The Law Won
Exporting American Discovery
Yanbai Andrea Wang
University of Chicago Law Review, November 2020, Pages 2089-2174
Abstract:
This Article presents the first comprehensive study of an intriguing and increasingly pervasive practice that is transforming civil litigation worldwide: US judges now routinely compel discovery in this country and make it available for disputes and parties not before US courts. In the past decade and a half, federal courts have received and granted thousands of such discovery requests for use in foreign civil proceedings governed by different procedural rules. I call this global role played by US courts the “export” of American discovery. This Article compiles and analyzes a dataset of over three thousand foreign discovery requests filed between 2005 and 2017 under 28 USC § 1782 -- an expansive statute that is now the pivotal law governing the export of American discovery. I use the dataset to show that the foreign civil demand for US discovery has approximately quadrupled during the study period, that demand from foreign private actors now overshadows demand from foreign tribunals, and that the requests’ countries of origin have diversified. I then map the ways in which the machinery of domestic discovery is distorted in the context of global discovery, leading to missing foreign stakeholders and systematic bias toward compelling discovery. Reflexively exporting US discovery, in turn, undermines Supreme Court doctrine, risks imposing unintended externalities on foreign tribunals and foreign litigants, and erodes universal notions of fairness and due process. Although foreign discovery requests account for a small fraction of federal dockets, they provide an illustrative case study of the larger phenomenon of disputes straddling multiple legal systems. Litigants and attorneys are now strategizing across borders and deploying national procedural tools to their global advantage. Yet, judges continue to operate within national silos even as they play a global role. Consequently, judges are at an informational disadvantage when they adjudicate disputes only parts of which are before them. This contemporary challenge calls for institutional solutions in the form of court-to-court information sharing and coordination across borders, as well as a reconceptualization of federal judges as global actors who share overlapping authority with foreign judges and arbitrators.
Is Death Different to Federal Judges? An Empirical Comparison of Capital and Noncapital Guilt-Phase Determinations on Federal Habeas Review
Brett Parker
Stanford Law Review, June 2020, Pages 1655-1716
Abstract:
Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals. However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review than the claims of other defendants. This Note addresses that gap in the literature. The Author analyzed 1,368 votes cast by federal appellate judges between 2013 and 2017 in murder cases heard on habeas review. In each of those cases, the defendant was under a sentence of either death or life in prison. Exploiting this unique dataset, this Note finds that federal appellate judges are significantly more likely to grant guilt-phase relief to capital defendants than they are to similarly situated noncapital defendants. It then rules out alternative explanations for this finding of a “sentencing effect,” such as differential attorney investment or dissimilarity between capital and noncapital defendants. After establishing that federal appellate judges do in fact behave differently in capital cases, the Note considers the normative implications of this finding. It ultimately concludes that the behavior of federal judges on habeas review is consistent with a generally shared principle of capital jurisprudence: preventing the execution of innocents.
Learning to kill: Why a small handful of counties generates the bulk of US death sentences
Frank Baumgartner et al.
PLoS ONE, October 2020
Abstract:
We demonstrate strong self-referential effects in county-level data concerning use of the death penalty. We first show event-dependency using a repeated-event model. Higher numbers of previous events reduce the expected time delay before the next event. Second, we use a cross-sectional time-series approach to model the number of death sentences imposed in a given county in a given year. This model shows that the cumulative number of death sentences previously imposed in the same county is a strong predictor of the number imposed in a given year. Results raise troubling substantive implications: The number of death sentences in a given county in a given year is better predicted by that county’s previous experience in imposing death than by the number of homicides. This explains the previously observed fact that a large share of death sentences come from a small number of counties and documents the self-referential aspects of use the death penalty. A death sentencing system based on racial dynamics and then amplified by self-referential dynamics is inconsistent with equal protection of the law, but this describes the United States system well.
