Empirical Legal Studies

Explaining Changes in Justices' Ideologies Over Time

A brilliant series of papers have been produced recently on the topic of U.S. Supreme Court justices' ideological change over time. Authors on these papers include Andrew Martin, Kevin Quinn, Lee Epstein, and Jeff Segal, although the author groupings change by paper. Most of the papers can be found on Quinn's website.  To put this very briefly, the authors suggest that - contrary to what prior research claims - Justices' ideological preferences, or ideal points, are not time-invariant, but rather change over time (or at least most of them do).  The authors show that justices' revealed prefrences (i.e. voting) change over time, independent of factors that aren't justice-specific that might affect voting (e.g. changes in the type of cases the Court hears).

In "Assessing Preference Change on the U.S. Supreme Court," Martin and Quinn make a very strong case that justices' ideal points, as revealed in their voting, are not time-invariant. This has important implications for the way we study the Court. However, in the conclusion they posit a very important question that they leave to future research: What explains preference change? We basically, need a measure (exogenous to justice votes) to provide a representation of the justices' sincere ideological beliefs over time. We have time-invariant measures, such as party identification or social background, but coming up with time-varying measures presents a bit of a puzzle.  The authors suggest that we can look toward factors affecting preferences offered by social psychology, stragic considerations, and the macro-political context.

I am working with two UGA graduate students, Brian Levey and Justin Moeller, on the early stages of a project that seeks to answer just this type of question. While we have certainly not "cracked the code," on this puzzle, but we are working toward a strategy for explaining change in ideology over a person's life.  We hope to develop a method of explaining revealed ideological preferences that can be applied to policy makers generally.  Arguments have been made that, for instance, members of congress and presidents change their attitudes over time. Explaining such change is easier said than done, to be sure.

With this goal in mind, I'd like to take a step back and address the basic question - assuming that people do change their sincere ideological preferences over time, what causes such change? Do you know someone whose ideological preferences have changed over time? If so, what do you suspect caused this change? Is it possible that we could apply some of the methods used by Neal Tate (1981) in his seminal article using social background factors (e.g. father's occupation, justice's education, etc.) to explain justices' changing ideological preferences, as revealed in voting?

Of course, there is a rich behavioral literature in political science and other disciplines on how citizens' attitudes are formed, and some literature to suggest why they change. It is possible that justices' attitudes are changed over time by the collective preferences of their social networks. Thus, a change in ones social network might lead to a change in their attitudes or ideological preferences. Other socializing events and phenomena may also prompt change in ideology.

If we consider Supreme Court justices as an example, such events or phenomena (occuring after their confirmation) might be: where they live (change in residence or significant time spent in new surroundings), changes in personal status (marriage, divorce, children, grandchildren, death of a family member), or role on the bench (more senior, elevation to CJ, etc.), among others.  There could also be interactive concerns whereby changes in personal status affect justices differently based upon certain conditioning factors.

Of course, this is all just my early musings on this question, but I would be interested in hearing what other people have to say on this topic.

Postdoctoral Fellowship in ELS

Washington University School of Law Postdoctoral Fellowship in Empirical Legal Scholarship

The Center for Empirical Research in the Law (http://cerl.wustl.edu) at the Washington University School of Law (http://law.wustl.edu/) is offering a one-year postdoctoral fellowship for scholars with Ph.D.s in political science, economics, psychology, sociology, statistics, or other social sciences with interests in empirical legal scholarship.

The Fellow will conduct their own research, participate in an on-going research seminar, and collaborate with law school faculty.  There are no teaching responsibilities.  Candidates must possess a Ph.D. at the time of appointment.  Salary will be competitive and commensurate with experience.  The fellowship will be for a term of one year, with renewal possible.  Applicants should send a curriculum vita, two letters of recommendation, a writing sample, and a statement of planned research to: 

Karma Jenkins (CERL Administrative Coordinator), Campus Box 1120, Washington University School of Law, St. Louis, MO, 63130.  Applications will begin being considered on February 23, 2007.  Please contact Professor Andrew D. Martin (CERL Director) at admartin@wustl.edu with any substantive questions.

