Empirical Legal Studies

A Plug for the Economics and Sociology of the Legal Profession

I have really enjoyed my time here at the ELS blog. For my final post, I want to give a plug for what I hope will soon be a mainstream law school course and an important area of research for law professors: “The economics and sociology of the legal profession.” 

In 2004, I taught a course at Indiana entitled “The Law Firm as a Business Organization” (website and syllabus here.) In preparing the course, I discovered that the socio-legal literature—much of it empirical—is an inexhaustible supply of high quality materials for showing students (a) the economic and social structure of the legal profession, and (b) how it has changed, and will continue to change, over time. In short, existing social science can be used to help students make more careful, informed career decisions. Similarly, numerous alumni, several of whom visited my class, have expressed a strong interest in empirical work on lawyers. (Amidst the rapid pace of change, that should not be surprising.) With the aid of ELS, here is an opportunity for the academy to re-engage with the profession.

To further this agenda, I have organized an email list of approximately 100 scholars from a wide array of disciplines who have written in a field I dub “The Economics and Sociology of the Legal Profession.” This year, the list produced eight panels for the 2006 Law & Society Annual Meeting in Baltimore (July 6-9).  I hope many ELS Blog readers will be interested in attending.  Please contact me if you want to be added to the email list. Eventually, it may turn into a Law & Society Collaborative Research Network.

Location, Practice Setting, and Lawyer Salary

In 1982, Jack Heinz and Edward Laumann published Chicago Lawyers: The Social Structure of the Bar. Drawing upon detailed interviews of approximately 800 practicing attorneys, this book was a comprehensive analysis of the social structure of the Chicago bar. Its most famous finding was the “two hemisphere” thesis, which concluded that there were two distinct sectors defined by a lawyer’s clients: one serving organizational clients (primarily corporations) and the other providing personal legal services to individuals and small business.  The two hemispheres strongly tracked underlying divisions of race, ethnicity, law school pedigree, professional and social networks, and income. Further, they seldom overlapped.

Heinz et al.’s two-hemisphere theory is a theme that keeps cropping up in my economy geography of law firms research. Before getting to that, a bit more background is needed. Twenty years after Chicago Lawyers, Heinz and Laumann (with Robert Nelson and future ELS guest blogger Rebecca Sandefur) replicated their work using a new cross-sectional sample. The results were published last year in Urban Lawyers: The New Social Structure of the Bar (2005). Heinz et al. found that the division between corporate and personal services still existed, but the “hemisphere” appellation—as in “half”—no longer applied. Approximately two-thirds of Chicago lawyers served primarily corporate clients.

The change (between 1975 and 1995) was not the result of the personal services sphere shrinking—indeed, as the total number of personal services lawyers kept pace with the population growth of Chicago metro area. Rather, the large shift in favor of corporate lawyers appeared to be the result of a massive surge in the demand by corporate clients. In addition, between the first and second study, the corporate lawyers prospered economically while the average income (in real dollars) of personal service lawyers actually declined.

Thanks to Heinz et al., we have a fairly complete overview of the changes in Chicago. But to what extent are these findings representative of other part of the U.S.? The graph below provides some preliminary evidence.

Bressman & Vandenbergh on Presidential Control

Relying on data gathered from surveys and interviews of top political officials in the U.S. EPA, Lisa Schultz Bressman and Mike Vandenbergh (both at Vanderbilt) have written Inside the Administrative State: A Critical Look at the Practice of Presidential Control.   I saw this paper presentation at AALS in D.C. and it is well worth the read for those interested in presidential influence and accountability in agency decision-making.  The Abstract:

From the inception of the administrative state, scholars have proposed various models of agency decision-making to render such decision-making accountable and effective, only to see those models falter when confronted by actual practice. Until now, the presidential control model has been largely impervious to this pattern. That model, which brings agency decision-making under the direction of the President, has strengthened over time, winning broad scholarly endorsement and bipartisan political support. But it, like prior models, relies on abstractions - for example, that the President represents public preferences and resists parochial pressures - that do not hold up as a factual matter. Although recent empirical analyses purport to validate the model, they fall short because they examine how the White House exercises control without considering how agencies experience control. This Article is the first to study the practice of presidential control from inside the administrative state. We interviewed the top political officials at the Environmental Protection Agency from the George H. W. Bush and Clinton Administrations during 1989-2001. Our data, which do not vary substantially between respondents of different presidential administrations, suggest that White House involvement is more complex and less positive than previous accounts acknowledge. But we do not conclude that the presidential control model lacks merit. Indeed, our respondents recognize that the President has a role to play in controlling agency decision-making. We therefore conclude that the presidential control model requires reworking to remain valid in practice as well as in theory. We identify next steps in that direction.

