The Second Annual Conference on Empirical Legal
Studies will be held at New York University School of Law in New York. The
conference will feature original empirical and experimental legal scholarship by
leading scholars from a diverse range of fields.
Last year’s conference had approximately 230
participants and more than 85 presented papers. We expect that this year’s
conference will be at least as large.
The conference will start at 9:00 a.m. on
Friday November 9, 2007. Paper presentations will conclude at 1:15 p.m. on
Saturday November 10 in order to allow participants to return home that
afternoon. For those staying on, there will be two methodology discussion
sessions (one introductory and one advanced) from 2:30 to 4:00 p.m. and a
reception from 6:00 to 8:00 p.m. on Saturday.
The deadline for submission of papers is July
1, 2007.Details about submissions are included below.
There is a conference fee of $60 ($30 for
students). This fee covers all activities including meals and refreshments. It
also covers a one-year membership in the Society for Empirical Legal Studies
(SELS) as well as a one-year subscription to the Journal of Empirical Legal
Studies (JELS) (students paying the discounted fee will receive only the on-line
version). Given the size of the conference, we cannot reimburse expenses
(except for some presenters with special needs, as discussed below).
Scholars whose papers are accepted for
presentation at the conference will be invited (but not required) to submit the
work for possible publication in JELS. In addition, the JELS editors expect to
publish abstracts of all presented papers (including poster session papers) in
the special issue (with author consent).
Some of our readers may be interested in the following announcement:
Michelle Mello and David Studdert of the Harvard School of Public Health
and the University of Melbourne have made information about their work on a
proposal for policy experiments with administrative compensation for medical
injury ("health courts") available online at http://www.hsph.harvard.edu/faculty/michelle-mello/current-projects/.
Additionally, the project is being featured this week on the blog of the
Portfolio of the Robert Wood Johnson Foundation, Pioneering Ideas (http://blogs.rwjf.org/). They will be
publishing several posts about our research, and the blog will also feature
posts by their partner in this effort, Paul Barringer of Common Good, as well as
commentary by the Foundation. Comments are welcome.
Related to David's post, Chief Justice Roberts gave a speech recently in which he argued that the reasons for the Supreme Court's shrinking docket were: 1) fewer pieces of significant legislation from Congress; 2) more uniform statutory interpretation in the lower courts; and 3) the ability of lower courts to find relevant cases online. (Hat tip to the Brennan Center's Fair Courts Elert. A link to the AP article on the speech is here.)
Few people, scholars included, approach a topic like affirmative action in higher education, without prior views about the political morality and general desirability of the practice. Affirmative action is not unique in this respect. Targets of study, ranging from the death penalty, to the environment, to free market as opposed to regulatory approaches to corporate governance, may be topics which the scholar, as citizen, cares deeply about or is even ideologically or psychologically committed to. This is not necessarily unfortunate. Outstanding research often grows out of a researcher’s passions. Prior commitment to a position, especially passionate commitment, may nonetheless pose problems as it may affect how research is done and the reception accorded the results of research. For legal scholars, however, strong commitments often pose few difficulties. Because much legal research is normative, advocacy of a position, even passionate advocacy, is often appropriate to the genre. If a person has been blinded by his or her strong preferences, weaknesses in an argument or analysis are usually evident to the critical reader, and knowledgeable readers can recognize failures to adequately review a literature or to fairly summarize it. Moreover, much normative writing does not turn on the “truth” of disputed propositions, but rather invokes values that are neither true nor false or depends on readings of cases or statutes that are similarly neither true nor false.
Empirical research too may benefit from the passionate involvement of the researcher in a topic, even when involvement reflects not only value commitments but also strong a priori views about the state of the empirical world. One who opposes the death penalty, for example, may oppose it in part for religious reasons and in part because she believes that it is imposed in a racially biased manner. To demonstrate the latter proposition, she may undertake a study of the role race plays in the administration of the death penalty. In doing so, however, she may be using data that is, for the time being at least, exclusively hers, and only those aspects of the data that she discloses will be known to readers. While a report of this research may be criticized for failing to use appropriate or best methods, a detailed critique will usually take considerable effort even for those familiar with the topic, and without the author’s data aspects of reported analyses must be taken on faith.
First of all, I would like to thank the editors for inviting me on board as a permanent editor. I am honored and delighted to be here and to join such an illustrious group.
For my first post, I thought I would mention an article that addresses the subjects of several recent discussions. Last August, ELSBlog hosted a one-day forum on the relationship between teaching and scholarship in law schools. A good part of that discussion focused on the accuracy of teaching evaluations. More recently, there have been posts about the effect of the gender of the litigation team and oral advocate on outcomes in the Supreme Court and on scholarship about implicit racial bias and its impact on judges and jurors.
