I spend most of my time working on criminal law issues, and perhaps that greatly colors my thinking. But I've been wondering lately if we pay too much attention to the federal system.
First, if the answer is "yes," it is certainly not a problem limited to ELS. My gut feeling is that (almost) all of law suffers from a federal bias. Certainly criminal law does. Despite the fact that the federal system holds only 10% of the nation's inmates, it surely receives well over half of the non-empirical scholarly attention, most likely signficantly more than half (though I don't want to say more than that, since it's probably bad form on a blog about empirical work to throw in unsubstantiated guesses based on little more than anecdotes and gut instinct). Already, for example, it seems like Booker is receiving more attention than, or almost equal attention as, Blakely, even though the latter is more important and more far-reaching.
But I feel like this is likely the case in other areas as well. My impression is that much more is written about the behavior of federal judges (the Supreme Court in particular) than state judges, that many more pages have been dedicated to interest group behavior at the federal level than at the state, and so on. Which leads me to a series of questions:
1. First, is my perception right? Is too much empirical work focused on the federal system? I guess first I'd have to define what "too much" is. A simple mathematical ratio might be too crude -- since 10% of all criminal sentences are handed down by federal courts, should only 10% of the empirical work on sentencing focus on the federal system? That can't be the right way to think about it. It also depends on influence: for example, maybe it makes sense to focus on the behavior of US Supreme Court justices more than state supreme court justices because the US Supreme Court opinions have more weight. But I wonder about that: do they? Certainly, on the particular issue addressed, the Supreme Court's opinion is dominant. But as we go about our daily lives, which has more of an effect on what we can or can't do, state or federal opinions? More generally, which have a greater quotidian role, state or federal legal outcomes?
But even if we could in theory develop a metric of percent-of-cases weighted by importance-of-cases and found that research was slanted towards federal outcomes, that's not necessarily a problem. Which brings me to my second question:
2. How comparable are federal outcomes to state outcomes? If we expect behavior to be similar in both situations, then maybe it doesn't matter which we study. But I'm skeptical of that claim. Interest group behavior in the states can't be the same as at the national level: states are more financially constrained; their budgets are allocated in different proportions; different groups are going to wield influence in different states due to variations in industry, location, or environment; legislatures vary in professionalism and makeup; and so on. Or consider judicial behavior. Federal judges have life tenure and, also importantly, are drawn from a significantly different pool of possible applicants, and it seems likely that they would correspondingly behave in systematically different ways.
Certainly in the criminal context, federal results shed, I think, very little light on state outcomes. Federal jurisdiction is limited, the US Attorney can cherry-pick cases, and the BOP's share of the federal budget is nominal. Plus, seemingly even post-Booker, federal sentencing looks nothing like state sentencing, even as many state sentencing regimes are quite similar.
So if there is "too much" focus on the federal system and if federal results do not extrapolate easily to state outcome -- both of which, of course, are empirical claims that require proof -- then I have a third question:
3. Why? Is it just a bias that comes from law school, which often has a strong federal focus? Or, and this is the answer that could be more likely and is to me much more troubling, is it a matter of data? When I compare the data the US Sentencing Commission and FJC collect on federal criminal cases and compare it to the state-level sentencing data that I troll around in, I think my skin physically takes on a green hue. Is this the case in other areas as well?
And is the problem actually collection and availability (some states have almost no reporting requirements for state interest groups, making it close to impossible to compile meaningful data for those states)? Or is it consolidation? It's tough to track the legal changes occuring in 50 states, to gather data from all 50, and then to try to merge data gathered using different definitions, reporting procedures, and so on.
If the problem is the former, no easy solution presents itself, short of lobbying for greater data collection or trying to gather the data "by hand" in some way. But if it's the latter -- if the data is out there, but it's hard to collate and messy and time-consuming to use -- what are the implications?
So I guess to collapse all this to a series of simple questions, I'm really curious:
1. Do we focus "too much" on federal outcomes?
2. If we do, does this mean that we are not developing results that explain either the impact of or the forces behind the legal changes that actually play a bigger role in people's lives?
3. If so, how can we rectify this? In particular, if it's a problem of data availability, how can we get the numbers we actually need?