Random Law
How You Rate Depends on Who Investigates: Partisan Bias in ABA Ratings of US Courts of Appeals Nominees, 1958–2020
James Sieja
Political Research Quarterly, forthcoming
Abstract:
Recent work on the federal judicial nominations process finds relationships between nominees’ characteristics, such as partisanship and gender, and American Bar Association (ABA) ratings. While the findings inform public debate about ABA involvement in the nomination, the studies do not take into account the characteristics of the individuals who investigate the nominees. This study adds investigator partisanship to understand more completely the relationship between nominees and their ABA ratings. The results indicate that the Standing Committee on the Federal Judiciary (SCFJ) investigators’ partisanship contribute systematically to a nominee’s likelihood of receiving a higher or lower ABA rating. The probability that a Republican nominee receives the highest rating does not vary with the investigator’s partisanship. Democratic nominees, however, have the highest chance of the top rating after an SCFJ investigation led by a co-partisan. An analysis of matched data from the whole dataset reproduces the basic pattern of results, while the implementation of matching to partisan subgroups of nominees uncovers that both parties may benefit roughly equally from investigations led by co-partisans.
Deep in the Shadows?: The Facts About the Emergency Docket
Pablo Das, Lee Epstein & Mitu Gulati
Virginia Law Review Online, April 2023, Pages 73-98
Abstract:
The past few years have witnessed a particular accusation leveled repeatedly and loudly at the U.S. Supreme Court’s conservative supermajority: that they are using the Court’s emergency (or pejoratively, “shadow”) docket to issue highly consequential decisions in a sneaky, secretive fashion. Using data from the Court’s 2021–22 Term and neutral methods, we analyze the entirety of the emergency docket. The results show that conservative interests fare better on the emergency docket, just as they do on the merits docket -- no surprise considering the Court’s political orientation. Unsettling as this may be from a liberal or legal-formalist perspective, there is little evidence that any of this is happening in the shadows.
Can Law Students Replace Judges in Experiments of Judicial Decision-Making?
Holger Spamann & Lars Klöhn
Harvard Working Paper, March 2023
Abstract:
Experimental research on judicial decision-making is hampered by the difficulty of recruiting judges as experimental participants. Can students be used in judges’ stead? Unfortunately, no. We ran the same high-context 2×2 factorial experiment of judicial decision-making focused on legal reasoning with 31 U.S. federal judges and 91 elite U.S. law students. We obtained diametrically opposed results. Judges’ decisions were strongly associated with one factor (sympathy, i.e., bias) but not the other (law). For students, it was the other way around. Equality between the two groups is strongly rejected. Equality of document-view patterns -- a proxy for thought processes -- and written reasons is also strongly rejected.
The Effect of Pre-Arraignment Legal Representation on Criminal Case Outcomes
Johanna Lacoe, Brett Fischer & Steven Raphael
NBER Working Paper, May 2023
Abstract:
Low-income individuals arrested on criminal charges face disproportionately high rates of pretrial detention and conviction. We study a novel approach to addressing this inequity: providing low-income individuals with access to legal counsel immediately following their arrest. Focusing on a pilot program in a large urban county, we estimate the causal impact of early representation by a public defender on release and case outcomes, leveraging quasi-random variation in access to counsel pre-arraignment. Low-income individuals who met with a public defender shortly after arrest were 28 percentage points more likely to be released pretrial, and 36 percent more likely to see their cases dismissed, relative to otherwise similar individuals who would first meet with a public defender at their arraignment. These results suggest that providing timely access to legal representation could improve release and case outcomes for public defender clients.
Cohort bias in predictive risk assessments of future criminal justice system involvement
Erika Montana et al.
Proceedings of the National Academy of Sciences, 6 June 2023
Abstract:
Risk assessment instruments (RAIs) are widely used to aid high-stakes decision-making in criminal justice settings and other areas such as health care and child welfare. These tools, whether using machine learning or simpler algorithms, typically assume a time-invariant relationship between predictors and outcome. Because societies are themselves changing and not just individuals, this assumption may be violated in many behavioral settings, generating what we call cohort bias. Analyzing criminal histories in a cohort-sequential longitudinal study of children, we demonstrate that regardless of model type or predictor sets, a tool trained to predict the likelihood of arrest between the ages of 17 and 24 y on older birth cohorts systematically overpredicts the likelihood of arrest for younger birth cohorts over the period 1995 to 2020. Cohort bias is found for both relative and absolute risks, and it persists for all racial groups and within groups at highest risk for arrest. The results imply that cohort bias is an underappreciated mechanism generating inequality in contacts with the criminal legal system that is distinct from racial bias. Cohort bias is a challenge not only for predictive instruments with respect to crime and justice, but also for RAIs more broadly.
Does Bail Reform Increase Crime in New York State: Evidence from Interrupted Time-Series Analyses and Synthetic Control Methods
Sishi Wu & David McDowall
Justice Quarterly, forthcoming
Abstract:
In 2019, New York State passed bail reform legislation that limited the use of money bail and expanded pretrial release. The bail reform law took effect on January 1, 2020. We evaluated the effect of this law on crime rates in New York State. Interrupted time series analyses (ITSA) were used to examine whether the bail reform was significantly associated with a crime increase. When a significant association was detected, we examined whether this relationship was causal. The causal relationship was tested using synthetic control methods (SCM). We found that the rates of murder, larceny, and motor vehicle theft increased after the bail reform. We then employed SCM to create a comparison group to control for potential confounders like the pandemic. By comparing New York State with its synthetic control, we found the increases in the murder rate, larceny rate, and motor vehicle theft rate were not statistically significant. Our findings suggest that the effect of bail reform on crime rate increases is negligible.
