Empirical Legal Studies

How Lower Courts Digest Supreme Court Decisions: Data on the Fourth Amendment After Carpenter (2018)

Technical advances and their implications for civil liberties collided anew in the Supreme Court's 2018 Carpenter v. U.S. decision. In that case, the Court made clear that "individuals can retain Fourth Amendment rights in information they disclose to a third party." The Court specifically ruled that the government needed a warrant before collecting cell phone location data that revealed a suspect's location over a seven-day period. In today's Internet age, Carpenter has the potential to expand privacy protections over a wide and deep swath of sensitive digital information. Insofar as the decision's practical contours and boundaries are, unsurprisingly, vague, "scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward." Equally unsurprising, these guesses about Carpenter's meaning diverge.

In a recent paper, The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021, Matthew Tokson (Utah) subjects various predictions and claims about Carpenter's implications to data. In particular, the paper analyzes "all 857 federal and state judgments citing Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, the Article illuminates both the present and future of Fourth Amendment law.” Among the paper's findings include that: "factors that drive lower court decisions clearly include the revealing nature of the data at issue, the amount of data collected, and the automatic nature of data disclosure, and clearly do not include the number of persons affected." An excerpted abstract follows.

"[The paper] identifies the factors that drive modern Fourth Amendment search decisions—and those that fail to drive them. It examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It assesses how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the 'good faith exception' to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article explores alternative directions that courts may take as they continue to refine Fourth Amendment law and address novel surveillance technologies. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive empirical study to date of the jurisprudential impact of a Supreme Court case in the years following its publication."

Copyright Injunctions After eBay and the "Hysteresis Hypothesis"

Interest in a recent paper, The Hysteresis Thesis: An Empirical Study of Copyright Injunctions After eBay, by Matthew Sag (Loyola-Chi) and Pamela Samuelson (Berkeley), should extend beyond traditional IP/copyright borders. Here's why.

First, the IP/copyright implications. Prior to the Supreme Court’s landmark 2006 eBay decision, courts routinely issued injunctions in both patent and copyright cases upon a finding of actual or likely infringement of plaintiffs’ rights. Even though most scholars expected that the eBay decision would have an immediate and transformative effect on the grant of permanent injunctions in patent infringement cases, Jiari Liu's 2012 paper reported that in the first four years after the eBay ruling, courts rarely cited that decision and continued to grant injunctions at a very high rate. Sag and Samuelson's paper, however, concludes that Liu's main finding (and conventional wisdom) were "always somewhat erroneous and are now clearly outdated."

Second, the implications of the "how" and "why" of Sag and Samuelson's paper spill-over into empirical legal studies more broadly. Sag and Samuelson began their study with an eye towards "the hypothesis of hysteresis or delayed effect: the simplest way to think about this theory is that, if it is correct, we should see a greater effect in the third and fourth periods than in the 2007-2010 period immediately following eBay."

To do so, they exploited a data set of "336 reported U.S. federal court copyright injunction cases decided between January 1, 2000 and December 31, 2019. We begin with the pre-eBay era, from 2000 to 2006. Our remaining three eras are 2007-2010 (the immediate aftermath era), 2011-2014 (the Salinger-Flexible era), and 2015-2019 (the consensus era)." What they find, in part, is that: "Our evidence shows that the citation rate for eBay has increased and that the corresponding grant rate for copyright injunctions has decreased."

They attribute their findings of an Hysteresis effect to "the doctrinal conservatism of lower courts and the parochial nature of appellate court precedents, it is unsurprising that there might have been some delay in the adoption of even the most obvious implications of new Supreme Court precedents such as eBay for injunction grants in copyright cases." An excerpted abstract follows.

