Empirical Legal Studies

Behavioral Economics Primer

I recently ran across this audio file of a talk given at Harvard Law School in 1995 by Charles Munger, entitled "Causes of Human Misjudgment."   Munger is a Harvard Law alum and a founding partner of the L.A. law firm of Munger, Tolles & Olsen.  He later left the firm to run an investment fund.  In the mid-1970s, he joined Berkshire Hathaway to serve as Vice-Chairman with Warren Buffett.

Make no mistake:  Munger is explicitly talking about the intersection of economics and psychology, acknowledging that the nascent (at the time) field of behavioral economics was on the right path and citing insights of Daniel Kahneman and Amos Tversky (note seven years before Kahneman won the Nobel Prize).

I am particularly interested in applied behavioral economics.  And here I don't mean writing papers on the topic;  rather, I mean honing my own decisionmaking processes to eliminate bias and susceptibility to manipulation.  For this purpose, I doubt I will ever find a better resource.  A written version of this talk, including an interesting preface, is online here.   It has quite a few things to say about academia and the pervasive problem of the "truffle hound."  (You will have to read/listen to the links to figure out the truffle hound reference.) 

Finally, Munger's remarks inspired Paul Brest (Hewlett Foundation, former dean at Stanford) and Laura Hamilton Krieger (UC Berkeley) to create a law school  course on professional judgment and decisionmaking at Stanford Law.  The course began in the early 1990s and continues to this day (materials are online at www.professionaljudgment.org).   Several prominent behavioral law & econ scholars took this course while students at Stanford, including Russell Korobkin (UCLA), Jeff Rachlinski (Cornell), and Chris Gurthie (Vanderbilt).    In case there was any doubt, cornerstones of the course appear to be empiricism, applied probability theory, and due attention to disconfirmatory evidence in the face of cognitive biases.  Great stuff.

Best Practices of Structuring a Faculty Workshop (that includes students!)

Over at TaxProf, Paul Caron has posted an immensely thoughtful commentary by Neil Buchanan (George Washington Law) on how to structure a faculty tax policy workshop that includes students.  Having participated in empirical studies workshop at Illinois that followed a similar format,  I want to strenuously endorse Neil's comments and assert that his insights need not be limited to tax policy.  Neil writes:

[O]ne of the great values of holding tax policy workshops in law schools is that we embrace an interdisciplinary approach to scholarship. Bringing together scholars, convenors, and commentators with different scholarly backgrounds (within law as well as in related fields) is our greatest strength. We do ourselves and our students [emphasis added] a great favor by being mindful not to allow our discussions to be dominated by the methodologies or assumptions of any single field of study. It is very heartening to see the interdisciplinary approach to tax policy [my edit] scholarship flowering across the country. I hope that the trend of encouraging this through tax policy workshops [involving students] at more and more law schools continues.

My efforts to organize a mini-subfield conference within a conference at Law & Society each year are based on a similar model perfected by Neil Buchanan.   In my book, he is a real thought leader.

More On Law School "Class Warfare": Tamanaha & Interdisciplinarity

Brian Tamanaha's provocative post on why an aggressive interdisciplinarity may not be such a good idea at non-elite (his words) law schools, noted below in Chris Zorn's post, continues to stimulate interesting commentary across many blogs. For a sampling, click here, here, here, and here.

Update:  More discussion here (Leiter) and here (Solum).

Why Not a Ph.D. in Law?

Michael's mention of Jack Balkin's post brings up another matter I've been thinking about lately.  Jack notes that

(A)ll of your (the law professor's) students, or the vast majority, are planning to be lawyers; which is to say, they are *not* planning to be just like you. And they expect you to teach them law, and the rhetorics and discourses of law. They are training to be advocates, deal makers, fixers. And it's your job to show them how to do this with the materials of the law.

In an old post on Prawfsblawg (briefly noted here by Micheal), Orly Lobel echoes this, asking "wouldn't be great to have doctoral students around that can imagine themselves following in your paths, that are interested in ideas, and that challenge you on your grounds?" 

Of course, if this is your concern, the solution is obvious: Start a Ph.D. program in law, with the goal of creating a "professorial class" in the legal academy.  For those of us in the social sciences (and employed at institutions that offer graduate training), teaching and working with graduate (read: Ph.D.) students is often one of the great benefits of our job, and something many of us would be loathe to give up were we to move full-time to a law school.

