David V. Yokum

The Novel New Jersey Eyewitness Instruction Induces Skepticism but Not Sensitivity

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. Although courts have only recently begun to react to this evidence, the New Jersey judiciary has reformed its jury instructions to notify jurors about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of alternative lineup procedures, including blinding of the administrator. This experiment tested the efficacy of New Jersey’s jury instruction. In a 2×2 between-subjects design, mock jurors (N = 335) watched a 35-minute murder trial, wherein identification quality was either “weak” or “strong” and either the New Jersey or a “standard” instruction was delivered. Jurors were more than twice as likely to convict when the standard instruction was used (OR = 2.55; 95% CI = 1.37–4.89, p < 0.001). The New Jersey instruction, however, did not improve jurors ability to discern quality; rather, jurors receiving those instructions indiscriminatingly discounted “weak” and “strong” testimony in equal measure.

Psychological Obstacles to the Judicial Disqualification Inquiry, and Blinded Review as an Aid

Judges must disqualify themselves from hearing a case, not only if actually biased, but also if their “impartiality might reasonably be questioned.” At present, the judge in question rules on whether the standard is satisfied. This chapter argues that accurately diagnosing when ones “impartiality might be reasonably questioned” is an exceedingly difficult cognitive task—so fraught with error, in fact, that procedural reforms are required—and that blinded, third-party review provides such an institutional solution. I first review the law of disqualification and then the psychology behind diagnosing bias and, in particular, how it poses obstacles for proper application of the disqualification standard, even by judges of the highest caliber and the best of intentions. I conclude by proposing and assessing an institutional solution, namely, the use of blinded disqualification review (“BDR”). Under BDR, disqualification motions are automatically transferred to a third-party judge, who assesses the motion under a single- or double-blind (the former is advocated here, for practicality reasons). In theory, BDR should (1) increase the objectivity of the reviewer and (2) enhance the perceived fairness of the procedure. These are empirical claims, which could and should be tested.

Methodological Appendix for: 'A Randomized Experiment of the Split Benefit Health Insurance Reform to Reduce High-Cost, Low-Value Consumption'

This is the methodological appendix for the paper A Randomized Experiment of the Split Benefit Health Insurance Reform to Reduce High-Cost, Low-Value Consumption, by the same authors: http://ssrn.com/abstract=2545503

Scrutinizing Strict Scrutiny

Standards of review dominate personal liberties practice, and we must take them seriously if we heed calls to take (constitutional) lawyering seriously. Standards are poorly articulated and undertheorized. They must be properly fashioned by exploring and reconciling the logic and purpose of each of their components. We do this with strict scrutiny both to energize an important standard of review and model a proper approach. Our analysis is primarily within the context of higher education affirmative action cases because they typify the ambiguity of strict scrutiny; one such case – Fisher v. University of Texas at Austin -- could return to the Court next term.We derive a preferred articulation of strict scrutiny with six achievable but rights-protective requirements. Strict scrutiny is especially energized by separating its “ends question” about compellingness from its “means question” about interest advancement. Then state interests are compelling only if of a special nature, analogous to requiring fundamental rights to have special attributes irrespective of any intrusion.The preferred version of strict scrutiny is applied to Fisher, which involves a university program that considers race as one diversity factor combined with a top ten percent law. Our contrarian conclusion is that the law is unconstitutional, but that the Court should save the university program by severing it from the law. It is contrarian because most authorities - whether invoking an anti-subjugation, anti-classification, or antibalkanization perspective -- accept supposedly racially neutral top ten percent laws. We invoke a nuanced conception of antibalkanization applicable in Fisher’s unique circumstances. Our conclusion is also based on a rich conception of academic freedom with two complementary aspects that place it at the foundation of freedom of speech. These aspects combine to protect universities from external impositions such as the Texas law, allowing them to accommodate diversity and demonstrated academic capacity.

A Randomized Experiment of the Split Benefit Health Insurance Reform to Reduce High-Cost, Low-Value Consumption

Traditional cost sharing for health care is stymied by limited patient wealth. The “split benefit” is a new way to reduce consumption of high-cost, low-value treatments for which the risk/benefit ratio is uncertain. When a physician prescribes a costly unproven procedure, the insurer could pay a portion of the benefit directly to the patient, creating a decision opportunity for the patient. The insurer saves the remainder, unless the patient consumes. In this paper, a vignette-based randomized controlled experiment with 1,800 respondents sought to test the potential efficacy of the split benefit. The intervention reduced the odds of consumption by about half. It did so regardless of scenario (cancer or cardiac stent), type of split (rebate, prepay, or health savings account), or amount of split (US

The Effect of Blinded Experts on Juror Verdicts

5,000 or US

Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments

15,000). Respondents viewed the insurer that paid a split as behaving fairly, as it preserved access and choice. Three-quarters of respondents supported such use in Medicare, which did not depend on political party affiliation. The reform is promising for further testing since it has the potential to decrease spending on low-value interventions, and thereby increase the value of the health care dollar.