Objection
Poor writing, not specialized concepts, drives processing difficulty in legal language
Eric Martínez, Francis Mollica & Edward Gibson
Cognition, forthcoming
Abstract:
Despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople. Why? Here, a corpus analysis (n ≈10 million words) revealed that contracts contain startlingly high proportions of certain difficult-to-process features – including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization – relative to nine other baseline genres of written and spoken English. Two experiments (N=184) further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more-so than other features. These findings (a) undermine the specialized concepts account of legal theory, according to which law is a system built upon expert knowledge of technical concepts; (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge; and (c) suggest editing out problematic features of legal texts would be tractable and beneficial for society at-large.
Criminalizing Poverty: The Consequences of Court Fees in a Randomized Experiment
Devah Pager et al.
American Sociological Review, forthcoming
Abstract:
Court-related fines and fees are widely levied on criminal defendants who are frequently poor and have little capacity to pay. Such financial obligations may produce a criminalization of poverty, where later court involvement results not from crime but from an inability to meet the financial burdens of the legal process. We test this hypothesis using a randomized controlled trial of court-related fee relief for misdemeanor defendants in Oklahoma County, Oklahoma. We find that relief from fees does not affect new criminal charges, convictions, or jail bookings after 12 months. However, control respondents were subject to debt collection efforts at significantly higher rates that involved new warrants, additional court debt, tax refund garnishment, and referral to a private debt collector. Despite significant efforts at debt collection among those in the control group, payments to the court totaled less than 5 percent of outstanding debt. The evidence indicates that court debt charged to indigent defendants neither caused nor deterred new crime, and the government obtained little financial benefit. Yet, fines and fees contributed to a criminalization of low-income defendants, placing them at risk of ongoing court involvement through new warrants and debt collection.
Pretrial Juvenile Detention
Jason Baron, Brian Jacob & Joseph Ryan
NBER Working Paper, March 2022
Abstract:
Roughly one in four juveniles arrested in the U.S. spend time in a detention center prior to their court date. To study the consequences of this practice for youth, we link the universe of individual public school records in Michigan to juvenile and adult criminal justice records. Using a combination of exact matching and inverse probability weighting, we estimate that juvenile detention leads to a 31% decline in the likelihood of graduating high school and a 25% increase in the likelihood of being arrested as an adult. Falsification tests suggest the results are not driven by unobserved heterogeneity.
The Incumbency Advantage in Judicial Elections: Evidence from Partisan Trial Court Elections in Six U.S. States
Michael Olson & Andrew Stone
Political Behavior, forthcoming
Abstract:
Political scientists and legal scholars debate the value of judicial elections, including the degree to which elections effectively hold incumbent judges accountable. In this paper, we provide a causally identified estimate of the incumbency advantage in judicial elections. We assemble an original dataset of over 5300 partisan, single-member trial court elections from six U.S. states. Employing a regression discontinuity design, we demonstrate that incumbents enjoy electoral advantages of more than twenty percentage points due solely to being an incumbent. In contrast to research from other electoral settings, we find that these advantages are due largely to a scare-off effect, where even a narrow victory dramatically decreases the probability that an incumbent party will be challenged in the next election. Our findings highlight the sizable electoral returns to holding judicial office, reveal how the nature of the incumbency advantage varies across electoral settings, and provide compelling evidence of the challenges to holding trial court judges accountable through elections.
Spillover Effects in Political Advertising: Evidence from Judicial Elections
Thomas Gray & Adam Hughes
Journal of Political Marketing, forthcoming
Abstract:
We develop a simple theory of information spillovers within political advertising: individuals use information conveyed by candidate-specific ads to evaluate other candidates seeking different offices. We test the theory by linking state court of last resort election returns with a complete set of gubernatorial, congressional, and state supreme court political advertisements in 2010. We show that up-ballot advertisements about crime have spillover effects on judicial race outcomes. Specifically, fearful references to crime in non-judicial campaign advertisements decrease judicial incumbent vote share, while enthusiastic references to crime increase incumbent vote share. We estimate that cumulative spillover effects from crime ads in gubernatorial and congressional advertising campaigns in 2010 decreased incumbent justices’ average expected vote share, affecting the outcome of at least one state supreme court election in 2010. We show that ads affect vote choice by providing information to voters, rather than by priming local crime rates. We also conduct two placebo tests to validate our results. Overall, these findings provide evidence of ads’ political effectiveness, while our research design proposes a conceptual framework for understanding advertising effects in context.
You Think; Therefore I Am: Gender Schemas and Context in Oral Arguments at the Supreme Court, 1979–2016
Shane Gleason & EmiLee Smart
Political Research Quarterly, forthcoming
Abstract:
Attorneys’ ability to secure justice-votes is shaped by gender schemas, subconscious expectations which hold women should use more emotion than men. This poses few problems for male attorneys since men and attorneys are both expected to avoid emotion. But, women are placed in a double-bind with competing professional and personal expectations. We argue gender schemas are not static rather they change with the context of the Court. Introducing a new dataset inclusive of all oral arguments from 1979 to 2016, we utilize quantitative textual analysis and find gender schemas predict securing justice-votes as the Bar becomes more diverse and justices become more conservative. Our results raise normative concerns about female attorneys’ ability to substantively contribute to the Court’s case law.
