Working Papers
Voting From Jail (with Orion Taylor)
We leverage new data on daily individual-level jail records and exploit the timing of incarceration to estimate the causal effects of jail incarceration on voting from jail in 2020. We find that registered voters booked into county jails for the full duration of 2020 voting days were on average 41% less likely to vote in 2020, relative to registered voters booked into the same jails within 7 — 42 days after Election Day. Black registered voters booked into county jails for the full duration of 2020 voting days were on average 68% less likely to vote in 2020, relative to Black registered voters booked into the same jails after Election Day. Jail incarceration also reduces voter registration from jail, resulting in an even larger total effect of incarceration on voting from jail. Our findings reveal the pressing need to enable voting-eligible incarcerated individuals to exercise their constitutional right to vote, and to address racial disparities in the effect of jail incarceration on the exercise of that right.
Prosecutorial Reform and Local Crime Rates (with Amanda Agan and Jennifer Doleac)
Press: The Economist, Bloomberg, Mother Jones
Many communities across the United States have elected reform-minded, progressive prosecutors who seek to reduce the reach and burden of the criminal justice system. Such prosecutors have implemented reforms such as scaling back the prosecution of nonviolent misdemeanors, diverting defendants to treatment programs instead of punishment, and recommending against cash bail for defendants who might otherwise be detained pretrial. Such policies are controversial, and many worry that they could increase crime by reducing deterrent and incapacitation effects. In this paper we use variation in the timing of when these prosecutors took office, across 35 jurisdictions, to measure the effect of their policies on reported crime rates. While our estimates are imprecisely estimated, we find no significant effects of these reforms on local crime rates.
Books
This book is the only comprehensive treatment of judicial decision-making that combines social science with a sophisticated understanding of law and legal institutions. It is designed for everyone from undergraduates to law students and graduate students. Topics include whether the identity of the judge matters in deciding a case, how different types of lawyers and litigants shape the work of judges, how judges follow or defy the decisions of higher courts, how judges bargain with one another on multi-member courts, how judges get and keep their jobs, and how the judicial branch interacts with the other branches of government and the general public. The book explains how these individual and institutional features affect who wins and loses cases, and how the law itself is changed. It is built around well-known and accessible disputes such as gay marriage, women’s rights, Obamacare, and the death penalty; and it offers students a new way to think about familiar legal issues and demonstrates how legal and social-science perspectives can produce a better understanding of courts and judges.
A Mere Machine: The Supreme Court, Congress, and American Democracy (Yale University Press, 2013)
Introductory textbooks on American government tell us that the Supreme Court is independent from the elected branches, and that independent courts better protect rights than their more deferential counterparts. But are the textbooks correct? A Mere Machine reports evidence indicating that the Supreme Court is in fact extraordinarily deferential to congressional preferences in its constitutional rulings. Cross-national evidence also suggests that the rights protections we enjoy in the United States may be largely due to the fact that we do not have an independent Supreme Court. This evidence indicates that we might have even greater rights protections, were we to prohibit our federal courts from exercising judicial review altogether. These findings suggest that constitutional designers would be wise to heed Thomas Jefferson’s advice to “let mercy be the character of the law-giver, but let the judge be a mere machine.”
Votes Without Leverage investigates the competition to mobilize women’s votes after constitutional female suffrage. Experimental studies indicate that there is a significant social component to turnout and partisanship. This work suggests that competition to mobilize votes through social networks will be much like competition to mobilize consumers of services offered through networks (e.g., telephone networks). Markets for networked services are generally marked by imperfect competition, with early entrants having significant advantages over later entrants. Likewise, the decision by the National League of Women Voters (the former female suffrage organization) in 1923 to cede the market in women’s votes to the party organizations may have followed from its necessarily late entry into this imperfectly competitive market.
Articles
Black Americans are substantially less safe than white Americans, with persistently higher risks of crime victimization. One possible cause of racial disparities in crime victimization may lie in racially disparate law enforcement responses to crime experienced by Black and white victims. We leverage idiosyncratic variation in the litigation of law enforcement agencies for racially discriminatory employment practices to identify changes in the nature of the police response to Black crime victimization. Using data from the National Crime Victimization Survey between 1979 and 2004, and a series of estimators appropriate for difference-in-differences designs with staggered treatment, we find that litigation over racially discriminatory employment practices in law enforcement agencies decreased Black crime victimization by magnitudes ranging between 24 – 27%, but had no discernible impacts on white crime victimization, reducing the pretreatment racial gap in crime victimization by 73 – 82%. Decreases in Black crime victimization appear in the first year after litigation onset, consistent with efforts by litigated departments to address racial disparities in the police response to reported crime.
