As noted elsewhere (e.g., here), recent public fascination with (and debate about) the color of a dress hints at larger issues germane to law, including the efficacy and reliability of video evidence. A Slate magazine piece considers explanations for "visual ambiguity."
In recent years, more and more scholars define themselves as empirical legal scholars and it seems that this trend is only getting stronger in recent years (see, for example, Heise, 2002 ; George, 2006).
It seems that in the Israeli context, this phenomenon is even greater, for reasons I will discuss in one of my next blog posts. In my estimation, more than of 10% of legal scholars in Law faculties in universities in Israel define empirical legal studies as one of their main research topics. Some of them have even started their career as empirical legal studies scholars and some are “traditional” legal scholars who shift their focus to conducting empirical work. Being in the hiring committee of my own university and talking to friends in other universities, it seems that hiring empirical legal studies scholars is a priority.
On a personal level for me, that’s a dream come true. More people with interest in empirical legal studies, means more attention, more research budgets, more PhD students in the field and more scholars to collaborate with. Nonetheless, the main question I want to raise in this post relates to the optimal ratio of empirical legal scholars, in a given faculty or a given community of legal academics.
The obvious objection to such situation is the notion of diversity, where the need in multiple theoretical perspectives is important for a rich discussion among scholars and for exploring various views to any legal question. However, one might respond that in contrast to law and economics (which some raise objection to their dominance in Israeli academia), empirical legal scholarship doesn’t have to adopt a narrow theoretical standpoint, as for example, many of the scholars who attend the ELS conference come from diverse backgrounds. Moreover, taking a broader approach to ELS, that includes for example, scholars who use qualitative methods, would ensure an even larger theoretical perspective.
An additional criticism would be that in any law school there is a need for people who would study all legal doctrines. If too many scholars study law empirically, very few scholars will need to carefully read cases for their research. In a small country like Israel, this might translate into a reduction in ability of the legal academia to criticize and support the coherent development of the case law.
A third possible objection would be the legal expertise of such legal scholars. Accounting for the fact that people have limited time and energy to read and learn, almost by definition, a scholar who have to master all the methods of empirical legal research could not dedicate the same amount of effort and time to learn the legal doctrine.
A forth objection, might be the dominant community of knowledge. In many ELS sub-communities, such as in the area of decision-making and law, there are a few dozen legal scholars and several thousand psychologists and economists. Since one might assume that the interest of legal scholarship and other disciplines may not be always aligned, it is possible to speculate that the larger and more established community would be more dominant. While this is a desirable situation from a methodological perspective, it might carry some inadvertent effect for the ability of ELS to fulfill the needs of the legal community.
A possible solution to this question is related to a conversation I recently held with Hanoch Dagan, the former dean of TAU Law school, I will write about in the next post, on the disconnect between legal theory and empirical legal studies.
One key assumption typically shared by many assessing federal circuit court decisions is that the three-judge panels that hear cases have been randomly configured. Indeed, scores of scholarly articles have noted this 'fact,' and it has been relied on heavily by empirical researchers.
How circuit panels are configured is no longer merely an academic question. Adam Liptak, in today's New York Times, reports on a legal challenge pivoting on how the Ninth Circuit assembled its panels to hear important same-sex appeals.
While not necessarily squarely on point to all ELS Blog readers, a general discussion of social science ethics, re-ignited recently by an incident/study involving political scientists at Stanford and Dartmouth (for a description, click here) remains germane to many ELS scholars as well. In a recent post Andrew Gelman (Columbia--statistics) discusses suggestions by Macartan Humphreys (Columbia--Poli Sci) on how to think through the ethical dimensions incident to social science research in the field.
My Cornell colleague and leading constitutional law scholar, Mike Dorf, has an interesting and provocative post (here) that speaks to the array (and growing number) of state quarantine measures responding to the Ebola crisis.