Downstream Effects of Frayed Relations: Juror Race, Judgment, and Perceptions of Police
Mona Lynch & Emily Shaw
Race and Justice, forthcoming
Abstract:
Building on research demonstrating significant differences in how Black and White Americans view law enforcement, this study assesses how those differential views shape potential jurors’ decision-making in the context of a federal drug conspiracy case in which the primary evidence against the defendant is provided by an FBI agent and an informant cooperating with the agent. A sample of 649 Black and White jury-eligible U.S. citizens were exposed to the case, in which a Black defendant is being tried, and where the informant-witness race (Black or White) was varied. Participants determined verdict, evaluated evidence, and completed additional measures. Results indicated that Black participants were significantly less likely to convict than White participants, especially in the White informant condition; rated the law enforcement witness as less credible, and viewed police more negatively across three composite measures. Exploratory analysis of how juror race and gender interacted indicates Black women largely drove racial differences in verdicts. Perceptions of police legitimacy mediated the relationship between juror race and verdict choice. We conclude that it is critical that citizens are not prevented from being seated on juries due to skepticism about police, given the risk of disproportionate exclusion of Black potential jurors. The legal processes relevant to juror excusals need to be reconsidered to ensure that views of police, rooted in actual experience or knowledge about the problems with fair and just policing, are not used to disproportionately exclude persons of color, or to seat juries overrepresented by people who blindly trust police.
Even lawyers do not like legalese
Eric Martínez, Francis Mollica & Edward Gibson
Proceedings of the National Academy of Sciences, 6 June 2023
Abstract:
Across modern civilization, societal norms and rules are established and communicated largely in the form of written laws. Despite their prevalence and importance, legal documents have long been widely acknowledged to be difficult to understand for those who are required to comply with them (i.e., everyone). Why? Across two preregistered experiments, we evaluated five hypotheses for why lawyers write in a complex manner. Experiment 1 revealed that lawyers, like laypeople, were less able to recall and comprehend legal content drafted in a complex “legalese” register than content of equivalent meaning drafted in a simplified register. Experiment 2 revealed that lawyers rated simplified contracts as equally enforceable as legalese contracts, and rated simplified contracts as preferable to legalese contracts on several dimensions–including overall quality, appropriateness of style, and likelihood of being signed by a client. These results suggest that lawyers who write in a convoluted manner do so as a matter of convenience and tradition as opposed to an outright preference and that simplifying legal documents would be both tractable and beneficial for lawyers and nonlawyers alike.
Judging Guilt: Implicit Evaluations of Defendants Predict Verdicts
Arin Korkmaz et al.
Social Psychological and Personality Science, forthcoming
Abstract:
Cognitive jurisprudence research that has used indirect measures has mostly focused on how people’s implicit biases (e.g., race) predict people’s verdicts for an individual belonging to an out-group. We aim to expand on this work by investigating implicit evaluations’ predictive strength for verdicts using an impression formation approach. In three preregistered studies, we presented mock jurors with a fictional murder trial in which the evidence against a defendant was mixed: some witnesses provided testimony suggesting guilt, whereas others sowed doubt. In all studies, implicit evaluations of the defendant, operationalized by the Affect Misattribution Procedure (AMP) scores, uniquely predicted verdicts above and beyond explicit evaluations (Studies 1–3), the reason for evidence exclusion (Study 2), and demographics of the defendant (Study 3). These findings advance our understanding of implicit social cognition by demonstrating that implicit evaluations, operationalized by the AMP scores, can have predictive power in complex, ecologically rich contexts.
Real-World Prior Art
Jonathan Masur & Lisa Larrimore Ouellette
Stanford Law Review, forthcoming
Abstract:
The most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. And yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lie what we term “real-world prior art.” In patent law, prior art is something that predates an invention and may render it not new. “Real-world” prior art activities involve using or selling real-world embodiments of the invention. Consider a few examples. Suppose Aleida demonstrates her invention to members of the public but does not allow them to touch it. Has she put the invention into “public use,” thus preventing others from obtaining a patent? Does it matter whether someone viewing her demonstration could learn how to make and use the invention? Suppose Aleida keeps her invention secret but uses it to provide a commercial service. Has she put the invention into public use, or placed it “on sale”? Or suppose Aleida offers her invention for sale to Charlise, who declines to purchase it. It is black-letter patent law that after one year passes, Aleida cannot patent this invention. But imagine that Bruno independently develops the same invention -- can he obtain a patent? These questions are not outlandish law school hypotheticals -- they are central issues surrounding whether an invention is or is not novel. Yet litigation over these issues has resulted in conflicting outcomes and contradictory explanations, leaving lower courts and the Patent Office to flounder in applying these doctrines. In this article, we sort through this conceptual confusion. We suggest both doctrinal and institutional changes that would elucidate an area of law that is likely to grow in importance. And we argue that the value of resolving these questions runs much deeper than determining the answer to particular cases. The answers to these questions depend upon—and reveal—the conceptual superstructure of patent law. They implicate patent law’s most central questions: What does it mean for an invention to be new and thus patentable? What policy interests is patent law attempting to achieve, and whose interests does it aim to protect? And what are the conditions under which a party has forfeited the opportunity to obtain a patent? By addressing these issues, we endeavor to place the entire jurisprudence of patent novelty on more solid footing.