Empirical Legal Studies

The Political Economy of the Roberts Court

Professor Maxwell Stearns of the University of Maryland School of Law recently posted an interesting new paper entitled "The Political Economy of the Roberts Court" on SSRN, see here.   It is a provocative paper, and I would like to draw your attention to my lengthy analysis of the piece on SCOTUSblog, see here.  For fans of social choice theory, this paper is right up your alley (though I am somewhat critical of the piece in my post).   I have posted the abstract after the jump.

CELS Deadline Extended

Second Annual Conference on Empirical Legal Studies

New York University Law School

http://www.law.nyu.edu/cels

9-10 November 2007

Announcement & Call for Papers

Submission Deadline Extended to July 5, 2007

http://hq.ssrn.com/conference=CELS-2007

New SSRN Journals

I would like to alert our beloved readership, should it be unaware, of two new SSRN journals, called Law & Politics and Law & Courts.  From the SSRN release:

Law and Politics is dedicated to the distribution of empirical and
theoretical scholarship from a multidisciplinary perspective. The
journal welcomes any submissions that analyze politics and the legal
process, democratic institutions, the separation of powers, the
impact of politics on development of law, and any other abstracts
that examine the political nature of law. Contributions from legal
scholars, political scientists, economists, sociologists,
psychologists, and other disciplines are welcome.

The URL below will let you browse all abstracts and papers in this
journal:
http://www.ssrn.com/link/law-politics.html

Law and Courts will distribute abstracts of working papers,
forthcoming articles, and recently published articles dealing with
judicial decisionmaking, including the determinants of decisions, the
influence of outside parties and other institutions, and the societal
impact of those decisions.

The URL below will let you browse all abstracts and papers in this
journal:
http://www.ssrn.com/link/Law-Courts.html

Two Book Reviews Not To Miss

The most recent issue of Perspectives on Politics has reviews of Lawrence Baum's Judges and their Audiences: A Perspective on Judicial Behavior and Mark Graber's Dred Scott and the Problem of Constitutional Evil.  Jeff Isaac, the book review editor, cleverly has each author review the other's book, and then gives each author the opportunity to write a short response to the other's review.

Baum and Graber are two smart guys, with two very different ways of "doing" empirical work on courts and the law, so reading each engaging with the other's arguments is a treat.  Especially interesting are Graber's points about empirical (what he calls "behavioral") political scientists' willingness to tackle normative questions.  He notes that "Judges...is organized around problems of political science, not problems in the political world... The reasons why we must better explain judicial behavior are taken for granted."

I have certainly noticed this tendency as well, particularly among those whose work has been strongly influenced by economics.  (For example, similar concerns to Graber's came up at a recent conference I attended, which brought together (normative) political theorists with a number of committed public choice / law-n-economics proponents).  Which begs a couple questions: Why do so many empirical folks shy away from asking and answering explicitly normative questions?  And what -- if anything -- are we missing as a result?

ATSRTWT.

An Argument for Bayesian Approaches

In a recent paper, Should Legal Empiricists Go Bayesian?, Jeff Strnad (Stanford) makes a case for Bayesian (rather than frequentist) approaches that should interest Bayesians as well as non-Bayesians.  Jeff makes the particular point that Bayesian models can "enable a much more natural connection between the normative or positive issues that typically motivate such studies and the empirical results." He concludes that Bayesian methods "have much to offer legal empiricists." Despite the paper's "heft" (108 manu pp.--you've been forewarned), it is well worth a read.

ICPSR Course on Social Network Analysis

This week I am walking across the IU-Bloomington campus to attend the ICPSR summer course "Social Network Analysis: Theory and Methods."   

Although network analysis has been around for nearly a century, the confluence of digitized data and cheap computer processing has given rise to a virtually limitless number of applications.  For example, just to today I learned that the Google search algorithms rely on network analysis (measuring and calculating eigenvector and eigenvalues) to place the most salient web page on the top of the search list.  Similarly, network analysis produced the insight that social isolation is more predictive of heart disease than cigarette smoking.  (I need to read the the paper that produced this insight to ascertain if they chased down all the covariates of social isolation.)  Of course, there are vehicles such as facebook and myspace, which are fostering new and powerful (and observable) social networks.

I started the course with three social networking projects:  (1) lateral partnership movement among large law firms, (2) geographic connections between law firm branch offices, and (3) movement of law faculty between law schools (as I noted here, from 1928 to the present).  But after one day, I am beginning to even more applications.

This is my second summer taking an methods class at ICPSR.  From this limited frame of reference, I continue to be impressed with the organization, quality of instruction, seamless technology, and focus on practical application.  I am looking forward to a very fruitful week.

Thanks and So Long for Now (Blumenthal guest)

Thanks to the ELS Blog hosts for the invitation to return (and for extending my guest stint), and to readers who checked out my posts and didn't laugh.  I appreciate the opportunity to share some thoughts and look forward to continued discussion about ELS.  Thanks!  ----JB

Last One on ELS and Paternalism (Blumenthal guest)

One last point about ELS and paternalism, on the third objection I identified--that paternalism reduces people's opportunities to learn.  And with this one I'll be brief.

