Empirical Legal Studies

Theory's Role in ELS

A not infrequent, though diminishing, canard is that "too many" empirical legal studies papers are "atheoretical." While the claim itself is an empirical one (and one that I side-step), a larger, broader point endures. Specifically, the best of ELS is certainly informed by well-developed theory. In a recent paper, The Role of Theory in Empirical Legal Studies, Tonja Jacobi (Emory) makes this case in a brief and widely accessible paper. While perhaps targeted to "early career" ELS scholars and non-technical consumers of empirical research, the paper helpfully reminds all of theory's essential role in empirical legal studies. The paper's abstract follows.

"The growing field of empirical legal studies is not an alternative to theory: within every empirical inquiry is an implicit formal theoretical model. Further, good empirical tests should be inspired by substantive theories of the phenomena being analyzed. This essay explains how theory is built into all empirical testing and illustrates why empirical tests are best informed by well-developed theories. It uses examples of empirical studies of both US Supreme Court and Australian High Court oral argument to illustrate how these issues apply to the central issues at the intersection of empirical legal studies and constitutional law: the role of judicial ideology and strategy, and predicting judicial behavior. The essay explores common errors in both conducting and consuming empirical work, and presents some solutions, including both methodological fixes and how to draw on substantive expertise. It aims to help the non-technical reader understand when counterintuitive results should be queried and when, in contrast, resistance is more reflective of priors of the reader rather than potential weaknesses of the work. And it acts as a reminder to technical readers and empirical practitioners that theory is built into every empirical test, and so must be taken seriously."

CELS 2023--Univ. of Chicago Law School

Coming on the heels of an exceptionally well-executed and successful CELS at Virginia, CELS 2023 co-organizers--Adam Chilton, Dhammika Dharmapala, and William Hubbard--announced that CELS 2023 is scheduled for 13-14 October 2023, at the University of Chicago Law School. More information will follow.

Case Outcomes & Judge Financial Conflicts

To assist with insuring that "justice is blind," a presiding judge is expected to recuse from any case where he/she is financially conflicted with any of the litigating parties. Evidence that this expectation is not being consistently met was widely reported in 2020-2021. Indeed, the public controversy elicited a response from Chief Justice John Roberts. In his 2021 annual report on the federal judiciary, and in direct response to the controversy surrounding numerous federal judges, Chief Justice Roberts downplayed the controversy’s significance, characterizing the incidents as "isolated violations" and "unintentional oversights."

Notwithstanding Justice Roberts' characterizations, given the widespread implications posed by judges' failures to recuse when proper it is important to understand whether these recent episodes are one-time incidents or point to a larger, systemic problem. To address this question, in a recent paper, Judge Financial Holdings and Case Outcomes: Evidence from Judge Financial Disclosures, Tuhin Harit (Univ. Dallas--Mgmt.) et al. examine whether there is a relation between judges' disclosed financial holdings and the outcomes of the trials over which they presided.

Drawing from a sample that includes cases from 2000–2021, the paper finds that “stock ownership by judges significantly improves the chances of a litigant's winning a case.” In cases where the presiding judge is financially conflicted with either the defendant or plaintiff, “their chance of a favorable decision improves by 3.3% and 4.3%, respectively, after controlling for judge, industry, district, case file year, and firm characteristics.” An excerpted abstract follows.

"... Using novel data on financial disclosures of judges and the civil case information of public firms across district courts in the United States between 2000 and 2021, we document multiple instances in which judges fail to recuse themselves in cases where they hold common stock. We find robust evidence that judges rule more favorably and take longer when deciding over conflicted cases as compared to unconflicted ones. We also find that investors are positively surprised by these outcomes, as reflected by stock returns to trial outcomes. Collectively, our results provide the first large-scale evidence of the relation between judges' financial holdings and case outcomes.”

Dodd-Frank, Accounting Fraud, and Whistleblowing

Owing to several notable financial frauds involving whistleblowers, regulators took steps to strengthen whistleblowing provisions. One prominent example is the Dodd-Frank whistleblower program which provides financial rewards to whistleblowers who report financial fraud to the SEC. While regulators may believe that the Dodd-Frank whistleblower law helps deter accounting fraud, whistleblower tips can be frivolous and processessing such tips is not cost-less. Similar to all too many public policies, little empirically is known about the the Dodd-Frank whistleblower provision's efficacy.

In a recent paper, Did the Dodd-Frank Whistleblower Provision Deter Accounting Fraud?, Philip Berger (Chicago--Booth Business) & Heemin Lee (Baruch College) examine whether the Dodd-Frank whistleblower law has a causal effect on the deterrence of fraud and quantify the size of the deterrence effect. Exploiting a control group of firms previously exposed to state-level false claims statutes, the paper sets out to assess the "underlying (or ex ante) likelihood of accounting fraud decreases for firms subject to Dodd-Frank and not previously exposed to the risk of whistleblowing" via analogous state laws. At least as it relates to Dodd-Frank's whistleblowing component, the paper a finds a decrease in the probability of fraud attributable to whistleblower provisions. The abstract follows.

“We examine the deterrence effect of the Dodd-Frank whistleblower provision on accounting fraud. To facilitate causal inference, we use state False Claims Acts (FCAs), under which whistleblowing about accounting fraud at a firm invested in by a state's pension fund can result in monetary rewards from that state’s government. We divide our sample into firms exposed and not exposed to whistleblowing risk from a state FCA during the 2008 – 2010 period that preceded the 2011 SEC implementation of the Dodd-Frank whistleblowing provision. We hypothesize that firms already exposed to a state FCA whistleblower law are less affected by the Dodd-Frank whistleblower provision. Using the companies exposed to a state FCA as control firms in our Dodd-Frank tests, the remaining firms constitute the treatment sample. We find that exposure to Dodd-Frank reduces the likelihood of accounting fraud of treatment firms by 12% to 22% relative to control firms, but do not find that it affects audit fees.”

Med Mal Insurance Premia & Economic Theory

The medical malpractice insurance market is inherently complex and made even more so by the growing number of state efforts to regulate it. Complexities aside, however, standard economic theory should, in the main, explain, to some degree, med mal premia trends. Findings from a recent paper, How Do Insurers Price Medical Malpractice Insurance?, by Bernie Black et al. (Northwestern), however, "are not easily explained by standard economic theory."

Prof. Black et al.'s paper analyzes almost three decades worth of med mal premia data (gathered by the Medical Liability Monitor). Core findings include:

• Med mal premia are only loosely connected to insurer costs, even over long periods;
• Premia are much higher in states with damage caps, even after controlling for costs; and
• The Premium/Cost Ratio varies widely both across states at a given time and within states across time.

Taken together, the paper's findings imply that med mal insurance companies do not fully adjust premia to changes in direct costs even over long time periods as standard economic theory might predict.