Empirical Legal Studies

State Judicial Elections

Governing.com has an interesting article on what may shape up to be the most expensive and political campaign year ever -- for seats on  state courts.  (The article is here.)  In the article, Zach Patton notes that, because of court decisions and legislation as well as increased spending by special interests, judges are no longer insulated from politics and openly campaign on issues that may well come before them on the bench.  Donors fund judges who agree with them on cultural and social issues (like abortion) and on tort liability issues.  And the money is rolling in like crazy.  In 2004, the average cost (reported by Justice at Stake and cited in the article) was $640,000; up 45% from 2002.  In Illinois in that year, two Supreme Court candidates combined to raise more than $9.3 million. The U.S. Chamber of Commerce is also a big player, spending $120 million on funding for business-friendly judicial candidates in the last four years.   

This obviously creates a controversy with two strong sides.  On the one hand, we have folks who appreciate knowing the views of judicial candidates, enabling voters to use more information in their decision making, and promoting the freedom of speech of the candidates.   Given what we know about judicial decision making and the role of ideology therein, should judges "pretend" not to be political or should they put it all out there and let folks decide for whom they'd rather vote?  On the other hand, folks suggest that this increase in "regular politics" has real consequences for judicial independence and the nation's trust in and regard for the courts.  Anyone interested in weighing in?

Law and Society Association: Collaborative Research Network on Culture, Society, and Intellectual Property

William Gallagher of Golden Gate Law forwarded me this announcement on a new Law & Society Colloborative Research Network, which touches on empirical themes in IP law.

The collaborative research network (CRN) on Culture, Society, and Intellectual Property is devoted to the promotion and dissemination of multi-disciplinary and collaborative research relating to intellectual property. In affiliation with the Law and Society Association, this CRN seeks to encourage interactions among scholars from diverse disciplinary and perspectives who focus on the legal, social, and cultural dimensions of intellectual properties—including patents, copyrights, trademarks, trade secrets, and rights of publicity. The goal of this CRN is to encourage creatively eclectic approaches to the study of intellectual property from a variety of perspectives and employing diverse methodologies—including empirical approaches to the study of intellectual property, broadly construed.

Participants of the Empirical legal Studies Blog who might be interested in joining this CRN are encouraged to contact either Coordinator listed below. If there is sufficient interest, CRN members who want to discuss their empirical approaches to intellectual property and the potential for collaborative work (including coordinating session panels at future Law and Society Association meeting (e.g., for next year’s meeting in Berlin) may meet informally for coffee at the upcoming LSA meeting in Baltimore.

For further information, please contact William Gallagher, wgallagher@ggu.edu and Shubha Ghosh, sghosh@mail.smu.edu

Empirical Studies of Chevron

Sunstein and Miles (Chicago) have just finished Do Judges Make Regulatory Policy? An Empirical Investigation of  'Chevron'.  They find that "on the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices.  Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern. Similar patterns can be found on federal appellate courts."

This piece builds upon the numerous existing empirical studies in administrative law and of Chevron in particular (see, e.g., Schuck & Elliot, 42 Duke L.J. 984 (1989); Revesz, 76 NYU L. Rev. 1100 (2001); Kerr, 15 Yale J. Reg. 1 (1998)).  Sunstein once again confirms the impact of ideology in judicial voting, yet here Chevron deference provides a way to operationalize law.  In a way this in an effort to get at how and if law itself is used strategically.  I myself am working on a piece in one of my substantive areas of interest (environmental law) looking more closely at how Chevron deference may be used strategically (e.g., use of Chevron Step 1 versus Step 2 as compared to simply overall deference rates), while attempting to operationalize ideology (using GHP scores) and various legal variables other than Chevron.  The difficulty is in hypothesizing what legal factors impact decisions in a specific area of law (e.g., might legislative history from a liberal Congress be important in a case interpreting an environmental statute), and whether one can consistently discern from a judicial opinion whether a judge is actually invoking Chevron Step 1 or Step 2.  Then I can get at some questions such as: Would a liberal judge invoke legislative history to decide a case under Chevron Step 1 in a environmental group challenge (e.g., Sierra Club) to a less stringent EPA regulation?   

Lott v. Levitt: Quick Update II

On Wednesday, June 7th, Levitt and HarperCollins filed their memoranda of law in support of the motions to dismiss filed on June 2nd. HarperCollins’ memorandum deals with Count One, which is based on the passage in Freakonomics. Levitt’s memorandum adopts HarperCollins’ argument regarding Count One and then moves on to address in detail Count Two, which is based on the allegedly defamatory e-mail.

Lott’s response is due by Monday, July 10th. Levitt’s and HarperCollins’ replies are then due by Monday, July 24th. 

Survey of Income and Program Participation

Lauren Willis (Loyola LA) writes:

"Several members of Congress just sent a letter to OMB re:  the government's planned funding cuts from the Survey of Income and Program Participation (SIPP), the main (and often only) data source for income and expense dynamics of US households.  The attachment to the letter, listing the ways in which the data is used, is particularly compelling." 

