Empirical Legal Studies

Research Conference on Access to Civil Justice: Empirical Perspectives

Yesterday was the best of days, and it was the worst of days.   I was a participant and presenter at the "Research Conference on Access to Civil Justice: Empirical Perspectives," which is an ambitious event organized by the indomitable Sam Estreicher, NYU law prof and co-director for the Opperman Institute of Judicial Administration. 

The good part of the day was being surrounded by intelligence people of good will who want to empirically study, and ultimately improve, our various systems of civil justice, particularly for poor and working class individuals.   The bleak (or sobering) portion of the day was coming to grips with (a) how few Americans can obtain the services of a lawyer to remedy serious wrongs, (b) how poorly the system often operates, even if you have a competent lawyer, and (c) how this process can foment profound misunderstandings, disappointment, and disengagement among the very people that the law is putatively supposed to protect.   

Here is a quick thumbnail sketch of  the key takeaways from each presentation (note these are my intepretations, not necessarily the views of the researchers):

• Gillian Hadfield (USC Law), "Assessment of Legal Needs":  A large proportion of poor and middle-class Americans households (25 to 40%) with a perceived legal problem take no steps and contact no one; this is much higher than places like Scotland (3%), England & Wales (5%), and Slovakia (18%).  The proportion of contact with lawyers is roughly the same in all these countries (20% to 30%), but third party providers and institutions seem to play a much larger role in achieving a resolution.  One plausible reason for these patterns is that typical Americans are more likely to accept that the system cannot or will not provide them with relief.

• Laura Beth Neilsen (Northwestern Sociology/ABF), "Pro Se Claimants in Federal Court: An Empirical Analysis of Legal Representation in Employment Civil Rights Cases":  Drawing upon a fabulous, large, multi-city dataset of federal employment discrimination cases, we learned that (a) employment discrimination claims are the most common type of civil claim in federal courts; (b) they are disproportionately filed pro se; (c) net of other factors, pro se are more likely to be dismissed; (d) even when a plaintiff wins (because of conduct that can shock the conscience) the process itself can exact a huge personal and emotional toll, which can exacerbate perceptions of discrimination and alienation among protected groups.

• Rafael Pardo (Seattle Law), "An Examination of Access to Chapter 7 Relief by Pro Se Debtors":  After assembling a large sample of Chapter 7 bankruptcy cases covering a time period both before and after the 2005 federal bankruptcy reform (which heightened the law's complexity), we learned about the large proportion of pro se cases (~20%).  In turn, Rafael used multi-regression analysis to show (a) that filing pro se is associated with a much higher level of case dismissals, (b) that the change in the law was not associated with heightened rates of dismissals generally, but (c) the interaction between pro-se and filing under the new BAPCPA statute did lead to higher dismissal rates.  This raises the question of whether folks can afford to pay for the law's heightened complexity.

• Joy Radice (NYU Law), "Expanding Access to Civil Legal Services: Four Profiles of Legal Aid Organizations Serving Low-Income Communities":  Roy used the case study method to develop commonalities and differences among four examples of legal aid to low-income communities.  The presentation revealed the vagaries of depending upon the Corporation for Legal Services funding (including curtailment of professional discretion) and how threadbare these operations really are, often having affects on case selection.  One exception to the general findings was a legal aid center staffed by Harvard Law students, which had the benefit of careful planning through an elite law school.  But clinics staffed by law schools, no matter how outstanding, are not a template for the larger problem of lack of access.  The emphasis in some organizations on litigation over ADR (especially meditation) was a little surprising, though I need to be careful about generalizing from case studies. 

• Andrew Morriss (Illinois Law), "Clinical Legal Education: Evolution of Law School Clinical Programs":  Andy discussed how clinics evolved out of (a) a perception among the bar that law graduates lacked adequate skills (sound familiar) and (b) huge infusions of Ford Foundation money in the 60s and 70s, which arguably was a tipping point in wider adoption of clinical programs.   Andy created a typology of clinics and presented how they broke out by relative rank, with "impact" clinics most prevalent at high prestige schools.  He also presented evidence that "impact" clinics as opposed to "access" clinics were part of larger project for clinicians to gain status relative to their tenure-track peers--a project that is pushing toward an elimination of the doctrinal/clinical distinction.   Be that as it may, Andy suggests that access for the indigent--one of the original purposes of clinics--is itself becoming marginalized at many institutions.

