Empirical Legal Studies

Howrey Associate Pay Scale: What Merit Really Means

According to this story, Howrey, a 630-lawyer firm headquartered in DC, has ditched the nearly universal associate lockstep pay model in favor of  a flexible approach that is purportedly linked to merit.  Several blogs have debated whether this "bold move" is smart business or seeds of an eventual recruiting disaster.  See WSJ Law Blog, Leiter, Moneylaw, Legal Ethics Blog, and Adam Smith.   IMHO, they are all most are missing the bigger picture of what is really going on.

Howrey claims that "top performers" will be paid more, but (I think) that is just code for associates working in high-margin practice areas.  These folks have a coveted skill set and are constantly being recruited on behalf of rival firms.   In other words, the market is setting different price points for, say, 5th year labor & employment associates versus their 5th year private equity or specialty-litig peers.   When partners with high-margin practices are losing associates, or associates in low-margin areas are getting raises they would never get in the lateral market, the "Partners with Power" are likely to lobby for--and get--an associate pay scale based on "merit".

Another datapoint corroborates this theory.  Earlier this year, Dechert, a 700+ lawyer Philadelphia-based firm, moved to a bifurcated associate lockstep system:  if you are in the favored Financial Services Group (FSG), you made up to $30K more than your non-FSG peers.   Remarkably, Above the Law posted an internal Dechert email that detailed the FSG premium for each associate year.  Certainly, Howrey's subjective "merit" system provides partners with better cover for meeting the market than Dechert's clumsy "caste system". 

It is noteworthy that Howrey specializes in IP, antitrust, and global litigation--so associate salary wars with the big Wall Street firms are very hard to swallow.  But the idea that Howrey is going to pay "low performers" less money is absurd.  If you are a true low performer, your work dries up and you leave.  But if you are superstar in a commodity practice area, your job is plenty safe; but expect to make less than your non-commodity peers.   The laws of supply and demand are finally being brought to bear on Biglaw firms--that is what changing the age-old associate lockstep system, not some newfangled management theory.

The theoretical and empirical angle is after the jump.

Drifting on the Supreme Court

Fresh from my mailbox, the July issue of the ABA Journal has an article on the ideological drift of Supreme Court justices. Author Richard Brust spoke with Lee Epstein of Northwestern University. Along with co-authors Andrew Martin, Kevin Quinn, and Jeff Segal, she has an article on this topic scheduled for an upcoming issue of the Northwestern Law Review.

“[S]ays Epstein, ideological drift is the rule rather than the exception. Of the justices appointed since 1937 -- the rise of the New Deal court -- almost all have grown either more liberal or more conservative during their tenures. Some have shifted several times. ‘Very few have not drifted,’ says Epstein. Of the 26 justices over the last 70 years who served for at least 10 terms, only four can be seen to have stuck to their original ideologies.”

Which four justices remained anchored to their original ideological dispositions? The answers are (after the break):

Up-to-the-Second Population Estimates

When you need an estimate of the United States’ population -- and not some out-of-date estimate from 2 minutes ago -- the Census Bureau’s POPClock has the number you need.

One birth every..................................   7 seconds
One death every..................................  13 seconds
One international migrant (net) every............  27 seconds
Net gain of one person every.....................  10 seconds

So does the Bureau of Justice Statistics have a similar clock? (See the previous post from today.)

UPDATE: It’s not run by the BJS, but there is a “drug war clock.” (H/T Andrew Sullivan)

Bureau of Justice Statistics Bulletin

The Bureau of Justice Statistics' Prison and Jail Inmates at Midyear 2006 bulletin is here. (Bulletin revised 6/27/2007)

WASHINGTON -- During the 12 months that ended June 30, 2006, the nation’s prison and jail populations increased by 62,037 inmates (up 2.8 percent), to total 2,245,189 inmates, the Justice Department’s Bureau of Justice Statistics (BJS) reported today. State and federal inmates accounted for 70 percent of the increase. At midyear 2006, two-thirds of the nation’s incarcerated population was in custody in a state or federal prison (1,479,179), and the other one-third was held in local jails (766,010).

The full press release is here. (Press release revised 6/28/2007)

Call for Student Papers - Interdisciplinary Submissions Encouraged

The deadline to submit abstracts for The Student “I”  conference is fast approaching. Some details:

Graduate and undergraduate students from all disciplines are invited to submit an abstract for The Student “I”, a student conference on October 25, 2007 at the Faculty of Law, University of Ottawa, Canada.

Preceding the Revealed “I” conference hosted by researchers from On the Identity Trail, this day long student conference brings together students from around the world, selected through a peer-review process, to present research relating to identity, privacy, anonymity, technology, surveillance, and other related topics engaged by the On the Identity Trail project.

