Natural Law

Kevin Lewis

March 20, 2020

Strategic Opinion Language on the US Courts of Appeals
Joshua Boston
Journal of Law and Courts, Spring 2020, Pages 1-26


What strategies do judges employ when they anticipate review? Constrained judges behave strategically by using particular instruments - like language complexity - when authoring opinions. Prior studies suggest that judges use complexity in anticipation of legislative hostility. Similarly, the threat of review and reversal may spur opinion complexity. This study examines variations in circuit court opinions resulting from precedent treatment and Supreme Court preferences. When a circuit negatively treats a Supreme Court precedent that the justices prefer or a circuit positively treats a precedent that the justices dislike, opinion complexity should increase. These hypotheses find support, suggesting that circuits strategically insulate using opinion complexity.

The Role of Ideology in Judicial Evaluations of Experts
Eric Helland
Journal of Law and Economics, November 2019, Pages 579-611


I provide a test of the legal realist theory of judicial behavior, which posits that judges’ ideology impacts their legal decisions but that the law constrains the judges’ ability to exercise those preferences. Two competing theories, legal skepticism and formalism, posit that the law either provides a minimal constraint on judges’ preferences or allows only minimal discretion by judges. The difficulty in testing these theories is a lack of data on the legal constraints judges face. I examine Daubert/Rule 702 rulings to exclude scientific testimony by plaintiffs’ experts in a series of lawsuits. Because I have multiple observations across experts, I can give each expert a fixed effect, which removes any constant features of the expert’s testimony. Even after controlling for law, I find robust evidence that ideology plays an important role in the decision to grant a motion to exclude a witness.

Manipulating Random Assignment: Evidence From Consumer Bankruptcies in the Nation's Largest Cities
Edward Morrison, Belisa Pang & Jonathon Zytnick
Columbia University Working Paper, August 2019


Random case assignment is thought to be an important feature of decision-making in federal courts because it helps guard against favoritism (actual or perceived) toward particular parties or types of cases. In bankruptcy courts, cases are randomly assigned to both judges and trustees. In Chapter 7 cases, for example, the trustee is a quasi-judicial actor, typically a private-sector lawyer, who has been selected to audit the debtor's finances, find and liquidate assets, and police compliance with the law. We study three major bankruptcy jurisdictions (covering Chicago, Los Angeles, and parts of New York) and find that the random-assignment process for Chapter 7 trustees is failing in two of them (Chicago and New York). We introduce several measures of non-random assignment. Across all measures, random assignment is failing: Trustees within the same court have substantially different case characteristics, despite the purportedly random assignment process. We present evidence that the imbalance in case characteristics is caused by attorney manipulation: Attorneys strategically time their case filings to avoid or attract particular trustees ("trustee shopping"). By contrast, among cases filed by debtors who have not hired attorneys ("pro se filers"), there is no case imbalance across trustees. Because they do not engage in manipulation, pro se filers - who account for the bottom decile of income and asset values among Chapter 7 debtors - are the debtors most burdened by trustee-shopping by bankruptcy attorneys. We conclude by presenting evidence that trustee-shopping is less prevalent in Los Angeles due to differences in its random-assignment protocol.

Are Judges Like Umpires? Political Affiliation and Corporate Prosecutions
Todd Gormley, Mahsa Kaviani & Hosein Maleki
Temple University Working Paper, January 2020


Using the random assignment of judges to corporate criminal cases, we document that, on average, judges appointed by a Democrat president impose larger monetary damages for crimes that Democrats are more likely to view as important (i.e., violations of environmental and labor regulations) while Republican-appointed judges impose larger fines for crimes that Republicans are more likely to view as important (i.e., the hiring of illegal immigrants). These differences are amplified during time periods of greater political partisanship and are robust to controlling for other judicial characteristics (e.g., age, race, and gender). There is no evidence, however, that judges’ political affiliations are associated with decisions on guilt. The findings suggest that shifts in judicial political affiliations and increased political polarization have the potential to affect firms’ investment and hiring decisions.

Subjective interpretation of “objective” video evidence: Perceptions of male versus female police officers’ use-of-force
Jessica Salerno & Justin Sanchez
Law and Human Behavior, forthcoming

Method: We randomly assigned Amazon’s Mechanical Turk workers (N = 452; 53% female, 80% White) to (a) see a segment of a police-civilian interaction video that either included or did not include exertion of force, and to believe that the officer was (b) male versus female, and (c) Black versus White. They reported their trust in the officer and perceptions of the officer’s effectiveness, and their degree of agreement with external and internal attributions for the officer’s behavior.

