Tell it to the judge
Christina Boyd
Journal of Law and Courts, Fall 2013, Pages 193-219
Abstract:
Relying on research that posits that female leaders and managers will be more likely than men to adopt a management style that favors participation, collaboration, and consensus building, I argue that female district court judges, using this style in their case management environments, should be more likely than their male colleagues to successfully foster intracourt case settlements. To test this, I compile data from nearly 18,000 civil rights and tort cases terminated in four federal district courts across 9 years. The regression and duration analyses provide confirmation that the sex of a case’s assigned judge matters, with female judges successfully fostering settlement in their cases more often and more quickly than their male colleagues. In addition to having significance for litigants, these findings have broad implications for female decision makers across different institutions and organizations as well as the future of the judging profession and diversity appointments to the judiciary.
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Do Judges Follow the Law? An Empirical Test of Congressional Control Over Judicial Behavior
Todd Henderson & William Hubbard
University of Chicago Working Paper, January 2014
Abstract:
Do judges follow the law? In a naïve model of judging, Congress writes statutes, which courts know about and then slavishly apply. Although interpretation differences could explain deviation between congressional will and the law as applied, in this model there should be no divergence where the law is unambiguous. Section 21D(c)(1) of the Securities Exchange Act is such a clear law: it requires courts to certify attorneys complied with Rule 11(b) of the Federal Rules of Civil Procedure, which forbids frivolous or unsupported claims, in every case arising under the Act. In this paper, we provide data that rejects the naïve model: courts make the required findings in less than 14 percent of cases in which such findings were required by law. This suggests judges either do not know of the law or, if they do, fail to follow it. We also show that required Rule 11(b) findings about sanctions are made overwhelmingly in cases where sanctions would be least likely – that is, in orders approving settlements – and such findings are extremely rare in cases where sanctions would other be more likely – that is, where motions to dismiss are granted. To explain this seeming paradox, we offer an account that highlights crucial ways in which the incentives of the judge and of the attorneys may interact in complex cases.
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Diversity, Deliberation, and Judicial Opinion Writing
Susan Haire, Laura Moyer & Shawn Treier
Journal of Law and Courts, Fall 2013, Pages 303-330
Abstract:
Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997–2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males.
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Detecting Racial Bias in Speed Discounting: Evidence from Speeding Tickets in Boston
Nejat Anbarci & Jungmin Lee
International Review of Law and Economics, June 2014, Pages 11–24
Abstract:
We focus on a particular kind of discretionary behavior on the part of traffic officers when issuing speeding tickets – what we term speed discounting. It is anecdotally said that officers often give motorists a break by reporting a lower speed on their citation than the actual speed that they observe the vehicle doing. Verifying the level of police discretion in the speed discounting behavior and ascertaining the presence of racial bias among police officers are the main objectives of this paper. Using a unique dataset that contains the race of the officer and of the motorist and cited vehicle speed, we apply the rank order test and the difference-in-differences method to detect racial prejudice in the speed discounting behavior.
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How the Supreme Court Alters Opinion Language to Evade Congressional Review
Ryan Owens, Justin Wedeking & Patrick Wohlfarth
Journal of Law and Courts, March 2013, Pages 35-59
Abstract:
We argue that actors can attempt to shield their policy choices from unfavorable review by crafting them in a manner that will increase the costs necessary for supervisory institutions to review them. We apply this theory to the US Supreme Court and demonstrate how justices strategically obfuscate the language of majority opinions in the attempt to circumvent unfavorable review from a politically hostile Congress. The results suggest that Supreme Court justices can and do alter the language of their opinions to raise the costs of legislative review and thereby protect their decisions.
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The Probability of Guilt in Criminal Cases: Are People Aware of Being ‘Beyond Reasonable Doubt’?
Svein Magnussen et al.