"... This Article tests these claims and finds statistically significant differences in the grant rate for both preliminary and permanent injunctions in copyright cases after the eBay decision. The impression of eBay lacking effect appears to be a product of hysteresis—a time lag between cause and effect, as lower courts initially delayed but eventually embraced eBay. This study reveals, moreover, that the earlier empirical study was flawed by biased sampling, most notably by including a large number of unreported cases and default judgments. This Article offers a corrective analysis and provides a more accurate understanding of the copyright injunction landscape, both pre- and post-eBay. It shows that eBay was in fact a landmark case for copyright law, both in terms of jurisprudence—it is highly cited—and real-world effect— it has a dramatic impact on case outcomes."

Pretrial Detention and Release Experiments

As I have an admitted soft-spot for (even quasi-) randomized control trials as a research design, a recent paper by Javier Osorio (Arizona-Govt. & Pub Pol’y) et al., Reducing Pretrial Detention: A Randomized Intervention with Public Defenders in El Salvador, caught my eye. In it, the authors exploit a "randomized intervention in El Salvador designed to improve public defenders’ capacities to secure pretrial release for defendants.”

To note that pretrial detention is a problem is to note merely the obvious. And in countries facing acute security challenges, such as El Salvador, there exists enormous pressure on criminal justice authorities to limit pretrial release. The authors contend that the overreliance on pretrial detention is driven in part by lack of information about defendants’ flight risks and the prospect of their committing further crimes while awaiting trial. And this information deficit is “the consequence of deficiencies in the public defender system, upon which economically disadvantaged citizens rely to ensure legal representation.”

To assess their hypothesis, the authors exploit an unusual (by U.S. standards, anyway) experiment involving a randomly assigned treatment to public defenders in four municipalities in El Salvador. “The treatment included specialized legal training, an improved interview protocol, and enhanced communication channels with the defendants, their relatives, and other institutions. These components sought to improve public defenders’ ability to gather evidence that would support pretrial release.”

The authors found that the treatment “increased public defenders’ requests for pretrial release by nearly 10%. The intervention also helped public defenders to secure pretrial release of their clients by 4.4%, although these results are weaker and sensitive to model specification.” The paper's abstract follows.

"Approximately one third of the global prison population is in pretrial detention, waiting for trial. Overreliance on pretrial detention exposes defendants to harsh conditions, exacerbates jail overcrowding, increases recidivism, and favors criminal governance. What policies can resource strapped countries implement to effectively address excessive pretrial detention? Based on a theoretical model focused on institutional-level efforts, we evaluate an experimental intervention implemented in El Salvador intended to increase pretrial release requests and reduce pretrial detention. The intervention randomly assigned public defenders to receive specialized legal training, an improved interview protocol, material resources, and increased communication channels. We find that this inexpensive, scalable program increased pretrial release requests from public defenders by nearly 10% (0.228 standard deviations) and increased the success in securing pretrial release by 4.4% (0.114 standard deviations). Heterogeneous treatment effect analyses suggest that the program increased strategic litigation among the most experienced public defenders and has distinct effects for those accused of minor and severe crimes. We find no evidence that the mechanism explaining our results involves changes in public defenders’ attitudes or perceptions about their work environments. Criminal justice programs focusing on pretrial detention may help reduce prison overcrowding in high crime countries."

Data Resources Courtesy of the APSA Law & Courts Section

Our good friends and political science colleagues over at the APSA's Law & Courts Section recently updated the Section's website (click here). What is especially helpful is a sub-page (here) that provides links to the leading court data sets (SCOTUS, CA, district courts, as well as state supreme courts) along with related data assets (e.g., Martin-Quinn Scores, Judicial Common Space Scores).

Bridge Ideal Points--2021 Update

Michael Bailey (Georgetown--Govt.) has updated the Bridge Ideal Points estimates (click here) to cover years 1950 through 2020. These Ideal point estimates include the Supreme Court, presidential, and congressional ideology estimates and are designed to facilitate inter-institutional and cross-temporal comparisons.