Abstracts should not exceed 1,000 words (including notes and citations). Successful abstracts will seek to make an original contribution. Inter-disciplinary submissions are encouraged. Abstracts should be accompanied with a short bio, which should include the student’s program and institution of study, and an email address for correspondence. The deadline for abstracts is July 1, 2007.

More information can be found here.

The Fairness Doctrine: Sampling Fairly

On Fox News Sunday, Senator Diane Feinstein said she is considering whether the Fairness Doctrine should be revived because “there ought to be an opportunity to present the other side. And unfortunately, talk radio is overwhelmingly one way.” According to The Hill, the Fairness Doctrine is generating increased interest in Congress. So far, Exhibit A in this discussion is the new report from the Center for American Progress and Free Press, which attempts to document the imbalance in talk radio and comes out strongly in favor of government regulation to undo “the move toward lowest common denominator syndicated programming.” (p. 8) The report actually argues the Fairness Doctrine alone would be insufficient to remedy the imbalance and calls for more changes.

In part, the report bases its evidence on a non-randomly selected sample of the roughly 1700 radio stations classified as news/talk. The analysis includes the 257 news/talk radio stations owned by the Big Five station owners, Clear Channel, CBS, Citadel, Cumulus, and Salem. During the month of May 2007, 91 percent of the weekday political talk radio programming on these stations was conservative and 9 percent was progressive (or liberal). The report adds that 236 of these 257 stations (92 percent) “do not broadcast a single minute of progressive talk radio programming.” (p. 3) However, many of these stations probably don’t broadcast any political talk at all. About one-third of the 65 news/talk stations listed in Appendix C of the report lack any identified conservative or progressive talk.

The explanation for how the imbalance indicates a market failure is based mainly on a PEW study from last year. It found the national talk radio audience to be 43 percent conservative, 30 percent moderate, and 23 percent liberal. (PEW p. 38) These PEW numbers supposedly show there is unmet demand for progressive programming; however, the report does not disaggregate these national numbers and identify how many regions of the country actually have enough demand to sustain progressive programming but nevertheless have no supply.

With the programming so ideologically lopsided in the aggregate, perhaps it should be obvious that there is substantial unmet demand somewhere -- for example, the report says eight of the ten radio markets in Ohio have no progressive programming at all (p. 7) -- but the report is not convincing in explaining how the market is unresponsive to demand, either nationally or at the local level. The report speaks of syndicated conservative programs as having “artificial economies of scale” (p. 8), though the artificiality of the market is seemingly attributed to a lack of vigorous government regulation.

Setting aside why the market for talk radio is the way it is, I’ll focus on a sampling issue in this post. I'll save a coding quibble and some thoughts on an appendix of the report for a later post. (Appendix D provides some evidence that minority owners and owners of only a single radio station are more likely to broadcast progressive programs.)

An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law

I've just posted on SSRN a first draft (in preparation for the impending Conference on Empirical Legal Studies paper submission deadline) of my paper An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law.  I'd sincerely appreciate any comments on the piece at jason.czarnezki@marquette.edu.  The Abstract:

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, too little is known about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as opposed to ideology—in environmental law cases. With special attention paid to how courts implement the Chevron doctrine, this Article empirically and doctrinally analyzes environmental law cases decided in the U.S. Courts of Appeals over a three-year period (2003-2005) to investigate what factors, including ideological, legal and institutional variables, impact judicial review of administrative agency interpretations of environmental statutes.

Relying on empirical analysis and descriptive data, this Article finds that environmental cases of statutory interpretation, usually litigated in the D.C., Second and Ninth Circuits, are dominated by EPA involvement and interpretation of the Clean Air and Clean Water Acts. This Article's findings confirm earlier research that judges vote in their perceived ideological direction and show the Chevron doctrine, when employed in environmental cases, works as expected—courts find most statutory provisions ambiguous and then affirm agency action. There is limited evidence that judges strategically use Chevron step one to achieve desired policy preferences—at the ideological extremes, conservatives deferred to Bush Administration agencies under Chevron step two, while liberals were more likely to reverse the agency by finding the statute unambiguous under step one. Legal preferences, however, do play some role in judicial decisionmaking, and not necessarily to achieve an individual judge's policy preferences. Invoking legislative history mildly corresponds to a liberal vote, yet ideology does not predict its invocation—suggesting a judicial philosophy toward legislative history actually impacts voting outcomes and lends support for the legal model of judicial decisionmaking.

