FACTS An officer in Midvale, Utah was doing some paperwork in his patrol car when he was approached by man, later identified as Nitokalisi Fonua (hereinafter, “Nick”). Nick “looked suspicious,” mainly because he was “jittery, looking around and appeared to be very nervous.” Nick’s suspicion rating jumped dramatically when, for no apparent reason, he informed the officer he had stolen a white GMC Blazer, which he had parked nearby. Naturally, the officer asked Nick if he would show him the Blazer, and Nick said sure. When they located the Blazer, the officer walked over and looked inside. The first thing he saw was a sawed-off shotgun on the back seat. Then he noticed some markings on the shotgun, “markings that looked gang-related.” Nick told the officer that the key to the Blazer was inside his motel room at the Days Inn. Also in the room, he said, were his “cousins,” meaning “people he knows from the streets.” The officer asked Nick “if we could obtain the keys to the vehicle so we could turn those back over to the owner.” Nick said the keys “were in the room somewhere” and that he “didn’t care” if the officer went in and retrieved them. Nick also gave the officer his key to the room. When backup arrived at the motel, officers knocked on the door which was opened by a man named Vake. There were two other occupants: a woman and Kimoana, the defendant. By this time, the officers were aware that Kimoana—not Nick—had rented the room. The first thing the officers saw as the door opened was the woman pointing “an unidentified black object” at the wall. Concerned for their safety, they ordered the occupants to “show their hands.” Then they pat searched them. Finding no weapons (the “unidentified black object” was a television remote control), they holstered their guns. Although the officers already had Nick’s consent to search the room, they sought and obtained consent from Vake. During the search, they found a “long-barreled revolver” under a mattress. As the result, Kimoana was convicted of being a felon in possession of a firearm.

United States V. _____

We enter the debate over the role of sex in judging by addressing the two predominant empirical questions it raises: whether male and female judges decide cases distinctly (individual effects) and whether the presence of a female judge on a panel causes her male colleagues to behave differently (panel effects). We do not, however, rely exclusively on the predominant statistical models - variants of standard regression analysis - to address them. Because these tools alone are ill-suited to the task at hand, we deploy a more appropriate methodology - non-parametric matching - which follows from a formal framework for causal inference. Applying matching methods to sex discrimination suits resolved in the federal circuits between 1995 and 2002 yields two clear results. First, we observe substantial individual effects: The likelihood of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, we find that men are significantly more likely to rule in favor of the rights litigant when a woman serves on the panel. Both effects are so persistent and consistent that they may come as a surprise even to those scholars who have long posited the existence of gendered judging.

/pdf/untangling-the-causal-effects-of-sex-on-judging-2emg8qg0kp.pdf

Untangling the Causal Effects of Sex on Judging

We explore the role of sex in judging by addressing two questions of long-standing interest to political scientists: whether and in what ways male and female judges decide cases distinctly—“individual effects”—and whether and in what ways servingwithafemalejudgecausesmalestobehavedifferently—“paneleffects.”Whileweattendtothedominanttheoretical accounts of why we might expect to observe either or both effects, we do not use the predominant statistical tools to assess them. Instead, we deploy a more appropriate methodology: semiparametric matching, which follows from a formal framework for causal inference. Applying matching methods to 13 areas of law, we observe consistent gender effects in only one—sex discrimination. For these disputes, the probability of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant. These results are consistent with an informational account of gendered judging and are inconsistent with several others.

/pdf/untangling-the-causal-effects-of-sex-on-judging-20o33wanre.pdf

This article assesses how the institutional context of decision making on three-judge panels of the federal Court of Appeals affects the impact that gender and race have on judicial decisions. Our central question is whether and how racial minority and women judges influence legal policy on issues thought to be of particular concern to women and minorities when serving on appellate panels which decide cases by majority rule. Proper analysis of this question requires investigating whether women and minority judges influence the decisions of other panel members. We find that the norm of unanimity on panels grants women influence over outcomes even when they are outnumbered on a panel.

/pdf/institutional-dynamics-on-the-u-s-court-of-appeals-minority-2kwwwgqves.pdf

Institutional Dynamics on the U.S. Court of Appeals: Minority Representation Under Panel Decision Making

/pdf/purposive-interpretation-in-law-2jp2r81lpt.pdf

Purposive Interpretation in Law

Brudney, Schiavoni, and Merritt address an important debate dividing lawyers and political scientists: To what extent do extradoctrinal factors such as political party, gender, and professional experience influence judicial decisionmaking? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of judicial bias. By including every federal court of appeals decision applying the Act over a seven-year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decisionmaking. These include a strong interaction between gender and political party, the influence of prior experience representing management clients under the Act, and associations based on race, religion, and educational background. At the same time, the authors place those influences in context, suggesting the complex interweaving of doctrine and personal background in shaping judicial decisions.

/pdf/judicial-hostility-toward-labor-unions-applying-the-social-wja8nyi7vq.pdf

Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern

Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of "secret" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value. Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as a decision to reverse the agency, track formal publication rules. Others, such as the number of judges on the panel who graduated from elite law schools or the number with expertise in the disputed subject, are more surprising. In addition, we discovered substantial evidence of partisan disagreement within unpublished opinions, suggesting that those cases are not as routine as publication rules suggest. These empirical findings should guide policy and constitutional decisions about the future of unpublished opinions.

/pdf/stalking-secret-law-what-predicts-publication-in-the-united-q9ity458n4.pdf

Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals

This article is the first comprehensive treatment of neutrality agreements, which are themselves the most important development in Labor Law for decades. The labor movement's new approach to organizing displaces NLRB-supervised elections with negotiated agreements that provide (i) for employers to remain neutral during an upcoming union campaign, and (ii) in most instances, for employees to decide if they want to be represented through signing authorization cards rather than through a secret ballot election. The article demonstrates the substantial, perhaps predominant, role played by this new contractually based approach over the past 5-10 years; it also explains why so many employers have chosen to participate. The article then considers and rejects the principal doctrinal arguments challenging the facial validity of the neutrality and card check approach. Finally, borrowing from Thomas Kuhn's famous paradigm-based analysis of how change occurs in the natural sciences, the article responds to the argument that freedom of choice in the union representation context is best realized through the elections process, and instead contends that the government-supervised election paradigm should be substantially modified if not entirely supplanted in light of the evidentiary record over the past 30 years and the development of a credible alternative model.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=625383

Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms

Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive resources, linking reliance on those resources to ideological outcomes, and pursuing extensive follow-up doctrinal analysis of individual cases - breaks important new ground in the analysis of judicial reasoning from an empirical perspective. Our findings and conclusions cast serious doubt on the contentions by legal process proponents that the canons can serve as consistent or impartial guidelines to statutory meaning; they also challenge the behavioral account of canon use advanced by public choice scholars. In addition, we identify an important subset of cases in which the Rehnquist Court has relied on canons to help undermine the demonstrable legislative preferences of Congress. Overall, our results and analyses offer a sobering counterpoint to the elevated normative claims made by some justices and many scholars on the canons' behalf.

Canons of Construction and the Elusive Quest for Neutral Reasoning

/pdf/neutrality-agreements-and-card-check-recognition-prospects-28xxl5f1ts.pdf

James J. Brudney

Papers

Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern

Stalking Secret Law: What Predicts Publication in the United States Courts of Appeals

Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms

Canons of Construction and the Elusive Quest for Neutral Reasoning

Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms