In an attempt to set your expectations at the right level, I note that we don't actually answer the titular question. We think that this answer might be "yes," but we don't know.
This is a relatively short symposium piece that is designed to set the stage for a comparative empirical study of courts that might get us closer to an answer. The methodological obstacles to such a study are legion, but we are working through them because we are convinced that the results would be valuable. In any event, it may take us awhile to nail down the methodology, but in the meantime, we would appreciate your suggestions.
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