While the Bridge Ideal Points compete somewhat with the Martin-Quinn scores in the literature, the two sets of ideology estimates correlate reasonably highly with one another. Despite the overlap, these two ideology estimates differ in two important ways.First, "Bridge Ideal Points are designed to be intertemporally comparable. Martin and Quinn scores assume the ideological cutpoints of Supreme Court cases are drawn from a common distribution across years, which makes them less comparable across time when the case load changes." Second, while Martin and Quinn scores only cover the Supreme Court justices, Bridge Ideal Points for justices are comparable to Bridge Ideal Points for presidents and members of Congress as well.

Regardless of one's preference, efforts to estimate justice ideology remain a staple in the judicial decisionmaking literature.

The Empirics of Rule 23(f)

While civil procedure scholars have spilled a lot of ink on class actions, until quite recently little of it is informed by data. To help remedy this, in a recent paper, Class Certification in the U.S. Courts of Appeals: A Longitudinal Study, Stephen Burbank (Penn) and Sean Farhang (Berkeley) exploit a class certification decision data set that includes USCA precedential panel decisions (1966 through 2017) and nonprecedential panel decisions (2002 through 2017). The data permit the authors to test various "conventional wisdoms," including those related to class certification appeal outcomes and Rule 23(f)'s potential influence. Among their findings includes, e.g., that, "contrary to conventional expectations, in the period since Wal-Mart and Comcast, plaintiffs have been winning certification appeals more frequently than they were formerly, and Rule 23(f) contributed to this recent success." More specifically, the paper notes "significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after." An excerpted abstract follows.

“There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

…

We find significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after. This variation suggests the hazards of generalizing about operation of that rule from experience in any particular period. Our models also show that, for reasons about which we can only speculate, interlocutory appeals since around 2000 have elicited more ideological voting behavior by judges, leading to greater polarization.”

Life Sentences "With" or "Without"

While significant public and scholarly attention rightly dwells on capital punishment, comparatively under-explored is a steady surge of life sentences without the possibility of parole ("LWOP"). While the Furman Court's "death is different" doctrine retains obvious salience and moral force, it should not obscure LWOPs from much-needed empirical inquiry.

To this end, in a recent paper, Life 'With' or 'Without'?: An Empirical Study of Homicide Sentencing, forthcoming in JELS, Michael O'Hear (Marquette) and Darren Wheelock (Marquette--Dept. Social and Cultural Sciences) do just that. While the paper's data set is limited to Wisconsin homicides, the authors do a deep data dive into 450 individuals convicted of first-degree intentional homicide between the start of 2001 and about mid-2018. The core findings are mixed. On the one hand, "intentional-homicide defendants who have more serious criminal histories are more likely to receive LWOP." On the other hand, "sentencing outcomes are influenced by the identity of the judge and prosecutor." The paper's abstract follows.

"The number of Americans serving sentences of life without the possibility of parole (“LWOP”) has grown rapidly over the past generation and now exceeds 50,000. Yet, little empirical research has been conducted on the determinants of LWOP sentences. The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences—studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes. The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences.

More specifically, we have assessed the relationship between fifty different variables and LWOP decisions in 450 homicide cases in Wisconsin between 2001 and 2018. In our final model, we find seven variables that are correlated with sentencing outcomes. Of particular note, we find that judge and prosecutor personal characteristics are statistically significant correlates of LWOP decisions. We also find a significantly greater likelihood that LWOP sentences will be imposed in counties that are more Republican. We conclude with a proposal for a new LWOP sentencing process that may help to ensure that this very severe sentence is reserved for the most serious crimes committed by the most dangerous defendants."

Misdemeanor (Non) Prosecution

Hidden in plain sight is a significant amount of criminal misdemeanor activity in state courts. Indeed, "every year approximately 13 million Americans are charged with misdemeanor offenses, and misdemeanor cases make up over 80 percent of the cases processed by the U.S. criminal justice system." Scholars and policymakers increasingly raise concerns with the sheer volume of prosecutions for low-level offenses. As well, "some district attorneys across the country have begun to implement alternatives to misdemeanor prosecution, particularly for nonviolent defendants."

