One would hope that the now-more-common collaboration between Political Scientists and Law Professors would result in the increased ability of Political Scientists to "take the law seriously." Empirical Legal Studies should certainly have as at least one of its foci the empirical study of the extent to which law matters or the extent to which law constrains judges. Some political science scholarship and some legal scholarship has begun to address this issue. I'd like to point out what we know in order that we might fruitfully discuss where to go from here. How can one take something as nebulous and multifaceted as "the law" and operationalize it so that its effects might be quantitively studied? While one anonymous reviewer has suggested to me that the debate between "the legal model" and "the attitudinal model" is a tired one, it is certainly not the case, it seems to me, that we are even close to knowing all we need to know about the effects of the law on judicial decision making at all levels. The following sketches out what some political scientists have offered as ways in which to test the influence of law. How have they done? How could we do better?
I've noticed a recent spate of empirical papers assessing med
mal, especially studies endeavoring to examine potential impacts flowing from
various state tort reforms, drawing on the National Practitioner Data Bank Public
Use Data File ("NPDB"). The
Department of Health and Human Services ("HHS") maintains this data file in accordance with the Health Care
Quality Improvement Act of 1986. Since September 1, 1990, laws require
that (with some exceptions) all medical malpractice payments must be reported
to HHS within 30 days of payment. Like any other
database, however, NPDB is far from perfect. For example, NPDB records do
not satisfactorily include the individual characteristics of each case (e.g.,
injury severity, plaintiff age, physician specialty, etc. are either not or
poorly reported). Data file limitations aside, those interested in this literature can get more info on the NPDB here.
This week's guest blogger is Sara C. Benesh. She 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. Professor Benesh teaches courses in civil rights and civil liberties,
judicial behavior, and political methodology at both the graduate and
The upcoming issue of The Journal of Politics (May 2006) will include several articles in the law and courts field. It will also include a new study by Simon Jackman and Paul Sniderman on the effects of deliberation, which remains a popular topic among both political scientists and law professors. (They conclude that at least in one sense, "deliberation is for naught.") Manuscripts of most of the articles are available on the JOP website. Here are the abstracts:
One hundred fifteen law students were given a mock brief with identical legal
arguments on both sides of a standing dispute in litigation involving
restrictions on political expression of public employees. The content of the
expression at issue (pro-choice vs. pro-life) and the jurisdiction where the
case was pending (with vs. without controlling authority on the standing issue)
were experimentally manipulated. Participants' policy views on (1) abortion, (2)
free speech and (3) Hatch Act restrictions were measured to assess their
influence on the standing decision. In line with traditional notions of legal
reasoning, participants were able to separate their views on Hatch Act
restrictions from the standing decision. Opinions on free speech, however,
influenced judgments consistent with attitudinal hypotheses. Also, participants’
opinions on abortion interacted with speech content to influence judgments – but
in a manner not wholly consistent with legal or attitudinal accounts of
I appreciate Todd Peppers’ and Artemus Ward’s responses to my post. But I didn’t say (or mean) that "the journalists are spoiling it for the academics." Rather, I think that most law clerks make no distinction between journalists and academics when deciding whether and how to respond to requests for information. It’s not a distinction I’ve considered myself until now. And to be honest, I remain unpersuaded that it’s the right distinction to make. The fact that academics are less likely to achieve fame and fortune as a result of their work, for example, than are journalists or muckrakers does not persuade me that law clerks should talk to them more freely. Nor do I believe that it is necessarily true that "both clerks and justices have nothing to fear from us poor, dull, eggheads." Although I have not yet read Artemus’ forthcoming book (other than the introduction, which he very kindly shared with me last fall), the press accounts I have seen (those pesky journalists again!) suggest that it is critical of the role of law clerks and Justices’ dependence on them. It may or may not turn out to be a best-seller, but it also is unlikely to reassure those skittish research subjects that there are no downsides to participating in academic work.
It’s interesting to me that, as Todd Peppers says, he “ha[s] worried less about low response rates than responses from law clerks who downplay their job responsibilities while exaggerating their employer’s intellectual abilities and moral virtues.” Certainly that’s a problem for survey research, not just surveys of Supreme Court law clerks, but in general. One challenge of surveys is that many people won’t participate. Another challenge is that people who do participate may not give objective responses.
It’s a problem faced both by academics and by journalists. Books like The Brethren and Closed Chambers were criticized as based on information from law clerks who allegedly exaggerated their roles. Now Todd expresses concern that law clerks may have understated their roles. Both cases lead me to question whether maybe we should be trying to find other ways to gather information than surveying law clerks.
In the new issue of the American Political Science Review (Feb. 2006), Timothy Johnson (University of Minnesota), Paul Wahlbeck (George Washington University), and James Spriggs (U.C. Davis) address "The Influence of Oral Arguments on the U.S. Supreme Court." Here is the abstract:
We posit that Supreme Court oral arguments provide justices with useful
information that influences their final votes on the merits. To examine
the role of these proceedings, we ask the following questions: (1) what
factors influence the quality of arguments presented to the Court; and,
more importantly, (2) does the quality of a lawyer's oral argument
affect the justices' final votes on the merits? We answer these
questions by utilizing a unique data source—evaluations Justice
Blackmun made of the quality of oral arguments presented to the
justices. Our analysis shows that Justice Blackmun's grading of
attorneys is somewhat influenced by conventional indicators of the
credibility of attorneys and are not simply the product of Justice
Blackmun's ideological leanings. We thus suggest they can plausibly be
seen as measuring the quality of oral argument. We further show that
the probability of a justice voting for a litigant increases
dramatically if that litigant's lawyer presents better oral arguments
than the competing counsel. These results therefore indicate that this
element of the Court's decisional process affects final votes on the
merits, and it has implications for how other elite decision makers
evaluate and use information.
Conducting Empirical Legal Scholarship Workshop, May 22-24, 2006. See here.
The Conducting Empirical Legal Scholarship workshop is for law school faculty interested in learning about empirical research. The workshop will be co-taught by Lee Epstein (soon-to-be at Northwestern University School of Law) and Andrew Martin (Washington University School of Law). The workshop is co-sponsored by the two schools, and will be held May 22-24, 2006 at the Northwestern law campus. The course provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop.
There will also be an advanced workshop this fall on the Washington University campus for the alumni of this introductory workshop and interested others. This workshop is still in the planning stages; we will post more information when the details are set.
I’d like to follow up on Professor Shapiro’s comments about the duty of loyalty that law clerks feel towards their justices. She writes: “At its strongest, this ethic of loyalty encompasses a belief that the law clerks should never be complicit in presenting the Court in a negative light,” adding “[t]here is no breach of loyalty, no betrayal, in making the Court and the Justices look good.” The question I would like to pose - what if a justice, or the Court itself, merits the harsh spotlight of public examination and censure? And what are the unanticipated effects of this duty of loyalty on data collection?
Following up on Carolyn Shapiro’s excellent post, where she points out that “the journalists are spoiling it for the academics,” I want to continue my very serious argument that there is a major difference between the two, that it is easily recognizable, and that both clerks and justices have nothing to fear from us poor, dull, eggheads. I can understand Carolyn’s point about the Greta Garbo defense for the elect and their bosses who don’t have time or patience for us. However, I urge them make time because they are the practitioners who know far better than we do about how their institution functions and what might be done to improve it.