by the U.S. Supreme Court. We find support for this expectation. Specifically, legislative professionalism is associated with an increased likelihood that a state has a law invalidated by the Court. This new evidence indicates that it is important to consider the legislative context in which state laws originate when examining the Court's review of state laws.
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Michael Kang & Joanna Shepherd
Journal of Legal Studies, January 2015, Pages S161-S185
Abstract:
In this article, we explore the relationship between political parties' campaign contributions and partisan voting among state supreme court judges who won partisan elections. Using three different measures of partisan voting, we find that contributions from political parties are associated with partisanship in judicial decision making. Campaign contributions from political parties are related to judicial voting in the party-preferred ideological direction and to cohesive voting among judges from the same political party. We find that the relationship between party contributions and partisan voting is stronger for Republican judges than for Democratic judges.
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Holding Steady on Shifting Sands: Countermajoritarian Decision Making in the US Courts of Appeals
Matthew Hall, Justin Kirkland & Jason Harold Windett
Public Opinion Quarterly, Summer 2015, Pages 504-523
Abstract:
Empirical claims that US Supreme Court decisions tend to follow public opinion raise important questions about the countermajoritarian role of the American judiciary. Yet, for the vast majority of federal cases, the de facto court of last resort is actually a US court of appeals. We examine the role of public opinion in shaping decisions on these courts. We argue that the courts of appeals' position in the judicial hierarchy, lack of docket control, and lack of public attention encourage circuit judges to ignore public opinion and adhere to consistent legal rules; however, appeals by federal litigants are strongly associated with public opinion. Consequently, circuit judges actively resist ideological shifts in public opinion, as they issue consistent rulings in the face of varying case facts. Applying multilevel modeling techniques to a data set of courts of appeals decisions from 1952 to 2002, we find strong support for our theory.
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When Good Little Debts Went Bad: Civil Litigation on the Virginia Frontier, 1745–1755
Tinni Sen, Turk McCleskey & Atin Basuchoudhary
Journal of Interdisciplinary History, Summer 2015, Pages 60-89
Abstract:
The use of a multinomial logit model to analyze a hitherto unavailable dataset of 1,376 small-claims lawsuits in colonial Augusta County, Virginia, for information about debts, litigants, and procedures finds no evidence of prejudice in the legal system. The magistrates' consistently fair enforcement of legitimate contracts may have induced both plaintiffs and defendants to settle their disputes in court rather than in private. The evidence corroborates the view that by the mid-eighteenth century, Virginia's frontier judicial system was sufficiently impartial to encourage creditors to draw up efficient contracts even for small debts.
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Liability Insurer Data as a Window on Lawyers' Professional Liability
Tom Baker & Rick Swedloff
UC Irvine Law Review, forthcoming
Abstract:
Using the best publicly available data on lawyers' liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association's Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker – this article reports the frequency of lawyers' liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, a large percentage of claims (64-70%) involving de minimus expense (less than $1000) in the small firm market, and in the large firm market a declining rate of "real claims" per 1000 lawyers, a declining rate of real average gross loss per claim, and stable real premiums per lawyer since the early 1990s. Because of data limitations, however, these results cannot be confidently generalized. Further advances in the understanding of lawyers' liability and insurance will require qualitative research.
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Megan Davidson & Jeffrey Rosky
American Journal of Criminal Justice, June 2015, Pages 353-376
Abstract:
The presence of mental illness within criminal sentencing can be conceptualized both as a mitigating factor based on the diminished capacity argument and as an aggravating factor stemming from the perceived dangerousness stigma associated with mental illness. The current study tests these hypotheses for violent offenses using data from the 2004 Survey of Inmates in State Correctional Facilities within a weighted negative binomial regression framework. Separate analyses were conducted for male and female offenders to isolate gender effects in relation to the sentence length of offenders with a mental illness. The findings reveal that the presence of a mental illness tended to increase violent conviction sentence length reported by male offenders and decrease sentence length reported by female offenders, suggesting mental illness in the context of a violent conviction may be interpreted as evidence of diminished capacity for females and future dangerousness for males.
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Signaling and Counter-Signaling in the Judicial Hierarchy: An Empirical Analysis of En Banc Review
Deborah Beim, Alexander Hirsch & Jonathan Kastellec
American Journal of Political Science, forthcoming
Abstract:
We leverage the institutional features of American courts to evaluate the importance of whistleblowers in hierarchical oversight. Drawing on a formal theory of signaling in the judicial hierarchy, we examine the role of whistleblowing dissents in triggering en banc review of three-judge panels by full circuits of the Courts of Appeals. The theory generates predictions about how dissent interacts with judicial preferences to influence circuits' review and reversal decisions, which we test using original and existing data. First, we show that judges who dissent counter to their preferences are more likely to see their dissents lead to review and reversal. Second, we show that dissents are most influential when the likelihood of non-compliance by a three-judge panel is highest. Our results underscore the importance of dissent in the judicial hierarchy and illustrate how judicial whistleblowers can help appellate courts target the most important cases for review.
