Empirical Legal Studies


Discrimination During Traffic Stops: How an Economic Account Justifying Racial Profiling Falls Short

Sean Childers

The last decade has seen a noted increase in the amount of traffic-stop data available for researchers hoping to analyze racial profiling on America’s highways. A group of economic scholars—Knowles, Todd, and Persico—proposed a bright-line statistical test that asks whether different racial groups have the same hit rate, or to put it differently, are searches of individuals equally efficacious, regardless of their race? Accepting this conception of racial profiling as a minimum floor, I apply the test to a superior and newly-compiled data set of nine million Illinois traffic stops. The Illinois police fail the bright-line test and show signs of discrimination against Hispanic, Asian, and Black motorists. I then examine whether Seventh Circuit equal protection precedent would permit an Equal Protection claim based on that statistical disparity alone, concluding that additional evidence is needed to satisfy the discriminatory intent prong.

The Declining Influence of the United States Constitution

David S. Law, Mila Versteeg

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.

In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.

The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.

Immigration Federalism: A Reappraisal

Prathepan Gulasekaram, S. Karthick Ramakrishnan

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local officials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. United States, the Court addressed, but did not settle, the difficult empirical, theoretical, and constitutional questions necessitated by these enactments and their attendant justifications. Our empirical investigation, however, discovered that most state and local immigration laws are not organic policy responses to pressing demographic challenges. Instead, such laws are the product of a more nuanced and politicized process in which demographic concerns are neither necessary nor sufficient factors and in which federal inactivity and subfederal activity are related phenomena, fomented by the same actors. This Article focuses on the constitutional and theoretical implications of these processes: It presents an evidence-based theory of state and local policy proliferation; it cautions legal scholars to rethink functionalist accounts for the rise of such laws; and it advises courts to reassess their use of traditional federalism frameworks to evaluate these subfederal enactments.

Toward a Bayesian Analysis of Recanted Eyewitness Identification Testimony

Kristy L. Fields

The reliability of eyewitness identification has been increasingly questioned in recent years. Despite acknowledgment that such evidence is not only unreliable, but also overly emphasized by judicial decisionmakers, in some cases, antiquated procedural rules and lack of guidance as to how to properly weigh identification evidence produce unsettling results. Troy Anthony Davis was executed in 2011 amidst public controversy regarding the eyewitness evidence against him. At trial, nine witnesses identified Davis as the perpetrator. However, after his conviction, seven of those witnesses recanted. Bogged down by procedural restrictions and long-held judicial mistrust of recantation evidence, Davis never received a new trial and his execution produced worldwide criticism.

On the 250th anniversary of Bayes’ Theorem, this Note applies Bayesian analysis to Davis’s case to demonstrate a potential solution to this uncertainty. By using probability theory and scientific evidence of eyewitness accuracy rates, it demonstrates how a judge might have included the weight of seven recanted identifications to determine the likelihood that the initial conviction was made in error. This Note demonstrates that two identifications and seven nonidentifications results in only a 31.5% likelihood of guilt, versus the 99% likelihood represented by nine identifications. This Note argues that Bayesian analysis can, and should, be used to evaluate such evidence. Use of an objective method of analysis can ameliorate cognitive biases and implicit mistrust of recantation evidence. Furthermore, most arguments against the use of Bayesian analysis in legal settings do not apply to post-conviction hearings evaluating recantation evidence. Therefore, habeas corpus judges faced with recanted eyewitness identifications ought to consider implementing this method.

A Dose of Reality for Medical Malpractice Reform

Joanna C. Schwartz

Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disability, and healthcare expenses. In recent years, hospitals have implemented multiple systems to gather information about medical errors, understand the causes of these errors, and change policies and practices to improve patient safety. The effect of malpractice lawsuits on these patient safety efforts is hotly contested. Some believe that the fear of malpractice liability inhibits the kind of openness and transparency needed to identify and address the root causes of medical error. Others believe that malpractice litigation brings crucial information about medical error to the surface and creates financial, political, and institutional pressures to improve. Yet neither side in this debate offers much evidence to support its claims.

