Empirical Legal Studies

ELS "has hit the world big time"

The Empirical Legal Studies Blog has now been identified by the Law & Society Association as the place to go to learn about the Empirical Legal Studies Movement.  See here.  (The Blog plug is on page 3, while the article about the rise of the ELS movement in law schools starts on page 2.)

Coping with the “Petty Tyranny” of IRBs

Edward Abbey quipped that “No tyranny is so irksome as petty tyranny.” But, rather than fighting or railing against the system, my final post this week invites discussion on coping with IRBs. My prior post, and Jack Katz’s, talked about claiming exemption and when it’s safe to not even file. This post focuses on the “minimal risk” threshold. Below it, protocols may qualify for expedited review and waiver of formal consent, but beware ye who pass above it.

Richard Campbell, member of a now-defunct advisory committee, offers this excellent analysis: the Common Rule defines minimal risk as “not greater than those ordinarily encountered in daily life.” This should mean the sort and magnitude one encounters working, shopping, driving, or having a doctor’s check-up, which includes temporary or low-grade harms such as stress, anger, embarrassment, stubbed toes, paper cuts, etc. Campbell notes that risk of even disastrous harm meets the “everyday” standard if it’s fairly rare, such as an auto accident.

Building on the transportation example, Bill Ford articulated the absurdities of regulating car driving risks as we do research risks. It’s easy enough to point out differences between the two that justify regulating one but not the other. But the key point is to match the type of regulation with the degree of risk. Ford’s absurd example of filing route plans before driving is in fact how general aviation is regulated by the FAA (more or less) - which makes sense for its degree of risk. Similarly, the Common Rule, as written, could limit and modulate IRB oversight appropriately - if only IRB administrators could be convinced. In response to Ron Wright, perhaps that’s what law professors should be trying to do. 

ECPR Summer School in Methods and Techniques

There is a new annual summer methods program to add to the mix, this year at the University of Ljubljana in Slovenia.  The dates for this year are August 7 – 18th.

Here is the pitch:

[The program] is targeted at advanced students (Master, beginning Ph.D) and junior researchers in political science and sociology, but students from all social and behavioural sciences are most welcome.

The aim of the summer school is to provide methods training opportunities in addition to MA and PhD curricula at European universities and to foster debate, interaction, and mutual understanding between various methodological perspectives at an early stage in academic careers. The curriculum covers introductory and intermediate courses in both quantitative and qualitative methods, and also features some plenary lectures and debates, so as to increase alertness of young researchers to other methodological perspectives and possibilities.

The 10 parallel courses offered in 2006 are:

1. Basic Statistics

2. Mathematical Concepts and Formal Modeling

3. Expert Interview

4. Cross-National Survey Design and Analysis

5. Multivariate Regression Analysis

6. Interpretive Methods

7. Quantitative Textual Analysis

8. Systematic Comparative Methods

9. Comparative Historical Analysis and Case Study Design

10. Network Analysis

And here is the link to the website and to the brochure.

Fun with Data II

I earlier posted about using data to write shorter, light-hearted or more accessible pieces.   If you're interested in another, I have written The Dubitante Opinion.  The Abstract:

"The 2004 Term of the United States Supreme Court resulted in 203 full opinions written, including 61 concurrences and 63 dissents. Judicial use of these three basic opinion types, the majority, concurring and dissenting opinions or variations thereof (e.g., concurring in part and dissenting in part) has been the norm in the Court and lower federal courts over recent decades. Yet, another type of opinion exists - the dubitante opinion. Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short Essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion - What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of its use? "

(FYI: The essay is only 7 pages long.)

Empirical Research on Administrative Law

See here.

