Empirical Legal Studies

New Book - Game Theory & the High Court

Institutional Games and the U.S. Supreme Court
Edited by James R. Rogers, Roy B. Flemming, and Jon R. Bond
(University of Virginia Press)

Available: Approximately Today

Contributors: Kenneth A. Shepsle, Andrew De Martin, James R. Rogers, Christopher Zorn, Georg Vanberg, Cliff Carrubba, Thomas Hammond, Christopher Bonneau, Reginald Sheehan, Charles Cameron, Lewis A. Kornhauser, Ethan Bueno de Mesquita, Matthew Stephenson, Stefanie A. Lindquist, Susan D. Haire, and Lawrence Baum

From the Description:

Over the course of the past decade, the behavioral analysis of decisions by the Supreme Court has turned to game theory to gain new insights into this important institution in American politics. Game theory highlights the role of strategic interactions between the Court and other institutions in the decisions the Court makes as well as in the relations among the justices as they make their decisions. Rather than assume that the justices’ votes reveal their sincere preferences, students of law and politics have come to examine how the strategic concerns of the justices lead to sophisticated behavior as they seek to maximize achievement of their goals when faced with constraints on their ability to do so…. James Rogers, Roy Flemming, and Jon Bond gather various essays that use game theory to explain the Supreme Court's interactions with Congress, the states, and the lower courts. Offering new ways of understanding the complexity and consequences of these interactions, the volume joins a growing body of work that considers these influential interactions among various branches of the U.S. government.

 

ICPSR Workshop on Spatial Regression Analysis

I am heading into the last day of the ICPSR workshop on Spatial Regression Analysis.  On several fronts, the workshop has been fantastic.  The course is taught by Paul Voss (Wisconsin Rural Sociology) and Katherine White  (Wisc. post-doc, heading to Brown Sociology), who are terrific instructors and scholars with excellent technical skills.   Both the the didactic and lab components of the course were planned out in meticulous detail.

The ICPSR facilities are also ideal for teaching complex statistical methodology.  Each student is working off a networked workstation with the latest statistical software.  Files made and altered by the instructors during class can be immediately accessed and loaded from a common directory.  Most of the spatial regressions are done in real time with the GIS mapping results rendered on a large screen.   In this context, classroom technology is a huge advantage.

The final bonus is that course participants are drawn from a wide variety of disciplines--demography, public health, urban planning, history, sociology, social work, criminal justice, political science, economics, and law (i.e., me).  From my perspective, the classroom and lunchtime discussions have produced a lot of unexpected insights.  If this workshop is representative of other ICPSR programming, it is well worth the time and tuition ($1200 for five days).

Tip: The Cambridge House (run by U of M) is close, convenient, and cheap housing, but extremely spartan.  The Internet connection is also very spotty.  The Cottage Inn, on the other hand, is nearby and has a wonderful lunchtime buffet.

Developments 2

When I was chair of the political science department at Washington U., I spent many days fretting over entry-level hiring. The discipline was experiencing so many changes that the best way to build and maintain a cutting-edge faculty, I reasoned, was to hire those with cutting-edge skills: typically newly minted Ph.D.s.

A few of those changes—developments, really—and their implications for work on judging are as follows.

1. What we analyze. Whether produced by law professors or social scientists, the vast majority of quantitative work on judicial decisions focuses on the (typically dichotomous) bottom line: reverse (affirm), liberal (conservative), winner (loser), uphold (strike down), and so on.  And now several social scientists (most prominently, Andrew Martin & Kevin Quinn) have deployed dichotomous votes to develop estimates of judicial ideal points—thereby ensuring that the "bottom line" will make an appearance on both sides of the equation.

New Book - History of the N.Y. Court of Appeals

The History of the New York Court of Appeals, 1932-2003

by Bernard S. Meyer, Burton C. Agata, and Seth H. Agata (Columbia University Press)

This is volume II in the series. Volume I covers 1847 to 1932.

The current availability of this book is unclear. Barnes & Noble reports that it is available now. Amazon says it's not but that it should be. Columbia's website says July. At $85.00, it's probably more of a library book anyway.

Realism and Institutional Incentives: A Postscript on the NLR Forum

Over the last several days, I have been thinking a lot about last week's NLR forum.   I am sympathetic to the NLR agenda of (a) pluralism in research methods, and (b) greater awareness within the broader law review literature of "law in action"--i.e., empirical insights that ensure that proposed reforms have the desired effect.  See Stewart's comment to his own post.   Further, I share Beth Mertz's goal of building interdisciplinary communities. 

That said, I don't think it is enough to conclude that these are good (or even great) ideas.  Indeed, these initiatives are remarkably similar to those advanced by proponents of sociological jurisprudence and legal realism during the late 1920s and early 1930s.  Yet, in the intervening decades, law and the social sciences developed on largely separate tracks.  The $64,000 question is "why?" 

To throw this issue into sharper relief, I want to focus on the Elena Kagan's  (Dean of Harvard Law) quote in Stewart's first post: 

The practice of law and the study of law are growing farther apart, to their mutual misfortune.  Fewer law professors understand what it means to be a practicing lawyer or what issues lawyers are confronting.  And fewer judges and lawyers look to scholars for insight or guidance.  Less and less does practice inform scholarship, nor does scholarship improve practice.

