Reading between the Law
Law Matters -- Less Than We Thought
Daniel Klerman & Holger Spamann
Journal of Law, Economics, and Organization, March 2024, Pages 108-128
Abstract:
In a pre-registered 2 × 2 × 2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. Participating judges received realistic materials and a relatively long period of time (50 min) to decide an auto accident case. We find at best weak evidence that the law matters or that rules constrain more than standards, and no evidence of a sympathy effect.
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Judges for Sale: The Effect of Campaign Contributions on State Criminal Courts
Arturo Romero Yáñez & Neel Sukhatme
Georgetown University Working Paper, February 2024
Abstract:
Scholars and policymakers have long sought to determine whether campaign contributions affect democratic processes. Using data on donations from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants. We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as professional, ideological, political, or personal ties. Defendants assigned to donor attorneys also fare worse in cases resolved in the month of contribution, with fewer cases dismissed and more defendants convicted and incarcerated. Further evidence suggests recipient judges close cases to cash out their attorney benefactors, at the expense of defendants. Our results provide some of the strongest causal evidence to date on the corrosive potential of campaign donations, including their impact on the right to counsel as guaranteed by the U.S. Constitution.
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The problem with criminal records: Discrepancies between state reports and private-sector background checks
Sarah Lageson & Robert Stewart
Criminology, forthcoming
Abstract:
Criminal records are routinely used by employers and other institutional decision-makers who rely on their presumed fidelity to evaluate applicants. We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private-sector background checks (one regulated and one unregulated by federal law), and qualitative interviews. Based on our analysis, private-sector background checks are laden with false-positive and false-negative errors: 60 percent and 50 percent of participants had at least one false-positive error on their regulated and unregulated background checks, and nearly all (90 percent and 92 percent of participants, respectively) had at least one false-negative error. We define specific problems with private-sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives. Accompanying qualitative interviews show how errors in background checks limit access to social opportunities ranging from employment to education to housing and violate basic principles of fairness in the legal system.
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The Constitutional Case Against Exclusionary Zoning
Joshua Braver & Ilya Somin
Texas Law Review, forthcoming
Abstract:
We argue that exclusionary zoning -- the imposition of restrictions on the amount and types of housing that property owners are allowed to build -- is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people -- particularly the poor and minorities - from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer. Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally. We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin’s “moral reading,” representation-reinforcement theory, and the emerging “anti-oligarchy” constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.
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Moral or Lawful? When Legal Constraints Reverse the Motivational Benefits of Moral Considerations
Timothy Kundro, Natalie Croitoru & Beth Anne Helgason
Organization Science, forthcoming
Abstract:
Nearly every employee is subject to some form of legal requirement as a function of their work. Laws are often implemented by authorities to ensure that employees and organizations engage in ethical and moral conduct at work. Importantly, acting in a moral manner is linked to benefits for employees, increasing intrinsic motivation that facilitates high levels of proactive behavior. Yet, employees increasingly face situations where laws or regulations conflict with what they perceive as morally appropriate (i.e., legal constraints on moral behavior), which we argue instead have negative consequences for employees. Combining insights from the literature on motivation and moral foundations theory, we propose that when employees face legal constraints on moral behavior, they feel less intrinsically motivated, leading them to engage in less proactive behavior. We further predict that legal constraints are less damaging when employees perceive them as necessary versus unnecessary evils. We test our model across three complementary studies: a field study of employees from a company in a heavily regulated industry and two preregistered experiments.
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Legal Outcomes and Home-Court Advantage: Evidence from the Securities and Exchange Commission’s Shift to Administrative Courts
Eric Helland & George Vojta
Journal of Law and Economics, November 2023, Pages 797–835
Abstract:
Administrative law judges’ (ALJs’) relative lack of formal independence has engendered worries that they give agencies a home-court advantage. We examine the 2010 Dodd-Frank Act, which allowed the Securities and Exchange Commission (SEC) to move cases into its administrative court. The problem with this policy experiment is that the SEC retains the discretion to bring cases in federal court, so it is impossible to identify which cases the policy treats. We propose a difference-in-differences design, using natural-language-processing methods to create control and treatment groups. We construct propensity scores using random-forest methods. After binning cases into likely or not likely to be affected by the courts’ expansion, the difference-in-differences estimation indicates that the expansion made defendants 30 percentage points more likely to settle and 36 percentage points more likely to receive a nonmonetary penalty. There is a 24-percentage-point reduction in the likelihood of a monetary penalty.
