Empirical Legal Studies

Empirical study linking economics training to higher income as lawyers

Josh Wright over at Truth on the Market links to a study that I have heard about (and been skeptical of), but had not yet seen in print:  “Do Economists Make Better Lawyers? Undergraduate Degree Field and Lawyer Earnings.”  The comments float some rival hypotheses.  In the hope of seeing a novel research design, I am adding this paper to my summer reading pile.

One reason why I am interested in this topic is that labor markets for new lawyers appear to follow a pretty simple pattern:  higher paying jobs go to students with higher grades from higher ranked schools.   (For evidence that geography also plays a key role, see Henderson & Morriss (2006)).  I know of only limited anecdotal evidence that employers are willing to forgo school rank or grades for specialized substantive training (e.g., I have heard persuasive accounts from two law profs that employers will dig a little deeper into the class during OCI for students who completed a business law certificate program; another example is the $15K bonuses being paid at some firms for JD/MBA grads). 

Imagine how the law school universe would be turned on its head if it could be shown empirically that individual law schools, through a well-designed curriculum, added sufficient enhancements in human capital that prestigious employers would trade down a few notches in USNWR (which correlates at .90 with median LSAT scores) to hire those graduates.  If anyone has additional anecdotal evidence on this issue, please post a comment.

Wiener on Lott v. Levitt

Today's issue of the L.A. Times includes an op-ed piece on Lott v. Levitt by Professor Jon Wiener of U.C. Irvine's history department. (Credit to Deltoid and Kevin Drum for earlier postings.)

Courts Serving Party Coalitions

It is not uncommon for legal scholars to conceptualize courts as acting in opposition to politics -- as restraining or checking the exercise of power.  On this view, it is reasonable to assume that, in most cases, the exercise of judicial power comes at the expense of other power holders.   

Over the last few years a number of scholars, working under the rubric of a "regime politics" approach to the study of courts, have flipped this assumption in order to explore how much of the behavior of judges -- and (for that matter) how much of the development of law -- can be explained if we assume that courts often serve what Robert Dahl once called the "dominant governing coalition" of a polity (see "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," Journal of Public Law 6 (1957): 279–295).  It is a starting point that is also consistent with Martin Shapiro's argument (developed in his book Courts:  A Comparative and Political Analysis, among other places) that we should think of courts as inevitably constructed to advance the interests of the regime with which they are affiliated.   (All of this is premised on the assumption that the staffing and jurisdiction of courts is typically controlled by other power holders who are not exclusively motivated by concerns about competence and integrity.)

What roles might courts play in promoting the political agenda of dominant governing coalitions? 

Law and Strategy

Arriving in the mail this weekend -- the brand new co-edited volume by Ronald Kahn and Ken I. Kersch, The Supreme Court and American Political Development (Kansas).  Congrats to Ron and Ken.  (Full Disclosure:  I have a contribution in the volume; despite that, they still deserve the kudos.)  It's highly recommended to anyone interested in exploring so-called "APD" approaches to the study of the Court. 

One brief shout-out that might be especially relevant to readers of this blog:  those of you with an interest in debates about "attitudinal v. strategic v. legal" approaches to Supreme Court decision making will want to read Mark Graber's chapter, entitled "Legal, Strategic, or Legal Strategy:  Deciding to Decide during the Civil War and Reconstruction."  Among other things the chapter calls into question the view that Ex parte McCardle is best understood as a strategic retreat.  More generally (to quote his last sentence), Graber tries to show that "the most fruitful investigations will explore the ways in which legal, strategic, and attitudinal factors interact when justices make decisions...."

Empirical

Michael Klarman is a legal historian who likes to explore the kinds of questions that political scientists ask about the Supreme Court.  In his extraordinary book From Jim Crow to Civil Rights he addresses a topic that has been dear to the hearts of many judicial behaviorists:   are Supreme Court decisions motivated by legal considerations or by non-legal considerations, such as the justices' personal attitudes or other political calculations?  When behaviorists take on this question they begin by developing measures of law and judicial attitudes (e.g., see here and here).  Klarman opted for an in-depth case study (see also his draft essay here).