Assuming arguendo that this assertion is true, it is problematic that the "Growing Disjunction" (Harry Edward's term from his famous 1992 Mich L Rev article)  is growing at the same time that ELS and NLR are coming into vogue.   Unless these movements are fully theorized, including how they will deliver a payoff to law students, practicing lawyers, or society at large, can we really expect them to have a lasting impact (beyond padding our own c.v.'s)?

To my mind, the institutional incentives for resolving these issues are suboptimal, just like at Yale and Columbia at the beginning of the first realist wave.  See Schlegel (empirical studies lacked support because results were often at odds with realist policy agenda); Kalman (lack of funding and pay freezes at Yale, which stifled necessary appointments of social scientists); William O. Douglas, Go East, Young Man (1975) (Columbia law and social science curriculum on late 1920s blocked by law colleagues who would have to revise their teaching notes).  In an exchange in the comment to Beth's initial post, Beth queried what I meant by institutional incentives.  Basically this:  The incentives to sustain and grow NLR, as outlined by Stewart above, are at odds with individual incentives for law professors and law schools within the current law school hierarchy.

2006 Midwest Law and Society Retreat

The 2006 Midwest Law and Society Retreat will be held on September 15-16th at the University of Wisconsin-Madison. The program is not yet available, but you can get the flavor of the event from the previous retreat's program. The flyer for the upcoming retreat with additional information is available here.

Senate Hearings on Presidential Signing Statements

This morning, the Senate Judiciary Committee heard testimony on President Bush's use of signing statements. The witnesses were Michelle Boardman (Deputy Assistant Attorney General), Charles J. Ogletree (Harvard), Christopher S. Yoo (Vanderbilt), Bruce Fein (Fein & Fein LLC), and Nicholas Quinn Rosenkranz (Georgetown). The Judiciary Committee website includes links to each person's prepared remarks. A prior post contains links to two collections of signing statements.

"Age of the Empirical"

John McGinnis (Northwestern) describes some of the causes and effects (political and other) of the emergence of the "Age of the Empirical," in the recent Policy Review (No. 137; June & July 2006).  Quite interesting and well worth a read.

Developments 1

For political scientists who study courts and law, these are exciting times. Some of the developments are obvious to readers of the ELS blog—but perhaps none more so than the growing collaboration between legal academics and political scientists.

Political scientists and law professors have always talked—talked passed each other, that is. When I first started presenting papers at law schools some ten years ago (or at least before Bush v. Gore), participants thought I was from Mars, and I thought them equally as alien. As you might expect they questioned my methods; I was prepared for that. For what I wasn't prepared: questions about the primitives of my Ph.D. education ("What do you mean judges want to etch their policy preferences into law? That's crazy.").

Times have changed. Just two weeks ago I attended a joint law-political science workshop at Emory University. Not one law professor contended that political considerations are irrelevant to judging; and each and every political scientist owned up to the fact that we omit law from decision-making analyses at our own peril. The lack of controversy over this (entirely overdrawn, though seemingly age-old) debate is more than a détente; it is indicative of a convergence between sectors of the legal academy and political science departments on issues of central and mutual concern. More importantly, insights drawn from the two disciplines have begun to yield concrete results in the form of important and innovative papers. E.g., Tracey George/Michael Solimine on certiorari; Frank Cross/Stefanie Lindquist on precedent; Anna Harvey/Barry Friedman on the separation-of-powers system; Tonja Jacobi/Vanessa Baird on coalitions; Emerson Tiller/Max Schanzenbach and Michael Heise/Gregory Sisk/Andrew Morriss on the sentencing guidelines.

These are just a few of the many projects, just the beginning. No doubt, even more discoveries—the Holy Grail of all disciplines—will follow.

Other developments are more empirical in nature, with some so central to our project that they deserve rehearsal here. Surely one is a growing awareness of the importance of replication archives. So many have written on topic this that I need not bore readers here. What bears mention are the new benchmarks established by members of our field. I think here of The Supreme Court in the American Legal System (SCALES), by Jeff Segal, Harold Spaeth, and Sara Benesh. While some may take issue with their unabashed allegiance to a particular take on judging, no one can question the authors' commitment to good social science. Among SCALES's many notable features is a web archive that houses the data sets deployed to produce each and every table and figure. This is a model worth following.

Along similar lines come the admirable efforts of two teams—Micheal Giles/Virginia Hettinger/Todd Peppers and Andrew Martin/Kevin Quinn. Both have advanced our research in two ways. First, they have developed (reliable, valid, and now state-of-the art) measures of judicial preferences—in other words, measures requisite to many quantitative investigations of judging. Second, despite the enormous effort invested in generating the measures, both teams have made the fruits of their labor publicly available.

Owing to their unfailing generosity—and as judged by the number of papers relying and building on their work—many readers are undoubtedly familiar with the GHP and MQ measures. In my next post, I'll take up methodological advancements that have had somewhat less play in the legal literature but are equally promising.

