Amusing blog review of a political science article

by Andrew Gelman on October 13, 2011 · 2 comments

in Judicial

Reviewing “Impartial Judges? Race, Institutional Context, and U.S. State Supreme Courts” by Chris Bonneau and Heather Marie Rice, which appeared in State Politics and Policy Quarterly in 2009, Adam Brown concludes:

The authors find exactly the opposite of what their theory predicts. I [Brown] would have liked to see them explain this.

The authors could do more to justify one of their major theoretical assumptions: That substantive representation requires black and white judges to behave differently.

Ouch. This kind of thing makes me feel like every published paper should have this kind of response appended to it. The paper reviewed above is an obscure article (only two citations on Google scholar) in an obscure journal (actually, I shouldn’t say this because I’d like to publish a paper there!), but, hey, it probably got three referee reports in the review process. It’s a shame that all these reviews just disappear.

{ 2 comments }

Mihai Martoiu Ticu October 14, 2011 at 3:09 am

One can notice explosion of empirical studies of law in the last ten years. Nowadays, “a flurry of seemingly endless studies that suggested religious bias, political-party bias, ideological bias, labor bias, immigration bias, and so forth”[1] can be found. Indeed Judges might be influenced by the race of the litigants.[2]

Kulik et all found that the political affiliation can make a huge difference in federal cases of hostile environment sexual harassment.[3]

Shepherd makes a convincing case that the method of retention has a significant influence on judicial decisions.[4] Permanent tenure and reappointment both lead to different decisions, as do whether reappointment is carried out by state officials or occurs as the result of elections, and whether or not the elections are partisan.[5]

A research on asylum cases found that the decisions were comparable with roulette results.[6]
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1 Nourse and Shaffer, “Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?” p 78
2 Labaton, S., Benefits Are Refused More Often to Disabled Blacks, Study Finds, N.Y. Times, May 11, 1992, at A1
3 Ibid.: “[t]he probability that the decision would favor the plaintiff was only 16% when the case was heard by an older judge but 45% when heard by a younger judge. The probability that the decision would favor the plaintiff was only 18% when the case was heard by a judge who had been appointed by a Republican president but 46% when the judge had been appointed by a Democrat president.” P. 69
4 Shepherd, J. M., “The Influence of Retention Politics on Judges’ Voting”, The journal of legal studies 38, no. 1 (2009), pp. 169-204
See also Shepherd, J. M., “Are Appointed Judges Strategic Too?”, Duke L.J. 58 (2009), pp. 1589-1626
5 Shepherd, “The Influence of Retention Politics on Judges’ Voting.” For instance, before being reappointed by republicans, judges tend to decide cases in conformity to usual Republican policy: “they are more likely to vote for businesses over individuals, for employers in labor disputes, for doctors and hospitals in medical malpractice cases, for the original defendant in torts cases, and against criminals in criminal appeals.” The opposite happens when judges are reappointed by Democrats. This effect is even stronger when judges are re-elected and strongest when the re-elections are partisan. This happens even when judges are of the opposite political conviction to their appointers, and changes when different political parties come into office. These influences disappear in the years before a judge retires, and it does not occur for judges with permanent tenure. Shepherd cites other empirical studies indicating that judges impose longer sentences as re-election approaches, or that ideological bias has a bearing in death penalty and civil rights cases; she also cites studies that found that the appointing president predicts decisions in “broad range of cases.”
6 Ramji-Nogales, J., Schoenholtz, A. I., and Schrag, P. G., “Refugee Roulette: Disparities in Asylum Adjudication Feature”, Stan. L. Rev. 60, no 2. (2007), pp. 295-412: “Colombian asylum applicants whose cases were adjudicated in the federal immigration court in Miami had a 5% chance of prevailing with one of that court’s judges and an 88% chance of prevailing before another judge in the same building. Half of the Miami judges deviated by more than 50% from the court’s mean grant rate for Colombian cases.” p. 296
See also: “But how about a situation in which one judge is 1820% more likely to grant an application for important relief than another judge in the same courthouse? Or where one U.S. Court of Appeals is 1148% more likely to rule in favor of a petitioner than another U.S. Court of Appeals considering similar cases?” p. 301

Mihai Martoiu Ticu October 14, 2011 at 3:11 am

Sorry, the note 3 should have been: Kulik, C. T., Perry, E. L., and Pepper, M. B., “Here Comes the Judge: The Influence of Judge Personal Characteristics on Federal Sexual Harassment Case Outcomes”, Law and Human Behavior 27, 1 (2003), pp. 69-86

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