• Jon Nash (Emory Law), "What Do Pro Bono Programs Do?":  This presentation reviewed the plausible theoretical drivers for large law firm commitments to pro bono--e.g., training for associates, a recruitment tool, burnishing of brand, all of which could potentially redown to the bottomline.   Drawing upon data from Law Firm Working Group, which has firm attributes and average pro bono hours per lawyer going back 15 years, there is weak positive support for the business case.  When the data are disaggregated by firm HQ location, however, the a simple business story seems far less plausible.  Going back to the access theme, the paper prompted the larger question of what types of pro bono these firms were doing.  Publishing pro bono hours in The American Lawyer may itself be a driver of more pro bono work.

• Hon. Robert Katzmann (Second Circuit Court of Appeals) then delivered a final keynote address entitled "The Unmet Legal Needs of Immigrants: The Role of the Legal Profession."  Judge Katzmann reported on the veritable flood of immigration appeals since the BIA moved toward more summary procedures to reduce its own glut of cases.  More aggressive immigration enforcement in the post-9/11 world also may be a factor.  Remarkably only 35% of immigrants in his court's docket have the benefit of legal counsel.  In addition to be terrifying experience of being a poor indigent person in bureacratic government maze in a new country, the lack of representation can have disasterous personal consequences, including deportation and separation of families.   Solutions to this serious lack of access problem--none of them easy or quick or entirely satisfying--were then discussed.

Today we have several more presentations from highly skilled empiricists.  I am looking forward to the final plenary session, where we can discuss some action items.

The Globalization of the Legal Profession

For anyone interested in the  economic and political forces that are reshaping the legal profession, here is an event that you need to attend.  On Friday, November 21, the Harvard Law School Program on the Legal Profession and the American Society of International Law are sponsoring a conference entitled "The Globalization of the Legal Profession."  Conference registration is free, but space is limited.  Details are online here.

Back in April, the Center for the Study of the Legal Profession at GULC put on a conference entitled the "Future of the Global Law Firm."   Similar to upcoming program at Harvard, speakers included academics, practitioners, clients, and allied professionals.  The shared sense of rapid and major structural change was palpable.    I consider the upcoming program an important extension of that conversation. 

Further, as I reflect on the proliferation of so-called "global law schools" in China and India, which are being set up to serve major US and UK legal employers (and a topic at the HLS event), I am convinced that globalization will eventually reshape the  American legal education system.   Now is the time to plan; in ten years, the majority of law schools could be in the uneviable position of reacting to a major structure change.

Call for Papers -- 2009 Midwest Political Science Ass'n Annual Meeting

Jeff Segal (SUNY--Stony Brook, Poli Sci) reminded me about the following Call for Papers.

"Ask your favorite political scientist what the biggest political science conference is, and she'll tell you it's the American Political Science Association. Ask her what the best political science conference is, particularly for empirical work, and she'll tell you it's the Midwest Political Science Association meeting, held every April in the beautiful Palmer House in Chicago.

The Midwest Political Science Association, like most academic associations, charges higher conference registration rates for nonmembers than to members. Hoping to continue to increase attendance by people outside of political science and related fields at its annual meeting, the Association will begin charging registrants who 1) have academic appointments outside of political science or related fields (policy, public administration and political economy) and 2) do not have a PhD in political science or the same related fields, conference registration rates equal to member registration rates.

 In addition, the Association grants, on request, a substantial number of conference registration waivers for first time participants who are outside the discipline.

 The call for papers for the 2009 meeting, due October 10, is at http://www.mpsanet.org/~mpsa/index.html.

 Great seeing everyone at CELS, and hope to see you in Chicago."

More on CELS: Cognitive Illiberalism

Dave Hoffman over at Concurring Opinions wasn't the only blogger at CELS in Ithaca.  Although he and I apparently went to different panels, like him, I thought the conference was excellent and the quality of the papers and discussion extremely high.  Congratulations and thanks to all of the conference organizers.

