Empirical Legal Studies

The Oxford Handbook of Empirical Legal Research

I received the above in the mail today -- looks like a terrific set of essays on a wide range of topics using an empirical approach.  Anyone have more in-depth reaction to essays they've read?  I look forward to taking a closer look.

Very Helpful On-Line Resource

Hastie et al. The Elements of Statistical Learning in pdf (here). Brief description and commentary (here).

Empirically Assessing Judicial Activism

Over at Balkinization Stephen Griffin beat me to the task of (favorably) noting a recently-released book by Stefanie Lindquist and Frank Cross (both at Texas), Measuring Judicial Activism. Published by Oxford, info on the book is here. As Stephen notes, "When they (Lindquist and Cross) cumulate the scores of judicial activism across all dimensions, the top activist justices turn out to be Douglas, Black, and Warren, with Brennan and Marshall close behind. Justices Burger and Frankfurter rank last. The book is consistently interesting and well worth reading."

The Theory and Practice of Statutory Interpretation

In a new book by our too-modest co-ELS blogger, Frank Cross (Texas) offers a rare empirical  assessment of competing theories of judicial statutory interpretation. Frank's book, The Theory and Practice of Statutory Interpretation (Stanford Press), finds that "at least some presumptions of the theoreticians appear to be wrong. No theory is exempt from the risk of ideological willful judging, and pragmatism is the theory that was associated with the least outcome orientation."

Praise for Frank's book includes the following from Richard Pierce (GWU). "Cross's findings, based on careful empiricism, provide a welcome contrast with the often overwrought claims of many prolific proponents of particular interpretative methodologies. The important contribution to the field will be of value both for teaching and for research."

New Publications From Sage

I'll begin by disclaiming any conflict of interest, financial or otherwise: I have no stake whatsoever in Sage. I do, however, own numerous Sage Publications--and have ever since graduate school--as I've found them unusually helpful for many (but not all) nitty-gritty statistics questions. A new Sage catalog of its Research, Statistics, and Quantitative Methods titles crossed my desk recently and I thought others might be interested.

New Book- Juries

American Juries: The Verdict
by Neil Vidmar & Valerie P. Hans (Prometheus 2007)

Availability: Amazon/ B&N / Prometheus

"This monumental and comprehensive volume reviews over fifty years of empirical research on civil and criminal juries and returns a verdict that strongly supports the jury system." -- From the Description

"This is social science at its best." -- Lawrence M. Friedman

New Book - Rights in American History

The Nature of Rights at the American Founding and Beyond
by Barry Alan Shain (Editor)

Availability: Amazon/ B&N / Virginia

“Professor Shain has assembled the leading thinkers on the American Founding. Their essays summarize the best works over the past few years on rights when the Constitution was ratified, and effectively demolish notions that rights today are what rights have always been.” -- Mark A. Graber

Contributors: Akhil Reed Amar, Yale University * James H. Hutson, Library of Congress * Stephen Macedo, Princeton University * Richard Primus, University of Michigan * Jack N. Rakove, Stanford University * John Phillip Reid, New York University * Daniel T. Rodgers, Princeton University * A. Gregg Roeber, Pennsylvania State University * Barry Alan Shain, Colgate University * Rogers M. Smith, University of Pennsylvania * Leif Wenar, University of Sheffield * Gordon S. Wood, Brown University

Why I worry about the Carnegie Report (2007): Four Data Points

Earlier this year, the Carnegie Foundation for the Advancement of Teaching published Educating Lawyers.  Drawing upon extensive field work at 16 law schools, the book is a carefully researched critique of U.S. legal education.  Although I agree with many of the assessments made in the book (now commonly referred to as the Carnegie Report),  it pains me to write that I worry about its long-term impact.  In the context of legal education, good--or even brilliant--ideas are not enough to effect change. 

Rather, major systemic change requires, at a minimum:

1. A careful assessment of the institutional incentives that have created and perpetuate the current system;
2. Creative strategies for breaking down or subverting those institutional forces in a way that produces a greater good.

Unfortunately, the Carnegie Report touches on #1 only briefly; and #2 is entirely absence.  I am hoping that the Carnegie Center working group, which is being formed to help execute the study, can address these issues.  To that end, I am writing this post.  [Disclosure:  via my law school, I am a member of the working group.]

Four Datapoints

Ironically, a presentation at the annual ABA meeting (August 2007) by Lee Shulman, president of the Carnegie Foundation and one of the authors of the Educating Lawyers, was the event that crystallized my thinking.   In introducing the book, Shulman discussed the distinguished history of the Carnegie Foundation.  This included reference to four of the Center's earlier studies: 

• The Flexner Report (1910), which was major catalyst for the current system of medical education;
• The Redlich Report (1914), which was based on visits to 10 law schools and presented a deeply ambivalent assessment of the Langdellian case method;
• The Reed Reports I (1921) and II (1928), which were based on visits to 130+ schools over an eight year period and proposed that legal educators abandon the myth of a homogeneous bar, develop pedagogy according to different student populations, and otherwise reign in the case method;
• The Packer & Erhlich Report (1972 ) [aka New Directions in Legal Education], which decried the homogeneity of legal education both in purpose and structure and argued for more diverse curricula to bridge the gap between theory and practice.
  