Anticipated Adjudication: An Analysis of the Judicialization of the US Administrative State
Scott Limbocker, William Resh & Jennifer Selin
Vanderbilt University Working Paper, August 2020
Abstract:
To preserve democratic accountability, the actions of federal agencies remain subject to review by elected officials in the legislative and executive branches. Yet given the vast scope and complexity of the modern federal government, elected officials cannot possibly intervene in all agency matters. This leaves the courts to evaluate agency actions. Given the increased influence of courts over agency decision-making, agencies have evolved to include features that are more judicialized. Leveraging novel data on personnel records, agency litigation, and policy-making from 1996 to 2016, we provide an original and systematic account of the courts’ influence on agency personnel and professionalization. We find that agencies become more judicialized with increased exposure to the courts. Our dynamic comparison of the rise and fall of the number of judge-like policymakers within agencies highlight agency responses to judicial oversight.
Seeing Blue in Black and White: Race and Perceptions of Officer-Involved Shootings
Hakeem Jefferson, Fabian Neuner & Josh Pasek
Perspectives on Politics, forthcoming
Abstract:
Following racially charged events, individuals often diverge in perceptions of what happened and how justice should be served. Examining data gathered shortly after the 2014 shooting of Michael Brown in Ferguson, Missouri alongside reactions to a novel officer-involved shooting, we unpack the processes by which racial divisions emerge. Even in a controlled information environment, white Americans preferred information that supported claims of a justified shooting. Conversely, Black Americans preferred information that implied that the officer behaved inappropriately. These differences stemmed from two distinct processes: we find some evidence for a form of race-based motivated reasoning and strong evidence for belief updating based on racially distinct priors. Differences in summary judgments were larger when individuals identified strongly with their racial group or when expectations about the typical behaviors of Black Americans and police diverged. The findings elucidate processes whereby individuals in different social groups come to accept differing narratives about contentious events.
Mandatory Retirement for Judges Improved Performance on U.S. State Supreme Courts
Elliott Ash & Bentley MacLeod
NBER Working Paper, October 2020
Abstract:
Anecdotal evidence often points to aging as a cause for reduced work performance. This paper provides empirical evidence on this issue in a context where performance is measurable and there is variation in mandatory retirement policies: U.S. state supreme courts. We find that introducing mandatory retirement reduces the average age of working judges and improves court performance, as measured by output (number of published opinions) and legal impact (number of forward citations to those opinions). Consistent with aging effects as a contributing factor, we find that older judges do about the same amount of work as younger judges, but that work is lower-quality as measured by citations. However, the effect of mandatory retirement on performance is much larger than what would be expected from the change in the age distribution, suggesting that the presence of older judges reduces the performance of younger judges.
Judicial Merit Selection: Beliefs about Fairness and the Undermining of Gender Diversity on the Bench
Nancy Arrington
Political Research Quarterly, forthcoming
Abstract:
Much attention is paid to how mechanisms for selecting political officials shape which types of officials hold positions of power, but selection procedures do not always produce the desired outcomes. In the context of the judiciary, many expected “merit” selection procedures to facilitate the selection of women justices to the bench, an expectation that has not been realized. Applying theories of procedural fairness to judicial selection procedures, I argue that observers’ beliefs that merit selection procedures are more “fair” (relative to unilateral selection procedures) makes observers more accepting of all-male benches. Survey experimental evidence demonstrates that respondents do perceive merit selection procedures as more fair than gubernatorial selection procedures, a priori. In turn, respondents are less critical of all-male courts when judges are selected through a merit selection procedure. These findings contribute to our understanding of the ways in which (1) selection institutions shape prospects for gender diversity, (2) institutional design can have unintended consequences, and (3) procedural fairness can obscure accountability for suboptimal outcomes.
Case selection and Supreme Court pivots
Greg Sasso & Gleason Judd
Political Science Research and Methods, forthcoming
Abstract:
How does the Rule of Four affect Supreme Court decisions? We show two effects of changing a “hearing pivot” justice who is decisive for case selection. First, a court with more extreme hearing pivots will hear cases with more moderate precedents. For example, as the conservative hearing pivot becomes more extreme, the court hears a broader range of cases with liberal status quo precedents. Second, more extreme hearing pivots shrink dispositional majorities and lead to more polarized rulings. If the median justice becomes more extreme without changing the hearing pivots, then rulings are more extreme. The effect on the range of cases heard, however, is smaller than that from changing hearing pivots. Finally, we show that case selection can also depend on non-median, non-hearing-pivot justices. Replacing an extreme justice with someone even more extreme can lead to a smaller set of heard cases, as final rulings can shift away from the binding hearing pivot, making status quo precedents more appealing.