Applied Cognitive Psychology, March/April 2014, Pages 196–203
Abstract:
Data from a series of studies presenting video recorded witness statements to laypersons and legal professionals were examined to trace the relationship between judged probability of guilt and the willingness to vote guilty or not guilty in hypothetical trials, in the absence of specific jury instructions. The results show that a majority of jury-eligible young and elderly participants, and police officers, were willing to convict a defendant when the judged probability of guilt exceeded .6. This is considerably below the legally accepted standard of ‘beyond reasonable doubt’, which usually is equated with a very high, around .9 perceived certainty. When jury deliberations were allowed, the threshold for conviction rose, approaching the standard evinced by trial judges under the same conditions. The results suggest that people prefer to vote for guilt according to a balance of probabilities principle, considering only the individual case, and disregarding the implied frequencies of false convictions.
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Ali Masood & Donald Songer
Journal of Law and Courts, Fall 2013, Pages 363-389
Abstract:
Most empirical analyses of the US Supreme Court are limited to the Court’s plenary decisions. We contend that summary decisions are an important component of the total decisional output of the Court and, as such, should be included in any overall assessment of the decision making of the Court or its impact on the courts below. We analyze the universe of the Court’s summary decisions from 1995 to 2005. We assess the conventional wisdom that a conservative Court should primarily disturb liberal lower-court decisions and that, in all cases granted certiorari, the policy preferences of the justices should have a major impact on their votes. We find support for neither of these expectations.
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Disgust and biological descriptions bias logical reasoning during legal decision-making
Beatrice Capestany & Lasana Harris
Social Neuroscience, forthcoming
Abstract:
Legal decisions often require logical reasoning about the mental states of people who perform gruesome behaviors. We use functional magnetic resonance imaging (fMRI) to examine how brain regions implicated in logical reasoning are modulated by emotion and social cognition during legal decision-making. Participants read vignettes describing crimes that elicit strong or weak disgust matched on punishment severity using the US Federal Sentencing Guidelines. An extraneous sentence at the end of each vignette described the perpetrator’s personality using traits or biological language, mimicking the increased use of scientific evidence presented in courts. Behavioral results indicate that crimes weak in disgust receive significantly less punishment than the guidelines recommend. Neuroimaging results indicate that brain regions active during logical reasoning respond less to crimes weak in disgust and biological descriptions of personality, demonstrating the impact of emotion and social cognition on logical reasoning mechanisms necessary for legal decision-making.
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Responsive Justice?: Retention Elections, Prosecutors, and Public Opinion
Michael Nelson
Journal of Law and Courts, Spring 2014, Pages 117-152
Abstract:
Do elected judges and prosecutors change their behavior to reflect public opinion after they receive information about constituent preferences? In this article I use a unique measure of public opinion — votes on an initiative to legalize marijuana — to examine the responsiveness of prosecutors and trial court judges to a strong, issue-specific, constituency-level opinion signal. I find that, at least in recent drug cases in Colorado, both prosecutors and judges changed their sentencing behavior after receiving that signal. Prosecutors responded only to local-level opinion, while judges responded to both local and statewide opinion.
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Todd Shackelford et al.
Personality and Individual Differences, April–May 2014, Pages 86–90
Abstract
Unbidden confession — confession made by a transgressor in the absence of interrogation — presents an evolutionary puzzle because it guarantees social exposure and places the person at risk of punishment. We hypothesize that unbidden confession may be an ancestrally adaptive behavior and is difficult to inhibit under certain social conditions, particularly when one perceives imminent and inevitable social exposure. This serves as a pre-emptive strategy that, in the ancestral past, may have attenuated punishment from retributive in-group members. Using self-report data from a sample of 78 federal inmates, we report analyses supporting this hypothesis. Inmates who made unbidden confessions were more confident that they would be caught by police, and this confession was usually made to someone who had a stake in the transgressors’ genetic interests, most often a family member or friend. These results suggest: (1) a possible role for natural selection in shaping cognitive mechanisms that motivate confession; (2) a potential mismatch in the efficacy of unbidden confession today compared with our ancestral past, given that the law is now administered by strangers rather than in-group members; and (3) new avenues for research on the origins of sophisticated cognitive strategies.
