Empirical Legal Studies

"Bringing Methods to Our Madness"

There were earlier suggestions that we should have a new, more-welcoming motto.  I also received an email today where, after saying how she enjoyed our blog, the emailer wrote:  "[T]his is the worst motto I have ever heard. These guys are brilliant but tone deaf. "  Thus, I am pleased to announce our new motto:

www.elsblog.org -- Bringing Methods to Our Madness

 

Harcourt and Ludwig on Broken Windows

In the new issue of the University of Chicago Law Review (Winter 2006), Bernard Harcourt (Chicago) and Jens Ludwig (Georgetown) revisit James Q. Wilson's and George Kelling's classic Broken Windows argument. Here is the abstract:

In 1982, James Q. Wilson and George Kelling suggested in an influential article in the Atlantic Monthly that targeting minor disorder could help reduce more serious crime. More than twenty years later, the three most populous cities in the United States -- New York, Chicago, and, most recently, Los Angeles -- have all adopted at least some aspect of Wilson and Kelling’s theory, primarily through more aggressive enforcement of minor misdemeanor laws. Remarkably little, though, is currently known about the effect of broken windows policing on crime.

Long Voting Lines and How to Write a Publishable Paper

Two interesting articles in the new "PS: Political Science and Politics":

Long Lines, Voting Machine Availability, and Turnout: The Case of Franklin County, Ohio in the 2004 Presidential Election by Benjamin Highton

Publication, Publication by Gary King

Comparative and Transnational Courts

This semester I am teaching a seminar on judicial politics and behavior. It is, for the most part, one of the standard versions taught by people who primarly teach about and study American courts. Much too narrow, of course, given that it is a one semester class and structured largely by my own intellectual interests, background, and training. (I say this in the interests of full disclosure. My guess is that I don't do any better or any worse than most faculty in this regard.) But, it is a small seminar (with four advanced undergraduates, two first-year graduate students, and two second-year graduate students). The interests of the seminar participants are quite diverse. For example, two of the graduate students are primarily interested in comparative legislative institutions, one is interested in international relations, and one is interested in judicial politics, primarily in the American context but increasingly from a cross-national perspective). Accordingly, I modified my "standard" reading list to enhance the comparative courts readings and to add a section on transnational courts.

Our seminar discussions have given rise to several queries that I would like to pose here.

First, when is it appropriate to examine theories of judicial behavior in the context of,  for example, the U.S. Supreme Court or state courts of last resort and when is it more appropriate to do so in a comparative context (whether "comparative" is read as meaning comparison across several countries or as a single country study as long as that county is not the U.S.)?

Second, why is the literature on comparative courts (seemingly?) focused single-mindedly on the theory of separation-of-powers? Is that the only "judicial" behavior of interest in a comparative context?

Third, where do transnational courts (e.g., European Court of Justice) or quasi-courts (e.g., NAFTA's binational panels) fit in the study of judicial politics and behavior (or law & courts or public law or whatever your favorite rubric is)?

Data Availability: Protocols & Emerging Norms

As legal scholarship becomes increasingly empirical, legal scholars need to become more aware of and sensitive to relevant scholarly norms that inform empirical work.  One underexamined norm relates to expectations concerning data availability and the facilitation of replication.  Because replication is central to the empirical scholarship enterprise scholars owe some duty to facilitate replication by others.  Such a duty, of course, necessarily implicates access to data (and, as I discuss below, possibly to coding as well).  The nature, extent, and contour of that duty, however, are far from clear and, indeed, variation distinguishes various disciplines.  Two common scenarios illustrate some of the complexities and nuances.

One scenario involves publicly available data, such as those managed and archived by ICPSR at Michigan.  For legal scholars that use such data in published work, one obvious expectation (indeed, requirement) is to identify the specific dataset by its ICPSR number in a footnote (or table note).  However, is mere dataset identification enough?  For example, because some amount of data preparation and manipulation (e.g., collapsing, filtering, re-coding) is almost inevitable, should legal scholars also be expected to make available their coding?  Similarly, should table-specific coding be made available by authors?  To do so would reduce the burden on subsequent scholars enormously and facilitate replication, follow-up analyses, etc.

A second scenario is even more delicate as it involves original datasets generated by scholars and not publicly archived.  To be sure, it is difficult to overstate the effort necessary to develop a first-class dataset.  In light of a scholar's often consider investment of sweat equity and because quality datasets frequently support multiple articles, what obligations attach to scholars in terms of facilitating replication efforts by others?  On the one hand, a mechanical requirement to release the complete dataset, including data not yet published on (a "total disclosure duty" position), would likely deter dataset building efforts, at least at the margins.  At the other extreme, general scholarly norms would assuredly resist a "no duty to disclose" position as some amount of disclosure and data availability are necessary so that findings can be vetted and knowledge advanced.  To be sure, considerable middle ground separates these two polar positions.