So it turns out that there is scholarship on the relationship between bias and student evaluations. In Bias, the Brain, and Student Evaluations of Teaching, an article that will appear in St. John's Law Review in November, Deborah J. Merritt of Ohio State Moritz College of Law argues that students' stereotypes and biases affect their evaluations of their professors, and in ways that may particularly disadvantage women and minorities. The abstract explains that student assessments of teaching "respond overwhelmingly to a professor's appearance and nonverbal behavior." Merritt reports that "ratings based on just thirty seconds of silent videotape correlate strongly with end-of-semester evaluations." The very interesting article includes an impressive and eye-opening survey of research and concludes with recommendations for creating a more meaningful system for evaluating teaching.
According to the website: "Hosted by UC-Santa Barbara, this is the "only online resource that has
consolidated, coded, and organized into a single searchable database: • The
Messages and Papers of the Presidents: Washington - Taft (1789-1913); • The
Public Papers of the Presidents: Hoover to Bush (1929-1993); • The Weekly
Compilation of Presidential Documents: Clinton - G.W. Bush (1993-2007)." The
archive area also includes executive orders, proclamations, and press
One issue that has not been disputed to date in the litigation on race-based affirmative action has been whether schools that were sued to stop the preferential admission of minorities in fact engaged in affirmative action. In every case the schools sued had policies that espoused affirmative action, and they admitted they were following these policies. But suppose they had not admitted to affirmative action admissions. Could the plaintiffs have proved that the defendant schools were engaging in race-based affirmative action?
The question is not purely academic, or at least it might not remain so. A number of states, my home state of Michigan among them, now preclude race-based affirmative action, and the word is that those opposed to affirmative action plan ballot proposals to ban affirmative action in numbers of other states. Judging from recent referenda, if such proposals make the ballot, they are likely to pass. If they do, or where they have, should it appear that there are more blacks, Hispanics, Native Americans, or members of other minority groups on campus than race-blind admissions would bring, law suits might well ensue. Unlike earlier litigation, however, plaintiffs would be attempting to prove facts – the existence of forbidden affirmative action – rather than seeking to argue the constitutionality of an admittedly ongoing process. How hard will it be to do this?
Today, at the Seventh Circuit Bench-Bar Conference, I was on a panel entitled "The 'New' Media: Bloggers and
the Courts." My fellow panelists included Christine Hurt, Ann Althouse, Howard
Bashman, Rick Garnett, and Eugene Volokh. The Honorable Diane Sykes of the Seventh Circuit moderated our panel. (Needless to say, I was very pleased to be included on a panel with such distinguished colleagues.) Before our
panel, Supreme Court reporter Joan Biskupic of USA Today discussed "The Evolution of Media Coverage on the Supreme Court" and there was a panel discussion entitled "Traditional Media' s Coverage of the Supreme Court."
Some items struck me about this entire morning devoted to essentially media, technology, and the law. First, blogs and the internet are having a major impact on "traditional media." It's clear that, to keep up with the bloggers, the way of doing business has changed for reporters (e.g., blogs of their own, quicker deadlines, articles of different substance). Second, the availability of electronic information such as The Oyez Project and SSRN (and any of the other databases we link to on the ELS Blog) are, unfortunately, not widely known. Third, there is a gross disparity among individuals in understanding what blogs are and what they do. Fourth, many consider blogs to have a unique influence on the public discourse and possibly the courts. Yet, some attendees were concerned that bloggers posting about pending cases may be inappropriate. Fifth, the ELS Blog was described as more "academic in nature" than most other legal blogs, serving as a forum "for high-level exchanges of
commentary on law and legal scholarship." I think this was in response to our advanced content level and lack of posts regarding gossip or popular culture.
Finally, the best quote of the day belongs to Ann Althouse: "Judges can't write a really bloggy blog."
For my co-panelists' take, see here and here (though it sounds like more details from them are forthcoming).
I would like to begin by thanking the Editors of the ELS blog for inviting me back for a repeat performance. I am going to use this opportunity mostly to talk about issues that arise in empirical investigations of affirmative action. I will use this kick-off contribution, however, to talk specifics and to correct misinformation that exists in the literature, which was unfortunately widely publicized in the New York Times. This misinformation stems from an article that Professor Richard Sanders published in the North Carolina Law Review that examines the career paths of black attorneys who begin their careers at large (100 lawyer +) law firms and reports that that these young attorneys leave large firms at very high rates relative to whites. This finding is later used to question the skill levels of young black attorneys and as evidence of adverse consequences, both in law school and thereafter, to affirmative action.