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Trial and Settlement: A Study of High-Low Agreements
J.J. Prescott, Kathryn Spier & Albert Yoon
NBER Working Paper, March 2014
Abstract:
This paper presents the first systematic theoretical and empirical study of high-low agreements in civil litigation. A high-low agreement is a private contract that, if signed by litigants before the conclusion of a trial, constrains any plaintiff recovery to a specified range. Whereas existing work describes litigation as a choice between trial and settlement, our examination of high-low agreements—an increasingly popular phenomenon in civil litigation—introduces partial or incomplete settlements. In our theoretical model, trial is both costly and risky. When litigants have divergent subjective beliefs and are mutually optimistic about their trial prospects, cases may fail to settle. In these cases, high-low agreements can be in litigants’ mutual interest because they limit the risk of outlier awards while still allowing an optimal degree of speculation. Using claims data from a national insurance company, we describe the features of these agreements and empirically investigate the factors that may influence whether litigants discuss or enter into them. Our empirical findings are consistent with the predictions of the theoretical model. We also explore extensions and alternative explanations for high-low agreements, including their use to mitigate excessive, offsetting trial expenditures and the role that negotiation costs might play. Other applications include the use of collars in mergers and acquisitions.
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The use of tactical polygraph with sex offenders
Michael Bourke et al.
Journal of Sexual Aggression, forthcoming
Abstract:
Professionals who work with sexual abusers often are faced with a significant obstacle: offenders' failure to accurately report their histories of undetected offences, particularly hands-on crimes against children. The implications are significant and include poor risk assessment, misguided treatment planning, inadequate sentences, and insufficient supervision conditions. This problem is particularly important with so called child pornographers —offenders whose known criminality is limited to the Internet, and who may be reluctant to admit they have engaged in the hands-on abuse of children. The current study examines an investigative method that we refer to as tactical polygraph and describes its effectiveness in identifying previously undetected sexual offending within this population. In our sample of 127 suspects with no known history of hands-on offending, only 4.7% admitted to sexually abusing at least one child. During polygraph procedures, an additional 52.8% of the study sample provided disclosures about hands-on abuse they perpetrated.
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Blame attribution in sexual victimization
Carin Perilloux, Joshua Duntley & David Buss
Personality and Individual Differences, June 2014, Pages 81–86
Abstract:
The current study explored how victims and third-parties attribute blame and perpetrator motivation for actual sexual victimization experiences. Although we do not assert that victims are responsible for perpetrators’ behavior, we found that some victims do not allocate all blame to their perpetrator. We sought to examine how victims and third-parties allocate blame in instances of actual completed and attempted sexual victimization and how they perceived perpetrator motivations. Victims of completed rape (n = 49) and attempted sexual assault (n = 91), and third-parties who knew a victim of sexual assault (n = 152) allocated blame across multiple targets: perpetrator, self/victim, friends, family, and the situation. Participants also described their perceptions of perpetrator’s motivation for the sexual assault. Victims tended to assign more blame to themselves than third-parties assigned to victims. Furthermore, victims perceived perpetrators as being more sexually-motivated than third-parties did, who viewed perpetrators as more power-motivated. Results suggest that perceptions of rape and sexual assault significantly differ between victims and third-party individuals who have never directly experienced such a trauma.
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Perceptions of Similarity and Responsibility Attributions to an Acquaintance Sexual Assault Victim
Amanda Amacker & Heather Littleton
Violence Against Women, November 2013, Pages 1384-1407
Abstract:
Individuals view similar rape victims as less responsible for the rape than victims perceived as dissimilar. However, it is unclear if individuals hold victims they perceive as similar less responsible for the assault, or if individuals view themselves as more similar to victims they do not view as responsible for the assault. The current study, therefore, examined the temporal relationship between these constructs. A total of 167 college women listened to a date narrative that ended in sexual assault, consensual sex, or no sexual activity (these last two served as controls). Results supported that participants viewed themselves as less similar to the woman in the narrative when the date ended in sexual assault. Only similarity ratings made following learning that the woman was sexually assaulted predicted responsibility attributions suggesting that viewing a victim as responsible for the assault results in decreased perceptions of similarity toward her. Implications and suggestions for future research are discussed.