I welcome thoughts and perspectives on how empirical legal scholars should resolve these (and related) issues and navigate through this uncertain and evolving terrain.

Why do Judges Dissent? - Part I

What factors influence judicial agreement versus dissensus--the choice to write a separate dissenting or concurring opinion?  A number of variables may play a role: Ideology, Collegiality, Trial Court experience (of interest to Martinek's earlier post), and the high costs of dissenting due to increased workload.  (See, e.g., Edwards 1998; Czarnezki/Ford forthcoming 2006; Benesh/Spaeth forthcoming; Hettinger/Lindquist/Martinek 2003).  While legal factors have not been shown to play a major role, there may be consequences between using directional vote versus agreement as the dependent variable.

In a work-in-progress with Bill Ford, we examine aggregate disagreement rates on four U.S. Courts of Appeals in an attempt to explain dissensus as a product of these above variables and more.   Below is a graph showing the overall dissent rates in the fours circuits since 1946.  Preliminary results as to what variables correlate with these rates are pending... stay tuned for Part II of this post.  (And if interested, the data will presented Sunday morning at the Law & Society conference in Baltimore for the panel "How Judges Make Decisions.")

2005 Federal Court Caseload Stats Now Available

See here.

Small Group Theory and Judging

Three and four decades ago, students of the courts such as Walter Murphy and S. Sidney Ulmer paid particular attention to how the group context shaped judicial behavior and court outcomes, drawing on the political and social psychology research of the day. However, contemporary scholars pay attention to the group context for appellate court decision making only to the extent that it provides an opportunity for strategic behavior. But judges, as human beings, are profoundly affected by the identities of those with whom they make decisions and the norms of the environments within which they make those decisions. I would argue that not all of those concerns are, strictly speaking, strategic in nature.

To illustrate, consider designated judges. The chief judge of a circuit has the authority to temporarily assign (designate) a district court judge from his circuit to serve as part of an appellate panel. According to data available from the Administrative Office of the Courts, designated judges account for upwards of twenty percent of all case participations in the United States Courts of Appeals. Though some of these designated judges are circuit court judges serving from other circuits, the majority are district court judges. A basic question is whether these designated district court judges are fungible with their circuit court colleagues or if their status as district court judges affects their ability to be fully equal partners in the deliberative process. Work that appears in Law & Society Review in 2001 by Brudney and Ditslear ("Designated Diffidence: District Court Judges on the Courts of Appeals") provides some insight into this question, as does earlier work by Thomas G. Walker that appeared in the American Journal of Political Science in 1973 ("Behavioral Tendencies in the Three-Judge District Court).

Think, too, about how the presence of a designated judge may affect the behavior of the regularly sitting appeals court judges with whom he sits. Much of the workload of the United States Courts of Appeals consists of cases appealed from the federal district courts. Do the regularly sitting appeals court judges reviewing a district court ruling in the company of a designated district court judge approach that review in the same way or do they suppress the error correction function inherent in the appellate court process in deference to their district court colleague?

I am intrigued by this line of inquiry precisely because it represents an empirical question the answer to which has important implications for a normative concern. (Or, if you like, a normative question to which empirical evidence can be brought to bear.)

A New Member of the ELS Blog

I'm pleased to announce that Sara Benesh has agreed to become a permanent Editor of the Empirical Legal Studies Blog.  As a Guest Blogger, Sara discussed the normative implications of empirical work, how to operationalize "the law", and the Supreme Court database. 

Sara is an Assistant Professor of Political Science at the University of Wisconsin-Milwaukee.  She received her PhD in 1999 from Michigan State University, held a tenure-track position at the University of New Orleans for two years, and joined the faculty at UWM in 2001.  Her research focuses on the relationship between the Supreme Court and the U.S. Courts of Appeals, and she is the author of “The U.S. Court of Appeals and the Law of Confessions: Perspectives on the Hierarchy of Justice” (LFB Scholarly) and co-author of “The Supreme in the American Legal System” (with Jeffrey Segal and Harold Spaeth, Cambridge University Press). She is also Co-PI (with Harold Spaeth) on the National Science Foundation-funded “Justice-Centered Databases,” a revision to the celebrated Spaeth Databases.  Sara teaches courses in civil rights and civil liberties, judicial behavior, and political methodology at both the graduate and undergraduate levels. 

Law and Courts Section Awards

Mark Graber, the chair of the Law and Courts section of the American Political Science Association, has announced the recipients of two awards:

The 2006 American Judicature Society Award for "the best paper on law and courts presented at the previous year's annual meetings" goes to Kevin McGuire and Georg Vanberg for their paper, "Mapping the Policies of the U.S. Supreme Court."

The 2006 C. Herman Pritchett Award for “the best book on law and courts written by a political scientist and published the previous year” goes to Peter H. Russell for his book, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (University of Toronto 2005).