Guest Blogger: Lee Epstein

This week's guest blogger is Lee Epstein.  Lee is the Edward Mallinckrodt Distinguished University Professor of Political Science and Professor of Law at Washington University, and a Fellow of the American Academy of Political and Social Science.  She will permanently join the Northwestern Law faculty as the Beatrice Kuhn Professor of Law in September 2006.

A recipient of ten grants from the National Science Foundation for her work on judicial politics, Epstein has also authored, co-authored, or edited over seventy articles and essays, as well as thirteen books, including the Constitutional Law for a Changing America series (in its 5th edition; winner of the Teaching and Mentoring Award from the Law and Courts Section of the American Political Science Association), The Supreme Court Compendium (now in its 3rd edition; winner of a Special Recognition Honor from the Law and Courts Section of the American Political Science Association and an Outstanding Academic Book Award from Choice), and The Choices Justices Make (recipient of the Pritchett award for the Best Book on Law and Courts). Current projects include Strategic Defiance of the U.S. Supreme Court, which examines the circumstances leading lower courts to comply with/defy higher courts; Do We Still Need an ERA?, which analyzes constitutional sex discrimination litigation in the 50 states to make an inference about the need for a federal Equal Rights Amendment; and Importing Law, which considers how courts here and abroad make use of foreign legal materials. She also is working with the papers of Justice Harry Blackmun for  a book on agenda setting on the U.S. Supreme Court.

Professor Epstein is a former chair of the Law and Courts Section of the American Political Science Association and a past President of the Midwest Political Science Association. She also serves (or has served) on the Board of Directors of the American Judicature Society, the Executive Council of the Southern Political Science Association, the Board of Trustees of the Law & Society Association, and on the Editorial Boards or Advisory Panels of the American Journal of Political Science, the American Political Science Review, American Politics Research, I•CON: The International Journal of Constitutional Law, Law and Social Inquiry, Law & Society Review, Political Research Quarterly, and Social Science Quarterly.

Epstein teaches courses on Constitutional Courts, Constitutional Law, Defendants' Rights, Law and Social Change, Research Design and Methods, and the U.S. Supreme Court. She received a Faculty of the Year Award from Washington University's Student Union and was named Professor of the Year by the Undergraduate Political Science Association. Other university awards include the Alumni Board of Governors Distinguished Faculty Award (2002) and the  Arthur Holly Compton Faculty Achievement Award (2003).

Building Interdisiplinary Communities

This is our final day of posting for this blog forum (of course, we’ll keep chatting with folks who show up over the weekend and beyond in response to things we’ve posted this week). Thanks so much to everyone in the ELS “community” for inviting us, and for this interesting discussion. I hope that we will continue to think together about many of these issues in the future.

And, speaking of communities, our topic for today is “building interdisciplinary communities.” Some of the things emphasized by NLR (combining methods, and careful translation among disciplines) go hand-in-hand with community-building across disciplines. We invite readers to chime in today with examples from their own experiences -- anecdotes about what has helped in building bridges across disciplines. (Empirical studies are of course also welcome!) Can you remember a time when you felt that you suddenly (or not so suddenly) understood what someone  from a different disciplinary background was trying to convey? Or can you remember conferences or workshops that you felt transcended the usual format of “author presents and audience critiques” and blossomed into a wider, fruitful discussion across varying viewpoints or positions?

In keeping with the NLR focus on building from the “ground level” up, I’ll take the plunge here by giving some examples from my own experience, hoping that some of you will pitch in as well. I have had the good fortune during my academic career to be a member of three truly interdisciplinary communities. As a postdoc, I spent time at the Center for Psychosocial Studies, an interdisciplinary think tank that integrated scholarship from the fields of psychology, sociology, history, anthropology, linguistics, philosophy, social theory, and law. I was then hired at the American Bar Foundation, internationally known as a leading sociolegal research institute – and a place that courageously bridges some seemingly intractable disciplinary divides. And, most recently, I was also invited to join the legendary law-and-society community at the University of Wisconsin Law School, which has steadfastly integrated social science into legal research and training all along regardless of the current fashions in the legal academy. (Okay, so I obviously love and believe in these places; sorry for the plugs – I’ll move on to more substantive comments--)

My first lesson in what it takes to be truly interdisciplinary came as a postdoc at the Center.  We were required as postdocs to attend several lengthy seminars each week. The seminars were led by advanced scholars in various disciplines; we were expected to slog through core material from different fields. Every time we encountered a new discipline, we went through several months of wondering how anyone could take this kind of research seriously. But we had a norm of maintaining inquiring rather than combative discussion, and over time we would gradually come to grasp the new field in a different way. We didn’t all immediately agree with or integrate, say, Vygotskian psychology, or Silversteinian linguistics – but we at least gained a better sense of why someone might approach the world that way. Some of us did attempt to build more synthetic approaches, both methodologically and theoretically. I think that it helped to have a sustained engagement; it helped to wrestle with core texts rather than simply presenting our own research; and it helped that we had developed respect for one another as colleagues. This collegial connection kept us working away at the translation effort at times when we were tempted to take the easier path of retreating to our own favored disciplinary stances. It can also help to have the same social issue or problem on the table, watching to see what different aspects of the problem are noticed when we employ diverse disciplinary technologies.

