Empirical Legal Studies

Credit Slips: A Discussion on Credit and Bankruptcy

A new group blog, call Credit Slips, has just been launched.   The intellectual brain power behind this new forum is extremely impressive:  Elizabeth Warren (Harvard Law),  Robert Lawless (Illinois Law),  Melissa Jacoby (UNC Law),  Katie Porter (Iowa Law), John Pottow (Michigan Law), Angie Littwin (Harvard Climenko Fellow), and Deborah Thorne (Ohio Univ. Sociology).  Credit Slips is particularly of interest to the ELS blog because it includes the leading empirical scholars in the areas of consumer credit and bankruptcy.   

Although it is not intuitively obvious to the non-observer, the changing institutional relationships in this arena are literally reshaping American society.   (Perhaps our political science readership might add something to the dialogue?)  I look forward to reading (and linking to)  cutting edge research at Credit Slips.

Presidential Signing Statements

The ABA's "Task Force on Presidential Signing Statements and the Separation of Powers Doctrine" released its report on Sunday evening. Marty Lederman has an interesting post on the report's conclusions. He also notes the "terrific archival work of Phillip Cooper, Christopher Kelley and Charlie Savage, demonstrating the Bush Administration's prodigious use of signing statements to announce the President's constitutional doubts about numerous statutory enactments, and the President's intentions to construe and implement numerous statutory provisions in a manner inconsistent with legislative intent."

Integrating Empirical Studies into Law School Courses?

I am interested in learning how law professors integrate empirical legal studies broadly defined (e.g., case studies, hypotheticals, published articles) into their doctrinal law courses.  For example, in criminal law courses are students ever assigned articles on sentencing disparity?  In health or environmental law courses, are students assigned case studies focusing on the measurement of risk regulation or liability allocation?

I am collecting information and resources on how empirical legal studies can be integrated into the classroom.  Please comment or email me at jason.czarnezki@marquette.edu with information/documents/articles/exercises/etc. that provide students with applications of empirical information (data, studies, etc.) to a substantive area of the law.

Thanks.

Guest Blogger: Anne Joseph

This week's guest blogger is Anne Joseph, an Assistant Professor of Law at Boalt Hall.  Ann received her law degree from Yale and her Ph.D in Political Economy and Government from Harvard.  Before joining the Boalt faculty, she clerked for Justice Ginsburg of the U.S. Supreme Court, was a trial attorney for the Federal Programs Branch of the U.S. Department of Justice’s Civil Division, and clerked for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit.

Anne's primary areas of research are administrative law; agency design and reorganization; tenure of agency officials; shifts in regulatory activities; agency oversight (including congressional hearings and U.S. Government Accountability Office auditing of policy programs); and science and the law. In 2006, she received an award from the Hellman Family Faculty Fund, which is given annually to "promising assistant professors who show capacity for great distinction in their research," for her empirical project, Called to Account by Separated Powers: Regulatory Activity, Oversight, and Turnover of Federal Agency Leaders.

Did BAR/BRI violate antitrust laws?

Ever since my clerkship, I've truly enjoyed watching the status of class action lawsuits, especially in the antitrust context.  Today I received my Class Action Notice for the class action lawsuit against BAR/BRI and Kaplan as I purchased a BAR/BRI bar review course between August 1997 and present.  Class action plaintiffs allege that BAR/BRI violated the federal antitrust laws by agreeing with Kaplan, Inc., to prevent competition in the market for full-service bar review courses.  For more information see www.barbri-classaction.com.

Every time I get a Class Action Notice or Notice of Settlement, I wonder: (1) If I exclude myself from the class, could I, with additional effort, improve upon my monetary recovery?, and (2) If I object to the settlement, might this precipitate an offer from the defendants in exchange for withdrawal of the objection?

Simply, will exclusion or objection lead to pecuniary gain worth more to me than a 5% off coupon for my next BAR/BRI course?   (For the record, the most I've ever received as a class action plaintiff is $12.00.)

Are there any data  or studies dealing with settlement amounts in the class action context?

