Empirical Legal Studies

New Paper Addresses Challenges of Evidence-Based Public Health Law

A recent paper in Evaluation Review (34:3, June 2010) provides researchers with a practical, how-to guide for applying the scientific method to measure the law for quantitative research. The paper, Measuring Law for Evaluation Research, commissioned by the Public Health Law Research Program (PHLR) of the Robert Wood Johnson Foundation and written by Charles Tremper, Sue Thomas and Alexander C. Wagenaar, provides detailed guidance for conducting multidisciplinary evaluations that use legal data. The article can be accessed here.

Update: Alternative access to paper here.

More on Exxon, Punitive Damages

In The Exxon Valdez Litigation Marathon: A Window on Punitive Damages, Cathy Sharkey (NYU) notes that the Court, acting akin to a common law court under federal admiralty jurisdiction, provided a template for lower courts to follow. "Free of constitutional constraints, the Court diagnoses the problem with punitive damages - unpredictability - and propose a solution: a 1:1 ratio of punitive to compensatory damages." Similar to others, however, Sharkey criticizes the Court's analysis and considers three problems in the punitive damages area that loom.

"First, the Court’s fixation on unpredictability can be linked with a broader trend in the Court’s jurisprudence of circumscribing the role of the civil jury in the name of certainty, predictability, and efficiency. Second, the Court had before it a case in a unique procedural posture: the plaintiffs were part of a “limited fund,” mandatory, non-opt out class action for resolution of punitive damages only. Because that element of the case was not appealed to the Court, the Court left for another day resolution of the classwide determination of punitive damages. Third, the Court’s quest for a national solution to the punitive damages problem and its equation of punitive damages and criminal fines presage impending federalism battles. By elevating a single punitive damages goal - that of retributive punishment - the Court sets the stage for a clash with state courts and legislatures who might be inspired to define their legitimate state interests in punitive damages differently."

More on ELS, Law Libraries, and Faculty Research Support

Increasingly, as one colleague recently remarked, "[l]aw school libraries across the nation ... have either hired or actively sought to hire an empirical research librarian, often a MLS holding librarian with a masters or Ph.D. in one of the social sciences, to assist law professors with data retrieval and analysis." Such law libraries include: University of Texas, Cornell, Duke, Georgetown, Fordham, to name but a few. I know that I benefit from tremendous research and library support at Cornell (and am grateful for it). I'd be interested in hearing from others about what ELS-specific library research support they receive or would like to receive.

Finally, to this end, I want to draw those interested to Fordham Law School Library's current search for a Reference Librarian/Empirical Research Specialist. Those interested should contact the Head of Reference, Karin Johnsrud, at johnsrud@law.fordham.edu

UPDATE: Loyal ELS Blog readers noted that opportunities exist at more than the Fordham Law School Library for a specialist in empirical legal studies. Duke Law School's library is also actively looking for an Empirical Research Associate (see job posting at: http://www.law.duke.edu/jobs/index). Those interested should contact Richard Danner directly (at: zad@law.duke.edu).

Announcement: Workshop on Research Design for Causal Inference

Bernie Black (Northwestern) and Mathew McCubbins (USC) are organizing what promises to be an exciting and much-needed workshop/conference focusing on research design aspects that bear on inference. The workshop, set for Friday, Aug. 16-20, 2010, will take place at Northwestern's law school in Downtown Chicago. One innovation is that the week-long (5-day) workshop program is modular in nature and will facilitate 3- and 4-day attendance. The Workshop's website, along with detailed information, is here. Excerpted information follows:

Overview: Research design for causal inference is at the heart of a “credibility revolution” in empirical research in the last 15 years that spans many fields. We will cover the design of true randomized experiments and contrast them to simulations and to quasi-experiments, where part of the sample is “treated” in some way, and the remainder is a control group, but the researcher controls neither the assignment of cases to treatment and control groups nor administration of the treatment. We will carefully describe the kinds of causal inferences one can and cannot draw from a research design, various threats to valid inference, and research designs commonly used to mitigate those threats.

Most empirical methods courses begin with the methods. They survey how each method works, and what assumptions each relies on. We will begin instead with the goal of causal inference, and discuss how to design research to come closer to that goal. The methods reflect the goal and are often adapted to the needs of a particular study. Some of the methods we will discuss are covered in PhD programs, but rarely in depth, and rarely with a focus on causal inference and on which methods to prefer for messy, real-world datasets with limited sample sizes.

Target audience: Quantitative empirical researchers (faculty and graduate students) in social science, including law, political science, economics, most business-school areas (finance, accounting, marketing, etc), sociology, education, psychology – indeed anywhere that causal inference is important.

ELS--From the Academy to the Bench

David Hoffman alerted me to the recent news concerning the ELS Blog's very own David Stras. According to news reports, this morning Minnesota Governor Tim Pawlenty appointed David (all of 35 years-old) to the Minnesota Supreme Court as an Associate Justice. Congratulations to David.

Identifying and Measuring Ideology in Judging

In a recent article, The Context of Ideology: Law, Politics, and Empirical Legal Scholarship, 75 Missouri L. Rev. 79 (2010), I argue for a new approach to identifying the ideological nature of Supreme Court cases.  The abstract follows:

In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices‟ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.

Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even as empirical legal scholarship has grown in significance and influence in the legal academy. Recently, however, empirical scholars and traditional legal academics have begun to engage in serious discussions with each other about how to think about and evaluate the balance between law and ideology and about how to harness the powerful tools of quantitative analysis to study such questions. In this Article, I offer several contributions to this discussion.

First, the Article evaluates current efforts by empirical scholars to identify the ideological character of cases. These efforts generally assume that the ideological character of a case can be determined by reference to a single liberal-conservative spectrum, and they generally presume that all or most cases present only a single issue. Through a recoding and quantitative analysis of a random sample of recent Rehnquist Court cases, as well as through a qualitative analysis of many of the cases, I establish concretely some of the limitations of these efforts. Specifically, I demonstrate that these approaches are indeterminate and oversimplified, and often prevent scholars from identifying cases in which the Justices face issues that pull them in different ideological directions. At the same time, however, I identify their strengths, particularly the strengths of approaches that leverage information derived from the Justices‟ actual voting patterns.

Finally, I propose a new approach for empirical scholars interested in studying the role of ideology in Supreme Court cases. Rather than starting with the assumption that ideology is the most important factor in Supreme Court decisionmaking, my approach focuses on just how important ideology was to the Justices in a particular case. Measuring ideological salience, I argue, would allow empirical scholars to study the empirical question of when and how ideology – and other factors – affects decisionmaking. Doing so would also open the door to a wide variety of important and interesting research questions. Most importantly, this approach would allow empirical scholars to engage with more traditional legal academics in the important normative debates about when and how ideology should play a role in the work of the Supreme Court.

Symposium: Past and Future of Empirical Sentencing Research

Colleagues at the University of Albany (NY) want to invite all interested to attend an NSF-funded Symposium on the Past and Future of Empirical Sentencing Research. The Symposium is set for September 23 and 24, 2010 in Albany, NY. The Symposium website along with additional information are found here. Inquiries or questions can be directed to: cjsymp@albany.edu