An IRB Forum not on this Blog

Melissa Lauritch writes:

"I'd like to alert you to a great website called IRB Forum (http://www.irbforum.org), which basically covers everything IRB. You can access the discussion topics by registering on the site (it's free). You can sign up for the discussion e-mails (I must warn you though, you will be bombarded with e-mails) or you can simply browse or search the discussion topics online. I don't recall any discussion threads regarding law professors and IRBs, but I'm sure if you post a question you'll receive a number of helpful responses. Many of the frequent responders are extremely knowledgeable about IRB matters. "

Law School Affirmative Action Studies

Contributions to the growing empirical debate about the impact of law school affirmative action, triggered by Richard Sander's 2004 study (57 Stan L Rev 367), include a recent working paper by Lempert et al., which can be found here.  In it, the authors reanalyze the datasets used by Sander in his original study and respond to Sander's previous reply. For those interested in the necessary background reading, the Stan L Rev (57:6, May 2005) contains a comprehensive set of the initial responses and replies.

Putting Lawyers into the IRB Mix

Most legal academics at most law schools have never submitted research proposals to an IRB. Most, I would guess, have no idea that their research probably falls within the asserted jurisdiction of the IRB on their campus.

If this benign (?) neglect disappears over the next few years -- as I think it will at many universities -- what will be the effects on practices in law schools, and what will be the effects on IRB practices? I have a prediction on the second question.

Based on other interactions between the university administration and the law faculty, I'm betting on some healthy turmoil. When the pension fund administrators at the university make claims and suggestions about personal and university investments, the law faculty start talking about securities fraud. When the university administration wants to "manage" the message coming from the college radio station, the First Amendment mavens at the law school get lots of air time.

The point is that law faculties, as a whole, have a reputation on many campuses for pushing back against assertions of administrative authority. They are feisty, even contentious. Other groups of faculty might prove just as feisty, but the law faculty neutralize one favored administrative technique -- claims about the law -- that work as debate-stoppers when it comes to other faculty groups.

I think this dynamic will hold true to form when law faculty start interacting with IRBs in larger numbers. When an IRB makes an overly broad assertion of power, based on its reading of the regulations, a lawyer is more likely than a biologist or a sociologist to reject the current way of doing business and propose something different. If, as Jack Katz mentioned in his recent post, an IRB sees its mission as preventing research that could provoke some legal claim against the university, a legal researcher will be pretty vocal in pointing out the weaknesses of such a civil claim. And what does prevention of long-shot civil claims have to do with the Belmont principles?

If you chaired an IRB, wouldn't you quietly hope that legal academics remain in a gray area of possible non-compliance, just for the peace and quiet? 

Outside of Biomed Research, IRBs are Essentially Censorship Agencies

Like many ethnographers, I often do my research by putting myself in places and relating to people without a very clear idea as to what I’m looking for.  Even when I have a clear idea, like when I’m going to interview someone about their life in a neighborhood, I’ll see things on the way there and back that may be more valuable than what I find out when my questions get answered.  Much of my fieldwork becomes “data” in retrospect.  This makes it impossible to clear much of my research beforehand with an IRB.

To different degrees, many social researchers, not just anthropologists but political scientists and many others who would create “generalizable knowledge” and thus fall within IRB jurisdiction, work this way.  So do law professors, as entries on this blog have already acknowledged.

This means we are all vulnerable to attack for violating the rules in our universities or colleges. There are ways of limiting our vulnerability; I’ve detailed some in a paper that’s part of a collection currently being considered by an anthro journal.

Hiring PhDs

Jason mentioned here the possibility that more and more law schools will be hiring PhDs as law professors.  Conglomerate has discussed the possiblity that law schools might even begin to pay for PhDs for its faculty.  Amid all this discussion, though, I began wondering (as did Michael here and a commentator at Conglomerate here) whether it is advisable for law schools to seek out PhDs in their hiring and thought it might be worth bringing up again for more discussion.  Is hiring PhDs in law schools useful/advisable/desirable?  Are only certain law schools (e.g., those that are most likely to produce legal scholars rather than practicing attorneys) served by PhD faculty?  Does it make sense to hire PhDs who teach empirical legal studies at a law school primarily concerned with training lawyers?    Do lawyers need knowledge of empirical social science and how best to conduct it?  Just curious what the legal scholars' take is on this issue.  We PhDs are certainly noticing (not only because of the pay raise it would inevitably entail!).