The ELS angle, of course, is Mike's point (drawn from CDC data) that: "the log(viral load) just before symptoms develop is 4.6. A day later, the log(viral load) is 7.2. Thus, (assuming linearity to first order) 12 hours after symptoms develop, the log(viral load) is 5.8. That's a change of 1.2 in log(viral load), meaning that the change in viral load more than triples (because e to the 1.2 power is 3.32.)."
While not squarely in the typical ELS wheelhouse, the following excerpt just stopped me in my tracks.
"In her excellent book, Race to the Top, the journalist Elizabeth Green tells a story of a new hamburger that the A&W Restaurant chain introduced to the masses. Weighing 1/3 of a pound, it was meant to compete with McDonald’s quarter-pounder and was priced comparably. But the 'Third Pounder' failed miserably. Consultants were mystified until they realized many A&W customers believed that they were paying the same for less meat than they got at McDonald’s. Why? Because four is bigger than three, so wouldn’t ¼ be more than 1/3?"
To be sure, this degree of innumeracy is not typically present in law school classrooms (or I certainly hope not). That said, a general ambivalence (at best) or aversion (at worst) towards all things quantitative shapes the stream of students who self-select into law schools.
As football attracts increased scrutiny on an array of fronts, D1 college football coach compensation is a popular target. Frequently controversial, particularly at public universities, appropriate compensation for coaches remains contested. In a recent paper, Are Football Coaches Overpaid? Evidence from Their Employment Contracts, professors (Randall Thomas & R. Lawrence Van Horn) from a significant college football power conference (Vanderbilt & the SEC) inject data and economic theory into this contest. The abstract follows.
"The commentators and the media pay particular attention to the compensation of high profile individuals. Whether these are corporate CEOs, or college football coaches, many critics question whether their levels of remuneration are appropriate. In contrast, corporate governance scholarship has asserted that as long as the compensation is tied to shareholder interests, it is the employment contract and incentives therein which should be the source of scrutiny, not the absolute level of pay itself. We employ this logic to study the compensation contracts of Division I FBS college football coaches during the period 2005-2013. Our analysis finds many commonalities between the structure and incentives of the employment contracts of CEOs and these football coaches. These contracts’ features are consistent with what economic theory would predict. As such we find no evidence that the structure of college football coach contracts is misaligned, or that they are overpaid."
Debates about the student loan crisis rightly concern higher education in general as well as law schools in particular. Much of the growing public debate on has been framed as follows: "College tuition and student debt levels have been increasing at a fast pace for at least two decades. These well-documented trends, coupled with an economy weakened by a major recession, have raised serious questions about whether the market for student debt is headed for a crisis, with many borrowers unable to repay their loans and taxpayers being forced to foot the bill."
In a Brookings Institution research report, Is A Student Loan Crisis on the Horizon?, Beth Akers and Matthew Chingos bring helpful data to this public debate. Specifically, they "draw on data from the Survey of Consumer Finances (SCF) administered by the Federal Reserve Board to track how the education debt levels and incomes of young households evolved between 1989 and 2010." After analyzing more than two decades of data on the financial well-being of American households the authors find that "in reality, the impact of student loans may not be as dire as many commentators fear." (For a summary of the report, click here.) While not the last word on the topic, the data are a welcome addition.
While the complex (and heated) debate concerning law schools' future(s) will continue to unfold, Simkovic & McIntyre's recent review of Tamanaha's provocative book is noted for its empirical orientation.
ELS--at least in its applied form--increasingly attracts interest outside of the academy. [Now former] NYC Mayor Bloomberg developed and recently released a web-based application that allows users to explore recidivism rates for specific sub-groups of New York City criminal defendants and help predict defendants’ likelihood of re-arrest.
Data Analytic Recidivism Tool ("DART") "enables users, including criminal justice professionals, program planners and researchers to select a group of defendants based on factors like age, prior criminal history and details about their criminal cases. DART will then produce a graph displaying three different one-year re-arrest rates for the selected group, including the percentage re-arrested for any crime within a year; the percentage re-arrested for a felony within a year; the percentage re-arrested for a violent felony within a year; and a comparison to the citywide average."