One particularly interesting paper was, coincidentally (or not) co-authored by Dave Hoffman, and was previously blogged about here.  The paper, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism by Dan Kahan, David Hoffman, and Donald Braman (forthcoming in Harvard Law Review), takes advantage of a unique experiment made possible by modern technology.  In Scott v. Harris, the Supreme Court addressed whether summary judgment was appropriate in a claim of excessive force where a police officer rammed his car into the car of the fleeing suspect, who was rendred quadriplegic.  The Court held that the use of deadly force was reasonable under the circumstances, given the risk that the car chase posed to the public.  The Court rested its conclusion on the contents of a videotape, shot from the police car itself, that was entered into evidence and that the Court posted on its website.   Interestingly, however, despite the fact that the Court said that no reasonable juror could find the use of force excessive, one Supreme Court justice -- Justice Stevens -- concluded otherwise.

Taking advantage of the now publicly available videotape, the paper's authors showed the video to 1350 Americans.  As they explain, "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."  So individuals who tend to see the world hierarchically (demographically more likely to be white, male, and from the South or West), were more likely to agree with the Court majority than were individuals who take a more egalitarian perspective (demographically more likely to be nonwhite, female, and from the Northeast).

Normatively, these observations suggest that judges should, at a minimum, be cautious about the claims they make about what a "reasonable juror" could conclude.  (Indeed, as the discussant, Neal Feigenson, pointed out, even if all members of the jury were completely average across all of the dimensions identified by the authors, there would still be a significant probability that at least one juror would believe that the police used excessive force. )  Assuming that one's own views are the only reasonable views, which is essentially what the majority did, "invested [the Court's] decision with culturally partisan overtones that detracted from the decision's legitimacy."  As the authors point out, when different sorts of people have predictably different perspectives, deliberation is particularly appropriate.

This project suggests an interesting take on whether the standard for judgment as a matter of law -- which is, the Court has emphasized, the same is the standard for summary judgment -- should be different.  Perhaps once a jury has in fact heard all the evidence, it should be allowed to render a verdict, and the fact of that verdict should help to inform the judge's ruling on the JML motion.  This comes up often in employment cases, where JML is often sought -- and apparently disproportionately granted -- by employer-defendants.  (See here and here for more of my thoughts on courts' overzealousness in granting summary judgment and judgment as a matter of law in employment cases.)

More on CELS "III"

More on CELS "III" from Dave Hoffman (Temple) (via Concurring Opinions) here.

Academics on the Attack (or "Vigorous Contests") at CELS

Dave Hoffman (Temple) provides some real-time blogging from CELS at Concurring Opinions. The post of interest involves, in Dave's apt words, "one of the more vigorously contested academic panels I've ever seen." Dave's post (and comment) speaks comprehensively for itself and is found here.

CELS 2008

After much hard work and preparation, it is great to see many ELS folk begin to gather at Cornell for this year's CELS.  A copy of the final program is here. For those who like to plan ahead, USC will host the 2009 CELS on Nov. 20-21, 2009.

Call For Papers -- International Conference on Empirical Legal Studies

My colleague, Ted Eisenberg (Cornell), and Talia Fisher (Tel Aviv University) are calling for papers for an international conference on empirical legal studies scheduled for 26 March 2009, at Tel Aviv University Law School in Israel. The conference will include three sessions. One session will focus on empirical analysis of criminal law and criminal procedure. Another session will dwell on empirical research on civil law and procedure. The final session will be devoted to methodological and conceptual issues regarding quantitative analysis and empirical research. All conference sessions will be in English.

For those interested in submitting papers for consideration, the deadline for paper submissions is 1 December 2008. Papers should be submitted to either:

ted-eisenberg@lawschool.cornell.edu  or  tafisher@post.tau.ac.il

Authors of accepted papers will be notified by 10 January 2009. The conference is open to all who wish to attend.

Northwestern's Research Symposium on Empirical Studies of Civil Liability

Max Schanzenbach (Northwestern), in conjunction with Northwestern University School of Law's Searle Center on Law, Regulation, and Economic Growth, has organized a Research Symposium on Empirical Studies of Civil Liability. This symposium, set for 9-10 Oct. 2008, at Northwestern Law School, will bring together leading empirical legal scholars to evaluate the effects of civil liability on economic activity. Presented papers will address a broad range of topics, including alternative dispute resolution, tort reform, settlement behavior, and securities litigation.

2009 APLS Annual Meeting

Jeremy Blumenthal (Syracuse) reminds me that the CFP for submissions to the 2009 American Psychology/Law Society (APLS) annual meeting in March was just posted. More info about the APLS is found here.