Again, there are at least two reasons to encourage learning from mistakes.  One is so that people come to know an objectively better solution to a particular question or issue or judgment; a second is that such learning can be a rewarding, valuable experience in itself.  I referred to Klick & Mitchell's recent work on paternalism, where they discuss the learning issue; David Shapiro phrased the second theme nicely some time ago, suggesting that "the very ability to choose--which necessarily implies the ability to make poor choices by some objective standard--is critical to the growth of our diverse intellectual, emotional, and volitional capacities."

Of course, for learning to be helpful in either case there must be not only the opportunity, but also the ability and the motivation to learn.  Well-known psychological research (e.g., reviewed here), as well as more recent neuropsychological findings, show that people are prone to confirmation biases or "motivated reasoning," where individuals prefer information that will support already held beliefs or attitudes.  Personality factors (such as dogmatism), knowledge factors, and social factors (such as our perceived similarity to someone who might make a similar mistake) influence whether we learn from our mistakes--the psychologist to whom Klick & Mitchell refer suggests in his review that because of such factors, "learning is by no means automatic when people are shown the errors of their ways."

And, of course, there must be a second chance.  The New Hampshire drivers who suffer fatal accidents because of not wearing a seat belt don't learn to use one the next time.  Some scholars have suggested that paternalism may thus be more appropriate in contexts where decisions can have "irreversible consequences."

I said I'd be brief.  And in the blog context, my goal is more to raise issues for discussion and empirical research than to refute or defend particular lines of argument.  But I would suggest that for the "learning" objection, as with the knowledge-of-preferences and autonomy arguments, empirical research--rather than just ipse dixits--will be helpful in furthering such discussions.

LSSSE Data and MoneyLaw/MoneyBall

The ELS Blog and our friends over at MoneyLaw continue to debate if and how the MoneyBall philosophy can be applied to the law school universe. See, e.g., here, here, here, and here.  My original "treatise length" (by blog standards)  statement of MoneyBall/MoneyLaw is archived here.   

My bottomline on MoneyLaw/MoneyBall is simple:  The metric is money.  Sure, MoneyBall can be used to identify future professors who will produce more and better scholarship, but that will take an institution only so far.  MoneyBall principles therefore need to be deployed to build a better institution.  Better institutions engender loyal alumni and attract benefactors who want to finance a powerful vision of the future.  That money can be used to recruit gifted students and buy and keep academic talent--and the institutional mission and culture of the law school could be just as magnetic as the extra funds.  The longer the track record, the more exponential the effects.

So how would a "Billy Beane" administrator build a better institution?  The answer to that question became much clearer recently as IU Law assembled a longitudinal dataset of five years of information from the Law School Survey of Student Engagement (LSSSE).  The survey includes a wide range of questions, such as:

• Student evaluation of their academic and intellectual experiences
• Law school assessment methods (e.g., exams and graded assignments)
• Type and quantity of law school writing
• Type and quantity of extra-curricular and co-curricular activities
• Student satisfaction with various types of counseling and academic and technical support
• How students allocate their time
• Student evaluation of the educational environment on several dimensions
• Quality of students relationships with peers, faculty and administrators

The five years of data shows trendlines for IU Law internally (i.e., to see if our scores have gone up, down, or sideways) and IU Law externally as benchmarked against (a) other public law schools, (b) other schools of comparable size, (c) selected peer schools, and (d) the sample as whole.   

Having just reviewed this data, it is remarkable how well the pieces fit together--the comparative strengths, weaknesses, and, mostly importantly, where we may have been fooling ourselves.  In short, we have an empirical basis to evaluate our institution, set priorities,  allocate scarce resources, and actually measure our progress--just like any first-rate organization.

IU Law is one of two law schools in the nation that has participated in LSSSE every year since its inception.  We are now poised to garner a large return on this investment.  Kudos to our Dean, Lauren Robel, for her early and steadfast commitment to this important initiative.

Examining the Cost of Litigation

An interesting paper by Bernie Black (Texas) et al. examines litigation costs with the benefit of actual data. The paper, Defense Costs in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988-2004, finds in the med mal area that real defense costs increased approximately 4.6% per year (during the duration of the study). As the paper notes, "rising defense costs imply a decline in the “efficiency” of litigation, at least as measured by transaction costs." An excerpted abstract follows.

"We study litigation costs for personal injury tort claims in Texas over 1988-2004, relying on a detailed source of case-level data on defense legal fees and expenses, and Texas state bar data on lawyers' hourly rates. We study costs in medical malpractice cases in detail, and costs in other types of cases in less detail. Controlling for payouts (which are roughly flat), real defense costs in medical malpractice cases rise an estimated 4.6% per year, roughly doubling over this period; the rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense counsel are flat, so rising rates cannot explain this increase. Costs correlate strongly with payouts. Medical malpractice insurers predominantly used outside counsel, occasionally used inside counsel, and rarely used both in the same case. Surprisingly, medical malpractice insurers did not react to the sustained rise in defense costs by adjusting their expense reserves, which did not increase either in real dollars or relative to reserves for indemnity payouts, and declined substantially as a percentage of defense costs."