Results: When officers used force, people trusted officers less (d = 1.13) and perceived them to be less effective (d = .78) relative to when they did not. Despite all participants viewing the same interaction, people who thought they saw a male (vs. female) officer perceived his use-of-force to be driven more by internal traits, such as being aggressive and emotionally reactive, and less by the external situation, which was associated with decreased trust and perceived effectiveness. In contrast, people perceived female (vs. male) officers’ force to be driven more by external aspects of the dangerous situation, which was associated with increased trust and perceived effectiveness. This pattern did not depend on the officers’ race or participants’ gender.

Misdemeanor Courts, Due Process, and Case Outcomes
Alisa Smith & Sean Maddan
Criminal Justice Policy Review, forthcoming


Very little research on courts and sentencing outcomes focuses on misdemeanor courts despite the fact that most crime processed through the criminal justice system is misdemeanor in nature. In fact, the overwhelming empiricism in this area is on felony court outcomes at either the federal or state levels. This research utilized a mixed methodology approach, a combination of observation, survey, and secondary data, to explore misdemeanor court outcomes across the State of Florida. In particular, this research focused on the extent of due process afforded misdemeanor defendants and how this impacted case outcomes. Findings indicate an overall lack of due process and awareness of due process rights across the vast majority of cases. This study also explored sentencing outcomes via traditional metrics associated with contemporary sentencing research. Findings suggest that misdemeanor courts processing operate much differently than felony courts. The implications for future research and policy are discussed.

Race, Ethnicity, Crime Type, and the Sentencing of Violent Felony Offenders
Peter Lehmann
Crime & Delinquency, forthcoming


Within the large body of literature on racial/ethnic disparities in criminal sentencing, some research has demonstrated that these relationships are conditional upon various legally relevant case characteristics, including the type of offense for which the defendants are sentenced. To date, however, few studies have explored the potential moderating effects of different violent crimes. Using data from Florida (N = 186,885), the findings from these analyses indicate that Black-White sentencing disparities are particularly pronounced for manslaughter, robbery/carjacking, arson, and resisting arrest with violence. While Hispanic ethnicity exerts limited effects on sentencing outcomes generally, Hispanics are particularly disadvantaged in manslaughter cases. Relative to minority defendants, White offenders receive harsher sentences for sexual battery, other sex offenses, and abuse of children.

The effects of body‐worn camera footage and eyewitness race on jurors' perceptions of police use of force
Alana Saulnier, Kelly Burke & Bette Bottoms
Behavioral Sciences & the Law, November/December 2019, Pages 732-750


Police use of body‐worn cameras (BWCs) is increasingly common in the USA. This article reports the results of one of the first experimental examinations of the effects of three BWC status conditions (absent, transcribed, viewed) and eyewitness race (Black, White) on mock jurors' case judgments, in a case in which a community member (defendant) was charged with resisting arrest but where the officer's use of force in conducting the arrest was controversial. Results provide evidence of significant main effects of both eyewitness race and BWC status. When the eyewitness supporting the defendant was White, mock jurors were less likely to vote the defendant guilty of resisting arrest, as well as more likely to consider the defendant credible and the officer culpable for the incident. In addition, when BWC footage of the arrest was viewed, compared with transcribed or absent, participants were less likely to vote the defendant guilty of resisting arrest, and also rated the officer's use of force less justifiable, and the officer more culpable and less credible. Follow‐up analyses demonstrated that these relationships between BWC condition and case judgments were all mediated by moral outrage toward the officer.

Underestimating the unrepresented: Cognitive biases disadvantage pro se litigants in family law cases
Kathryn Kroeper et al.
Psychology, Public Policy, and Law, forthcoming


The majority of civil cases in the United States involve at least one pro se party - more often than not, at least 1 litigant is unrepresented by legal counsel. Despite efforts to provide pro se parties with information that decreases the procedural complexity of litigation, wide access to justice gaps persist between counseled and pro se litigants. We argue that, although helpful, information alone is not enough to close access-to-justice gaps, because the mere presence of counsel gives represented litigants a persuasive edge over pro se litigants in the eyes of legal officials. Two randomized experiments with civil court judges (Experiment 1) and attorney-mediators (Experiment 2), wherein only the presence of counsel varied (whereas other case-related factors were held constant), found that legal officials, on average, devalued the case merit of pro se litigants relative to otherwise identical counseled litigants. This case devaluation, in turn, shaped how legal officials expected pro se (vs. counseled) litigants to fare as they sought justice. Judges, attorneys, and mediators forecasted that pro se litigants would experience the civil justice system as less fair and less satisfying than counseled litigants, especially when the dispute resolution mechanism was trial (vs. mediation). These results suggest that perceptions of case merit are strongly influenced by a litigant’s counseled status. Comprehensive solutions to address access-to-justice gaps must consider ways to reduce legal officials’ biased perceptions of pro se litigants, so that they are not underestimated before their cases are even heard.