This idea of sharing a topic area is one of the core sources of integration, I think, at the ABF; we all do research on law, from varying vantages. There are a variety of ways in which the ABF scholars learn from each other (and I’m hoping someone else from ABF will chime in as well, since I’m sure we have different vantages on this). For me some of the most intense experiences have been the discussions we had at LSI, when I was co-editor with people from other disciplines (economics, sociology, history, psychology, law/politics). Again, a shared collegial mutual respect helped us to find ways to discuss (and even agree about) articles from our quite diverse fields. We were also driven by a desire to achieve a good interdisciplinary mix for the publication; I remember working hard to encourage submissions from good scholars from a broad variety of fields, some of which started from very different premises than my own. I have also learned a great deal at our ongoing ABF research seminars, and from occasional collaborations with colleagues from other disciplines (who are happily, right down the hall).  The ABF philosophy has been that interdisciplinary work in law will flourish best if it is grounded in cutting-edge social science research which can meet the standards set by social science fields themselves.

I’m still getting to know the community at Wisconsin, which is very rich in its commitment to studying law “on the ground.” One thing I’m learning is that it takes effort to keep the discussion going. My colleagues work hard to keep finding ways to communicate about everything from teaching issues to research and policy questions. Junior faculty members who do not have social science training have gone so far as to take multiple classes in social science methodology on campus (taught by their dual-degree colleagues!). The Institute for Legal Studies (under the directorship of Howie Erlanger) stands willing to organize the equivalent of a doctoral committee from across various departments and the law school, in order to review project proposals and to give feedback on ongoing law faculty research. So, one NLR idea: find a way to create sustained, ongoing discussion, centered on a specific research problem, and bringing together faculty from different disciplines. This can be done at many universities without even leaving campus. Wisconsin's senior faculty also invests in sociolegal research by supporting junior scholars -- giving them research leaves, reading their work, etc. (and you can pretty much count on being asked about how this plays out in practice, whether you are junior or senior!)

Of course, as this blog demonstrates, we also now have all the tools given by the internet and new forms of communication for building interdisciplinary communities. It will be interesting to watch how these tools can best be put to work to help us achieve more integrative empirically-grounded approaches to studying law.

 

Presidential Signing Statements

According to the papers, the Senate Judiciary Committee is scheduled to hold hearings next week on the President's use of signing statements to declare certain portions of statutes advisory or essentially ineffective. A Virginia attorney has put together an impressive website with the full text of Bush's signing statements and other relevant information. It includes

documents that the GPO or White House has expressly identified as bill signing statements have been included. Bill signing "remarks" are not included. Statements by the President commenting on, commending, applauding, or encouraging actions by Congress, or either camera of it, are not included. Executive Orders and Proclamations are not included, as they are distinct presidential documents with clearly defined legal import. Presidential remarks and speeches, and statements by the White House Press Secretary or other officials, are not included.

Hat tip to Jack Balkin.

Good background reading is Philip Cooper's article, George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements, 35 Presidential Studies Quarterly 515 (2005). It can be found in pdf form here or here.

Photo: White House photo by Shealah Craighead

UPDATES: Along with an incredible amount of additional material, the American Presidency Project website has presidential signing statements going back to Herbert Hoover. According to the current count, the website has 67,283 documents. The website is affiliated with U.C. Santa Barbara's Department of Political Science and maintained by John Woolley and Gerhard Peters. For a legal analysis of signing statements by then Assistant Attorney General Walter Dellinger see here.

Legal Realism, Herman Pritchett, and the Great Divide

Barry Friedman’s “Taking Law Seriously,” 4 Perspectives on Politics 261 (2006), calls not only for taking law seriously but also for improved collaboration between political scientists and legal scholars, which is likely critical for better incorporating law into the empirical work on the courts. (See Michael’s earlier post here.) Some of Friedman’s concerns have been with the field for a long time, but even these bear repeating. See, e.g., Robert G. Dixon, Jr., Who Is Listening? Political Science Research in Public Law, 4 PS 19 (1971). Rather than focus on this larger theme, I want to offer a few thoughts on his historical comment about how we got to where we are today, a topic that ties in both with “New Legal Realism Week” and with “Interdisciplinary Ignorance and Division Week,” which is scheduled for October.

Friedman summarizes the origin and development of the divide between political scientists and legal scholars as follows:

Familiar history recounts how, beginning with Herman Pritchett in the 1940s, political scientists interested in the courts went their separate way from scholars in the legal academy. Legal realism occasioned the split. Legal realists recognized that judges, being human, were likely to see legal issues through the lens of pre-existing social and political commitments. Legal scholars, troubled by what Realism spelled for law’s legitimacy, took a normative turn, devoting their efforts almost exclusively to telling judges how they should decide cases. Political scientists, on the other hand, fascinated by Realist claims, chose the positive path, seeking a better understanding of how judges actually decide cases, and why.

Friedman at 263. Friedman does not develop this history in any more detail. In fairness to him, his essay is not meant to be a history lesson. But this short summary strikes me as problematic.

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.