Environmental Risk

Kip Viscusi (Vanderbilt) has written Regulation of Health, Safety and Environmental Risks.  The Abstract:

"This paper provides a systematic review of the economic analysis of health, safety, and environmental regulations. Although the market failures that give rise to a rationale for intervention are well known, not all market failures imply that market risk levels are too great. Hazard warnings policies often can address informational failures. Some market failures may be exacerbated by government policies, particularly those embodying conservative risk assessment practices. Labor market estimates of the value of statistical life provide a useful reference point for the efficient risk tradeoffs for government regulation. Guided by restrictive legislative mandates, regulatory policies often strike a quite different balance with an inordinately high cost per life saved. The risk-risk analysis methodology enables analysts to assess the net safety implications of policy efforts. Inadequate regulatory enforcement and behavioral responses to regulation may limit their effectiveness, while rising societal wealth will continue to generate greater levels of health and safety."

What is the Economic Analysis of Law?

We earlier discussed whether Empirical Legal Studies is (or should be) a distinct subfield such as Law & Economics.  While I think ELS is still developing its identity, L&E has come a long way since Bentham, and later Coase, Becker, Calabresi and Posner.  For those of you who might be interested in a survey of L&E,  Polinsky and Shavell have written Economic Analysis of Law, a short entry for the forthcoming New Palgrave Dictionary of Economics (Second Edition) introducing the topic and surveying the economic analysis of five primary fields of law: property law; liability for accidents; contract law; litigation; and public enforcement and criminal law.

Empirical Scholarship for "Younger" (read: Untenured) Legal Scholars

An interesting thread developing over at the Conglomerate considers  Should Young Scholars Engage in Empirical Legal Research?  As others have already noted, many of our counterparts in the social sciences would likely turn the question on its side and ask:  Do law schools really grant tenure without some sort of empirical research on a candidate's CV?  (Of course, these same social scientists wonder about student-edited law reviews as well.)

New Book - Mann & Ornstein on Congress

The Broken Branch: How Congress is Failing America and How to Get It Back on Track
by Thomas E. Mann & Norman J. Ornstein (Oxford)

Availability: Amazon / B&N / Oxford

From the Description:

"Mann and Ornstein, two of the nations most renowned and judicious scholars of government and politics, bring to light the historical roots of Congresss current maladies, examining 40 years of uninterrupted Democratic control of the House and the stunning midterm election victory of 1994 that propelled Republicans into the majority in both House and Senate. The byproduct of that long and grueling but ultimately successful Republican campaign, the authors reveal, was a weakened institution bitterly divided between the parties. They highlight the dramatic shift in Congress from a highly decentralized, committee-based institution into a much more regimented one in which party increasingly trumps committee. The resultant changes in the policy process--the demise of regular order, the decline of deliberation, and the weakening of our system of checks and balances--have all compromised the role of Congress in the American Constitutional system. Indeed, Speaker Dennis Hastert has unabashedly stated that his primary responsibility is to pass the president's legislative program--identifying himself more as a lieutenant of the president than a steward of the house. From tax cuts to the war against Saddam Hussein to a Medicare prescription drug benefit, the legislative process has been bent to serve immediate presidential interests and have often resulted in poorly crafted and stealthily passed laws. Strong majority leadership in Congress, the authors conclude, led not to a vigorous exertion of congressional authority but to a general passivity in the face of executive power."

Bias in Judicial Opinion Footnotes?

Stephen Choi (NYU) and Mitu Gulati (Georgetown) recently circulated an interesting paper on SSRN, Do Republican Judges Cite Other Republican Judges More?  The abstract:

"The past decade has witnessed an explosion in empirical
articles seeking to rank judges in terms of their relative
performances on the bench. The dominant method of ranking these
judges has been to use citation counts, specifically counts of
citations by other judges. Critics have pointed out that the use
of citation counts for ranking purposes is problematic unless the
citation counts are first tested for the presence of biases,
particularly political bias. Using data on citation practices in
federal circuit court opinions from 1998 to 1999, this Article
seeks to test for the presence of bias in citations. Our findings
suggest bias along three dimensions. First, judges base outside
circuit court citation decisions in part on the political party
of the cited judge. Judges tend to cite judges of the opposite
political party significantly less compared with the fraction of
the total pool of opinions attributable to the opposite political
party judges. Second, judges are more likely to engage in biased
citation practices in certain high stakes situations. These high
stakes situations include opinions dealing with certain subject
matters (such as individual rights and campaign finance) as well
as opinions in which another judge is in active opposition. Third,
judges cite disproportionately more to those judges that cite
back to them frequently, suggesting the presence of citation
clubs."