USNWR Gaming and the Failure of Self-Regulation

I recently picked up the latest issue of National Jurist, which is a publication for current and prospective law students.  The cover story this month is "The Rankings Race: How Far Will Law Schools Go?"   

The article provides plenty of examples of how law schools attempt to game their U.S. News input variables, especially with regard to employment.  Michael Sauder, a sociologist at Iowa who has written extensively on rankings, offered instances in which law schools count alumni taxi drivers as "employed" graduates.  David Bernstein (GMU Law) cited a practice in which law schools have rounded up unemployed graduates and employed them for purpose of getting over the nine month USNWR hurdle.

The former President of the Associations of American Law Schools (AALS), William Hines, is quoted that "too many otherwise sensible law schools are engaged in questionable academic practices and may in some cases be borderline dishonest."  Two years ago, a similar damning story appeared in the New York Times.  See Alex Wellen, The $8.76 Million Maneuver.   

I don't think the legal academy appreciates the implications of all this well-documented gaming.  Not only are we cutting corners writ large in order to get ahead--and hence have zero credibility to emphasize the importance of honest, integrity, and ethical behavior to our students--but we are providing overwhelming evidence that we are incapable of effective self-regulation.  Right now, gaming pays.  Further, if you are a dean, and you refuse to aggressively manage your USNWR ranking, your job is in serious jeopardy.  But calling U.S. News a collective action problem is a cop-out.  Where is the ABA, our accrediting agency, to police this behavior?   

The table below, from the Measuring Outcomes paper by Andy Morriss and I, documents changes in graduate placement since U.S. News moved to the current employed at graduation/9 months methodology.  If these numbers are to be believed--and we would advise against it--these are bullish times for newly minted lawyers.  And the rising tide has raised all tiers.

Some of these remarkable gains may be the result of competition among schools to more effectively place, or at least track, their graduates.  If that is the primary explanation, then U.S. News has actually been a force for good, at least in terms of employment.  But a more likely explanation is that any employment--law firm associate, judicial clerk, public interest lawyer, taxi driver, waiter, insurance salesman, temporary law school RA, whatever--counts for the purposes of U.S. News. 

The biggest red flag is that while total employment at 9 months for all law school graduates surged from 83.9% to 91.6% between 1997 and 2006, first-time bar passage for this same cohort dropped from 83.0% to 78.6%, presumably due to the trend toward higher bar cut scores.  See pp. 13-14.

Note that the results from a February bar will rarely be available within 9 months of graduation. So, as we note in the paper,

it is likely that much of the increased post-graduation employment is in jobs that do not require a valid license to practice law and hence are unlikely to pay a premium for three years of legal education. At a minimum, this practice has the potential to seriously mislead prospective law students attempting to evaluate the relative costs and benefits of a legal education. It is also hard to believe that this type of reporting should be considered sufficient to satisfy ABA Accreditation Standard 509, which requires a law school to provide "basic consumer information" in a "fair and accurate manner reflective of actual practice."

As a self-regulating profession, it is time to get our own house in order.

Family Leave in Law Schools

Laura Kessler (Utah) has written Paid Family Leave in American Law Schools: Findings and Open Questions.   The Abstract:

"There exists a substantial literature on the status of women in legal education, including studies on women students' experiences in law schools and gender bias on law school faculties. However, no recent study examines the family leave policies and practices in American law schools. This pilot study of thirty-three law schools represents an initial step toward filling that gap. Its findings are threefold. First, almost three-quarters of the law schools surveyed provide some form of wage replacement during a family leave that is more generous than required by federal law. Second, among the law schools surveyed, there is a positive relationship between teaching at top-tier and private law schools and receiving a paid family leave. Third, although many of the surveyed law schools provide paid family leave, most leaves were granted on a case-by-case basis. This study stands to benefit a number of constituencies within the legal academy, including individual faculty members, faculties developing leave policies, appointments committees, and job candidates. While preliminary in nature, it raises a number of open empirical and theoretical questions for future research."

