Empirical Legal Studies

An Empirical (and Normative) Assessment of Scott v. Harris

This paper, which just appeared in the SSRN Empirical & Experimental Journal, sheds some light on the cultural components of reasonableness in Supreme Court jurisprudence: Dan Kahan (Yale), Dave Hoffman (Temple), and Donald Braman (GWU Law), "Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris".  Here is the abstract:

This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk to the public. Instead, the Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it. We showed the video to a diverse sample of 1,350 Americans. Overall a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities. The paper also addresses the normative significance of these findings. The result in the case, we argue, might be defensible, but the Court's reasoning was not. By insisting there was only one reasonable view of facts, the Court needlessly invested its decision with culturally partisan overtones that detracted from the decision's legitimacy.

Really interesting stuff.  If we want to better understand the dynamics of race and class in this country, this seems like a worthwhile place to start.

An Empirical Analysis of Street-Level Prostitution

Hat tip to this ABA Journal Daily News story, which reports Steve Levitt's (Chicago Econ / American Bar Foundation) and Sudhir Alladi Venkatesh's (Columbia Sociology) recent draft empirical analysis of street-level prostitution in Chicago.  The following abstract provides some specific (and bleak) details on the economics of this profession:

Combining transaction-level data on street prostitutes with ethnographic observation and official police force data, we analyze the economics of prostitution in Chicago. Prostitution, because it is a market, is much more geographically concentrated than other criminal activity. Street prostitutes earn roughly $25-$30 per hour, roughly four times their hourly wage in other activities, but this higher wage represents relatively meager compensation for the significant risk they bear. Prostitution activities are organized very differently across neighborhoods. Where pimps are active, prostitutes appear to do better, with pimps both providing protection and paying efficiency wages. Condoms are used only one-fourth of the time and the price premium for unprotected sex is small. The supply of prostitutes is relatively elastic, as evidenced by the supply response to a 4th of July demand shock. Although technically illegal, punishments are minimal for prostitutes and johns. A prostitute is more likely to have sex with a police officer than to get officially arrested by one. We estimate that there are 4,400 street prostitutes active in Chicago in an average week. 

Levitt is the author of Freakanomics and a real connoisseur a salient but quirky  economics projects.  The ABA Journal story contains this comment by Levitt on his support from the ABF:  “A lot of what I do makes the bar foundation very nervous ... [B]ut I have a lot of respect for the foundation because with every project I bring forward—usually loaded with tricky issues about race and class—the bar foundation has been willing to swallow hard and support me, knowing that my results weren’t necessarily going to be very popular.”

If we follow the data, we have a shot at formulating policies that actually work.  Kudos to the ABF for supporting this research.

Methodological Fit

The most recent issue of the Academy of Management Review contains a must-read for the legal empiricists who lack formal social science training (e.g., me):  "Methodological Fit in Management Field Research." The article, by Amy Edmondson (Harvard Business School) and Stacey McManus (Monitor Executive Development), provides a remarkably accessible and constructive framework for research design, including the respective roles of qualitative and quantitative methods.  Here is the abstract:

Methodological fit, an implicitly valued attribute of high-quality field research inorganizations, has received little attention in the management literature. Fit refers to internal consistency among elements of a research project—research question, prior work, research design, and theoretical contribution. We introduce a contingency framework that relates prior work to the design of a research project, paying particular attention to the question of when to mix qualitative and quantitative data in a single research paper. We discuss implications of the framework for educating new field researchers.

This article is chock full of useful reference charts that can be relied upon to develop a coherent and effective research plan.  For example, this chart [click on to enlarge] summarizes the four key elements of a field research project:

This graphic [click on to enlarge] depicts the iterative nature of good field research:

Two more graphics after the jump:

Testing the Conventional Wisdom of College Football

Empiricism can also used to test hypotheses that matter to actual people.  See, for example, this recent NBER working paper by Trevon Logan (Ohio State Economics):  "Whoa, Nellie! Empirical Tests of College Football's Conventional Wisdom."  Here is the abstract:

College football fans, coaches, and observers have adopted a set of beliefs about how college football poll voters behave. I document three pieces of conventional wisdom in college football regarding the timing of wins and losses, the value of playing strong opponents, and the value of winning by wide margins. Using a unique data set with 25 years of AP poll results, I test college football's conventional wisdom. In particular, I test (1) whether it is better to lose early or late in the season, (2) whether teams benefit from playing stronger opponents, and (3) whether teams are rewarded for winning by large margins. Contrary to conventional wisdom, I find that (1) it is better to lose later in the season than earlier, (2) AP voters do not pay attention to the strength of a defeated opponent, and (3) the benefit of winning by a large margin is negligible. I conclude by noting how these results inform debates about a potential playoff in college football.

Hat tip to Danny Sokol (Missouri Law).

Science for the Masses(?)

Via Slashdot: an interesting post asks, "Is scientific journalism doomed?":

"(H)ow can you effectively present primary scientific literature to the general public?  Is this even possible?"

...There are a number of assumptions I have been forced to make while analyzing my data, many of which are critical for both my methodology and the development of few of my arguments...How do you explain to someone the relative magnitude of these assumptions?...How, then, do you effectively cover a story laden with valid assumptions, some likely to be correct, many likely to be incorrect?"