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Scaling laws: Legal and social complexity in US localities
Elliott Ash, Christoph Goessmann & Suresh Naidu
Philosophical Transactions of the Royal Society A, 15 April 2024
Abstract:
Law sets out the rules for society and the economy, particularly important for interactions between strangers. Legal code is a form of non-rival infrastructure, a public good important for investment and innovation. This paper investigates whether legal code complexity scales with population size in US localities. We analyse a corpus of municipal codes from 3259 cities and measure legal complexity using various metrics, including number of words, bytes, and compressed bytes. We find that legal complexity scales geometrically with jurisdiction population, with a scaling parameter of approximately 0.2 and an R^2 of approximately 0.2. The estimated scaling parameter is similar to gross domestic product per capita, consistent with an interpretation of legal codes as regulating social interactions per capita in cities.
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Looking more criminal: It’s not so black and white
Ashley Meacham, Heather Kleider-Offutt & Friederike Funk
Memory & Cognition, January 2024, Pages 146–162
Abstract:
Prior research regarding the influence of face structure on character judgments and first impressions reveals that bias for certain face-types is ubiquitous, but these studies primarily used decontextualized White faces for stimuli. Given the disadvantages Black men face in the legal system, this study aimed to investigate whether the criminal face-type presented in the context of crime influenced different legal system-type judgments as a function of perpetrator race. In a mixed-model design, participants saw Black and White computer-generated faces that varied in criminality presented with either violent or nonviolent crime scenarios. At test, participants attempted to identify the original perpetrator from a photo array, along with providing penalty severity judgments for the crime committed. Results indicate that when crimes were violent, participants meted harsher penalties overall to Black faces or to high-criminality faces identified as the perpetrator. Furthermore, for violent crimes, participants were more likely to select a face from the photo array that was higher/equally as high in criminality rating relative to the actual perpetrator when memory failed or when the perpetrator was Black. Overall, the findings suggest that when people are making judgments that could influence another’s livelihood, they may rely heavily on facial cues to criminality and the nature of the crime; and this is especially the case for Black faces presented in the context of violent crime. The pattern of results provides further support for the pervasive stereotype of Black men as criminal, even in our racially diverse sample wherein 36% identified as Black.
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Policymaking and Appointments under Electoral and Judicial Constraints
Peter Bils, Gleason Judd & Bradley Smith
Journal of Politics, forthcoming
Abstract:
Many democratic systems supplement periodic elections with checks and balances. Yet, elected executives typically have some influence on one important check, the judicial branch, through their power to nominate justices. How do electoral and judicial constraints influence which policies executives pursue and which justices they nominate? We study a game-theoretic model of electoral accountability in which an executive chooses policy and appoints a justice, who can overturn policy today and (potentially) after the election. We highlight how judicial appointments provide executives a tool for signaling and commitment, and also affect their incentives to signal with policy. We characterize how executives combine policy and appointments differently depending on judicial turnover, polarization, office motivation, or ideologies of sitting justices. We find that elections can moderate appointments but can also polarize them; reforms increasing justice turnover can backfire and reduce voter welfare; and distinct forms of polarization can have critically different effects.
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Intrinsic adherence to law: Physical versus intellectual property
Stefan Bechtold, Gabriel Gertsch & Martin Schonger
Journal of Law, Economics, and Organization, forthcoming
Abstract:
Infringement of intellectual property seems to be much more common than infringement of physical property. Intellectual property rights protect goods that are non-rival in consumption, while physical property rights protect rival goods. Nonrivalry implies that the owner suffers no direct harm from infringement. This could explain lower respect for property rights in nonrival goods. To test this hypothesis, we isolate the dimension of rivalry in an experiment. We develop a theft game that offers plausible deniability and minimizes experimenter demand. We find no evidence, either in behavior or in social norms, that participants’ respect for nonrival goods is lower than for rival goods. This suggests that the widespread infringement of intellectual property rights is not due to their nonrival nature. We examine this result in a vignette study and find that stealing a nonrival good is more socially acceptable when the user’s valuation is below the price of the good.