Taking Precedents
Judges Judging Judges: Partisanship and Politics in the Federal Circuit Courts of Appeals
Alma Cohen & Rajeev Dehejia
NBER Working Paper, September 2024
Abstract:
We examine how politicization and polarization influence judicial review within U.S. Federal appellate courts. Analyzing over 400,000 cases from 1985 to 2020, we find that judges' political alignment or misalignment with trial judges increasingly affect their decisions, particularly in the last two decades. This trend is significant in precedential cases: panels of Democratic judges are 6.9 percentage points more likely to reverse Republican trial judges compared to Democratic ones, whereas Republican panels are 3.6 percentage points less likely to reverse fellow Republican judges. This effect persists across ideological and non-ideological cases and even among judges appointed before 2000.
How Different Are the Trump Judges?
Stephen Choi & Mitu Gulati
University of Virginia Working Paper, September 2024
Abstract:
Donald J. Trump's presidency broke the mold in many ways, including how to think about judicial appointments. Unlike other recent presidents, Trump was open about how "his" judges could be depended on to rule in particular ways on key issues important to voters he was courting (e.g., on issues such as guns, religion, and abortion). Other factors such as age and personal loyalty to Trump seemed important criteria. With selection criteria such as these, one might expect that Trump would select from a smaller pool of candidates than other presidents. Given the smaller pool and deviation from traditional norms of picking "good" judges, we were curious about how the Trump judges performed on a basic set of measures of judging. One prediction is that Trumpian constraints on judicial selection produced a different set of judges. Specifically, one that would underperform compared to sets of judges appointed by other presidents. Using data on active federal appeals court judges from January 1, 2020 to June 30, 2023, we examine data on judges across three different measures: opinion production, influence (measured by citations), and independence or what we refer to as "maverick" behavior. Contrary to the prediction of underperformance, Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.
Justice Isn’t Blind: Attorney Attractiveness and Success in US Federal Court
Nicholas Waterbury
Journal of Law and Courts, forthcoming
Abstract:
Many court observers have argued that judges are capable of avoiding the use of extraneous factors in decision-making. This study examines the influence of seemingly irrelevant heuristics on real-world courtroom proceedings. Drawing on theories from neighboring disciplines, I hypothesize that physically attractive attorneys have greater success in US federal court. Using a generalizable causal inference strategy and a dataset of over 1,000 cases and 3,000 votes, I find support for my expectations using multiple measures of attractiveness. These findings raise serious normative concerns about equality and underscore the need to adjust traditional models of judicial behavior to account for inherent biases.
Even laypeople use legalese
Eric Martínez, Francis Mollica & Edward Gibson
Proceedings of the National Academy of Sciences, 27 August 2024
Abstract:
Whereas principles of communicative efficiency and legal doctrine dictate that laws be comprehensible to the common world, empirical evidence suggests legal documents are largely incomprehensible to lawyers and laypeople alike. Here, a corpus analysis (n = 59) million words) first replicated and extended prior work revealing laws to contain strikingly higher rates of complex syntactic structures relative to six baseline genres of English. Next, two preregistered text generation experiments (n = 286) tested two leading hypotheses regarding how these complex structures enter into legal documents in the first place. In line with the magic spell hypothesis, we found people tasked with writing official laws wrote in a more convoluted manner than when tasked with writing unofficial legal texts of equivalent conceptual complexity. Contrary to the copy-and-edit hypothesis, we did not find evidence that people editing a legal document wrote in a more convoluted manner than when writing the same document from scratch. From a cognitive perspective, these results suggest law to be a rare exception to the general tendency in human language toward communicative efficiency. In particular, these findings indicate law’s complexity to be derived from its performativity, whereby low-frequency structures may be inserted to signal law’s authoritative, world-state-altering nature, at the cost of increased processing demands on readers. From a law and policy perspective, these results suggest that the tension between the ubiquity and impenetrability of the law is not an inherent one, and that laws can be simplified without a loss or distortion of communicative content.
Prosecutors in Robes
Jacob Schuman
Stanford Law Review, forthcoming
Abstract:
Criminal law enforcement is traditionally considered a core executive power. Yet federal district judges exercise this power tens of thousands of times a year by initiating proceedings to revoke probation and supervised release. “Prosecutors in robes” is an insult sometimes levied by criminal defense attorneys against judges who are allegedly biased in favor of the government. In this Article, however, I do not use the phrase to suggest that district judges are acting in bad faith. Instead, I mean it literally. When judges initiate revocation proceedings, they wield a prosecutor’s power to enforce criminal law. Combining constitutional, historical, and empirical analyses, I argue that judge-initiated revocation violates the form and function of the separation of powers. Formally, initiating a revocation proceeding is a type of criminal law enforcement, which is authority that the Constitution vests solely in the President and was originally understood as an executive power. Functionally, my empirical analysis of federal sentencing data shows that initiating revocations aggrandizes the judiciary’s role in the criminal justice system by weakening democratic accountability, undermining uniform policy, and compromising judicial impartiality. While most legal scholars believe that a strong and independent judiciary is necessary to check prosecutorial overreach, I argue that judge-initiated revocation transforms federal district judges into “prosecutors in robes,” who themselves must be checked by the executive branch. To restore the separation of powers to the system, only prosecutors should be allowed to initiate revocation proceedings, while judges should be limited to adjudication and sentencing. This change would ensure that no single branch of government enjoys total authority to impose criminal punishment. Our Constitution separates powers to protect liberty and prevent tyranny. A prosecutor in a robe is a king.