Of Empirical Work & Law Reviews: A Cautionary Tale from Stephen Wasby

[The author of the following post is not me but former guest blogger Steve Wasby. He offered to discuss an unusual experience involving the publication of empirical work in a student-edited law review. I am posting it on his behalf. – Bill]

What follows is a cautionary tale, with potentially profound implications for those who conduct empirical legal research -- whether of a highly statistical sort or using less-high-powered statistics.

Perhaps many of us who have published in law reviews, or who have attempted to do so, are familiar with the vagaries of the process. In particular, some of us -- myself included -- have encountered difficulties when we have used sources (such as interviews or unpublished documents) with which the law review editors, and particularly their cite-checking minions (whom I now refer to as “cite-checking munchkins”), are not familiar. Sometimes the process goes well, particularly if an articles editor or the editor-in-chief had some social science training, but more often it is a PITA. Somehow, while we “cuss” to each other about it, we live through it.

What I am about to report may be a “one-of-a-kind” instance, and I am not able to determine the source of the “idea” I report. However, given the possibility that it will arise elsewhere, I thought the readers of ELS Blog would find the story interesting. If it is sui generis or a “sport,” so much the better. If we have managed to defeat this incursion, so much the better still.

NOTE: The name of the law review in question is not used in what follows, nor are the names of the other players. This is done because the point is the story, not a tar-and-feather job on any individuals. Some redactions therefore appear in quoted material.

ELS on the Cheap (i.e., without Graduate School)

In the short life of the ELS Blog, it appears that I am the first JD-only guest blogger. With the proliferation of JD/PhDs, some legal academics are probably intimidated by the social science credentials of many ELS scholars. When I first started doing empirical work, I was modestly embarrassed by my lack of formal training. Yet, I was in my mid-30s with a wife and child.  My one-year judicial clerkship was already a financial hardship on my family; graduate school was simply out of the question.

Therefore, if your life circumstances preclude graduate school in economics, sociology, political science, etc., here are some tips, based on my own experience, for doing ELS on the cheap:

1. Find and read social science that is relevant to your legal research

This sounds elementary, but most legal academics don’t do it. During my 3L year at University of Chicago, I took “Law and Social Science” with Gerry Rosenberg and Lisa Bernstein. After reviewing a draft paper that I hoped to publish after graduation, Gerry Rosenberg banished me to the UC main library: “There is a whole social science literature on this topic.” Gerry was right.

After my article was published (here), several legal academics praised me for the social science component. In fact, it was nothing more than plying some solid library skills in the UC main library. To this day, I remain convinced that it is possible to build a respectable career in legal academia just by running a simple arbitrage between legal topics and relevant social science literature. (Proviso, be thorough or don’t do it.) Of course, it is possible to do more than translate between disciplines.

At an ABF function earlier this year, Stewart Macaulay, an early empiricist and one of the founders of the Law & Society movement, offered some good advice to J.D.’s interested in empirical work: “You can learn a lot about social science methodology by studying the methods of other studies related to your topic.”  Simple and powerful advice.

2. Apply for a grant

Empirical research is time-consuming and expensive. Fortunately, several foundations exist to mitigate this burden. Therefore, if have an empirical project, apply for research support through a grant.

Source for Various State-Level Data

For an interesting web-based interactive source for various state-level data, see StateMaster.com.  A self-described "unique statistical database which allows you to research and compare a multitude of different data on US states. We have compiled information from various primary sources such as the US Census Bureau, the FBI, and the National Center for Educational Statistics."

At the risk of unduly dashing anyone's hopes, however, I want to emphasize that the site only provides quick-and-dirty cross-sectional aggregate summary data, by state, and not (regrettably) direct access to actual raw data.  All of the few trial runs I just performed, however, do include helpful footnotes identifying sites to the critical primary sources of raw data (some hot-linked).  Thus, even if you have no use for descriptive summary data, the site might lead quickly you to more helpful primary data sources.