Sure, there's the JSP, the ILS, the CLS, the CSLS, the JSI, and surely a few more I'm forgetting; and Vanderbilt Law's Ph.D. in Law and Economics is a more recent (and specialized) version.  But I'm talking about a straightforward Ph.D. in law, one that is no more self-consciously interdisciplinary than one in English, criminology, or whatever.

The breadth of scholarship conducted in law schools need not deter anyone; training for a Ph.D. in anthropology can run the gamut from humanist-style interpretive analysis through statistics to osteology and molecular biology, and sociology, political science, and other similar fields can be almost as diverse.  Students inevitably specialize, on the recognition that no one can really be an "expert" in every area of such a discipline, and the same is undoubtedly true for law.  Nor should the novelty of the idea stop anyone: Ph.D.s in business have been offered only since the 1920s, and those in many other fields (e.g., criminal justice) are of even more recent vintage.

Of course, creating a Ph.D. program in law raises many, many issues.  How is the program structured?  How long would it take to finish?  How much involvement do individuals outside the law school have in the degree process?  Are J.D. and Ph.D. students permitted in the same classes?  Yet none of these are insurmountable, or without precedents to work from.  And Orly's post (and the discussion that followed) suggested the "transformative effect" such an innovation could have on the legal academy.

A 4-Credit 1L Course on the Legal Profession

Yes, that is right.  After a year of committee work and a few weeks of intense deliberations, the faculty at Indiana Law recently voted to revise our 1L curriculum to make room for a new 4-credit Legal Professions course.   

Our strategic plan makes a commitment to “offer our students a continuously updated curriculum that meets the changing needs of the profession and professionalism."  This new course attempts to actually deliver on those words.  It also represents a large bet on the pedagogical value of socio-legal research on the profession.

Our theory is two-fold.  First, drawing upon carefully edited ethnographies and empirical studies, the course will provide students with a systematic overview of various practice settings.  Obviously, workplace structure and incentives vary widely between large law firms, plaintiffs' lawyers, mill practice, prosecutors, public interest lawyers, etc.  If students have a better theoretical and factual understanding of the modern legal marketplace, they can better understand the subtle factors that push lawyers to cross ethical lines--and the serious consequences that can follow.

Second, by frontloading legal ethics in the 1L curriculum, we hope to address the issue, flagged by both the recent Carnegie Report and the Law School Survey of Student Engagement (LSSSE), that legal education tends to marginalize ethics, morality, and personal and professional values.   According to the Carnegie Report, this is a by-product of the singleminded focus on legal reasoning ("thinking like a lawyer") in the 1L curriculum. After the first year, the Report finds, many students are left doubting that ethics or morality have any relevance to professional success; and a mandatory upper-level course in Professional Responsibility is too little too late.

Numbers in the Classroom

It's been fun guest blogging this week, but this is likely my last post.  I'm going to wade into the ongoing discussion here and elsewhere on what kinds of statistical and social science background law students should get (or be offered) and lawyers need.  The easy answer to those questions, not likely to be controversial here, is more than they get!  Perhaps most useful to the students are those classes that focus on the types of numeracy and related skills that lawyers need when dealing with expert witnesses. 

But I don't think that teaching about such matters should be restricted to such classes or to classes covering, for example, empirical studies of judicial decisionmaking.  In my employment law class, for example, I cover the law governing the use of polygraph tests and other kinds of screening tests by employers.  While I'm at it, however, I walk the students through a (very simple) set of exercises aimed at helping them understand the statistics of screening tests.  What does it mean to say that a test is 90% accurate, or that it has a specificity of 95% but a sensitivity of only 70%?  Why might you want to know something about the prevalence or expected prevalence of whatever it is you are screening for?  How do you interpret a "positive" result?  Invariably, most of my students find this discussion extremely intimidating and even panic-inducing.  ("I didn't realize we'd have to do math in this class!" or "Is this going to be on the final?" are the two most common responses.)  Yet an employment lawyer advising a client on whether or not it is worth the legal hassles or potential hassles associated with using and relying on different types of screening tests simply cannot give competent advice without knowing how to think about these questions -- or at least without knowing that those questions exist and need to be answered.

I'm sure most readers of this blog wouldn't disagree and are likely to find ways to include numeracy if they teach doctrinal classes. I'm also  sure many of our colleagues who do not consider themselves ELS devotees do so as well.  It would be interesting to know how much this happens or, to the extent it doesn't, do law professors feel that more would be helpful but may not themselves feel competent in presenting the information.  I believe that statistical and social science information closely related to the doctrinal subjects already taught may be the easiest to "sell" to faculty and students alike -- certainly easier sells than, say, empirical studies of judicial decisionmaking or general statistics classes that are not directly tied to application in they study of doctrine or the practice of law.