ELS and the question of Refereed vs. Student Edited Law Review

I have seen this question discussed in general on a number of blogs, but I am particularly interested in what empirical legal scholars thought about the benefits and detriments of both types of publishing outlets. To some degree, your views may turn on what your institution rewards (law reviews or peer reviewed journals), but there is also the matter of what journals you find publishing in most rewarding personally and intellectually. While there is increasing cross-over in both publishing and reading in the two camps, I think that you do make an important decision about the potential audience for your work when you choose one over the other.

This being said, there are a number of what are reasonbly considered law review outlets that are peer reviewed or refereed.  In reviewing John Doyle's excellent law review rankings and submissions webpage, I count over 200 law outlets that are refereed, including the Supreme Court Review, Journal of Legal Studies, American Business Law Journal, Law & Society Review, and the Journal of Empirical Studies, among others.  Of course, there are a multitude of other referreed outlets in discplines such as political science, economics, criminology, public administration, and sociology, to name just a few.

I would be interested in hearing what others think about the relative advantages and disadvantages of publishing in student edited law reviews vs. peer reviewed journals. Here are what I believe to be some the advantages of each:

Student edited law reviews:

1) Simultaneous submission. Perhaps nothing is more annoying than having to wait six months or more for the slow wheels of the peer review to render a verdict - and then on to the next journal for another slow, nail-biting wait. The sequential process of peer review is especially hard on untenured people, for whom timing is very important.
2) A larger, and more diverse audience. This might be arguable, but I believe that most will at least agree that law review exposure usually brings you a new audience for your ideas, relative to the rather limited audience of some social science disciplines.
3) Greater academic freedom. There, I said it. For whatever reason, it seems that the peer review process somehow tends to limit the type of questions that people think are "interesting," and therefore worthy of publication.  It is my impression that law reviews are more open to different approaches and new research topics. I'm quite sure that many will disagree with me on this point.

Peer Reviewed Journals

1) A more rigorous review process. There, I said it. I think that good things can come from having peers review your work and I believe that many of my publications are much better because of the peer review process.  Further, with regard to ELS, some may question the capability of student editors to assess high level empirical methods. That being said, it is my understanding that informal networks of peer review in legal academia go a long way toward addressing this concern.
2) A blind review process. I've seen some discussion on the lack of blind review with regard to law review publishing and I think that the "academic celebrity factor" in law review publication decision making is a bit hard to deny. Balkin and Levinson's witty and insightful article "How To Win Cites and Influence People" is especially revealing on the law review publication process and gaining citation. To be sure, the blindness of the review process in refereed journals is perhaps open to question and the development of internet search engines hasn't helped this concern.
3) It keeps you humble. I really couldn't think of a good third advantage, but I wanted to mantain symmetry of the categories. However, peer review certainly does keep you grounded - nothing like a blistering (and insightful) review to remind you that you don't know everything.

I'm sure that you all will have plenty to say about this. If I have offended people from both sides equally ...  well then, my job is done. So, in the words of Saturday Night Live's Mike Myers, playing his mother-in-law, here's the topic ... "Refereed vs. Student Edited" .... talk amongst yourselves.

Second Annual Conference on Empirical Legal Studies

Click here for the announcement for the Second Annual Conference on Empirical Legal Studies, which will be held at New York University on November 9-10, 2007. The conference's official website is at: http://www.law.nyu.edu/cels/.  The paper submission deadline is July 1, 2007.