 

 

New Reports on Eminent Domain

Along with four other reports on eminent domain, the Institute for Justice and the Castle Coalition released a report this week on the effects of Kelo v City of New London (2005) called “Opening the Floodgates.” The Institute for Justice represented the plaintiffs before the Supreme Court and the Castle Coalition is an activist group opposing government claims of eminent domain. All five reports are available here.

As suggested by the title of the lead report, it concludes that Kelo has generated significant growth in eminent domain activity. The report gathers up examples of this activity from assorted public documents and media sources, claiming that “in just the past year, more than 5,700 properties nationwide have been threatened by or taken with eminent domain for private development -- a figure that compares with more than 10,000 examples over a five-year period preceding the Kelo argument[.]”

In glancing at the footnotes, it appears that media sources dominate, but it is not clear to me where the pre-Kelo numbers come from in the reference to the five years before the decision. If both the pre- and post-Kelo numbers are based on media reports, an important methodological question is whether the finding of increased activity is the result of increased media interest in eminent domain since Kelo, rather than an actual increase in activity.

New Book - Minority Rights in Asia

Minority Rights in Asia: A Comparative Legal Analysis
by Joshua Castellino & Elvira Dominguez Redondo (Oxford 2006)

Table of Contents
Introduction
1. Asian States, International Human Rights Law, and Minority Rights
2. Minority Rights in India
3. Minority Rights in China
4. Minority Rights in Malaysia
5. Minority Rights in Singapore
6. Conclusion

Leiter on New Legal Realism

Brian Leiter, who is an expert on the original legal realism (see, for example, this article), has been reading our NLR forum.  He has some harsh things to say ... and they are worth reading. 

I am not an expert on legal realism, nor do I intend to become one.  But I have been reading quite a bit on the topic because I think it is highly relevant to understanding modern legal scholarship and the "industry" of legal education--i.e., it's crucial background.

Brian offers the most succinct rationale I have read for the pervasive influence of legal realism and why we shouldn't lament the failure of the original realism to develop an empirical component in the tradition of the social sciences:

The actual Legal Realists ... paid homage to the social sciences, even adopting the rhetoric of the then-dominant behaviorism (e.g., talk about the "stimulus" of the facts of the case), but their actual scholarly practice was almost entirely insulated from the social science of the day ... .

This isn't to say that the Realists weren't interested in what the courts do in fact, it's just that their approach to the facts about what courts do almost entirely eschewed social scientific inquiry, and for good reasons I think.  The paradigmatic Realist inquiries of the 1920s and 1930s [citing lots of examples] ... consisted in careful scrutiny of the underlying facts of lines of cases, bringing out the gap between the official "doctrinal" explanation for the decision and the actual sotto voce norms that seemed to be at work in the judge's thinking.  The goal was to discover the non-legal norms that made best sense of the courts' response to recurring "situation-types," i.e., patterns of fact that seemed to elicit the same kind of results.  ...

That the preceding was the heart of the Realists' "empirical" method explains, of course, why the Realists were so influential in American law:  you didn't need social science training to do this kind of analysis, you just needed to be a sensitive and skeptical reader of court opinions, something good lawyers are, well, good at.  ...

A "new legal realism" would continue the paradigm of scholarship established by the old legal realists, namely, contrasting what courts say they’re doing with what they actually do.  "We are all realists now" because this is what so many legal scholars do, including those who know nothing of social science and don't even self-identify as realists.

These are interesting and important points.  From my own perspective, NLR is really about developing a theoretical framework (or a workable consensus) on how and when to utilize relatively new research tools and perspectives; and this requires a renewed engagement with the social sciences, which have changed a lot in theory and method since the 1930s.   As Stewart noted in a comment, we should not overinterpret the name "new legal realism".   Picking the name merely started a worthwhile conversation.  If the conversation continues over a period of years, the NLR label will grow legs.

Combining Quantitative and Qualitative Methods in Socio-legal Research

In their opening comments and responses to other posts, Beth Mertz and Stewart Macaulay ably made the connection between the New Legal Realism (NLR) and established traditions of empirical inquiry among law and society scholars.  Stewart reasserted a theme of his own classic work, that legal scholars should seek "a more accurate picture of law in action" before they offer proposals for changing law.  Beth called attention to the need for socio-legal scholars to more self-consciously translate their research findings to have a broader effect within the legal academy, among policy audiences, and among the public.   Both  advocated  a multiplicity of  empirical methods,  a self-critical humility for the nature of the claims that can be supported by different modes of empirical research, and at least an implicit recognition of the need to connect empirical inquiry to broader theoretical propositions about law and society.  As empirical legal studies expands and matures in the legal academy, these principles are important for the intellectual significance of the enterprise. 

In this essay I want to briefly argue that theoretically driven research that uses multiple methods can produce stronger validity claims, can better illuminate the social mechanisms through which law operates, and may lead to research findings that more readily translate to broader publics.  In other words, research that advances the goals of NLR.  I will try to carry the argument with the examples of three research projects, one by a colleague and two in which I have been personally involved.