As scholarly attention continues to focus on criminal misdemeanors (see, e.g., here), it is inevitable that larger data sets and more sophisticated analyses emerge. One such example includes a recent paper, Misdemeanor Prosecution. In it, Agan (Rutgers--econ) et al., assess a practice in the Suffolk County (MA) District Attorney's Office that imposes upon prosecutors a "presumption of nonprosecution" for "nonviolent misdemeanor offenses." To do so, the paper exploits "new data [N=67,553] on the prosecution of nonviolent misdemeanor criminal complaints from the Suffolk County District Attorney’s Office (SCDAO) in Massachusetts between 2004 and 2018 to estimate the impact of nonprosecution of nonviolent misdemeanors on future criminal justice system contact." (emphasis added)

Despite some missing ADA-level data concerns, one main result is that: "increasing nonprosecution reduced the likelihood of subsequent criminal complaints within a one-year post-arraignment window. In addition, there does not appear to have been an increase in reported crime due to the policy change." The abstract follows.

"Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates."

What Would Happen if Plea Bargaining Was Banned?

For an array of reasons, plea bargaining endures as a concern for many criminal law scholars. Proponents of plea bargaining "point to its efficiency−since trials are costly if both sides form reasonably similar beliefs about the outcome to arise at trial they can just agree to that expected sanction beforehand and save the costs." Opponents, by contrast, fear that excessive plea bargaining rates--combined with various structural differences that distinguish many defendants (especially indigent ones) and prosecutors' offices--may help coerce some factually innocent defendants into pleading guilty rather than defending their innocence at trail.

Amid growing calls to "regulate the plea bargaining process in an attempt to reduce its prevalence," one state--Alaska--acted. Specifically, Alaska Attorney General Michael Geraghty announced a new policy limiting plea bargaining in July 2013. The limitation prohibits prosecutors from "negotiating over the length of the jail/prison sentence for those accused of committing violent crimes."

In a recent paper, Alaska's Plea Bargaining Ban, Bryan McCannon (Univ. West Vir.--Economics) sets out to assess the efficacy of Alaska's experiment. The paper exploits a data set that includes annual (2007-2019) court-year data on how all of Alaska's Superior Courts disposed of their criminal and civil dockets (N=874). That Alaska's plea bargaining ban can affect a variety of margins raises important identification concerns. One thing the ban cannot affect, however, are pretrial plea negotiations in civil cases. Thus, the paper compares changes in the civil and criminal contexts.

The primary variable of interest is the rate at which cases settled pretrial and the author estimates a diff-in-diff specification. The critical take-away from the findings is that Alaska's plea bargaining ban for defendants charged with violent criminal crimes "does not have a meaningful effect" (emphasis added). One explanation for the absence of any detected affect involves the (often-underappreciated) importance of prosecutors' charge-bargaining policies and practices (which fall outside of the Alaska's ban on negotiating jail/prison sentences).

To be sure, important study limitations exist. Alaska may be an anomalous state. As well, as the study draws from an aggregated panel data set it cannot account for various case-specific factors. Finally, aggregating the case outcome data to the court level invites ignoring various heterogeneous treatment effects. Research design limitations aside, however, while this study will certainly not be the final word on this topic it is a helpful first step. The paper's abstract follows.

“Plea bargaining dominates the U.S. criminal justice system and has garnered calls to reduce its prevalence. In 2013 Alaska’s Attorney General acted banning a practice known as sentencing bargaining where the prosecutor negotiates with the defense over the length of the incarceration. I provide the first causal identification of this policy’s impact on the plea bargaining rate. I show that the policy, by leaving open the charging discretion (in effect allowing charge bargaining), was ineffective at changing plea bargaining’s prevalence across the state. Policymakers should look elsewhere for tools if they want to mitigate its rate.”