As they say, read the whole thing.  For anyone who has ever tried to present empirical work to a non-empirical audience, it's a familiar problem.

When Do Justices Use Legislative History

James Brudney of the Ohio State University Moritz College of Law and Corey Ditslear of the University  of North Texas political science department, have posted a new piece on SSRN.  Entitled Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, it addresses the question of whether legislative history is used ideologically, in particular by the liberal justices.  The abstract follows:

This article conducts an in-depth examination of Supreme Court Justices' reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.
First, the article presents a powerful case against the conventional wisdom that legislative history is a "politicized" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions - if true - should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in "minor" cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion.
The article's second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices' use of legislative history since 1986. In the face of Justice Scalia's fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals' strategic restraint is to make their use of legislative history in remaining (mostly pro-employee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia's strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

(Hat tip to Rick Hasen's legislation listserv.)

The authors' discussion of the "Scalia effect" reminds me of a moment in Cass Sunstein's Elements class in my first year of law school.  Beware of what conclusions you draw from observations, he said.  Back in the 1960s, for example, many country clubs issued new rules requiring men to wear coats and ties.  But this was not because there was a move towards more formality.  Rather it was the opposite.  Social norms were moving away from formality and the clubs that wanted to preserve the old norms found it necessary, for the first time, to explicitly state them.  Not quite analogous to the Scalia effect discussion, but both are an important reminder of the hazards of inferring causation.

Ranking of Law Journals by "Drawing Power"

On the heels of our recently concluded Nance-Steinberg Article Selection Forum (Paul Caron aggregated all the posts here), I ran across this article by Robert Jarvis and Phyllis Coleman (Nova Southeastern Law), "Ranking Law Reviews by Author Prominence--Ten Years Later."  It just appeared in the Law Library Review.

The authors published a similar study ten years ago, which ranked general interest student-edited law journals based on the prominence of its contributors (i.e., "drawing power") during the 1991 to 1995 time period.  The new study is a replication based on 2001 to 2005 data (7573 discrete authors).   

The methodology includes an unusual--and, no doubt some will argue, arbitrary--scale of author prominence.  For example, if the President of the United States publishes remarks in your law review, it is worth 1,000 points.  Here are other examples: 

• 850, U.S. Senator
• 750, State Governor
• 725, U.S. Circuit Court Judge
• 625, Law professor at USN Top 25
• 525, Partner NLJ 250 firm or GC at Fortune 500 company
• 475, Law professor at USN Top 50
• 275, Law professor at USN Tier 3
• 250, Mayor or equivalent
• 225, Law professor at USN Tier 4
• 125, Community college professor
• 75, JD Student
• 50, Paralegal

Boy, am I glad I did not have to draw those lines!  No surprise that journals at the top are Yale Law Journal (score = 553, which is remarkable since it includes student notes), Harvard Law Review (551), Columbia Law Review (543), etc.

What is surprising--at least to me--is the severe dropoff as one moves down the hierarchy.  For example, Houston Law Review is a ranked #50 with a score of 337; #100 Penn State Law Review = 239;  #150 Gonzaga Law Review = 196;  #171 (dead last) Western State Univ. Law Review = 141.  I hope deans of all the new law schools consider this data before agreeing to subside yet another law journal. 

Economics is "often a triumph of theory over fact"

So says Alan Blinder, professor of economics at Princeton and former vice-chairman of the Federal Reserve Board, in this article from today's New York Times.  Here is an excerpt.

“There is much too much ideology [among professional economists],” said Alan S. Blinder ... .  Mr. Blinder helped kindle the discussion by publicly warning in speeches and articles this year that as many as 30 million to 40 million Americans could lose their jobs to lower-paid workers abroad. Just by raising doubts about the unmitigated benefits of free trade, he made headlines and had colleagues rubbing their eyes in astonishment.

“What I’ve learned is anyone who says anything even obliquely that sounds hostile to free trade is treated as an apostate,” Mr. Blinder said.

And free trade is not the only sacred subject, Mr. Blinder and other like-minded economists say. Most efforts to intervene in the markets — like setting a minimum wage, instituting industrial policy or regulating prices — are viewed askance by mainstream economists, as are analyses that do not rely on mathematical modeling.

That attitude, the critics argue, has seriously harmed the discipline, suppressing original, creative thinking and distorting policy debates. “You lose your ticket as a certified economist if you don’t say any kind of price regulation is bad and free trade is good,” said David Card, an economist at the University of California, Berkeley, who has done groundbreaking research on the effect of the minimum wage.

Obviously, we here at the ELS Blog are supportive of any efforts to use empirical research to check our fundamental assumptions.  Because of the huge influence of economics on public policy, this internal debate is a very healthy development for all of us.

Violent Crime: It's the Lead?

In an article questioning how much credit Rudolph Giuliani deserves for reducing crime in New York City, today's Washington Post discusses the research of economist Rick Nevin. Nevin argues that variations in violent crime are significantly related to childhood exposure to lead. He has studied crime rates and lead exposure in nine countries and concluded that "[s]ixty-five to ninety percent or more of the substantial variation in violent crime in all these countries was explained by lead."

The Post article is here. A more detailed discussion of Nevin's research is here.

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):