Empirical Legal Studies

Can Women and Minority Lawyers Duplicate the 'Jewish Law Firm' Success Story?

The New York Law Journal recently published a story with the provocative title, "Can the 'Jewish Law Firm' Success Story be Duplicated? "

The article highlights the empirical research of Eli Wald (Denver Law), who is doing some interesting work on the rise of Jewish lawyers within the  New York corporate bar.  Wald's research includes interviews with numerous Jewish lawyers who joined large law firms between 1946 and 1962, essentially breaking a de facto ethnic barrier.  Eventually the taboo of hiring Jewish lawyers exploded in the 1970's when predominantly Jewish law firms, such as Skadden Arps, Weil Gotshal, Paul Weiss, Fried Frank, Kaye Scholer, and Wachtell Lipton, became the counsel of choice for corporations seeking innovative solutions to old problems.  (For an eye-opening contemporaneous account of the pre-1970s discrimination, see Notes and Comments, The Jewish Law Student and New York City Jobs -- Discriminatory Effects in Law Firm Hiring Practices [Hein Online], 73 Yale L. J. 625 (1964)).

According to Wald, the bottom-line is that the Jewish success story reflects a unique historical occurrence that is unlikely to be duplicated by female or minority lawyers.   Bruce MacEwen, who writes the Adam Smith, Esq. blog on law firm economics, has a very informative and insightful analysis of Wald's findings.  Both the NYLJ story and MacEwen's commentary are recommended reading.

Who Wins Patent Infringement Cases?

A new article by Paul M. Janicke & LiLan Ren, Who Wins Patent Infringement Cases?, 34 AIPLA Q.J. 1 (2006), offers some data on patent infringement cases in the Federal Circuit. While there is no abstract, the following text from the introduction provides the gist of the article:

Numerous studies in recent years have focused attention on particular aspects of patent infringement litigation in the United States.... No one, however, seems to have analyzed the results in terms of who ultimately “wins” patent litigations, meaning a judgment in favor of a particular party at the Federal Circuit Court of Appeals, for the full population of contested judgments. We undertook to fill that void by analyzing the dispositive decisions of that court over the three-year period from 2002 to 2004. By “dispositive” we mean a case in which, as it leaves the Federal Circuit, at least one claim of one patent is finally adjudicated to have been infringed and not invalid or unenforceable (i.e., a win for the patent owner), or in which it has been finally determined that no claim has these characteristics (a win for the accused infringer). We included all dispositive decisions of the Federal Circuit, whether by precedential opinion, non-precedential opinion, or per curiam affirmance without opinion under the court’s Rule 36. There were 262 such cases.

Below is a sample of their results, which reports how often each judge voted for the patentee. (Note: In reproducing this table, I moved Judge Lourie up two rows to maintain the descending order in the fourth column.) The Federal Circuit randomly assigns judges to panels.

The Difficulty of Modeling Leadership and Sincerity (or Why Democrats Might Fail Again in 2006)

I know this is an academic blog (as opposed to a “mixed” blog). Thus, we generally don’t discuss politics. But several weeks ago, I was party to some lively dinner conversation that raised an interesting issue of the limitations of empirical research for political consulting. So, despite the political context, this is a serious—very “serious”—blog post, assuming there is such a thing. Further, it is probably right in the wheelhouse of some political scientists out there who specialize in voting and election strategy.

Here is my question: Is it possible that the constructs of leadership or sincerity, which cannot be easily measured, are part of the error term in the voting models used by political consultants? In other words, does the conventional political wisdom rest upon a series of mis-specified regressions? The context of my dinner conversation might throw this issue into sharper relief. 

My companions included an economist, a historian, and two political scientists.

Should Law Students Take a Stats Course?

See one answer here.

Guest Blogger: Stefanie Lindquist

Our guest blogger this week is Stefanie Lindquist (Vanderbilt).  (Her CV is available here.)  Her publications include:

Judging on a Collegial Court: Influences on Appellate Court Decision Making. With Virginia Hettinger, Wendy Martinek. University of Virginia   Press, forthcoming 2006.  Click here for publisher's abstract.

“The Influence of Jurisprudential Considerations on Supreme Court Decision Making: A Study of Conflict Cases,” Law and Society Review, 40(1):135-162 (with David Klein).  

 "Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the United States Courts of Appeals." 2004. American Journal of Political Science 48(1):123-137 (with Virginia Hettinger and Wendy Martinek).

"Separate Opinion Writing on the United   States Courts of Appeals," 2003. American Politics Research, 31(3):215-250 (with Virginia Hettinger and Wendy Martinek).