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Thomas Baker et al.
Law & Society Review, June 2015, Pages 433–466
Abstract:
Using survey data from a sample of white, black, and Hispanic incarcerated females (N = 554), we examine if the theoretically hypothesized and empirically demonstrated relationship between procedural justice and obligation to obey the law is substantiated among a sample of offenders and explore the impact that sharing the race/ethnicity of the defense attorney and prosecutor in their most recent conviction has on female inmates' perceptions of court procedural justice and their perceived obligation to obey the law. The findings reveal that female offenders who perceive the courts as more procedurally just report a significantly greater obligation to obey the law. In addition, white female inmates who had a white prosecutor were significantly more likely to perceive the courts as procedurally just. Non-whites, though, perceive the courts as more fair if they encountered a minority prosecutor regardless of whether the prosecutor was black or Hispanic.
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The Role of Competence in Promotions from the Lower Federal Courts'
Stephen Choi, Mitu Gulati & Eric Posner
Journal of Legal Studies, January 2015, Pages S107-S131
Abstract:
The judicial behavior literature typically assumes that politicians nominate judges on the basis of their ideology. That assumption helps explain studies that show a statistical correlation between the party of the nominating president and the ideological direction of the votes of judges. However, the assumption is too simple. Casual empiricism suggests that politicians, interest groups, and the public care not only about the ideology of judges. They may also care about their competence and political loyalty and about ensuring that the judicial system is diverse. We focus on the role of competence in judicial promotions. We find, however, that presidents do not take much account of competence when promoting judges — despite the fact that there is some, albeit mixed, evidence that the most competent appellate judges were highly competent district judges.
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The People's Hired Guns? Experimentally Testing the Motivating Force of a Legal Frame
Christoph Engel & Alicja Reuben
International Review of Law and Economics, August 2015, Pages 67–82
Abstract:
Legal realists expect prosecutors to be selfish. If they get the defendant convicted, this helps them advance their careers. If the odds of winning on the main charge are low, prosecutors have a second option. They can exploit the ambiguity of legal doctrine and charge the defendant for vaguely defined crimes, like "conspiracy". We model the situation as a signaling game and test it experimentally. If we have participants play the naked game, at least a minority play the game theoretic equilibrium and use the broad rule if a signal indicates that the defendant is guilty. This becomes even slightly more frequent if a misbehaving defendant imposes harm on a third participant. By contrast if we frame the situation as a court case, almost all prosecutors take the signal at face value and knowingly run the risk of losing in court if the signal was false. Our experimental prosecutors behave like textbook legal idealists, and follow the urge of duty. The experiment demonstrates the strong behavioral force of a legal frame.
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Thomas Miles
Journal of Legal Studies, January 2015, Pages S231-S267
Abstract:
Which judges are "good" at their jobs, and which are not? The answer may depend on the ideology of whom you ask. Judicial decisions inevitably involve policy making, and lawyers may prefer judges whose policy preferences match their own. This paper tests that prediction with online evaluations of judges. Criminal defense attorneys, a group likely to hold progressive views, make up a disproportionate share of the respondents. The respondents assign lower average scores to Republican appointees, especially female and minority ones, even after controlling for the judges' backgrounds and performance measures. In comments, respondents object to judges with conservative tendencies more often than those with liberal ones. The objections to conservative tendencies correlate with large reductions in a judge's numerical ratings, while objections to liberal ones do not. The results suggest that judicial evaluation surveys should take account of how attorneys' ideology influences their perceptions of judicial performance.
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Erik Girvan, Grace Deason & Eugene Borgida
Law and Human Behavior, forthcoming
Abstract:
Decades of social-psychological research show that gender bias can result from features of the social context and from individual-level psychological predispositions. Do these sources of bias impact legal decisions, which are frequently made by people subject to factors that have been proposed to reduce bias (training and accountability)? To answer the question, we examined the potential for 3 major social-psychological theories of gender bias (role-congruity theory, ambivalent sexism, and implicit bias) to predict outcomes of labor arbitration decisions. In the first study, undergraduate students and professional arbitrators made decisions about 2 mock arbitration cases in which the gender of the employee-grievants was experimentally manipulated. Student participants' decisions showed the predicted gender bias, whereas the decisions of experienced professionals did not. Individual-level attitudes did not predict the extent of the observed bias and accountability did not attenuate it. In the second study, arbitrators' explicit and implicit gender attitudes were significant predictors of their decisions in published cases. The laboratory and field results suggest that context, expertise, and implicit and explicit attitudes are relevant to legal decision-making, but that laboratory experiments alone may not fully capture the nature of their effect on legal professionals' decisions in real cases.