NBER Working Paper No. 28600, IZA Discussion Paper No. 14234
Press: Boston Globe, Chicago Sun-Times, Washington Post, WGBH, WBUR, Commonwealth Magazine, Marginal Revolution, Radio Boston, The Codcast (Commonwealth Magazine podcast), NYU Release, NYU News, Law360, TIME, Reasons to be Cheerful, Probable Causation, New York Times, Atlantic, Mother Jones
Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses, yet there is 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 be prosecuted 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 a 53% reduction in the likelihood of a new criminal complaint and to a 60% reduction in the number of new criminal complaints over the next two years. These local average treatment effects are largest for defendants without prior criminal records, suggesting that averting criminal record acquisition is an important mechanism driving our findings. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for nonviolent misdemeanor offenses had similar beneficial effects, decreasing the likelihood of subsequent criminal justice involvement.
Existing work indicates that retention through election induces larger effects on judicial votes in criminal cases than retention through appointment. Yet existing work has addressed neither case selection effects across retention institutions, nor heterogeneous treatment effects by defendant and judge race. Leveraging the unique retention institutions governing New York State’s intermediate appellate judges, we report the first within-justice estimates of the effects of both reelection and reappointment incentives on judicial votes in criminal appeals. Our findings indicate that impending judicial reappointment induces a 49 – 52% within-justice decrease in pro-defendant votes in appeals involving Black defendants heard by all-white panels, but has no effects on votes in other cases. We find no additional effects of impending reelection on appellate justice votes in criminal appeals. Our findings suggest the need for greater attention devoted both to potential selection effects, and to heterogeneous effects by defendant and judge race, in studies of judicial retention institutions.
Students of American political development (APD) have long been interested in questions related to the development of “state capacity” in the United States. The apparent macro-level nature of those questions may appear to discourage the pursuit of micro-level causal inferences. Yet attention to causal inference is not necessarily incompatible with inquiry into macro-level phenomena. This article explores the application of a specific causal inference strategy, namely regression discontinuity design (RDD), to three questions of interest to APD scholars of state capacity. First, the article illustrates the use of a geographic RDD to estimate the causal impacts of a Reconstruction-era federal civil rights statute during the period prior to the development of significant federal state capacity. Second, it explores the possible causes of the late 19th century decline in the use of monetary rewards to motivate civil servants by using a population-based RDD to estimate the causal impacts of financial incentives on law enforcement effort and civilian compliance. Third, it illustrates an opportunity to test claims about the impacts of the growth of the “carceral state” by applying a resource-constraint RDD to estimate the causal impacts of law enforcement effort on a variety of outcomes.
Despite widespread belief in the efficacy of statutes prohibiting discrimination in public accommodations, including protections for the use of privately provided yet publicly available services such as transportation, hotels, and restaurants, we lack causal estimates of the impacts of these statutes on the well-being of those they are designed to protect. We leverage the U.S. Supreme Court’s 1883 strike of the public accommodations provisions in the Civil Rights Act of 1875, along with variation in state-level statutes, to identify the impact of the Act’s public accommodations provisions. Using a panel of repeated geo-located medical exams of U.S. Colored Troops (USCT) and white Union Army veterans, and a series of difference-in-differences, geographic regression discontinuity, and placebo designs, estimates consistently suggest that the Court’s ruling led to meaningful weight losses for USCT veterans in states without state-level public accommodation statutes. These findings suggest that statutes prohibiting discrimination in public accommodations can have significant positive impacts on the well-being of those they are designed to protect.
Fiscal Incentives in Law Enforcement (American Law and Economics Review 22:1 (Spring 2020): 173–210)
In recent years numerous observers have raised concerns about “policing for profit,” or the deployment of law enforcement resources to raise revenue rather than to provide public safety. However, identifying the causal effects of fiscal incentives on law enforcement behavior has remained elusive. In a regression discontinuity design implemented on traffic citation and accident data from Saskatchewan, Canada between 1995 and 2016, fiscal rules reducing the share of traffic fine revenue captured by the province in towns above a sharply defined population threshold are associated with increased rates of accidents, accident-involved vehicles, accident costs, and accident-related injuries in towns just above this threshold, relative to towns just below the threshold. Further, cited drivers in towns just below this threshold are given fewer days to pay their fines and are less likely to pay their fines on time, leading to higher risks of late fees and license suspension. These findings suggest that fiscal incentives can indeed distort the allocation of law enforcement effort, with distributional consequences for both public safety and economic well-being.