Drawing on a national survey of healthcare professionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: The openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits play a productive role in hospital patient safety efforts by revealing valuable information about weaknesses in hospital policies, practices, providers, and administration. These findings should inform open and pressing questions about medical malpractice reform and the best ways to continue improving patient safety.

Have Interjudge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker

Crystal S. Yang

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. How has greater judicial discretion affected interjudge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering almost 400,000 criminal defendants linked to sentencing judges to undertake the first national empirical analysis of interjudge disparities after Booker.

The results are striking: Interjudge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed post-Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effects of various actors on sentencing disparities, I find that prosecutorial charging is likely a prominent source of disparities. Rather than charging mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of the sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, this Article suggests that recent sentencing proposals calling for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

Police Indemnification

Joanna C. Schwartz

This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions—through qualified immunity doctrine, municipal liability standards, and limitations on punitive damages—based in part on this assumption. Scholars disagree about the prevalence of indemnification: Some believe officers almost always satisfy settlements and judgments against them, and others contend indemnification is not a certainty. In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrines; civil rights litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.

Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States

Justin D. Levinson, Robert J. Smith, Danielle M. Young

Stark racial disparities define America’s relationship with the death penalty. Though commentators have scrutinized a range of possible causes for this uneven racial distribution of death sentences, no convincing evidence suggests that any one of these factors consistently accounts for the unjustified racial disparities at play in the administration of capital punishment. We propose that a unifying current running through each of these partial plausible explanations is the notion that the human mind may unwittingly inject bias into the seemingly neutral concepts and processes of death penalty administration.

To test the effects of implicit bias on the death penalty, we conducted a study on 445 jury-eligible citizens in six leading death penalty states. We found that jury-eligible citizens harbored two different kinds of the implicit racial biases we tested: implicit racial stereotypes about Blacks and Whites generally, as well as implicit associations between race and the value of life. We also found that death-qualified jurors—those who expressed a willingness to consider imposing both a life sentence and a death sentence—harbored stronger implicit and self-reported (explicit) racial biases than excluded jurors. The results of the study underscore the potentially powerful role of implicit bias and suggest that racial disparities in the modern death penalty could be linked to the very concepts entrusted to maintain the continued constitutionality of capital punishment: its retributive core, its empowerment of juries to express the cultural consensus of local communities, and the modern regulatory measures that promised to eliminate arbitrary death sentencing.

Reconciling Rational-Basis Review

Raphael Holoszyc-Pimentel

When Does Rational Basis Bite?

Traditionally, rational-basis scrutiny is extremely deferential and rarely invalidates legislation under the Equal Protection Clause. However, a small number of Supreme Court cases, while purporting to apply rational-basis review, have held laws unconstitutional under a higher standard often termed “rational basis with bite.” This Note analyzes every rational-basis-with-bite case from the 1971 through 2014 Terms and nine factors that appear to recur throughout these cases. This Note argues that rational basis with bite is most strongly correlated with laws that classify on the basis of an immutable characteristic or burden a significant right. These two factors are particularly likely to be present in rational-basis-with-bite cases, which can be explained on both doctrinal and prudential grounds. This conclusion upends the conventional wisdom that animus is the critical factor in rational basis with bite and reveals that other routes to rational basis with bite exist. Finally, this Note observes that applying at least rational basis with bite to discrimination against gay, lesbian, bisexual, and transgender individuals is consistent with the pattern of cases implicating immutability and significant rights.

Political Powerlessness

Nicholas O. Stephanopoulos

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determine whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on.

My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of “those political processes ordinarily to be relied upon to protect minorities.” Second, “those political processes” refer to pluralism: the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power— one that (1) is continuous rather than binary, (2) spans all issues, (3) focuses on policy enactment, and (4) controls for group size, and (5) type. These are precisely the elements of my suggested definition.

But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.