The Jury Is Out

Kevin Lewis

September 30, 2022

Judicial Philosophy and the Public’s Support for Courts
Christopher Krewson & Ryan Owens
Political Research Quarterly, forthcoming 


How do Americans’ preferences over judicial philosophy influence their support for judges and judicial decisions? Using an experiment attached to an adaptive choice-based conjoint analysis, we find that people hold preferences over judicial philosophies, that they rely on those preferences to evaluate judges and decisions, and that those preferences are not simply stand-ins for ideology and partisanship. These findings suggest that to understand people’s support for judges and judicial decisions one must pay attention to judicial philosophy.

The Exclusionary Rule Revisited
Nuno Garoupa & Murat Mungan
Journal of Legal Studies, January 2022, Pages 209–248


We revisit the economic theory of exclusionary rules. First, we show that more exclusion may induce enforcers to conduct more searches, contrary to the standard notion that more exclusion leads to fewer searches. Second, we identify and investigate the complexities that arise when enforcers may harass suspects (imposing significant costs without legal proceedings) instead of conducting legal searches. If one attempts to choose the optimal exclusionary rule naively (for example, by ignoring the possibility of harassment by enforcers), the chosen rule will exclude evidence more often than is optimal. We explore social welfare considerations and discuss policy implications based on our formal results.

Trends in Prison Sentences and Racial Disparities: 20-Years of Sentencing Under Florida’s Criminal Punishment Code
Ojmarrh Mitchell, Shi Yan & Daniela Oramas Mora
Journal of Research in Crime and Delinquency, forthcoming

Methods: To test this hypothesis, we utilized 20 years of felony cases. Our analyses employ current best practices for testing interactive effects and decomposition models to identify changes in prison use and the factors associated with these changes.

Results: We find criminal history scores rose sharply, but prison use and racial disparities therein fell markedly in the past decade. The key factors driving these trends are reductions in the influence of criminal history on decision-making, increased use of mitigated departures, and the flexibility of Florida's sentencing system to accommodate mitigated departures. In fact, if Florida's sentencing rules had been followed more closely, racial disparities in prison sentences would have grown.

An Empirical Approach to a Standard Practice: Drug Testing
Lori Brusman Lovins et al.
Crime & Delinquency, forthcoming


Drug testing is a common practice for community supervision in the U.S., despite limited research on its effectiveness at deterring future drug use. The present study explores the purpose of drug testing by examining the relationship between drug test frequency and positive test results. The impact of the type of drug tested (any vs. serious) and the risk and need level of the individuals tested are also examined. Results indicate that after controlling for risk and substance abuse need, more frequent testing schedules are associated with an increased rate of positive drug tests, suggesting more frequent testing detects rather than deters drug use. Policy implications for community corrections’ purpose and use of drug testing are discussed.

In-Group Favoritism as Legal Strategy: Evidence from FCPA Settlements
Brian Feinstein, William Heaston & Guilherme Siqueira de Carvalho
American Business Law Journal, forthcoming


Anti-corruption laws aim to bolster public integrity by punishing attempts to illegitimately curry favor with government decision-makers. These laws, however, can generate integrity risks of their own. This Article examines one such risk: that firms subject to scrutiny under the Foreign Corrupt Practices Act (FCPA) may attempt to influence prosecutors by exploiting shared political leanings or related socio-cultural ties. Drawing on social psychology, we theorize that FCPA defendants retain defense attorneys that are ideologically aligned with Justice Department officials. This behavior is consistent with a strategy of marshaling affective polarization — i.e., the psychological tendency for individuals to view more favorably those that share their political beliefs — to defendants’ advantage. Alternatively, it may reflect defendants’ related belief that they benefit from retaining counsel that share social or cultural ties with prosecutors, where these ties happen to aligned with political orientation. Under either explanation, the strategy of hiring aligned counsel may be particularly auspicious in FCPA matters, in which prosecutors engage in subjective, trust-based assessments of defendants’ self-investigatory efforts, typically with minimal judicial oversight. We test this theory by matching attorneys listed on court filings for all FCPA matters over eighteen years with a database of individuals’ political views based on their patterns of political donations. This analysis reveals that defendants tend to hire more liberal attorneys during Democratic administrations and more conservative attorneys during Republican presidencies. They also are more likely to hire liberal attorneys when Justice Department prosecutors lean left and conservative ones when prosecutors lean right. These findings are consistent with our theory that FCPA defendants select counsel based on perceived benefits of their alignment with government officials. That possibility is noteworthy given the importance of shielding anti-corruption enforcement from even the perception of improper influence. In light of these findings, we offer policy prescriptions aimed at increasing transparency and judicial oversight of FCPA matters to mitigate integrity risks.

Why has the median real income of lawyers been declining?
James Koch & Barbara Blake-Gonzalez
Journal of Economics and Finance, October 2022, Pages 646–665


The median real incomes of lawyers have been declining. In 2001, the median real income of lawyers in the 50 states plus the District of Columbia was $129,389 (July 2020 prices). Almost two decades later, in 2020, this number had fallen to $126,930, 1.90% less than in 2001. By contrast, the median real income of workers in all occupations together rose 3.93% between 2001 and 2020, while the median real income of the average family practice physician rose 20.15% and the median real income of a typical economist rose 10.9%. We examine both supply and demand influences to explain the declining median real incomes of lawyers. An oversupply of lawyers provides only a partial explanation. The number of lawyers per 1,000 people nationally did nudge upward from 1.72 in 2001 to 2.22 in 2020, but the number of first year law students nationally in 2020 was 6.6% smaller than in 2001. Supply side adjustments to new market conditions take years to occur and hence we observe some cobweb-like oscillations in lawyers’ incomes. Demand side influences on lawyers’ incomes loom large. Between 2008 and 2019, lawyers’ income share of the national gross domestic product fell from 1.64% to 1.32% because clients purchased lawyers’ services less often.