Many police departments in the United States have experienced externally-imposed affirmative action plans designed to increase the shares of nonwhite and female police officers. This paper examines whether externally-imposed affirmative action plans have impacted the rates of reported offenses and/or offenses cleared by arrest, seeking to replicate and extend Lott (2000) and McCrary (2007). Using a series of modern econometric strategies, including difference-in-differences decomposition and generalized synthetic controls, we do not find a significant effect of court-imposed affirmative action plans on the rates of reported offenses or reported offenses cleared by arrest, a finding consistent with McCrary (2007). We also consider whether unlitigated agencies change their practices due to the threat of litigation, but, like McCrary (2007), are unable to identify causal evidence of such threat effects. We suggest that, in the spirit of Miller and Segal (2018), future research seek to estimate the potentially racially heterogeneous treatment effects of race-based affirmative action plans on public safety outcomes.
Recent work has suggested that the Supreme Court’s ruling in Citizens United (2010), eliminating restrictions on independent spending in elections, increased the probability of election of Republican state legislative candidates (Klumpp et al 2016). Left unexplored has been whether the Court’s ruling in Citizens United not only increased the number of Republican state legislators, but also induced the movement of state legislators’ preferences in a more conservative direction, net of any effects on Republican candidates’ probabilities of election. We attempt to distinguish these electoral and preference effects of Citizens United. Estimates consistently suggest that the Citizens United-induced removal of state restrictions on independent spending led not only to increased probabilities of election for Republican state legislative candidates, but also to larger within-district increases in the conservatism of state legislators’ preferences in formerly Democratic districts electing Republican state legislators post-ruling. These estimates, which are robust to a series of matching and placebo exercises, may provide support for the claim that an increased presence of money in elections has contributed to the increased conservatism of Republican elected officials.
The Supreme Court’s campaign finance jurisprudence rests on a distinction between spending restrictions (generally struck) and contribution restrictions (often upheld). In Buckley v. Valeo (1976), the case originating this distinction, the majority rejected an “anti-distortion” rationale for spending restrictions, claiming that campaign spending is merely an effect of candidate support, not a cause of candidate support. If this claim is true, then removing restrictions on campaign spending should have no discernible causal impacts. This article tests the Buckley majority’s empirical claim using its own ruling, which struck limits on campaign spending in state elections in 26 states. Estimates consistently suggest that the Buckley-induced removal of state limits on campaign spending led to increased Republican voteshares, increased Republican candidate entry, and decreased Democratic candidate entry in state legislative and gubernatorial elections in states affected by the ruling, and to both increased Republican House voteshares and the election of more conservative freshman Republican House incumbents in states both affected by the ruling and holding concurrent federal and state elections. These findings suggest that the rationale for the core distinction in the Supreme Court’s campaign finance jurisprudence has little empirical foundation.
This article proposes a new explanation for the origins of entrenched judicial review, or judicial review supported by supermajority constitutional amendment requirements. The explanation is based on ex ante levels of economic inequality: Where economic inequality is higher, economic elites have more to lose from the advent of majority rule. These elites will have both greater incentives and greater ability to resist or check institutions responsive to popular majorities. We may then be more likely to see the adoption of less democratically responsive institutions, like entrenched judicial review, where more unequal wealth and income distributions are threatened by majority rule. The theory is consistent with the qualitative historical record from several former British colonies, including that of the United States. It also finds considerable support in an econometric analysis of the presence of entrenched judicial review in the first year of continuous democracy for those former European colonies that had become democracies by 2008, where pre-independence European mortality rates are used as a proxy for pre-independence economic inequality. These findings suggest that the adoption of entrenched judicial review in democracies may have been motivated at least in part because of its anticipated protection for higher levels of economic inequality.
