Empirical Legal Studies

Taking Law Seriously

Different scholars mean different things when they discuss the role of law in judicial decision making. For post-positive theorists, all that matters is that judges sincerely attempt to find the best answer to legal questions. Jason Whitehead of USC just presented a fine paper presenting this view at the Law and Society meetings.

Jason’s paper aside, one problem with this approach is that it does not fully recognize the innate and largely subconscious human ability to convince ourselves of what we prefer to believe. If all that is asked by judges is that they sincerely believe in (i.e., have convinced themselves of) the appropriateness of their decisions, then short of Bush v. Gore, it’s hard to know when judges would fail this test.

I think we are better off conceiving of law as a potential and potentially measurable influence on judges’ behavior. To determine the impact of law is not much different than determining the impact of other social phenomena. Simply put, judges’ decisions should change -- not deterministically, but at the margins -- as law or legal arguments change, holding alternative phenomena constant. A recent example of this is a paper by Rachel Barkow of NYU Law school, who combines quantitative and qualitative methods to argue that a commitment to originalist methods leads Scalia and Thomas to support criminal defendants in non-capital jury cases far more often than we would expect given their ideology.

Lott v. Levitt: Lott's Response Filed

John Lott has posted his response to the motions to dismiss filed by Levitt and HarperCollins. The response was filed yesterday. It can be found in pdf form on Lott's website.

Tim Lambert appears to have the first (though brief) take on Lott's arguments. Or maybe it was Ted Frank at Overlawyered. Frank's reaction: "Lott seems to have the better of this exchange as a matter of positive (if not normative) law because of the liberal pleading rules that make it nearly impossible to dismiss a case on the pleadings."

Systematic Content Analysis of Judicial Opinions

Mark Hall and Ronald Wright of Wake Forest have written Systematic Content Analysis of Judicial Opinions.  Mark and Ron are actively requesting feedback on the project; specifically they would like to learn about (1) other examples of work using content analysis that were inevitably missed in the review; and 2) any additional helpful techniques or practice pointers to include in the paper.

The Abstract: 

Despite the interdisciplinary bent of legal scholars, the academy has yet to identify an empirical methodology that is uniquely its own. We propose that one standard social science technique - content analysis - could form the basis for an empirical methodology that is uniquely legal. It holds the potential for bringing social science rigor to our empirical understanding of caselaw, and therefore for creating what is distinctively a legal form of empiricism. To explore this potential, we collected all 122 examples we could find that use content analysis to study judicial opinions, and coded them for pertinent features.

New Book - Elkin on Constitutional Design

Reconstructing the Commercial Republic: Constitutional Design After Madison

by Stephen L. Elkin (Univ. of Chicago Press)

Availability: Amazon / Barnes & Noble /
U. of C. Press

From the Description:

"James Madison is the thinker most responsible for laying the groundwork of the American commercial republic. But he did not anticipate that the propertied class on which he relied would become extraordinarily politically powerful at the same time as its interests narrowed. This and other flaws, argues Stephen L. Elkin, have undermined the delicately balanced system he constructed. In Reconstructing the Commercial Republic, Elkin critiques the Madisonian system, revealing which of its aspects have withstood the test of time and which have not.

The deficiencies Elkin points out provide the starting point for his own constitutional theory of the republic—a theory that, unlike Madison’s, lays out a substantive conception of the public interest that emphasizes the power of institutions to shape our political, economic, and civic lives. Elkin argues that his theory should guide us toward building a commercial republic that is rooted in a politics of the public interest and the self-interest of the middle class. He then recommends specific reforms to create this kind of republic, asserting that Americans today can still have the lives a commercial republic is intended to promote: lives with real opportunities for economic prosperity, republican political self-government, and individual liberty."

Where Attitudes Come From

I think that at this point most ELS scholars are comfortable with the notion that attitudes play a crucial role in judicial decision making, even if that role varies by judge, by court, and even by case. The well-established importance of attitudes in judicial decision making leads to the question of where attitudes come from.

Social background theory argues that attitudes come from shared environmental influences, such as one’s father’s occupation, the region where one went to college, and other such factors. This model, though, almost certainly overstates the case of shared environmental influences. Psychologists and behavioral geneticists have been amassing evidence for decades now showing that the extent to which personality factors are influenced by one’s environment, they are largely determined by the idiosyncrasies experienced by the individual, and less so by the environmental factors that one shares, say, with a sibling. Evidence for this includes the findings that the correlation between unrelated siblings (i.e., adopted children raised as siblings in the same household) is fairly small. Alternatively, the correlation in personality among identical twins reared apart is fairly substantial. These and other twin-based studies suggest a substantial heritable component to personality.

Recent work by John Alford, Carolyn Funk, and John Hibbing reports similar findings for political attitudes (Hibbing and Alford, December 2004 Perspectives on Politics; Alford, Funk and Hibbing, May 2005, American Political Science Review). They report heritability effects on political attitudes ranging from .41 (school prayer) to .18 (support for federal housing assistance) with an average heritability coefficient across 28 political items of .32. The average effect for the unshared environment is a robust .53, but the effect for the shared environment (e.g., fraternal twins reared together) is only .16.