With the Amanda Knox trial re-engaged in Italy, an op-ed in today's New York Times, "Justice Flunks Math," underscores a regrettable point: Lawyers' (and judges') unfamiliarity with even basic probability theory can fuel "grave errors of law" (not to mention casts even more unflattering light onto the legal profession generally). The op-ed authors even manage to rough-up one of Lawrence Tribe's (Harvard) early articles where he laments the "overbearing impressiveness" of numbers used in the trial context.
The Court's recent ACA decision propelled attention to perceptions of Court legitimacy. Erik Girvan (Oregon) pointed me to a post by a pair of political scientists at Duke, Chris Johnston and D. Sunshine Hillygus, who consider "Given that the Court ruled in favor of the constitutionality of the ACA bill, we were interested to see how Court legitimacy would vary across Democrats and Republicans. Would Democrats show higher levels of legitimacy because of the ruling? Conversely, would Republicans show higher legitimacy in spite of the ruling, because the Court remains relatively conservative overall?"
According to Johnston and Hillygus, "the present data support the conclusion that Supreme Court legitimacy is, to a meaningful extent, conditional on political predispositions as they relate to the output of the Court; however, what matters is how citizens perceive the Court’s output, and whether those perceptions are in line with their own preferences or not."
If nothing else, Yale's effort represents another response (and a not implausible alternative to pursuing a J.D/Ph.D. in a traditional non-law discipline) to palpable changes to the law faculty entry-level hiring market. As YLS Dean Robert Post correctly notes, "You have to come in now with a portfolio of writing. People [law school hiring committees] require you to show your abilities as a scholar by what you've written."
Yale Law School will begin offering a Ph.D in law, with the first incoming class arriving in Fall 2013. I learnd of this from a WSJ story; the Yale press release is here. From the latter:
"Because the level of the scholarship expected of entry-level law professors has risen quite dramatically, increasing numbers of law professors now pursue Ph.D.’s in allied disciplines like economics, history, philosophy, or political science. Because such disciplines train students in standards and questions that are different from those of the law, the natural next step for the legal academy is to create our own Ph.D. program that can focus on the questions and practices of the law itself. Students obtaining a Ph.D. in law may, of course, engage in interdisciplinary studies, but their work will be anchored in the framework of legal scholarship." (Dean Robert Post)
The program is clearly designed to prepare individuals for careers on law faculty; and, interestingly, the program is only open to individuals who have already received a J.D. This makes it an interesting move by Yale, both from a "possible pool of candidates" perspective and (more broadly) given some of the other changes in law schools recently (and their likely knock-on effects for faculty hiring). I'll have to mull this last bit over a bit more before commenting further, but my knee-jerk reaction is that this will further polarize the ranks of law school faculties with respect to credentals, focus, etc.
In related news, Gordon Silverstein, a political scientist formerly at (inter alia) Berkeley, will assume the position of Assistant Dean of Graduate Programs at YLS, effective Monday. He'll be in charge of the new Ph.D., as well as existing the LL.M. and J.S.D. programs. Congratulations, Gordon!
Late last night, on a nearly party-line 218-208 vote, the U.S. House passed an amendment (by Rep. Flake, R-AZ) to HR 5326 to "prohibit the use of funds to be used to carry out the functions of the Political Science Program in the Division of Social and Economic Sciences of the Directorate for Social, Behavioral, and Economic Sciences of the National Science Foundation." The Monkey Cage has some of the relevant links. Efforts like this have been mounted before -- most recently in 2009, by Sen. Tom Coburn -- but none have gotten this far.
The actual debate on the defunding amendment (all five minutes of it!) is here, in the CR. I am not enough of a student of the appropriations process (or of legislative politics in general) to speculate on what might happen next. But I do think that if I were Subra Suresh, Myron Gutmann, or the SBE Advisory Committee -- or, for that matter, the directors of the NIJ, any of the NIH agencies, etc. -- I would be very concerned about the precedent that this would set. For Congress to begin micromanaging the NSF at the program level raises some serious concerns about the politicization of science.