Laura Beth Nielsen's License to Harass (Princeton University Press 2004) studied offensive public speech through observation and in-depth interviews with some 100 respondents, including white men, white women, and men and women of color.  She found that the experience of these groups with sexist and racist speech on the street varied dramatically by social group, with women and people of color encountering harassment at shocking levels.   While all social groups  saw  offensive speech as a serious social problem,  a large majority of respondents in all social groups opposed legal intervention to deal with it.  But the groups based their positions on different rationales.  White men articulated a classic first amendment view, women invoked a discourse of autonomy (they would take care of it themselves), and people of color (especially men)  spoke of a distrust of authority (they thought the law would be used against them).   Without an in-depth investigation of the discourses employed by these different groups, we would know much less about their legal consciousness concerning offensive public speech.  Nielsen is thus able to offer some profound insights into the experiences of different social groups on the street, their attitudes about the law, and about the role of law in shaping those attitudes and providing a license for offensive speech to continue to operate.

In Legalizing Gender Inequality  (Cambridge University Press 1999), William Bridges and I examined four case studies of litigation concerning gender-based pay discrimination.  Because the cases involved comparisons of wages across different predominantly male and predominantly female jobs, the cases were characterized as comparable worth cases.  The defendant employers in these cases invoked a market defense, arguing that the wage differentials reflected market processes rather than gender discrimination.  The courts in 3 of the 4 cases accepted that defense.  Our book subjects those legal holdings to empirical scrutiny through a variety of labor market, employment payroll data, organization process data, and in-depth interviews.   The different forms of data converge to reject the market defense.  For example, in AFSCME v. State of Washington,   we found that a state pay survey that was treated as a neutral scientific instrument for determining job-level pay was in fact riddled with arbitrariness and bureaucratic politics.  As a state labor union representative commented, they were not "going to rob Peter to pay Pauline."   The book concludes that the courts in these cases  interpreted antidiscrimination law as  potentially providing a remedy for between-job pay discrimination,  while at the same time refusing to critically analyze actual wage-setting practices in these organizations.  The result was  that the courts legitimated between-job gender inequality in pay.

The final example concerns a project currently underway by Laura Beth Nielsen, John Donohue, Peter Siegelman, and myself.  The project examines the changing dynamics of employment discrimination litigation from 1987 to 2002.  We possess a full set of EEOC complaints from that period, in addition to a large random sample of federal court filings from 7 jurisdictions, which we have coded and begun to analyze quantitatively.  The statistical data will allow us to comprehensively  examine  the system  of discrimination disputing and to test whether it is operating differently than  during the 1972-1987  period analyzed by Donohue and Siegelman in their earlier work.    Employment discrimination litigation has become an intensely contested arena.  Many commentators assert that the dramatic rise in discrimination lawsuits, which roughly tripled between 1991 and 1998,  is a result of growing numbers of frivolous lawsuits.   

We are  also interviewing in depth parties and their lawyers  in a selected subset of  cases.   After conducting some 50 in-depth interviews thus far, we already have gained important insights into how the system operates.  The interviews have literally brought these cases to life.   One African-American plaintiff described how he had been asked by his immediate supervisor whether he had ever had sex with his daughters, as he had heard that slaves used to do.  When internal complaints did not remedy his work environment, he filed suit.  In our dataset he is coded as an early settlement on the outcome variable.  But what the coded file does not indicate is the gravity of the insult he received, the fact that as a result of the lawsuit he became divorced, went bankrupt, felt enormous physical stress.  Although he won his job back as part of the settlement, he was laid off in a reduction in force a year later.  When asked whether he would file the lawsuit again, he said no, that he "would have took it."   In this case, as with almost all the plaintiffs we have interviewed, we find serious injuries, even though the proof of illegal discrimination sometimes is shaky.  Indeed, the defense attorneys largely concede that most of the cases they encounter involve individuals who have been "wounded" at work. 

While we have more data to collect and analyze, the combination of systematic statistics and in-depth interviews is likely to produce a better understanding of antidiscrimination law in action than presently exists.   This combination should allow us to disseminate our results more effectively to legal, academic, policy, and public audiences than might be the case with only qualitative or quantitative data.   

Judges and Their Audiences

Larry Baum (OSU) has just published a new book with Princeton University Press that I'm sure will be required reading for all interested in this blog.  Larry's earlier book, The Puzzle of Judicial Behavior (U of MI Press), is a standard in most graduate seminars on judicial behavior ( its bibliography alone makes it worthy of attention) and has deservedly garnered much attention in the field.

Judges and Their Audiences:
A Perspective on Judicial Behavior

Lawrence Baum

Cloth | June 2006 | $29.95 / £18.95 | ISBN: 0-691-12493-0
256 pp. | 6 x 9

From the PUP website:

What motivates judges as decision makers? Political scientist Lawrence Baum offers a new perspective on this crucial question, a perspective based on judges' interest in the approval of audiences important to them.

The conventional scholarly wisdom holds that judges on higher courts seek only to make good law, good policy, or both. In these theories, judges are influenced by other people only in limited ways, in consequence of their legal and policy goals. In contrast, Baum argues that the influence of judges' audiences is pervasive. This influence derives from judges' interest in popularity and respect, a motivation central to most people. Judges care about the regard of audiences because they like that regard in itself, not just as a means to other ends. Judges and Their Audiences uses research in social psychology to make the case that audiences shape judges' choices in substantial ways. Drawing on a broad range of scholarship on judicial decision-making and an array of empirical evidence, the book then analyzes the potential and actual impact of several audiences, including the public, other branches of government, court colleagues, the legal profession, and judges' social peers.