Divergence between Corporate and Law Firm Economic Geography

The 2006 Fortune 500 was released a couple of weeks ago, and Fred Tung at Conglomerate has some interesting comments on the geography of the new list.  For the last several months, I have been collecting and analyzing data for a project on the economic geography of the Am Law 200.  Since Fortune 500 (or 1000) companies are the principal clients of Am Law 200 firms, Fred's posting got my attention.  In fact, there is a significant divergence between the economic geography of large law firms and large corporations.

Referencing the print version of Fortune, Fred notes that “that Texas for the first time is home to more Fortune 500 headquarters than any other state.”  This is consistent with a recent study by the Centre for Economic Policy Research (CEPR), "Why and Where Do Headquarters Move?", which documented several significant findings:

• Between 1996 and 2001, there was a net outflow of corporate headquarters from the largestU.S. metropolitan areas (New York City, Los Angeles, San Francisco).

• Net winners tended to be low corporate tax, low average wage cities with good airports (i.e., airline hubs with many direct flights), concentrations of other corporate headquarters in the same industrial sector, and high levels of business services—which means, among other things, capable corporate lawyers.  Sun Belt cities, such as Houston and Phoenix, gained the most.

• Despite a net outflow of headquarters from the largest—and most expensive—MSAs, the top 5 and top 10 metro areas, excluding New York City, garnered a slightly larger proportion of corporate revenues during the 1996-2001 observation period.  In other words, companies with the largest absolute growth in revenues tended to locate or remain in major markets. 

The New York CMSA, which lost both HQs and proportion of revenues, was characterized by the authors as “a declining dominant center.”

How Lawyers and Political Scientists think about Law?

Sara has already discussed some of the papers from the MWPSA Meeting here.  However, I was impressed by how the different perspectives of the two disciplines (law and political science) led to discussion of any number of interesting issues, some of which we (the law professor and the political scientists) lacked consensus on.  Here's a sampling:

(1) Can every judicial vote be coded in terms of "liberal" or "conservative"?  Takings cases?  Economic cases?  Copyright cases?...  Is the conservative decision to protect private property or promote competition?

(2) What is the best way to determine if a case is "statutory" or "constitutional"?  For example, is the decision about the jurisdictional scope of the U.S. Army Corps of Engineers regulation of wetlands a Clean Water Act issue or a Constitutional Commerce Clause issue?   See, e.g., SWANCC; Rapanos; Carabell.  It's likely both, so how should we code the case or take this into consideration in any empirical analysis?

(3) What should we do with "unpublished" versus "published" opinions?  When does the distinction matter?  Do judges behave differently in writing unpublished opinions?   One might say these opinions are more honest reflections of judicial interpretive philosophies because there is no need to cater to other audiences who won't cite the decision... but maybe the law clerk just wrote it.  Though maybe the judge treats an unpublished opinion like all others because it is still very persuasive authority, and the decision not to publish was because the judge thought the topic wasn't that interesting or important.  Maybe it depends on circuit rules on the citation of unpublished opinions.

If anything these questions and the conversations at MWPSA made clear to me that there are many points were the practice of law and legal training must meet social science methodologies.  It is at these points where political scientists and law professors must step up their discourse and even consider engaging in co-authored work.

Citing Foreign Law

Sill (LSU) and Routh (Cal State Stanislaus) gave an interesting paper at MWPSA on citations to foreign law in Supreme Court opinions.  (If that link doesn't work, try this one or go to the MWPSA site and do an author search, here.)  Of particular interest is their finding that Scalia is significantly more likely than many of the other justices to invoke foreign laws in the majority opinions he authors.  I would guess that most of those are to old English laws (they're working on categorizing the citations), but still, the findings are interesting.  (They also find that the justices reference foreign law more often in criminal rights cases and to reach liberal outcomes, but both Scalia and Thomas are more likely than the baseline to cite to foreign law (as are Ginsburg, Souter, and Stevens).)  Anyway, the reason I'm bringing this to your attention is that this is an important legal debate that, until now, has not been subjected very often (to my knowledge) to empirical analysis.  Anyone interested in discussing the findings?  (London (Pitt) conducted a related analysis of citations to foreign law by the Canadian Supreme Court.)

Case Studies & Empirical Scholarship

For a discussion of Case Studies and Empirical Scholarship, see here.