This Article also makes a number of qualitative findings. Doctrinally, there remains much confusion and conflation in the circuits over how to apply the Chevron doctrine, manifested through poor opinion organization, befuddlement over the application of Chevron step zero, and multiple understandings of the difference between arbitrary and capricious review and the two Chevron steps. The circuits have shown, however, a strong willingness to defer, under any doctrine or framework, to agency action when environmental scientific expertise is required. Ultimately, this Article supports a more nuanced notion of judging in environmental cases that depends upon policy preferences, interpretive philosophies, standards of review, and scientific complexity.

Some Interesting Factoids on Legal Scholarship

We are laboring away here in Bloomington on our large-scale longitudinal database of legal scholarship [hereafter the AMD2H database, for Arewa, Morriss, Dau-Schmidt, Hook, & Henderson].   In a nutshell, we are carefully linking 80 years worth of bibliographic data from the Index of Legal Periodical (ILP) with 85 years of biographical information from the AALS directory and a newly created categorization system that reflects evidence of institutional hierarchy in the decades that preceded U.S. News. 

The large payoffs from this data-assembling enterprise are still months and years aways.  But the process occasionally provide a window on some interesting freestanding factoids.  Here are some:

• Before "disambiguation" (e.g, determining whether "Joseph Smith" is "Joseph B. Smith"), there are 314,331 unique authors in the ILP database.  Obviously, this number will go down as we clean the data.
• There are approximately 750,000 articles with one or more named authors.  The average output per author is 2.45 articles.  After disambiguation, this number will go up, but not radically.  (Note, this universe includes students, practicing lawyers, and law professors, so inferences of total academic productivity cannot yet be drawn.)
• Similar to Paul Caron's observation on the Long Tail of Legal Scholarship, the Top 1000 authors account for 9.1% of the entries (70,452).  In other words, 1/3 of 1% of the authors produced 9.1% of the entries.  After disambiguation, this disparity is likely to be slightly larger.  Let's save the "quantity versus quality" debate until later; beyond citation counts, good luck operationalizing a measure of quality.  Moreover, it is impossible to cite what was never written.

In addition to building the database, we are documenting, through a careful sampling process, the scope and coverage of the ILP database vis-a-vis a typical or exceptional author's total career productivity.  That process has also yielded some interesting insights. 

We hope to have one or two summary papers done by the fall, which will offer much more refined analyses, including trends over time.  Stay tuned.

Massive Data on Law Schools Now Available for Download

Prospective law students and advocates of alternative rankings have just gotten a major break.  The ABA Section on Legal Education and Admission to the Bar has posted all of its 2008 "Official Guide" data on its statistics website in downloadable Excel spreadsheet format. 

Kudos to the ABA for its willingness to be transparent and facilitate informed student choice.  Also, Ted Seto (Loyola, LA) and Tom Bell (Chapman) deserve credit for their public and persistent urging of the ABA to take this step.  (See here, here and here.)

Trying Not To Be a Hammer Looking for a Nail

I've been mulling over David Stras's recent post about whether methodology drives the research question or vice versa.  I think that this question points to one of the things that is particularly exciting about the current wave of interest in ELS.  Communication, joint research projects, and other kinds of cross-fertilization is increasing between legal academics (trained as lawyers) and social scientists who study the legal system.  These interdisciplinary discussions -- formal and informal -- carry with them the possibility of taking the best insights and tools from different disciplines to help us all understand the legal system better.

This enterprise is not always easy, of course.  In part this is because, as David points out, the scholar who, like him (and me), is not a methodologist but is interested in using the method most appropriate to the current research question must invest time and energy into learning and applying relatively unfamiliar approaches.  It is also difficult because, as he suggests, at least for junior scholars, there may be risks associated with a more eclectic style of scholarship: for example, risks of not having an easily summarized area of expertise, or risks of not having an easily evaluated body of scholarship. 

I think that there is a third area of difficulty -- or of opportunity, depending on how one looks at it.  For years, political scientists and legal academics have failed to speak to each other across "the Great Divide."as Gerald Rosenberg called it in a 2000 article in The Green Bag.  Engaging in that conversation now requires a willingness to challenge sacred cows (on both sides of the divide) and a thick skin to endure the responses to such challenges.  This can be daunting for well-established scholars; all the more so for junior academics.

One example of this dynamic can be found in 69 University of Chicago Law Review, winter 2002.   The Law Review sponsored an "Exchange: Empirical Research and the Goals of Legal Scholarship."  The opening piece, "The Rules of Inference," by Lee Epstein and Gary King, included criticisms of works by legal scholars, some of whom responded aggressively.  (Epstein and King, in their reply, at 60 U Chi. L. Rev. 191, deplored and discussed the "fireworks" in those responses.)

But as I said, this is also an area of opportunity.   Simply talking across the Great Divide is not enough.  I think that ELS provides an opening for scholars in a variety of related fields to help each other understand the strengths and weaknesses of their own approaches and received wisdom.