Engagingly written, this book provides a deeper understanding of key issues concerning judicial behavior on which scholars disagree, identifies aspects of judicial behavior that diverge from the assumptions of existing models, and shows how those models can be strengthened.

Positive Political Theory, Law, and "Temptations": Looking Ahead

Barry Friedman (NYU) recently published an extremely interesting piece (here) in the current Perspectives on Politics (4:2, June 2006, at 261-76) that will assuredly stimulate discussion, especially among those who study judicial behavior.  As Steve Wasby (SUNY-Albany) suggests:

"One should run, not walk, to ... Barry Friedman's article....  It is, in my view (which will not make me friends), a very well-done article.  He is an equal opportunity 'skewerer,' coming down on attitudinalists and 'strategists' alike."

Setting aside many and larger points of inter- (and, perhaps, intra-) disciplinary debate that Barry's piece provokes, among the important points for legal empiricists that warrant close attention include:

"Finally, empiricists in particular must take great care that the data upon which they rely presents an accurate picture of the legal world they are studying.  Collecting data on the judiciary is extremely difficult and time consuming, and the temptation is great to allow the ready availability of data to define the questions that are asked and the way in which they are answered.  That temptation should be avoided, because it runs the risk of presenting an incomplete and idiosyncratic view of the legal system."

Barry is correct on both fronts--Data collection is hard work and, nevertheless, the "temptation" should be avoided.

Abstract - Cross and Smith on the Reagan Revolution

Frank Cross (University of Texas at Austin) and Thomas Smith (San Diego) have a new paper on SSRN, “The Reagan Revolution in the Network of Law.” Here is the abstract:

This paper analyzes the effect of the Rehnquist Court on Supreme Court precedent, using a network of all Court citations to other Supreme Court cases. Network analysis enables a study of the Court’s use of precedent that may not be readily visible. We find that the Rehnquist Court has made a dramatic alteration in the network of precedent and, in the process, set the stage for a potentially revolutionary change in the makeup of the law.

The paper can be found here.
 

My take on new legal realism

    One obvious question about New Legal Realism is how it might differ from the old.  Can we claim anything more than we have a website, while Karl Llewellyn didn't?  (See http://www.newlegalrealism.org).  As Bill noted in his Introduction to this blog forum, much of the old legal realism was aimed at freeing appellate judges from the confines of formal approaches so that they could carry out good policies or their "situation sense" as they decided cases.  A new legal realism is not as focused on appellate judging as the old.   Instead, new legal realism takes full advantage of about forty years of law and society research that suggests what the law in action looks like.

    I've commented elsewhere that we would be making progress if mainstream legal scholarship would simply take account of this research.   Although participants in this blog are familiar with such points as law is not free and law is delivered by actors with limited resources and interests of their own, too much writing in law reviews still proceeds with little concern with these well-documented realities.   In a talk I gave at the contracts panel at the last AALS meeting, I played with an analogy to the fate of the nuclear submarine USS San Francisco.  In January of 2005, it was cruising at top speed at a depth of more than 500 feet.  It crashed into an undersea mountain, killing one sailor and injuring 97 others.  The crash caused more than $88 million damage to the boat.  The mountain was not on the boat's navigational charts, although potential hazards in the area were noted on other charts that the San Francisco's officers had never seen.  Legal scholarship that proceeds without awareness of the existing empirical charts of the law in action risks a  similar fate.  I did conceded that contracts scholarship is unlikely to kill or injure anyone.   Nonethelesss, it could be rendered ineffective, or even have unintended consequences,  if it is not based on an accurate picture of the law in action.   And a major part of that picture involves negotiation and discretion rather than a neat rule-bound system.

    How do we get a more accurate picture of the law in action?  We must turn to the methods of all the social sciences.  Law is too complex to grasp fully if we favor one approach over all the others.  My late wife Jackie Macaulay had a Ph.D. in social psychology from a department that prided itself as the "Dust Bowl of Empiricism."  (She later became a lawyer).  She suggested that the best working rule was to presume that all social science approaches are flawed, but the game is to understand the limits of each and use the best approach available for what you want to study.  Sometimes we can get neat tables of numbers and use state of the art statistics.  She did some of this kind of work herself, but she always suggested that I ask where the numbers in the tables came from.  Human behavior doesn't turn itself into numbers by some magical or natural process.  Someone has to code it, and the quality of the coding varies.  Many small, unfounded assumptions can be hidden within apparently neutral quantitative results.

    Our Wisconsin colleague Bert Kritzer compared what he learned from asking questions with what he learned from watching lawyers in contingent fee practice.  He says,  "the observational studies present more nuanced images, which tend to contradict the more straightforward results of the interview-based analyses."  He quotes Bob Dingwall:  "interviews construct data, observers find it;  in an interview study, we can pick and choose the messages we hear and that we elicit, [while] in observation we have no choice but to listen to what the world is telling us."  Of course, often it isn't easy to get permission to watch, and even when it can be done, it is a much more time-consuming approach.  And, as with all other methods,  there is a discipline to observation which, if ignored, can lead to unreliable results.

