Penalties
Does Procedural Fairness Impact Public Perception of Judicial Opinions? Evidence from a Survey Experiment
Rob Robinson & Danieli Evans
Law & Social Inquiry, forthcoming
Abstract:
Judicial authority relies heavily on the reader’s perception that judges make fair and legitimate decisions. Do such perceptions rest primarily on the reader’s agreement with the decision? Or does an opinion’s reasoning style, as distinct from outcome, impact a reader’s perceptions of legitimacy? In this study, we test whether incorporating elements of procedural fairness into judicial opinions impacts readers’ perceptions of fairness and legitimacy, distinct from their agreement with the decision. In doing so, we also test whether members of the public are sensitive to elements of procedural fairness in written judicial opinions -- a different context from the interpersonal interactions in which procedural fairness has been most often studied. We ran two survey experiments that sort participants into four conditions, varying the outcome of the case and whether the judicial opinion employs elements of procedural fairness. After reading a procedurally fair or one-sided opinion, participants reported on their perceptions of fairness and judicial legitimacy. We found strong support for the hypothesis that agreement with the outcome impacts readers’ perceptions of fairness and legitimacy, and weak support for the hypothesis that procedural fairness impacts these perceptions.
No Adjudication
Charlotte Alexander et al.
Journal of Empirical Legal Studies, forthcoming
Abstract:
Using the complete record of all federal civil docket sheets for cases filed in a two-year period, recently made available by the SCALES-OKN project, we find that most cases that enter the federal system -- about 60%-68% -- are resolved without any dispositive motion filed for consideration by a neutral arbiter (judge or magistrate) or a trial. Only 30%-40% include a filing of a dispositive motion (such as a motion to dismiss or motion for summary judgment) or, in the rare case, trial. An additional 8% exit the system, mostly by remand or transfer. The majority of cases resolved at the Complaint or Answer stage end quickly (often within 90 days) and with few docket entries (often fewer than 12). While there is heterogeneity in adjudication rates across case types, the pattern of non-adjudication is widespread, and aggregate results are not driven by outliers. We find considerable heterogeneity in the level of non-adjudication among individual judges, underscoring the importance of judicial discretion to case processing. Further study of the consequences of the lack of dispositive motion practice in most federal cases for the functioning of the legal system and for the larger society is warranted.
Unequal Punishment?: Partisan and Racial Biases in Criminal Sentencing
Paul Lendway et al.
Stanford Working Paper, October 2025
Abstract:
Equality before the law is a fundamental value in the United States. Yet, most Americans do not apply the principle when it comes to criminal sentencing. Across two experiments, we find that Americans frequently deviate from this principle, offering favorable treatment to co-partisans and specific racial groups in criminal sentencing. Partisan biases are symmetric: Democrats and Republicans punish out-partisans more than co-partisans. Racial biases are asymmetric: Black Americans and white Democrats punish white perpetrators more than Black ones, whereas white Republicans show no net racial bias. In two additional candidate-choice experiments, we show that voters penalize co-partisan governors for distasteful, potentially abusive pardons, but such actions rarely induce voters to shift support to an out-party candidate. Although Americans widely endorse equality before the law in the abstract, in practice, many do not apply this principle uniformly. Partisan and racial considerations shape their decisions, revealing deep inconsistencies between democratic ideals and applied judgments.
Informative Jury Disagreement
Roy Baharad
University of Chicago Working Paper, July 2025
Abstract:
The article introduces a counterintuitive argument, contending that jury disagreement on the defendant's guilt-a nonunanimous conviction-may well provide a more informative signal, compared to consensus. Because stronger consensus implies higher likelihood of herding, it is shown that beyond some threshold, further accumulation of votes to convict would carry negligible epistemic contribution, barely enhancing the posterior probability of guilt. On the other hand, while dissenting votes provide a direct signal of innocence, they indicate that herding has not been
involved in the decision-making process, hence increase the epistemic contribution of any vote generated by said process -- including votes to convict -- and may thus offer an indirect signal of guilt, potentially increasing the posterior. This unravels the informational value of dissent and the possible disadvantageousness of consensus.
Contrasting guilty minds: Exposure to contrast concepts narrows conceptions of acting knowingly and recklessly
Christian Mott & Larisa Heiphetz Solomon
Journal of Experimental Psychology: Applied, forthcoming
Abstract:
When one person harms another, the way lay jurors describe the perpetrator’s mental state -- whether they acted “knowingly” or “recklessly” -- can significantly affect their culpability under U.S. criminal law. Five studies conducted in Fall 2017 show that the meanings of these crucial legal terms can shift depending on whether the jury instructions mention an alternative mental state. In Studies 1–3, lay participants, acting as mock jurors, were less likely to say an agent caused a harm “knowingly” when they could instead describe the person as acting “recklessly” -- a less severe but still culpable state of mind. This pattern emerged whether or not participants received legal definitions of these terms. In Study 4, mock jurors were less likely to say an agent acted “knowingly” when “recklessly” appeared in the jury instructions as a contrast, even when they did not have any way to attribute the contrast term to the agent. In Study 5, mock jurors were also less likely to say an agent acted “recklessly” when the possibility of acting “negligently” appeared in the jury instructions. These studies provide evidence that “knowingly” and “recklessly” are contrast sensitive -- that is, their meanings can shift based on what contrast concept is salient.