Cross-Monitoring and Corporate Governance

I just finished reading a really terrific empirical study by Joanna Shepherd (Emory Law), Fred Tung (Emory Law), and AlbertYoon (Northwestern Law), entitled Cross-Monitoring and Corporate Governance.  In a nutshell, the authors show, after controlling for a wide variety of relevant control variables (most importantly corporate governance), that companies that rely on bank loans, as opposed to equity or public debt, post higher market returns.  Presumably, these results flow from the heightened monitoring and positive market signaling supplied by loan agreements.  Their multiple specifications do a nice job of ruling out alternative hypotheses.

This is quite an important paper for thinking about manager and director agency costs, especially in a world where portfolio diversification has reduced the incentives for shareholders to pay attention to annual elections for directors.  (It also is a excellent example of methodology for large panel data.)  Here is the article abstract:

We take the view that corporate governance must involve more than corporate law. Despite corporate scholars' nearly exclusive focus on corporate law mechanisms for controlling managerial agency costs, shareholders are not the only constituency concerned with such costs. Given the thick web of firms' contractual commitments, it should not be a surprise that other financial claimants may also attempt to control agency costs in their contracts with the firm. We hypothesize that this cross-monitoring by other claimants has value for shareholders. 

We examine bank loans for empirical evidence of the value of cross-monitoring. Our approach builds on prior empirical work on the value of good corporate governance, to which we add data on the presence of bank loans and their interactions with free cash flow, governance indices, and individual corporate governance provisions. We find strong evidence that bank monitoring adds value. In effect, bank monitoring can counteract somewhat the value-decreasing effects of managerial entrenchment. Bank monitoring may substitute for good corporate governance.

Summer Institute - EITM VI

UCLA will be hosting the sixth summer institute on the Empirical Implications of Theoretical Models (EITM) from June 24 to July 21, 2007:

The Summer Institute on EITM seeks to train a new generation of scholars who can better link theory and empirical work. It is a highly interactive training program for advanced graduate students and junior faculty led by political scientists from across the discipline who employ EITM in their research. Summer institutes general[ly] accept 25 advanced graduate students and junior faculty through a competitive selection process. In most cases, tuition, room and board, travel and living expenses are covered for participants through a grant from the National Science Foundation.

Graduate students who will benefit most from the program should be committed to using both theoretical models and empirical data in their dissertations. They should have some training in both formal methodology and quantitative analysis -- and advanced training in at least one of these areas. We will also accept junior faculty looking to improve their defended dissertation in a direction that incorporates EITM, or junior professors that are embarking on a "second EITM-like project".

There is more information here.

Trial courts, judicial politics, and summary judgment ...

First, I'd like to thank the editors of ELS for asking me to guest blog. I think that blogs can provide valuable points of intellectual interaction and can also be a lot of fun.

A while back, Washington University law professor Margo Schlanger blogged on ELS about trial courts and trial court judicial politics, and I was hoping to revisit this topic. Her Civil Rights Litigation Project goes a long way toward facilitating research on trial courts. Trial courts and access to justice have long been research interests of mine. Between other research projects and teaching, I have been doing some reading on the use of summary judgment by trial court judges and especially empirical examinations of summary judgment decisions.

I was especially intrigued by Harvard law professor Arthur Miller's article in the NYU Law Review - "The Pretrial Rush to Judgment: Are the 'Litigation Explosion,' 'Liability Crises,' and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?" (2003). It brought up some things that I had thought about during my attorney practice years and had continued to think about during my years of looking at courts from a social science perspective. I won’t go into a full recap of his excellent 150+ page article, but he is basically concerned with the shift in responsibility between jurors and judges in making determinations of fact. He (along with other scholars) even suggests that such a shift, via expanded summary judgment, might undermine the Constitutional right to a jury trial.  Certainly, expanded use of summary judgment has important implications for citizens' access to justice.

Guest Blogger: Jeff Yates

This week's guest blogger is Jeff Yates, Associate Professor of Political Science at the University of Georgia.  Jeff received his J.D. from the University of Tennessee and his Ph.D from Florida State University.  His research focuses on the study of judicial process, criminal justice and tort litigation.  His recent work is available here.