We ask whether the widely used direction of decision and direction of vote variables in the United States Supreme Court Judicial Database (USSCJD) are contaminated by confirmation bias, or have been affected by expectations about the likely effects of judicial preferences on case outcomes. Using a sample of generally comparable cases, we find evidence that the assignment of issue codes to these cases, codes that govern the subsequent assignment of “direction” to the Court’s judgments, is conditional on both case disposition and the known preferences of the deciding court, in the direction predicted by the hypothesis of confirmation bias. We also find that the USSCJD direction variables overstate the effect of judicial preferences and understate the effect of congressional preferences on case outcomes, relative to objectively coded measures of the Court’s judgments.
The Will of the Congress (Michigan State Law Review 3 (Fall 2010): 729-739)
The historical narrative of Barry Friedman’s The Will of the People is strongly suggestive of a Supreme Court that responds to majoritarian preferences. Friedman’s narrative, however, leaves open the question of the source of this responsiveness. An analysis of the Court’s decisions in cases involving the constitutional review of federal statutes from the Warren through the Rehnquist Courts suggests that the Court responds to the institutional incentives created by congressional leverage over the Court, rather than to public opinion per se. These findings suggest the importance of institutional rules for incentivizing judges into responsiveness to majoritarian preferences.
Existing studies of congressional influence on Supreme Court decision-making have largely failed to recognize the fact that the Court has a discretionary docket. We model the effects of congressional preferences on the certiorari decision, and find strong evidence that the Court’s constitutional agenda is systematically influenced by Congress. The Court is significantly less likely to review cases when there are large congressionally-induced deviations between what the Court would like to do, and what it can do in its final rulings. This selection bias in the Court’s docket can lead to considerable uncertainty in estimating the effects of congressional constraint on the Court’s final decisions, including a failure to properly reject the null hypothesis of no constraint.
To date, no study has found evidence that the U.S. Supreme Court is constrained by Congress in its constitutional decisions. We address the selection bias inherent in previous studies with a statute-centered, rather than a case-centered, analysis, following all congressional laws enacted between 1987 and 2000. We uncover considerable congressional constraint in the Court’s constitutional rulings. In particular, we find that the probability that the Rehnquist Court would strike a liberal congressional statute rose between 47% and 288% as a result of the 1994 congressional elections, depending on the legislative model used.
We examine the geographical variation in partisanship levels across the United States between 1880 and 1940 and suggest that the introduction of three electoral laws during this time period—party registration, primaries and secret ballots—can help to explain this variation. We suggest that the introduction of party registration increased the observability of partisan behavior, which in turn increased relative partisanship in the states wherein party registration was introduced. Conversely, primaries and secret ballots reduced the observability of partisan actions, which consequently weakened relative partisanship. We test these theoretical predictions on aggregate levels of split-ticket voting across the United States between 1880 and 1940, and find considerable support in time-series cross-section (TSCS) estimates of the effects of electoral institutions on levels of partisanship, support undiminished after corrections for endogeneity and selection bias.
This article explores the relationship between the ideological distance between Congress and the Court, and the Court’s propensity to strike congressional statutes. We examine two kinds of ideological distance: that between the Court and the enacting Congress, and that between the Court and the sitting Congress. We find that, while some might expect the Court to be more likely to overturn statutes from ideologically distant enacting Congresses, there is no evidence of this effect in the data we employ. However, we do find that the Court is quite sensitive to the ideological composition of the sitting Congress: the closer the Congress, the more likely it is that the Court will overturn congressional statutes.
Partisanship as a Social Convention (Rationality and Society 13: 4 (November 2001): 462-504)
Existing research models partisanship as a function of either running tallies of party performance evaluations or emotional identifications with parties. However, these models are arguably insufficient to account for the variation in the propensity to act on behalf of a party. This article develops and tests a model of partisanship as a social convention. The decision to act on behalf of a party is modeled as an asymmetric n-person coordination game with multiple equilibria, where the payoffs from being coordinated on acts of partisanship are higher than the payoffs from coordi nation on abstention if the costs of those actions are sufficiently low. Given that such a coordination game will be easier to solve where acts of partisanship are more public, we should see a greater incidence of partisanship in states with laws providing for publicly available party registration, relative to states without such laws. The model is tested using data from the 1984–96 American National Election Studies merged with data on states’ party registration laws. Several measures of partisanship are shown to be responsive to the presence of laws providing for party registration, controlling for other factors known to affect the propensity to be partisan.