In Search of a Judicial Taking
Coby Goldberg
University of Chicago Law Review, October 2025, Pages 1713-1759
Abstract:
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. This Comment provides the only comprehensive analysis of the judicial takings case law since Stop the Beach in order to determine why no court has found a judicial taking. Based on this analysis of the case law, this Comment suggests that finding a judicial taking is all but impossible. That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine functions as something akin to a canon of constitutional avoidance. If decided the other way, however, none of those three decisions would have amounted to judicial takings. By pushing courts away from decisions that they would otherwise adopt out of a concern for constitutional problems that never arise, judicial takings doctrine, in expectation, thus creates worse outcomes in property jurisprudence.
Autistic juvenile defendants: How defendant race and offense type affect juror decisions
Kristina Baker et al.
Law and Human Behavior, forthcoming
Method: Using a mock-juror paradigm, 466 participants read a vignette in which the juvenile defendant’s diagnosis (ASD + information vs. no diagnosis), race (White vs. Black), and the charged offense (violent vs. nonviolent) were experimentally manipulated.
Results: Participants were highly unlikely to render guilty verdicts (p < .001, OR = 0.33) and harsh sentences (p< .001, η p² = .11) when the defendant had an ASD diagnosis, even less so for violent offenses (p = .005, ηp² = .02). The defendant’s likability (p< .001, η p² = .04), honesty (p< .001, η p² = .11), and believability (p< .001, η p² = .09) were rated higher when the defendant had an ASD diagnosis, and these considerations led to significantly more lenient sentences compared to the no diagnosis condition. Participants were also twice as likely to find the White defendant guilty (p = .003, OR = 1.95) and reported being significantly more certain in their verdicts for the White defendant (p = .017, ηp² = .02).
Swiss Cheese Contracts: The Costs of Creative Lawyering
Stephen Choi et al.
NYU Working Paper, August 2025
Abstract:
What value do deal lawyers add? In a classic paper from forty years ago, Ron Gilson described deal lawyers as adding value by reducing transactions costs (lawyers were "transaction costs engineers"). In this article, we investigate that story. Using quantitative and qualitative data, we dig into what is one of the fastest growing and most lucrative practice areas for lawyers -- the world of high yield secured syndicated loans and Liability Management Transactions ("LMTs"). The puzzle that attracted us to study this world was reading press account suggesting that clients were investing more and more in having their lawyers search contracts for loopholes to extract value from their counterparts. On its face, this looked to be more a story of lawyers as rent extractors rather than transaction costs reducers. In a Gilsonian world, lawyer resources would be spent at the front end of deal design to make sure there were no loopholes to be exploited at the back end. And, if there were some drafting infelicities, the accumulated reputational capital of repeat transactor big firm lawyers would smooth things out with minimal litigation costs incurred. The Gilsonian world is not what we find; not by a long shot.
Wrongful conviction disadvantages exonerees in subsequent criminal trials
Rose Eerdmans & Laura Smalarz
Psychology, Public Policy, and Law, forthcoming
Abstract:
Over 3,500 people have been exonerated in the United States (National Registry of Exonerations, 2024). An overlooked phenomenon among exonerated individuals is that many are convicted of a subsequent criminal offense after their release (Mandery et al., 2013). We investigated the possibility that a prior wrongful conviction increases the likelihood of reconviction by biasing evaluations of exonerees under suspicion, investigation, or prosecution for a subsequent crime. We conducted an initial test of this idea in two experiments in which laypeople served as mock jurors evaluating a defendant in a criminal trial. In Experiment 1 (N = 120), mock jurors evaluated a defendant with no prior convictions, an exoneree, or a parolee. Mock jurors were more likely to convict the parolee than the exoneree or the defendant without prior convictions and more likely to convict the exoneree than the defendant without prior convictions; this bias against the exoneree was robust across a variety of individual-difference measures. In Experiment 2 (N = 378), we investigated mechanisms underlying biased evaluations of an exoneree and tested a policy intervention that might serve to mitigate this bias: the provision of compensation and an apology. Mock jurors were less likely to exhibit bias against an exoneree who had received compensation and an apology, which was associated with decreased negative character attributions and increased perceptions that the exoneree had suffered an injustice. The provision of compensation and an official apology to exonerees is a promising policy intervention for preventing a compounding injustice for exonerated individuals.
Interrogation tactics may have downstream consequences on innocent and guilty defendants’ plea decisions
Melanie Fessinger et al.
Law and Human Behavior, forthcoming
Objective: We examined whether interrogation tactics that imply leniency (i.e., minimization) or exaggerate seriousness and incriminating evidence (i.e., maximization) have downstream consequences on innocent and guilty defendants’ plea decisions.
Method: Participants (N = 262) took part in a plea decision-making task in which they were either innocent or guilty of cheating and interrogated using control, minimization, or maximization tactics. They were then told they could contest the accusation in front of a board (proxy for trial) or admit to it for a reduced punishment (proxy for plea). They decided how to plead, evaluated the likelihood they would have been convicted by the board, and estimated the likely punishment they would have received if convicted by the board. They also rated their state anxiety.
Results: As predicted, guilty participants pleaded guilty more often than did innocent participants (OR = 7.99). However, interrogation tactics differentially affected innocent and guilty participants. Compared to control tactics, minimization significantly reduced guilty pleas among innocent participants (p = .02, Cohen’s h = 0.49) but not among guilty participants (p = .70, h = 0.09). In contrast, maximization significantly reduced guilty pleas among innocent participants (p = .04, h = 0.44) but significantly increased guilty pleas among guilty participants (p = .047, h = 0.41).