Quantifying Economic Reasoning in Court: Judge Economics Sophistication and Pro-business Orientation
Siying Cao
University of Chicago Working Paper, November 2020
Abstract:
By applying computational linguistics tools to the analysis of US federal district courts’ decisions from 1932 to 2016, this paper quantifies the rise of economic reasoning in court cases, ranging from securities regulation to antitrust law. I then relate judges’ level of economic reasoning to their training. I find that the significant judge heterogeneity in economic sophistication can be explained by attendance at law schools with a large presence of the law and economics faculty. Finally, for all regulatory cases from 1970 to 2016 I hand code whether the judge ruled in favor of the business or the government. I find that judge economic sophistication is positively correlated with a higher frequency of pro-business decisions even after controlling for political ideology and a rich set of other judge covariates.
Who Controls Criminal Law? Racial Threat and the Adoption of State Sentencing Law, 1975 to 2012
Scott Duxbury
American Sociological Review, forthcoming
Abstract:
Threat theory argues that states toughen criminal laws to repress the competitive power of large minority groups. Yet, research on threat suffers from a poor understanding of why minority group size contributes to social control and a lack of evidence on whether criminal law is uniquely responsive to the political interests of majority racial groups at all. By compiling a unique state-level dataset on 230 sentencing policy changes during mass incarceration and using data from 257,362 responses to 79 national surveys to construct new state-level measures of racial differences in punitive policy support, I evaluate whether criminal sentencing law is uniquely responsive to white public policy interests. Pooled event history models and mediation analyses support three primary conclusions: (1) states adopted new sentencing policies as a nonlinear response to minority group size, (2) sentencing policies were adopted in response to white public, but not black public, support for punitive crime policy, and (3) minority group size and race-specific homicide victimization both indirectly affect sentencing policy by increasing white public punitive policy support. These findings support key theoretical propositions for the threat explanation of legal change and identify white public policy opinion as a mechanism linking minority group size to variation in criminal law.
ALL‐CAPS
Yonathan Arbel & Andrew Toler
Journal of Empirical Legal Studies, December 2020, Pages 862-896
Abstract:
A hallmark of consumer contracts is their use of long blocks of capitalized text. These “all‐caps” clauses are meant to alert consumers to nonstandard, risky, or important aspects of the transaction that would otherwise be hidden in the fine print. Based on a belief in the power of all‐caps, courts will often deny enforcement of many key terms - such as warranty disclaimers, liability releases, arbitration clauses, and automatic billing - unless they are presented in all‐caps. This article is the first to empirically examine the effectiveness of all‐caps. Using an experimental methodology, the article finds that all‐caps fail to appreciably improve consent. Moreover, some evidence suggests that all‐caps are harmful to older consumers. We collect evidence from standard form agreements used by the largest companies in the United States and find that, despite its limitations, three‐quarters of consumer contracts contain at least one all‐caps paragraph. Based on these findings and other evidence reported here, this article lays out the dangers and risks of continued reliance on all‐caps and calls for abandoning all‐caps.
Terrorism and internet censorship
Stephen Meserve & Daniel Pemstein
Journal of Peace Research, forthcoming
Abstract:
The internet provides a powerful tool to terror organizations, enhancing their public messaging, recruitment ability, and internal communication. In turn, governments have increasingly moved to disrupt terror organizations’ internet communications, and even democracies now routinely work to censor terrorist propaganda, and related political messaging, in the name of national security. We argue that democratic states respond to terror attacks by increasing internet censorship and broadening their capacity to limit the digital dissemination of information. This article builds on previous work suggesting this relationship, substantially improving measurement and estimation strategy. We use latent variable modeling techniques to create a new measure of internet censorship, cross nationally and over time, from internet firm transparency reports, and compare this measure to an expert-survey based indicator. Leveraging both measures, we use a variety of panel specifications to establish that, in democracies, increases in terror predict surges in digital censorship. Finally, we examine the posited relationship using synthetic control methods in a liberal democracy that experienced a large shock in terror deaths, France, showing that digital censorship ramped up after several large terrorist attacks.