The Right to a Good Defense: Investigating the Influence of Attorney Type Across Urban Counties for Juveniles in Criminal Court
Steven Zane, Simon Singer & Brandon Welsh
Criminal Justice Policy Review, forthcoming


Juvenile defendants in criminal court represent an especially vulnerable group for whom quality legal representation is critical. While some juvenile defendants are able to obtain private counsel, indigent defendants are provided an attorney by the government. One long-standing concern is that these court-appointed attorneys are less effective. Using data on juveniles in criminal court across 37 large, urban counties, the present study examines conviction and sentencing outcomes by comparing private counsel, public defenders, and assigned counsel. Results indicate that defendants with public defenders were less likely to be convicted, less likely to be incarcerated in prison, and served shorter prison sentences compared to defendants with assigned counsel. Contrary to hypotheses, however, the effect of attorney type was not conditioned by court urbanism. The findings suggest that public defenders provide effective legal representation for juveniles in criminal court. Research is needed to determine whether this holds across different contexts (e.g., rural).

Facts only the perpetrator could have known? A study of contamination in mock crime interrogations
Fabiana Alceste, Kristyn Jones & Saul Kassin
Law and Human Behavior, forthcoming

Objective: This paper examines contamination in interrogations: the process by which an interrogator divulges privileged information to a suspect.

Hypotheses: In Experiment 1, we predicted that mock investigators would communicate critical crime details when they interview mock suspects about a crime - and that innocent and guilty suspects alike would later produce confessions that contained these details. In Experiment 2, we hypothesized that observers who listened only to the confessions would exhibit a greater guilt bias than those who also had exposure to the eliciting interview.

Method: Experiment 1 (N = 59) used student participants in a mock crime scenario to test whether contamination is natural to communication even in the absence of external incentives. In Experiment 2, MTurk participants (N = 499) listened to audio-clips from Experiment 1 to test whether presenting observers with the full interview decreases guilt ratings for false confessors.

Results: Investigators divulged crime information to both innocent and guilty suspects, and even false confessions later included accurate details. Although Experiment 2 observers exhibited a guilt bias, exposure to the interview (not just the confession) attenuated this effect for innocent confessors.

Do Judicial Instructions Aid in Distinguishing Between Reliable and Unreliable Jailhouse Informants?
Stacy Wetmore et al.
Criminal Justice and Behavior, forthcoming


Jailhouse informants are a leading cause of wrongful convictions. In an attempt to preempt such miscarriages of justice, several states (e.g., Connecticut and California) have mandated that judicial instructions be provided to act as a safeguard against false testimony. This study evaluated the effectiveness of these instructions in helping jurors distinguish between reliable and unreliable jailhouse informants. Participants read a trial transcript that varied instructions (Standard, Connecticut, Enhanced) and informant reliability (reliable, unreliable). The results indicated that the instructions had no effect on verdict decisions. Even though verdicts did not vary, participants rated the unreliable informant as less trustworthy, honest, and interested in justice than the reliable informant. This is consistent with previous findings that indicate that participants are aware of the legal prescriptions given in the instructions, but they do not implement them in making decisions. Therefore, instructions may be an insufficient safeguard.

Competency to stand trial evaluations: A state‐wide review of court‐ordered reports
Daniel Murrie, Brett Gardner & Angela Torres
Behavioral Sciences & the Law, January/February 2020, Pages 32-50


Competence to stand trial (CST) evaluations are a critical part of certain criminal proceedings, and competence‐related evaluation and treatment are an increasing part of public mental health services. Whereas more research describes the defendants undergoing competence evaluations, less research has examined the actual reports detailing those competence evaluations. This study reviewed 3,644 court‐ordered CST evaluation reports submitted by 126 evaluators in Virginia since Virginia initiated an oversight system allowing for comprehensive review. The base rate of incompetence opinions was 38.8%, but these rates varied significantly across evaluation type (initial versus post‐restoration efforts) and evaluators (ranging from 9.1% to 76.8% incompetence rate). Results suggest generally strong compliance with state statutes guiding CST evaluations, but also highlight marked variability in forensic conclusions and reveal a few areas in which some reports fell short of statutory requirements and practice guidelines.


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