I provide here the heritability coefficients for other political attitudes likely to be of interest to judicial scholars:

Socialism .36

Death Penalty .31

Censorship .30

Gay Rights .28

Abortion .25

None of this means that there are specific genes for these policies, but more likely, that there are combinations of genes that influence egalitarianism, openness to outgroups, a desire for order, etc., that in turn influence these attitudes.

Hibbing and Alford suggest implications of these findings for the criminal justice system, war, and the creation of political institutions.  For those unfamiliar with their work, it's well worth reading.

Civil Appeals in State Courts

An important resource for empirical legal scholars--the U.S. Bureau of Justice Statistics--announced a new research report at last week's Law & Society Annual Meeting. 

An abstract for the Appeals from General Civil Trials in 46 Large Counties, 2001-2005 report follows:

"Presents information on general civil cases concluded by bench or jury trial in 2001 that were subsequently appealed to a State’s intermediate appellate court or court of last resort. Information presented includes the flow of civil cases through the appeals process and the effect of appeals on trial court outcomes. The report describes the types of civil bench and jury trials appealed, the characteristics of litigants filing an appeal, the frequency in which appellate courts affirm, reverse, or modify trial court outcomes, and the percentage of appeals that produced a published opinion. Cases further appealed from an intermediate appellate court to a State court of last resort and the impact of that final level of appeal on litigation outcomes are also described. This report is part of a series examining civil litigation in the United States."             

    Notable findings include:

• Among tort trial cases concluded in 2001, litigants filed appeals in approximately 33% of product liability and 18% of medical malpractice trials.
• Forty-three percent of civil appeals were dismissed or withdrawn prior to disposition.
• Trial court verdicts or judgements that found for plaintiffs were reversed or modified on appeal at higher rates compared to trial court outcomes favoring defendants.

Guest Blogger: Jeffrey Segal

Our guest blogger this week is Jeffrey Segal, someone who requires very little introduction.  Jeff is professor of political science at SUNY, Stony Brook.  He received a Ph.D. from Michigan State University.  He is the author or coauthor of several books, including The Supreme Court and the Attitudinal Model (2002); Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (1999); and Senate Elections (1992).

Pilot project on a new test of lawyering ability (i.e., broader than the LSAT)

The LSAT is a controversial test for many reasons.  One of the main critiques is that the skills that it measures--three closely related forms of verbal reasoning ability--are only a subset of the abilities relied upon by successful lawyers.  In many legal contexts, for example, engagement, empathy, affect recognition, oratory skills, sense of humor, discretion, and integrity (+ many more) are probably more important that raw reasoning ability.   Of course, the LSAC reference manuals are crystal clear than the LSAT is only valid for predicting first-year law school grades.  Yet, for a variety of reasons related to nature of law school competition, the LSAT has become the primary gatekeeper for the profession.

Fortunately, an ambitious empirical project by Majorie Schultz (Berkeley Law) and Sheldon Zedeck (Berkeley Psychology) seeks to improve the current system of law school entrance exams (see ABA Journal story). The project, which began in 2001 with grant funding from the LSAC, explores the possibility of creating a test that captures a broader array of characteristics relevant to success as a lawyer.   Note that the most difficult threshold task of the project is to operationalize into measurable attributes what it means to be a "successful" or "competent" lawyer.   

According to the story,  Schulz and Zedeck have conducted extensive interviews with hundreds of law alumni, faculty, judges, clients, and hiring partners to generate a list of 26 "effectiveness factors" for practicing lawyers.  Remarkably, this research has lead to a pilot test (starting this month) open to 25,000 graduates of Boalt Hall and UC Hastings. 

The next threshold will be demonstrating the test's validity--i.e., empirical evidence that the scores really do measure the putative attributes in a reliable way.  Anyway, this is a truly visionary project that was difficult to get off the ground.  Whether the project successes or fails, the world is better off from their efforts to address this complex, high-stakes issue.  Kudos to Schultz and Zedeck!

Hamdan - An Editorial Roundup

Last week, Walter Dellinger referred to Hamdan v. Rumsfeld as “the most important decision on presidential power and the rule of law ever.” Mark Graber offered some cold water, arguing that it was too early to gauge Hamdan’s importance. It’s “the sort of decision that is likely to depend a great deal on the future course of American politics,” said Graber. Well, it’s been a week. The future is now. It’s time to take stock.

So how is Hamdan doing in the broader world of American politics? The New York Times liked it. The Wall Street Journal didn’t. Of course, we like to be more systematic here at the ELS Blog, but this means I’ll have to focus on only one small part of the political discussion. Here, I’ll consider only newspaper editorial boards and what they thought of Hamdan, but I’ll go beyond just the elite national papers. The punchline is that they overwhelmingly supported the Supreme Court’s decision, which is probably unsurprising, but even right-leaning papers favored the Court over the President by a substantial margin.

Call for Papers

The brief version of the announcement: "Junior scholars writing in the area of Torts are invited to submit papers for 'Tort Law and the Modern State,' a conference to be held at Columbia Law School, New York City on September 15-16, 2006. The Conference is sponsored by Columbia Law School and the Randolph Speakers Fund and is being organized in connection with the launch of a newly formed peer-reviewed journal, the JOURNAL OF TORT LAW, http://www.bepress.com/jtl."

The deadline for submissions is July 28th. For the full announcement, follow the link to the journal homepage or click is here.