Article ranking U.S. law reviews

Over at Conglomerate, Gordon Smith posted an excerpt from a new ranking system of American law reviews by Ronen Perry of the University of Haifa (Israel).   The excerpt includes a summary table of the Top 25 journals.  Perry's system looks at overall citations of articles published and citations per page and thereafter normalizes to a 100 point scale for ranking purposes.  According to Perry, "The linear correlation coefficient between the school's ranking and its flagship law review's ranking is 0.8334." 

No surprise there.  Many law professors use U.S. News rankings as a guide during the submission and expedite process.  One reason why the correlation is not higher is that a handful of articles at non-elite journals probably garnered a large number of citations (i.e., they were especially good, novel, or bad in a truly noteworthy way).  Presumably, this effect is random.   But there is no sound theoretical reason to believe that any alternative ranking of law reviews (whose staffs turn over every year) is going to be valid prospectively. 

Judges, Race & Malpractice Settlements...

... though not all in one paper.

Henandez-Julian & Tomic have written How Elected Judges Respond to the Racial Composition of their Constituencies.  The Absract:

We take advantage of the variation in the judicial selection system - some judges are appointed, while others are elected - to address how the racial composition of a district affects sentencing. We find that appointed and elected judges act differently, suggesting that bias in the way that the laws are written cannot explain the entire difference in sentencing between blacks and whites. We find that blacks are more likely to be incarcerated, and receive longer sentences, but this effect diminishes as the percentage of the population that is black rises for a black defendant facing an elected judge. A one standard deviation increase in blacks' share of county population is enough to obliterate the difference in sentence length.

Philip Peters has written What we Know about Malpractice Settlements.  The Abstract:

The enclosed Article is the first comprehensive synthesis of two decades of empirical research on medical malpractice settlement. The portrait that emerges from this synthesis is both more reassuring and more complex than popular portrayals. Although the fit is not perfect, the merits generally drive the settlement process. Weak claims consistently fare the worst, toss-ups cases do better, and strong cases have the most success.

Do Attorneys Add Value?: Part II

I recently stumbled across yet another paper setting out to empirically assess whether attorneys generate independent value for their clients.  Put slightly differently--and in the words of the author, Erica Hashimoto (Georgia), the paper tests the long-held assumption that "there is no good reason for a [criminal] defendant to choose self-representation, and those who make that choice are either mentally ill or foolish."  Hashimoto's findings run against conventional wisdom.

Although in terms of research design and execution this paper is perhaps not as methodologically sophisticated as the Lederman tax court paper, Hashimoto's largely descriptive account is interesting and contributes to a foundation for future work.  (Orin Kerr provides additional commentary on the Hashimoto paper here.)

New Releases

Vining, Navarro, and Zorn:  Judicial Tenure on the U.S. Supreme Court, 1790-1868: Frustration, Resignation, and Expiration on the Bench.  The Abstract:

Though scholars have found that modern justices are frequently motivated to step down by political circumstances, we believe that their long-departed predecessors rarely had such a luxury. Specifically, we suggest that the focus on political factors often present in this literature is inappropriate in the period prior to the Judiciary Act of 1869 (16 Stat. 44). The absence of pensions and the rigors of circuit duty prevented early justices from reacting to political stimuli in the same manner as recent justices. In support of this proposition, we examine the effects of personal, institutional, and political factors on Supreme Court turnover, positing that departure behavior prior to the advent of judicial pensions was driven primarily by justices' personal and institutional, rather than political, circumstances.

Keith Hylton (BU): When Should a Case be Dismissed? The Economics of Pleading and  Summary Judgment Standards.  The Abstract:

This paper applies a simple economic framework to the choice between pleading and summary judgment as points at which a claim can be dismissed. It concludes generally that pleading standards should vary with the evidentiary demands of the associated legal standards and the social costs of litigation.  The common law's imposition of higher pleading standards for fraud claims is consistent with this proposition. The theory implies that the rigorous summary judgment standards that have been developed by antitrust courts should lead to a correspondingly rigorous assessment at the pleading stage.

Measures of Judicial Ideology

Both the existence and content of this blog show that empirical legal studies has made extraordinary progress in recent years in the field of applying empirical analysis to the effects of the law. However, the progress of empirical legal studies in analyzing legal institutions themselves -- courts, judges, and cases -- is more haphazard.

The central limitation is that the primary test of judicial ideology is inadequate. The traditional approach is to count the number of case outcomes categorized as liberal and contrast them to the number of cases labeled conservative. But case facts and the questions of law they present are not dichotomous; they represent the full breadth of legal inquiry. One case that is labeled liberal may be far more liberal than another case with the same label. Michael Bailey and Kelly Chang equated this mode of analysis to giving students a calculus exam and an addition quiz, and treating a score of 80% on each as equivalent.