Discretionary Prosecutorial Decision-Making: Gender, Sexual Orientation, and Bias in Intimate Partner Violence
Jennifer Cox, Jane Daquin & Tess Neal
Criminal Justice and Behavior, forthcoming 


Prosecutors exercise substantial discretion within the criminal justice process, potentially allowing for discrepant treatment of criminal cases. The purpose of this research was to examine the association between prosecutorial implicit biases and victim gender and sexual orientation in an intimate partner violence (IPV) case. Participants, 201 prosecutors from across the United States, completed two Implicit Association Tests to measure implicit gender attitudes and implicit attitudes regarding lesbian, gay, bisexual, and queer individuals. Participants were randomly assigned to one of four conditions (opposite-sex couple/female victim, opposite-sex couple/male victim, same-sex couple/female victim, same-sex couple/male victim) and read a case file of an alleged IPV arrest. Consistent with our hypotheses, prosecutors were 65% more likely to prosecute under the severest criminal penalty when the victim was female or included an opposite-sex couple. However, we found no evidence that implicit biases related to prosecutorial decisions.

Battling bias: Can two implicit bias remedies reduce juror racial bias?
Christine Ruva et al.
Psychology, Crime & Law, forthcoming 


Two studies examined the effectiveness of the Unconscious Bias Juror (UBJ) video and instructions at reducing racial bias in Black and White mock-jurors’ decisions, perceptions, and counterfactual endorsement in a murder (Study 1; N = 554) and battery (Study 2; N = 539) trial. Participants viewed the UBJ video or not, then read pretrial instructions (general or UBJ), a trial summary, and posttrial instructions (general or UBJ). In Study 1, juror race moderated the effect of defendant race on verdicts, culpability, and credibility. White, but not Black, jurors demonstrated greater leniency toward Black defendants for verdicts, culpability, and credibility. The UBJ video moderated the effect of defendant race on murder counterfactual endorsement. Only when the video was absent was jurors’ counterfactual endorsement higher for the White versus Black defendant, which mediated the effect of defendant race on White jurors’ verdicts. In Study 2, White jurors were more lenient regardless of defendant race. Instructions and juror race moderated the video’s effect on credibility ratings. The video only influenced Black jurors’ credibility ratings. In conclusion, the debiasing interventions were ineffective in reducing racial bias in jurors’ verdicts. However, they do impact aspects of juror attribution and may be effective with modification.

Are progressive chief prosecutors effective in reducing prison use and cumulative racial/ethnic disadvantage? Evidence from Florida
Ojmarrh Mitchell et al.
Criminology & Public Policy, August 2022, Pages 535-565


Progressive chief prosecutors, campaigning on platforms calling for reducing prison populations and racial/ethnic disparities, have been elected in numerous jurisdictions across the United States in recent years. Yet, there is no empirical research that compares case outcomes between jurisdictions headed by progressive and traditional chief prosecutors. In this research, we utilize a cumulative case outcome approach that tracks cases from arrest to disposition to examine whether cases prosecuted under progressive chief prosecutors receive less punitive sanctions and exhibit smaller racial/ethnic disparities. We find that cases adjudicated in progressive jurisdictions are more likely to end without a felony conviction and less likely to result in a prison sentence. Racial but not generally ethnic disadvantage is evident in case outcomes, and racial disparities are smaller in jurisdictions led by progressive chief prosecutors.

The Rodney King incident and verdict revisited: Examining opinion-mobilizing effects using data from Southern California in 1991 and 1992 
Christof Nägel & Amy Nivette
Journal of Criminal Justice, forthcoming

Methods: We apply rigorous state-of-the-art quasi-experimental methods to analyze survey data from Southern California and Los Angeles in 1991 and 1992 overlapping with the two focal events.

Results: While we find a substantial decrease in confidence in the local police both after the incident as well as the verdict, contrary to previous research using non-quasi-experimental designs, our results demonstrate that the loss of confidence caused by the incident varied only modestly by ethnicity and not at all by political orientation. The negative effect of the verdict only varied to a limited extent by political orientation but not ethnicity. Additionally, although there is robust evidence that the incident in 1991 did indeed have a causal negative effect, this evidence is substantially weaker for the effect of the verdict. Given the pre-existing negative time trend prior to the acquittal in April 1992, it is doubtful that the verdict itself played a causal role in mobilizing public opinion.

The Benefits of Trade Secret Legal Protection: Evidence from Firms’ Cost Structure Decisions
Feng Gao, Xue Wang & Benda Yin
Journal of Law, Economics, and Organization, forthcoming


We investigate whether better trade secret legal protection permits a firm to shift resources from protecting trade secrets to expanding its fixed operation capacity, thus reducing cost elasticity. We employ the staggered adoption of the Inevitable Disclosure Doctrine (IDD) by US state courts as a plausibly exogenous shock that improves trade secret legal protection. We find a reduction, on average, in cost elasticity in firms headquartered in the IDD recognition states relative to those in non-affected states. This change in cost structure is concentrated in firms with trade secrets. These results highlight that the optimal choice of fixed resources is affected by the extent of trade secret protection. Further, we find that firm value is higher for trade secret firms after the IDD adoption. Overall, our empirical evidence suggests that trade secret legal protection is beneficial for firms with trade secrets.


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