I wish to be clear at the outset that although I think Professor Sander’s argument misleads because crucial data are wrong, I do not mean to criticize Professor Sander for using these data when he did. At that time the data Professor Sander relied on seemed to be the best publicly available data, even if they were not the best suited to his purpose. Moreover, not only do the assumptions he made to justify relying on his data appear at least plausible, but he also attempted to check his most crucial inference with other publicly available data. Indeed, it is precisely because his efforts to be careful lend plausibility to his use of the data and consequent conclusions that it is important to correct the data record.
In his North Carolina Law Review article, Professor Sander suggests that black associates leave large (100 lawyer +) law firms in their first few years and before the partnership decision at dramatically higher rates than whites. While there are a variety of plausible explanations for this, including the arguments that blacks suffer from prejudice and hostile atmosphere and the claim that most young large firm associates are looking for ways out and blacks simply have more attractive opportunities to leave than whites, Sander’s preferred explanation for at least a large part of this disparity is that black associates are less well equipped to do the work large firms demand than whites and that this is in large measure attributable to law school and law firm affirmative action.
This week, we are pleased to announce Richard Lempert (Michigan Law School) as a guest blogger, who returns to us following an interesting and provocative set of posts back in August 2006.
Professor Lempert is particularly concerned with the problem of
applying social science research to legal issues. This is reflected
in much of his work, particularly his work on juries, on capital
punishment and on the use of statistical and social science evidence
by courts, as well as in his service as an original panelist in the
National Science Foundation's Law and Social Science Program and with
the National Research Council's Committee on Law Enforcement and the
Administration of Justice, which he chaired from 1987-89. He is
the author (with Joseph Sanders) of An Invitation to Law and Social
Science and co-editor (with Jacques Normand and Charles O'Brien) of
Under the Influence? Drugs and the American Work Force. From 1982-85, he edited the Law & Society Review. He is a
recipient of the Law & Society Association's Harry Kalven Jr.
Prize prize for outstanding socio-legal scholarship and has held
visiting fellowships at the Center for Advanced Study in the
Behavioral Sciences and at the Russell Sage Foundation. In 1993 he
was elected a fellow of the American Academy of Arts and
Sciences. He currently serves as the secretary of Social, Economic, and Political Sciences Section (K) of the American Associate for the Advancement of Science.
While the ELS Blog rarely posts off-topic news, this news promises to be a transformational moment for the Marquette University Law School:
An alumni couple will donate $51 million to Marquette University toward construction of a new Law School facility,
Marquette President Robert A. Wild, S.J., announced today. The donation is the
largest gift ever made by individuals to a Wisconsin college or university, and
is one of the largest ever to a law school in the United States.
Raymond A. and Kathryn A. Eckstein of Cassville, Wis., and Boca Raton, Fla.,
made the gift as an “expression of gratitude” to the university. Ray Eckstein
is a 1949 graduate of the Law School and a
transportation entrepreneur. Kay Eckstein received her bachelor’s degree from Marquette in speech in
Bernard Harcourt of the University of Chicago Law School is guest blogging at the Volokh Conspiracy this week. One of his topics is the very interesting graph below, which shows the institutionalization and homicide rates in the United States from 1934 to 2001. The line that is higher for the first half of the graph represents the institutionalization rate in the United States, counting those institutionalized in both prisons and mental hospitals. The other line represents the homicide rate.
Over at SCOTUSBlog, Tom Goldstein had an excellent post Tuesday about the state of the Supreme Court's plenary docket for October Term 2007. There is now a 25-case shortfall for the fall, and it looks like it will be really difficult, perhaps impossible, for the Court to fill that shortfall between now and the summer recess. In a separate post at SCOTUSBlog, I discuss at length a 2004 article by Peggy and Richard Cordray, 36 Ariz. St. L.J. 183 (2004), that studies the seasonality of the Court's selection of plenary cases and examines some of the trends that occur when the Court is trying desperately to fill its docket. Among other things, these historical trends suggest that we will see a lot of grants between now and the end of the Term as the Court feels pressure to fill the October, November, and December argument calendars. We will also probably see a ton of grants, just like this Term, around November, December, and January as the Court attempts to fill the remaining slots during the Spring.
Francesco Parisi (Minnesota Law) has written Coase Theorem for the New Palgrave Dictionary of Economics. The Abstract:
The Coase Theorem holds that, regardless of the initial allocation of property rights and choice of remedial protection, the market will determine ultimate allocations of legal entitlements, based on their relative value to different parties.
Coase's assertion has occasioned intense debate. This article provides an intellectual history of Coase's fundamental theorem and surveys the legal and economic literature that has developed around it. It appraises the most notable attacks to the Coase Theorem, and examines its methodological implications and normative and practical significance in legal and policy settings.