A New and Interesting Take on Measuring Case Complexity

Most judicial decisionmaking papers can be criticized for inadequately controlling for variation in "case complexity." Lingering disputes over what "complexity" even means in terms of litigated cases only increase the degree of difficulty in constructing such a control. And even if a consensus on what "case complexity" means existed, constructing a reliable, consistent, and stable measure introduces additional challenges.

Difficulties, conceptual and mechanical, aside, a recent paper, Measuring Supreme Court Case Complexity, makes a helpful contribution. In it, Greg Goelzhauser (Utah State--Poli Sci) et al., both critique an array of earlier efforts and advance their own Bayesian measurement model to construct a latent (Supreme Court) case complexity measure that exploits issue and provision counts from the cases' merits briefs. By measuring case complexity from pre-decision data (merits briefs) the paper argues that its ex poste approach "diminishes endogeneity and post-treatment bias concerns when studying merits stage outcomes." To develop its measure, the authors draw from issue and provision (hand-coded) counts extracted from merits briefs filed in the 1954 through 2017 Court Terms, incident to Supreme Court Rules 24(1)(a) and 24(1)(f).

While perhaps limited to Supreme Court cases, new approaches to a difficult challenge can make important methodological contributions. The paper's abstract follows.

"Case complexity is central to the study of judicial politics. The dominant measures of Supreme Court case complexity use information on legal issues and provisions observed post-decision. As a result, scholars using these measures to study merits stage outcomes such as bargaining, voting, separate opinion production, and opinion content introduce post-treatment bias and exacerbate endogeneity concerns. Furthermore, existing issue measures are not valid proxies for complexity. Leveraging information on issues and provisions extracted from merits briefs, we develop a new latent measure of Supreme Court case complexity. This measure maps with the prevailing understanding of the underlying concept while mitigating inferential threats that hamper empirical evaluations. Our brief-based measurement strategy is generalizable to other contexts where it is important to generate exogenous and pre-treatment indicators for use in explaining merits decisions."

Empirical Conjectures About the Effects of Raising the Jurisdictional Amount

As my Civ Pro colleagues periodically remind me, we're likely overdue for an increase to jurisdictional thresholds. Even if they're correct, however, what might be the expected (and unexpected) consequences of various increases to jurisdictional thresholds? A recent paper by Steven Gensler (Oklahoma) and Roger Michalski (Oklahoma), The Million Dollar Diversity Docket, puts these counter-factual questions to data. And what they find should interest more than procedeuralists.

The authors hand-coded data from five (non-randomly selected) federal districts (Minnesota, Georgia Northern, New Jersey, Texas Northern, and Utah). From each of these districts they selected a random draw of diversity jurisdiction cases based on Federal Judicial Center (“FJC”) data on cases completed in 2018, resulting in 2,896 usable cases. The paper's methodological move involves substituting the temporal component in survival analysis with a measure of jurisdictional amount. That is, instead of asking on which day a machine fails, we ask at which jurisdictional amount a case fails. To do so, the authors estimated modified KaplanMeier survival functions and Cox Proportional Hazard Regression models.

The paper's main takeaway is that jurisdictional amounts "are not neutral throttles. They do not modulate all cases evenhandedly. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes in the jurisdictional amount than others." The abstract follows.

"What would happen if Congress raised the jurisdictional amount in the diversity jurisdiction statute? Given that it has been almost 25 years since the last increase, we are probably overdue for another one. But to what amount? And with what effect? What would happen if Congress raised the jurisdictional amount from the current $75,000 to $250,000 or, say, $1 million?

Using modified Kaplan-Meier survival functions and Cox Proportional Hazard Regression models to analyze a novel hand-coded data set of pleadings in 2900 cases, we show that the jurisdictional amount is not a neutral throttle. It does not modulate all cases evenhandedly. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes in the jurisdictional amount than others. As such, setting the amount in controversy at any level entails normative choices about which cases to bless and curse with a federal forum.