How to Teach ELS in Law Schools

A number of ELS gurus have blogged about empirical courses offered by law schools. I'd like to raise some issues about teaching ELS in law schools.

1. What are we trying to do? Is the goal to teach statistics to students with no background so that they understand empirical evidence? Or are we trying to go further than that and enable students to produce statistical evidence and/or understand academic ELS? Ideally, the answer would be both, but its hard to do this with one course, and right now one course is the high end for the number of ELS courses offered at any law school.  With time, law schools may begin offering ELS sequences with more than one course, which would help solve the problem, but right now any ELS course has to decide what its goal is.

2. How do we get the right people to take the right course? If law schools are only offering one course on ELS, then it seems to make sense for the course to be introductory. One concern with this is that the course may be disproportionately taken by people with prior backgrounds in the subject-- the course will be reteaching stuff that most of the students had heard already, rather than introducing new material to those who would most benefit. Assuming law schools will be reluctant to make statistics mandatory, I 'm not sure what the solution should be.

3. How do we teach ELS? Should it be taught with an ordinary statistics book, or is there something to be said about greater integration of the law into a course. Its easy to say that law should be integrated into the course, and that is certainly the preferred option, but how do we go about doing it? Is there a textbook that does this? When its all said and done, it might be easiest to teach the skills directly. 

Any and all comments are greatly encouraged.

Law School Course on Empirical Methods

At the Illinois College of Law, Tom Ulen, Jennifer Robbennolt, and Bob Lawless are co-teaching a new course on empirical methods for lawyers.  On the Law & Economics Blog, Tom has posted the course syllabus, which impressed me as very comprehensive.  They are looking for feedback from ELS types, so I encourage readers to check it out.

I know that John Donahue at Yale,  Rick Sander at UCLA, and Michael Heise at Cornell (and formerly while at Case) have all taught law school quantitative and/or empirical methods course that were very popular with students.  Obviously, this is a trend.  To build more momentum, I hope Tom (at L&E) and Bob (at Credit Slips) will post a summary of the semester.

Satisfied and Unsatisfied Clients

The theoretical framework for my Law Firms as a Business Organization class is the Heinz-Laumann two-hemisphere theory, which posits that lawyers  fall into one of two distinct "hemispheres": (1) lawyers who serve organizational clients, such as corporations, institutions, and labor unions; or (2) lawyers that provide personal services to individuals and small businesses.   See Chicago Lawyers (1982) (detailed empirical study of ~700 lawyers in greater Chicago).

Jack Heinz (NWU Law/ABF) and Edward Laumann (Chicago Sociology) created the hemisphere typology because their research documented that these two groups had very little in common; they attended different law schools, hailed from different socio-economic and religious backgrounds, belonged to different bar organizations, and otherwise traveled in completely separate social and professional circles.

For the next two weeks, my class is focusing on the personal services hemisphere.  And let's face it--virtually all law professors either worked for, or were groomed to work for, the corporate hemisphere.  We don't have a lot of exposure (at least as working adults) to the gritty world of personal injury, family law, workers compensation, and other mainstays of solo and small firm practice.  Since I teach the Law Firms course, I have compensated over the last few years by attending the Annual ISBA Solo & Small Firm Conferences.   It was there that I first learned about Jay Foonberg, the author of the ABA's all-time best selling book, How to Start and Build a Law Practice (5th ed. 2004).  Literally tens of thousand of small firm lawyers have built highly successful practices by following his simple nuts and bolts advice.

In law school, one gets the impression that success in the legal profession is primarily a function of analytical ability.  But this snippet from an ABA survey, republished in Foonberg's magnificant volume, suggests that client service (a function of organization and emotional intelligence rather than book smarts)  is the real make or break category:

Although the importance of these attributes, upon reflection, is obvious, they are rarely discussed in law school.  Moreover, they reflect a skill set (indeed, an awareness) that many law students have not yet acquired.  Foonberg is a welcomed antidote to this deficiency.

Taking Social Science into the Law School Classroom

Greetings, folks. This is turning out to be great fun for us; we are having quite a few discussions off-line with colleagues as well as on the blog. Thanks to everyone who is joining us one way or the other!

