Luck of the Law

Applying new economics techniques to questions that the legal profession has been investigating for some time, Chicago law professor David Abrams has two clever papers that exploit the random assignment of judges to defendants, and lawyers to clients. Abstracts over the fold.

If anyone knows of an Australian court that properly randomises judicial assignments (not kinda-sorta-sometimes, but straight-out randomisation), then do let me know. There are plenty of open questions that this could help answer.

Do Judges Vary in Their Treatment of Race?
David S. Abrams and Marianne Bertrand
Does the legal system discriminate against minorities? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges systematically differ in how they sentence minorities, avoiding potential bias from unobservables by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.

The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability
David S. Abrams and Albert H. Yoon
One of the most challenging problems in legal scholarship is the measurement of attorney ability. Measuring attorney ability presents inherent challenges because the nonrandom pairing of attorney and client in most cases makes it difficult, if not impossible, to distinguish between attorney ability and case selection. Las Vegas felony case data, provided by the Clark County Office of the Public Defender in Nevada, offer a unique opportunity to compare attorney performance. The office assigns its incoming felony cases randomly among its pool of attorneys, thereby creating a natural experiment free from selection bias. We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year. While we find no statistical difference based on law school attended or gender, we find evidence that the public defender’s race correlates with sentence length, with Hispanic attorneys obtaining sentences that were up to 26 percent shorter on average than those obtained by black or white attorneys. We also find evidence suggesting that differences in sentencing may be driven partly by different plea bargaining behavior on the part of the public defenders.

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6 Responses to Luck of the Law

  1. Benjamin O'Donnell says:

    The Federal Court’s docket system is supposed to be genuinely random for first instance matters. Whenever originating process is filed, the Registry Clerk pulls a card from the top of the box for the relevant subject matter panel of judges. The judge on that card gets the case unless there is a conflict or some other reason why he or she might be removed later. The card is then put back at the bottom of the deck. They’re occassionally shuffled.

    At least, that’s the way it was supposed to work back when I was an associate there in 2000-2001.

  2. Sinclair Davidson says:

    The Victorian government appoints judges of random ability – so long as they have the correct political pedigree. There must be a study in that.

  3. Andrew Leigh says:

    Benjamin, I was told that the FC system involved a lot of discretion around (a) caseload, and (b) subject expertise. For example, if the categories were IP, tax and crime, then it would be simple – but I thought that the boundaries of those subject areas were somewhat vaguer. For example, judge A knows about drugs and copyright, judge B knows about trademarks and patents… and in the end it isn’t all that random. Or am I being too negative about the chances of such a strategy succeeding?

  4. Benjamin O'Donnell says:

    I think you might be being a bit negative. The system is not entirely random, but…

    The court divides itself up into panels – the tax panel, the IP panel, the native title panel, the industrial relations panel, etc and the “general panel” which consists of all the judges in the registry. Judges put their hands up to be on each panel, a judge can be on several panels or just one – or even no panels except the general panel.

    Each panel has a pack of cards. When a case comes in that is on the subject matter of the panel (identified by the filing party, but also sometimes identified by the registry staff), the registry staff pull the next card from the relevant pack and that’s the judge for that matter, from start to finish, including directions hearings, motions and the final hearing.

    If a matter is mis-allocated to the wrong panel, the judge will usually pick this up at the first directions hearing and send it back to the registry to get a judge from the right panel.

    If a matter is one that a judge has a legitimate reason not to do (e.g. conflict of interest, close to retirement and the case may take years, etc), he or she can either send it back to the registry to be randomly re-allocated or (more common) do a swap or hand it off to another judge.

    In some cases (rarely) a judge will have directions hearings or motions in a case in his docket heard by another judge. This sometimes happens on questions about the admissibility of evidence.

  5. Patrick says:

    Attorneys with longer tenure in the office achieve better outcomes for the client.

    Well, that’s something at least.

    I am afraid I agree with Sincs! But the Court of Appeal is mainly very good, and most of the criminal judges on the CC are, as well.

  6. Pingback: Two new studies on sentencing disparity and attorney performance | a public defender

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