Our findings implicate not only policy discussions about diversity jurisdiction in general, but also debates currently underway in Congress to utilize modifications of the jurisdictional amount requirement to channel COVID-19 related litigation into federal courts. We hope our empirical work will inform these debates and enable a new wave of scholarship on the basic functions and functioning of the federal diversity docket. We outline some beginnings of this type of work by exploring radically different avenues of thought that develop and re-imagine the diversity docket anew. They range from incremental inflation-adjustments, to carve-outs, experiments with lotteries, and the radical replacement of an amount in controversy minimum with a maximum."

State Supreme Court Elections Data Set

Judicial decisionmaking scholars comparing outcomes from "elected" and "non-elected" judges invariably turn to state court systems (if the analytic focus is domestic) for the necessary variation. Those turning to the array of state court systems--and the range of state supreme court election types--invariably confront data gathering challenges that materially differ from challenges associated with, e.g., Art. III judges. One of the leading state court scholars, Bert Kritzer (Minn.), continues to make state court election data gathering efforts a bit easier for the rest of us. Not only has Bert engaged in the often under-appreciated yet Herculean effort of original data set building, but he shares his data sets (and associated documentation, codebooks, etc.) with other interested scholars. Bert's most recent updating effort, curated on Harvard's Dataverse, includes a collection of state supreme court election results that now range from 1946 through 2020.

"The archive includes three core datasets plus state-level Excel spreadsheets for all states that employed elections at least part of the time since 1946 to select or retain members of the state supreme court (known New York state as the Court of Appeals) including for Texas and Oklahoma both the state supreme court and the Court of Criminal Appeals which are the final courts for criminal cases in those states."

Those interested in the data sets can click here.

ELS in the "Real World"

The growth (and import) of MDL proceedings in federal courts are, by now, beyond obvious. One practice that has emerged organically among some (many?) of the larger MDLs involves the use of "fact sheets." Fact sheets can involve a range of "party-negotiated questionnaires, directed at parties to the case (both plaintiff and defendant), [and] provide judges and attorneys with information about the scope of the proceeding." The rise of MDLs has also prompted calls for new rules for MDL proceedings. Perhaps not surprisingly, the Advisory Committee on Civil Rules (Advisory Committee) recently began considering "specific rules related to multidistrict litigation (MDL) proceedings," including rules relating to fact sheets.

As a recent paper by Margaret Williams (Fed. Judicial Center), An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation, makes clear, "the question of whether or not rules for MDLs, specifically rules regarding fact sheets, are necessary would have to be answered by evaluating how fact sheets are currently used in MDL proceedings, if proposed rules would change that, and how." As is too often the case in legal reform, however, reform efforts go forward absent anything even resembling a necessary empirical footing. As Williams notes, "there is very little published empirical work examining the use of fact sheets in MDL proceedings." While the Williams paper makes an important initial, largely descriptive contribution to our knowledge base, the paper also makes clear that much more work remains on fact sheets' efficacy as a case management tool in the MDL context. An excerpted abstract follows.

"Using a sample of 116 mass tort proceedings (typically involving products liability) centralized through MDL between 2008 and 2018, we examine when fact sheets were ordered, what were the procedures for complying with the case management order, what information was collected, and what effect they have on the termination of the proceedings. The proceeding ranged between 3 and 40,533 actions and were open a minimum of 118 days and a maximum of 3,811 days. Actions terminated within the proceeding at least 98% of the time, but little information is available on how the actions terminated. Proceedings were centralized in 40 districts. We find that fact sheets are ordered more than half the time, and were most likely to be used in the largest proceedings. The information in fact sheets is used in several ways within the proceeding, including identifying cases for bellwether trials and winnowing cases, and the use of fact sheet processes leads to faster termination of the proceeding, all else being equal. Our sample of proceedings suggests judges use fact sheets to organize products liability proceedings when judges perceive they are merited, after considering the size of the proceeding or the nature of the litigation. The frequency with which judges already employ fact sheets and the variation in the use calls into question both the need for a rule and how to write one without tying the hands of transferee judges. Many issues regarding how fact sheets are used remain to be studied more in-depth."