To summarize, there is one data point (the Flexner Report) suggesting that a Carnegie Foundation report can have a revolutionary effect on higher education, and, in the law school context, three examples of expert, informed advice falling on deaf ears.  As Shulman remarked, the Redlich/Reed Reports were "ignored with enthusiasm" and Packer & Ehrlich [professor and dean at Stanford Law] were "even more ignored."

Can the Carnegie Report be a Significant Catalyst for Change?

If the Carnegie Report (2007) is going to have any impact, we need to make sense of these four data points.  What distinguishes the success of the Flexner Report from the footnote-in-history status of Redlich, Reed, and Packer-Ehrlich? 

To my mind, the answer is simple but devilishly hard to replicate.  Abraham Flexner chronicled the horrific abuse of the proprietary medical schools and deftly used that information through newspaper reports to shape public opinion and effectively close down medical schools.  At the same time, he masterfully organized philanthropic monies to build the current university-based clinical and research model of medical education.  In short, Flexner had a vision, but he also had an impressive arsenal of carrots and sticks.

Obviously, there is no set of facts I can imagine that threatens the survive of today's elite law schools. Even if they charge a lot of money and are resistant to changes in the way they educate lawyers, their graduates are virtually guaranteed high pay/high prestige jobs.  Huge endowments further insulate elite legal educators for market forces, thus freeing them to focus on things they care about, such as scholarship.  Because the legal academy is dominated by graduates of elite institutions,  as a group, we have a hard time convincing ourselves that there is a better model out there based on educational theory or learning outcomes.   

One short section of the Carnegie Report (pp. 89-91), entitled "Narrow Perspective: An Obstacle to Change," discusses, in remarkably frank terms, some of these deep-seated institutional issues:

In our study, we discovered that faculty attention to the overall purposes and effects of a school's educational efforts is surprisingly rare, partly due ... to the culture of legal education, which is shaped by the practices and attitudes of the elite schools ... .

Most faculty are drawn from a very small number of leading academic institutions, from among lawyers who have taken predictable career paths.  Students at the top schools who are identified after their first year as stars in analytical reasoning receive extensive apprentice-like training as law review editors ... .  They then go on to receive more hands-on mentoring as law clerks for appellate judges before taking up such positions as appellate advocate, legal scholar and teacher ... .  Drawing law school faculty from this pool has ensured great uniformity in career path and outlook, especially in matters of faculty promotion and curriculum, introducing little diversity of experience into the faculty perspectives.  ...

[Over the last 60 years, a pat formula took hold.] The ambitious school would recruit a highly credentialed faculty, preferably from the old, elite institutions, increase the library's holdings, induce prestigious figures to publish in the law review, and work hard to recruit well-prepared students, as measured by the LSAT.  By the 1960s, for example, a number of law schools at state universities ... had advanced their status in this way.  [For corroborative evidence of this point, see this post on the first law school rankings.] After that, the competitive "gold standard" was set for the field of legal education.

The standard is so securely established that there are very few leverage points from which to effect change in the model.

This passage, in a nutshell, reveals the Carnegie Report's Achilles' heel.  Sure, the book contains some great ideas, but as a group, law professors are not listening.  More troubling, the book has no strategy for getting their attention.

My own hope is that the certain aspects of the Carnegie Report can be used as a life raft by lower ranked schools trying to distinguish themselves--or, frankly, survive--in an era of rapidly rising tuition, burgeoning ABA-accredited law schools (20 more since 1990!), and relatively stagnant starting salaries, at least outside the large law firms.  When a law school's graduates dramatically outperform their input credentials on things like bar passage or employment outcomes, or when its esprit de corps becomes palpable among both students and alumni, the market will notice and the innovators will be rewarded.   Further, lower-ranked law schools that try to emulate Harvard and Yale will get clobbered.

I realize that a non-elite bottom-up strategy is not very sexy.  But  to my mind, it has a fighting chance of being successful.  Moreover, I know a few schools that are trying to make it a reality.

New Book - Tushnet on Judicial Review

Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

by Mark Tushnet (Princteon 2007)

Availability: Amazon / B&N / Princeton

"[R]ecent innovations in constitutional design in other countries suggest that [social welfare] rights can be judicially enforced-not by increasing the power of the courts but by decreasing it."

Circuit Court Decisions

Knowing well that Frank would never shamelessly plug himself, I will do it for him (and against his wishes). I am delighted to announce that the ELS blog's very own Frank Cross (Texas) has written a book, Decision Making in the U.S. Courts of Appeals, just released by Stanford University Press, that will assuredly interest those who study judicial decisionmaking. Frank's book makes an important contribution to an increasingly rich (and empirical) literature. From the dust-jacket:

"This groundbreaking book analyzes the decisions made by the United States circuit courts over the past half century. These courts have a profound impact on the law—they issue many more decisions in many more areas of law than the Supreme Court. Cross demonstrates that while the courts' judges are influenced by ideology and by the appointing president, legal requirements exercise a much stronger influence on their decisions. He also shows that these courts are independent of the other branches of government and free from undue influence of various parties. The book further introduces new research on the precedent-setting power of decisions."