Virginia Alford plea-takers experience harsher outcomes than traditional plea-takers
Amy Dezember & Allison Redlich
Law and Human Behavior, August 2024, Pages 262-280
Objective: Alford pleas allow defendants to profess innocence while simultaneously pleading guilty. In Study 1, we addressed two research questions: (1) Does the case processing length in Alford plea cases differ from traditional guilty plea cases? and (2) Do the sentencing outcomes (i.e., length of sentence, reduction in sentence, incarceration) in Alford plea cases differ from traditional guilty plea cases? In Study 2, we explored two research questions: (1) What is the process for offering, negotiating, and accepting Alford pleas? and (2) How does the strength of evidence compare in Alford plea cases versus traditional guilty plea cases?
Method: Study 1 is a quantitative analysis of 18 years of Virginia court administrative data, and Study 2 is a qualitative analysis of interviews with Virginia judges, prosecutors, and defense attorneys.
Results: In Study 1, we found that Alford plea cases take longer to process and generally receive harsher, less favorable outcomes compared with traditional guilty pleas. In Study 2, we found that legal actors do not perceive evidence to be a driving factor in the context of Alford pleas and largely do not consider Alford pleas differently from traditional guilty pleas.
The Effects of Decision Fatigue on Judicial Behavior: A Study of Arkansas Traffic Court Outcomes
Rahul Hemrajani & Tony Hobert
Journal of Law and Courts, forthcoming
Abstract:
Judges who hear multiple cases a day may become exhausted by the time later cases are heard, increasing susceptibility to cognitive depletion, yet the role of workload fatigue in decision-making from hearing cases has rarely been tested in the U.S. One problem is the lack of public data -- most U.S. courts do not maintain time-stamped records of case hearings. Using an original dataset of all traffic cases heard in Pulaski County, Arkansas in 2019 and 2020, we examine whether decision fatigue affects case outcomes. We find that charges are less likely to be dismissed in arraignment hearings at the end of a court session than in those at the beginning. This pattern, however, does not hold for trial hearings, suggesting that the effects of fatigue may be context-specific. We suggest policy recommendations to mitigate the effects of decision fatigue in lower courts -- courts having the most contact with citizens.
Suspect race affects defense attorney evaluations of preidentification evidence
Jacqueline Katzman & Margaret Bull Kovera
Law and Human Behavior, forthcoming
Method: We gave 316 defense attorneys case files (modeled after the New York Police Department’s style) that varied the strength of the preidentification evidence (strong vs. weak), the race of the defendant (Black vs. White), and the race of the victim (Black vs. White).
Results: Attorneys made judgments that were sensitive to the base rate of guilt, but self-report measures demonstrated that they did not understand the extent to which the base rate of guilt influences the reliability of eyewitness evidence. Participants also rated the strength of the preidentification evidence as stronger for Black than for White defendants.
Judicial self fashioning: Rhetorical performance in Supreme Court opinions
Rosamond Elizabeth Thalken, David Mimno & Matthew Wilkens
Discourse Studies, forthcoming
Abstract:
Justices on the United States Supreme Court use rhetorical strategies to maintain institutional legitimacy. In the court opinion, a strategy called the monologic voice presents a flattering depiction of the Court. The monologic voice occurs through two tones, the individualistic and collective, which respectively maintain the Justices’ legitimacy through critique and the Court’s legitimacy through unification. We train large language models to identify these rhetorical features in 15,291 modern Supreme Court opinions, issued between 1946 and 2022. While the fraction of collective and individualistic tones has been relatively consistent between 1946 and 2022, the Rehnquist Court used the collective tone at a higher rate than any other Court. In recent terms, 2021 and 2022, we find suggestions of another rhetorical shift, as all Associate Justices of the Roberts Court, excluding Chief Justice Roberts, used the individualistic tone at a historically high rate.
The Impact of Oral Argument Attendance
Damon Cann & Greg Goelzhauser
Journal of Law and Courts, April 2024, Pages 132-143
Abstract:
How does oral argument attendance impact public perceptions of the judiciary? Judicial independence is partly contingent on public support, but the conditions that generate institutional good will are not well understood. We examine how judicial outreach and court exposure inform public attitudes. Leveraging a field-experiment randomizing in-person attendance at oral arguments conducted by a federal circuit court of appeals on a university campus, we find that exposure increases perceptions of institutional legitimacy and the extent to which judicial decisions are motivated by law versus politics. The results have important implications for judicial politics and policy debates concerning reform initiatives involving circuit riding, courtroom cameras, and public outreach.