Criminal Sentencing Variations and Judge "Intersections"

While efforts to empirically assess the independent influence of, e.g., judge gender and age on an array of judicial outcomes are not uncommon in the judicial decisionmaking literature, a recent paper, The Intersectionality of Age and Gender on the Bench: Are Younger Female Judges Harsher with Serious Crimes?, by Morris Hoffman (Dist. Ct. Judge, St. of Colorado) et al., explores how judge age and gender may interact in ways that account for some of the observed variations in criminal sentencing. Or, more specifically, the paper considers whether "trial judges in their thirties sentence the same thirty years later, when they will likely still be on the bench.”

The paper benefits from an unusually rich data set: "2,995 individual state criminal sentences imposed in Colorado, covering 183 different types of crimes and 285 different judges—180 male and 105 female—over a sixteen-year time span (2001–2016)." Because the data set allows the authors to observe "the same judges sentencing similar crimes as they grow older," a longitudinal view of "the interactive effects of judicial age, gender, and crime level in determining sentences in actual criminal cases” becomes possible.

Some of the paper's core findings might surprise some. "We uncovered a three-way interaction not previously reported in the empirical or experimental literature: For high harm crimes, younger female judges sentenced convicted defendants more harshly than their male and older female colleagues. We controlled for the independent effect of judicial experience, leading to the conclusion that age—and not just experience on the bench—is driving the results.”

The analyses exclude, however, plea bargains, crimes where sufficient sentencing discretion does not exist (e.g., first-degree murder), and crimes which impede efforts to code for the crime's "harm" (e.g., drug possession). Despite any analytical attractiveness, such data exclusions invite questions about the results' generalizability. After all, a decision to exclude plea bargains, for example, removes a potentially sizable slice of criminal sentencing activity from the analyses. Data limitations aside, the paper's core results will likely interest judicial decisionmaking scholars and criminologists. The paper's abstract follows.

“We analyzed sentencing data from sixteen years of criminal trials in the State of Colorado, consisting of almost 3,000 individual sentences, and discovered an interaction effect of harm, gender, and age not reported in any of the empirical or experimental literature. Young female judges punished high harm crimes substantially more than their male and older female colleagues. These results, if confirmed, could have significant strategic and tactical implications for practicing lawyers. They may also inform policies surrounding judicial selection, education, training, and retirement.”

Evidence of More Revolving Doors

"Revolving doors," evidently, are everywhere. While in a few sectors (e.g., financial regulators/financial services industries) research on revolving doors is well-developed, empirical research in other sectors is less so. The latter sectors include, e.g., an individual's path from a Supreme Court clerkship, to an appellate litigation group, and then back to the Supreme Court as an advocate. While "hunches" about this "revolving door" have persisted over time, data on former clerks' efficacy arguing in front of their former bosses remain scant. A recent paper, The Influence of Personalized Knowledge at the Supreme Court: How (Some) Former Law Clerks Have the Inside Track, exploits decisions in the Supreme Court Database between the 1979 and 2018 Terms and contributes to this data void. In their paper, political scientists Ryan Black (Mich. St.) and Ryan Owens (Wisc.) find evidence of an effect as the following figure implies.

The paper's abstract, summarizing core results, follows.

"When arguing at the U.S. Supreme Court, former High Court law clerks enjoy significant influence over their former justices. Our analysis of forty years of judicial votes reveals that an attorney who formerly clerked for a justice is 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who never clerked. What is more, an attorney who formerly clerked for a justice is 14 to 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who previously clerked for a different justice. Former clerk influence is substantial, targeted, and appears to come from clerks’ personalized information about their justices. These results answer an important empirical question about the role of attorneys while raising normative concerns over fairness in litigation."