The letter is available  here and here.

Lauren is concerned that while in the short term, cutting SIPP may save money, in the long term the lack of good data will prove costly. 

Why will West Wing's Will Bailey Run for Congress?

As an avid The West Wing fan, I wondered why Will Bailey would run for Congress.  Alas, Maestas et. al have written, "When to Risk It? Institutions, Ambitions, and the Decision to Run for the U.S. House" (American Political Science Review, Vol. 100, No, 2, pp. 195-208, May 2006).

Rural Black Land Loss

Thomas Mitchell (Wisconsin) has written Destablizing the Normalization of Rural Black Land Loss: A  Critical Role for Legal Empiricism.  The Abstract:

"Mitchell’s study exemplifies the New Legal Realist goal of combining qualitative and quantitative empirical research to shed light on important legal and policy issues. He also demonstrates the utility of a ground-level contextual analysis that examines legal problems from the bottom up. The study tracks processes by which black rural landowners have gradually been dispossessed of more than 90% of the land held by their predecessors in 1910. Mitchell points out that despite the continuing practices that contribute to this problem, there has been very little research on the issue, and what little attention legal scholars have paid to it has proceeded in an empirical vacuum. The article proceeds to examine existing data, and to describe the ongoing empirical research being conducted on black rural land loss in the U.S. south by Mitchell and his team. Mitchell concludes that a thoroughly contextual analysis (combining qualitative with quantitative methods) is necessary if we are to achieve an accurate understanding of the process by which law contributes to black rural land loss in this country.  This kind of understanding will permit more effective policy decisions, both within and outside of the law."

Culture Wars or Cultural Cognition?

This week I’ve made a series of posts on the phenomenon of cultural cognition and its implications for law. I want to thank the organizers of ELS Blog for giving me the opportunity to describe this body of work, and also all the readers who’ve commented on- and off-line.

To wrap up, I’m going to discuss one more fun thing I think cultural cognition can do: explain the role of culture in electoral politics.

Whether the American electorate is culturally polarized is a question that itself polarizes professional observers of American politics. For most journalists and even some academic commentators, the answer is clearly yes. “Culture outweighs economics as a matter of public concern,” writes Robert Frank in his best seller What’s the Matter with Kansas? Most political scientists, however, take a different view. “The simple truth,” asserts Morris Fiorina in Culture War? The Myth of a Divided America, “is that there is no culture war in the United States--no battle for the soul of America rages, at least none that most Americans are aware of.”

Risk Regulation and Cultural Identity Affirmation

This is my second post on the normative and prescriptive implications of cultural cognition for risk regulation. In the first I argued that cultural cognition undermines proposals to rely on politically insulated experts, on markets, or on simple majoritarianism for dealing with societal risks. I now want to identify a regulatory strategy that cultural cognition does support. I’ll call it “cultural identity affirmation.”

The psychological mechanisms that construct cultural cognition imply that individuals’ perceptions of risk are motivated by a type of cultural-identity self-defense mechanism. Because guns are integral to valued social roles within their way of life, for example, relatively hierarchical and individualistic persons (particularly hierarchical and individualistic males) are likely to react skeptically to any evidence that weak gun control laws promote crime and result in gun accidents. By the same token, egalitarian and solidaristic persons are drawn to the idea that commerce and industry threatens the environment in part because that conclusion justifies regulating activities their values condemn as entrenching inequality and valorizing unconstrained self-interest.

None of this is to deny that there is a truth of the matter about the risks posed (or not posed) by guns, by industrial pollution, and by myriad other activities the dangerousness of which is a point of cultural contention. But the phenomenon of cultural cognition does imply that the simple discovery and dissemination of truth cannot be expected to generate consensus on what societal risks are real and how they should be ameliorated. In order for the truth to be commonly accepted, it must be presented in a form, or under circumstances, that dissipates the threat it poses to certain groups’ cultural identities.

The Cultural Evaluation of Risk

So far I have discussed cultural cognition generally and outlined one interesting dynamic associated with it (“the white male status anxiety effect”). I now want to start to address the normative and prescriptive implications of cultural cognition for risk regulation.

Debates over risk regulation typically involve two competing models of risk perception. One, which can be called the rational weigher model, assumes that individuals (in aggregate, and over time) process information about risk in a manner consistent with expected utility. This position (which is associated with Kip Viscusi, among others) counsels a generally restrained role for governmental risk regulation: if people left to their own devices can be expected to make choices that maximize their well-being, then devising legal regimes and institutions to regulate risk-taking is both wasteful and inimical to individual freedom.

The irrational weigher model, in contrast, asserts that individuals systematically misprocess risk information as a result of cognitive limits and biases. Proponents of this view such as Cass Sunstein and Stephen Breyer advocate entrusting matters of environmental regulation, consumer protection, workplace safety and the like to experts, who should be insulated as much as possible from politics to avoid the distorting influence of the public’s misapprehension of risk.