Specifically, he identified the justices who participated in Brown v. Board of Education and collected evidence regarding their personal, political, and legal views on segregation.  Not surprisingly, Klarman found that many of the justices who personally considered segregation to be immoral also adopted legal positions that treated segregation as unconstitutional.  In some cases the data were ambiguous, and the best Klarman could do was offer informed speculation -- for example, as to whether Cold Warriors Burton and Minton (who had not previously exhibited support for the active judicial protection of civil rights and liberties) sincerely believed that segregation violated equal protection or were instead swayed primarily by the Cold War imperatives of the case.  Klarman also made a very persuasive case that, for Justices Frankfurter and Jackson, Brown represented a clear clash between legal considerations (which, in their judgment, argued in favor of upholding Plessy) and personal/political considerations (which they believed argued in favor of overruling Plessy).  The overall result was a richly textured discussion of how personal, political, and legal factors influenced the outcome in Brown.

Guest Blogger: Howard Gillman

Our guest blogger this week is Howard Gillman. Howard is a Professor of Political Science, History, and Law, and Associate Vice Provost for Research Advancement at the University of Southern California.  He specializes in constitutionalism, the U.S. Supreme Court, and judicial politics. 

His most recent book is The Votes that Counted: How the Court Decided the 2000 Presidential Election (University of Chicago Press, 2001). His first book, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Duke University Press, 1993), received the C. Herman Pritchett Award for "best book in public law" from the Law and Courts section of the American Political Science Association. He is also co-editor and contributor to two other books on the Supreme Court: Supreme Court Decision-Making: New Institutionalist Approaches (University of Chicago Press, 1999) and The Supreme Court in American Politics: New Institutionalist Interpretations (University Press of Kansas, 1999).

New Book - Judging on a Collegial Court

I don’t think we have highlighted the recent publication of Judging on a Collegial Court: Influences on Federal Appellate Decision Making by Virginia Hettinger, Stefanie Lindquist, and Wendy Martinek (University of Virginia Press). I am happy to do so now.

The Polls - NSA Surveillance

Mystery Pollster Mark Blumenthal comments on the various polls here on the CBS News PublicEye blog (rather than his own blog), and he provides links to the full results from each poll. It's a good discussion, though I question his final comparison of two poll items in the penultimate paragraph.

As a side note, view the National Security Agency Kid's Page here. Apparently, this has been around for at least a few months. Somehow, I missed it. The NSA says it's fun for adults too.

White, Male SCOTUS Clerks

The Legal Times has a interesting story on the lack of ethnic and gender diversity among U.S. Supreme Court Law Clerks.  The story draws heavily on the research of former ELS Guest Blogger, Todd Peppers, who participated in the "Law Clerks as Research Subjects" Forum back in March.  Here is a worthwhile excerpt that deals with changes in hiring practices over time:

This is ...  the first term in which clerks affected by the new federal clerkship hiring plan have reached the Court. Under the plan, adopted in 2002, appellate judges agreed they would no longer hire clerks after their first year of law school but would wait until the start of their third year. Some judges speculated that by giving law students another year to blossom, more minority candidates could emerge. If so, it did not result in more minority clerks at the Court.  [Only three of thirty-seven this term are non-white.]

Todd Peppers, author of the new book "Courtiers of the Marble Palace," which takes a historical look at high court clerks, says none of the possible explanations for low numbers of minorities is satisfying. When, a few years ago, members of Congress asked why justices could not cast their nets more widely to find more minority candidates, Peppers recalls, the justices often fell back on the "questionable" excuse that they could not afford to take chances that even one of their clerks might not be a top performer.

2006 Conference on Empirical Legal Studies

Click here for complete information on the inaugural Conference on Empirical Legal Studies ("CELS").  This website will assist those interested in attending the conference, submitting a paper for consideration (paper submission deadline=June 30, 2006), and conference participants and attendees seeking logistical and registration information. 

The 2006 conference will be held at the University of Texas School of Law in Austin, Texas, on Friday 27–Saturday 28 October 2006.  For those who really like to plan ahead, the 2007 and 2008 conferences will be held at New York University School of Law and Cornell Law School, respectively.