Today we are hoping to generate some further discussion on the issue of integrating social science into legal pedagogy. A number of NLR scholars have echoed Bill Henderson’s earlier sentiment that it’s very important to pay attention to “how realism affects the education and training of law students.” Bill’s previous set of questions on this point challenged us to consider how to integrate our roles as scholars and law teachers.

In reply, I drew on my forthcoming book, The Language of Law School: Learning to “Think Like a Lawyer”. My study was based on transcripts of actual law school teaching. We taped all of the classes from the entire first semester of Contracts classes in eight very different law schools, and then analyzed them qualitatively and quantitatively, turn by turn. I found that professors whose research is frankly critical of doctrinal approaches send linguistic messages in first-year classes that are in some respects quite similar to those sent by professors who are doctrinal scholars. This can be traced through subtle aspects of the language cues found in classes which differ in other ways (predominantly lecture vs. more conversational vs. “modified Socratic” styles). These language cues tell students to reorient their attention from social context to the layers of legal authority associated with doctrinal readings.

On the one hand, there’s a real dilemma here. Law professors cannot in good conscience send their students out into practice without the ability to parse doctrine. This is a new skill when students enter law school, and it is a major focus of first-year teaching. Students need to take stories of social conflict and read them in a very different way, disregarding some elements that would have seemed crucial before. Once they have learned this kind of reading, they have incorporated a new sense of what’s important, where authority rests, where their attention belongs. This reorientation is not so easy to simply discard or put aside. If we as scholars are having trouble integrating the epistemologies and norms of law and other disciplines or perspectives, what can we expect of our students?

On the other hand, people can be bilingual. Certainly anyone who becomes a trial lawyer will have to relearn a more common kind of narrative convention. Bob Burns, author of A Theory of the Trial, recently told me that as a clinical law professor he often feels that he has to retrain law students to understand and tell “normal” stories of social conflict – to “undoctrinate” them to a certain degree. So, can we also train them to read and understand social science of various kinds, and to integrate that with their roles as lawyers? (One NLR response would be that maybe we have to think through that issue of integration ourselves if we are to teach it to our students.)

My own personal experience in law teaching is that empirical research can serve as a wonderful bridge between “practical” and formal legal training. Research on law “on the ground” can be immediately appealing to students who long for some sense of what their lives will actually look like once they leave law school. This is particularly true of research on the legal profession itself. John Conley, a fellow anthropologist who teaches at UNC, has carried on a very interesting class at the law school there for a number of years: students interview practitioners as part of their class on the legal profession, in the process both creating an ongoing data base while learning about the practice of law.

I recently attended a very interesting conference at Vanderbilt on legal education (at which there was quite a bit of discussion about integrating empirical research and legal education). I was particularly struck by a distinguished practicing attorney who spoke to us about his wish that law professors would stop conveying a sense of disrespect and disdain for the practice of law to their students. He didn’t want us to stop educating them about all kinds of interesting and different perspectives on law; when else will they have that important opportunity? But he was asking why there has to be such antagonism across parts of the profession. Arguably,  empirical research that takes law on the ground seriously could help law professors walk in the shoes of those who are struggling with the realities of law practice. (Of course, it could also help lawyers walk in the shoes of their clients as well – here ethnographic and interview data might be quite useful.) Louise Trubek has suggested some intriguing ways to erode the boundaries that separate clinical education, interdisciplinary training, and classic law school pedagogy. (“Crossing Boundaries: Legal Education and the Challenge of the ‘New Public Interest Law,’” 2005 Wisc. L. Rev. 455.)

I do work with my students on how to judge relevant social science information when I'm teaching  family law, asking them to assess critically studies purporting to show the effects of divorce on children, the effects of mediation on outcomes in divorce, etc., etc. They will be receiving this information one way or the other, through the popular media or in CLE training. I think it is quite possible to integrate some training in social science method into the core curriculum. But we still face the question of how to help our students navigate the difficult cognitive and linguistic clashes that arise when they grasp the real discontinuities between legal and social science thought. We can’t ignore the fact that we aren’t training would-be social scientists.  There is likely a limit in the amount of energy someone who plans to practice law is willing to invest in learning the details of social science methodologies.  And so we have a responsibility to think through how best to take account of law students' quite different professional trajectories when working to integrate our kind of research into law training.

We can also use the exiting empirical research on education to improve how we teach. As Peggy Davis and others have noted, this is a very interesting aspect of the relationship between social science and law teaching -- one about which we don’t often speak.