Leases as Forms
David Hoffman & Anton Strezhnev
Journal of Empirical Legal Studies, March 2022, Pages 90-134
Abstract:
We offer the first large-scale descriptive study of residential leases, based on a novel dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, and to 16,261 unique owner-landlords, we show that unenforceable terms are likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to particular landlords' growing adoption of shared forms, originally created by nonprofit landlord associations, and more recently available online for a nominal fee. Generally, such shared form leases contain worse rules for tenants than the proprietary leases they replace. Over time, it has become easier and cheaper for landlords to adopt such common forms, meaning that access to justice for landlords strips tenants of rights.
Shared Race/Ethnicities of Prosecutor and Defendant: A Test of Competing Hypotheses Predicting Case Outcomes
Lin Liu
Criminal Justice Policy Review, forthcoming
Abstract:
Diversifying prosecutors’ offices and hiring more minority prosecutors have been touted as promising initiatives to address racial disparities in prosecution. However, two theoretical perspectives — social identity and internalized racism — delineate contradictory predictions on the punitiveness of minority prosecutors. The social identity perspective maintains that minority prosecutors are likely to seek better outcomes for defendants of their own race/ethnicity, whereas internalized racism proposes that minority prosecutors will be punitive to defendants of their own race/ethnicity. The present study uses the most recent data from a large urban jurisdiction to test whether the effect of shared minority identities between prosecutors and defendants on case outcomes is consistent with the social identity or internalized racism perspectives. Results suggest that minority prosecutors tend to show leniency to defendants of their own race/ethnicity; however, they are punitive toward minority defendants of a different race/ethnicity. Policy implications and directions for future research are also discussed.
The Effects of Legal Representation on Tenant Outcomes in Housing Court: Evidence from New York City's Universal Access Program
Michael Cassidy & Janet Currie
NBER Working Paper, March 2022
Abstract:
Housing is one of the areas where it may be most critical for poor people to have access to legal representation in civil cases. We study the roll-out of New York City’s Universal Access to Counsel program (UA), using detailed address-level housing court data from 2016 to 2019. The program, which became law in August 2017, offers free legal representation in housing court to tenants with income at or below 200 percent of the federal poverty guideline. We find that tenants who gain access to lawyers are less likely to be subject to possessory judgments, face smaller monetary judgments, and are less likely to have eviction warrants issued against them. Lawyers have larger effects in poorer places and in those with larger shares of non-citizens. UA also reduces executed evictions in these locations. Our results support the idea that legal representation in civil procedures can have an important positive impact on the lives of poor people.
Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment
Christopher Whytock
Journal of Empirical Legal Studies, March 2022, Pages 4-59
Abstract:
It is widely claimed that the level of transnational litigation in U.S. courts is high and increasing, primarily due to forum shopping by foreign plaintiffs. This “transnational forum shopping claim” reflects the conventional wisdom among transnational litigation scholars. Lawyers use the claim in briefs; judges use it in court opinions; and interest groups use it to promote law reform. This article reassesses the transnational forum shopping claim theoretically and empirically. It argues that despite globalization, there are reasons to doubt the claim. Changes in procedural and substantive law have made the U.S. legal system less attractive to plaintiffs than it supposedly once was. Meanwhile, other legal systems have been adopting features similar to those that are said to have made the United States a “magnet forum” for foreign plaintiffs, and arbitration is growing as an alternative to transnational litigation. Empirically, using data on approximately 8 million civil actions filed in the U.S. district courts since 1988, the article shows that transnational diversity cases represent only a small portion of overall litigation, their level has decreased overall, and U.S., not foreign, plaintiffs file most of them. The data also reveal that federal question filings by foreign resident plaintiffs are not extensive or increasing either. These findings challenge the transnational forum shopping claim and law reforms based on it, and suggest that it should no longer be used by lawyers, judges, and scholars—at least not without supporting data. The article’s analysis also suggests new directions for transnational litigation as a field of scholarship that would move it beyond its current focus on U.S. courts toward a focus on understanding the dynamics of transnational litigation in global context.
The Revolving Door in Judicial Politics: Former Clerks and Agenda Setting on the U.S. Supreme Court
Huchen Liu & Jonathan Kastellec
American Politics Research, forthcoming
Abstract:
We examine the role of former clerks to Supreme Court justices on the Court’s agenda setting process. We find that when a former clerk is the attorney on either a cert petition or an amicus brief, the Court is more likely to hear a case, compared to advocacy by a non-former clerk. To help explain these patterns, we draw on the broader literature on “revolving door” politics. We argue that the most plausible mechanisms are either that former clerks are more effective advocates or that their presence in a case signals its importance to the Court. Alternatively, former clerks may select into cases that the Court is likely to grant. While we cannot definitively disentangle these competing mechanisms, the strong patterns in the data suggest that the importance of the revolving door in judicial politics extends broadly into the domain of agenda setting and is thus worthy of further investigation.