    Sometimes we are limited by the available sources of information.  We may not be able to interview a randomly selected sample.  There may be a limited number of people who know what is going on and who are willing to talk to a researcher.  Moreover, often such people are unwilling to talk if you do not promise confidentiality.  There are, of course, a number of problems when we go down this road.  For example, our informant may tell lies or spin his answers to make himself look good.  She may seek to entertain us by telling us about the atypical or interesting events rather than the dull everyday practice.  It is hard to know how representative our informant's knowledge is.  If we were able to talk to more people with different experiences, would the story differ significantly?  And other scholars cannot replicate our work because we cannot tell them who we talked to.   I've seen some suggest that we should not interview business people or lawyers about contracts practices because we cannot get a good sample and our work cannot be replicated.  I'm sure that my reaction is influenced by the alternative -- often if we don't rely on those informants we can get, we can do nothing.  I'd prefer to recognize the limitations of such approaches and flag them in my articles.  For example, in my article on Lawyers and Consumer Laws, I described the research that involved interviewing about 100 lawyers in five Wisconsin counties as well as its limitations.  I concluded:  "It [the article] should be read as a report from a preliminary study, offering suggestions that the author thinks are true enough to warrant reliance until someone is willing to invest enough to produce better data and lucky enough to find a way to get them."   You can take some steps to minimize the risks, and we should where we can.  At the minimum, we can challenge the story that we get and ask whether it is plausible.   Then we can wait for other studies and see if they find much the same thing.  One lesson of new legal realism, gleaned from good social science practice, is that we need a healthy dose of humility in drawing conclusions from our research.  And this is true whatever flavor of social science we prefer.

    Dean Elena Kagan represented the new Fellows of Class III, Section 4 of the American Academy of Arts & Sciences.  She said:  "The practice of law and the study of law are growing farther apart, to their mutual misfortune.  Fewer law professors understand what it means to be a practicing lawyer or what issues lawyers are confronting.  And fewer judges and lawyers look to scholars for insight or guidance.  Less and less does practice inform scholarship, nor does scholarship improve practice."  A new legal realism would encourage academics to study what lawyers do, and with what consequences to whom.  This should be worth our attention.  My guess is that what lawyers do, and don't do, matters.  One way that we can translate more effectively between empirical research and legal practice is to gain a better understanding of the realities of law on the ground, and quite often (althought not always) it is lawyers who put the law into action.   Of course, a thorough study of law on the ground means that we not only include law on the books and law in the attorney's office, but we need to add law in everyday life.  This research into the living law has been ongoing for many years, and  law professors and students should be far more aware of it.

    What might we gain by the new legal realism project?  Law professors advocate legal rules that they hope will gain some measure of, in Llewellyn's phrase, the good, the true and the beautiful.  We write amicus briefs and law review articles and we draft statutes and regulations seeking reform.  Recognizing all of the problems with offsetting power, we should do better if our proposals reflect the way  law affects people from the ground up.   If we care about justice, we need to understand much more than the text of legal rules.  Here is where the new legal realism continues the spirit of the old.

New Book - Are Judges Political?

Are Judges Political?: An Empirical Analysis of the Federal Judiciary
by Cass R. Sunstein, David Schkade, Lisa M. Ellman, and Andres Sawicki (Brookings 2006)

According to Amazon, the book was released on June 8th. Barnes & Noble’s website says it won’t be released until June 28th, which is probably correct. But I’m splitting the difference by posting it now.

Check out these endorsements from some of the ELS Blog’s favorite people:

 

“Not only is this a solid piece of research, it also does a remarkable job of translating complex ideas-long floating around in the social sciences-into prose accessible to a broad audience. This is an important service. Plus, the book couldn't come at a better time. Senators (and presidents), for the most part, understand the ideological component of judging but the public seems to need a reminder. ARE JUDGES POLITICAL? provides just that.” - Lee Epstein (Northwestern University)

“This is a significant book. The judiciary decides many important policy questions in the United States, and in practice the circuit court judiciary is much more important than the Supreme Court. This is evident by the great and growing press and political attention to judicial nominees. ARE JUDGES POLITICAL? greatly informs the debate, with its empirical findings and its discussion of their pragmatic significance.” - Frank B. Cross (University of Texas-Austin)

“ARE JUDGES POLITICAL? is thoughtful and careful. It is a terrific empirical introduction to the politics of judicial decisionmaking, an area that is capturing the imagination of many in the legal academy. The analysis of panel effects, which appear to be as large as partisan effects, is especially interesting.” - Jeffrey A. Segal (Stony Brook University)

How can you not order a copy?

 

Lott v. Levitt: Quick Update III

I went to Vancouver last week for the AALS workshop on intellectual property and fell behind on the latest developments in the dispute between Lott and Levitt. Nothing has happened in court since my last update -- I just checked the docket report on Pacer -- but here is the news from outside of court:

1. Last Monday, the Los Angeles Times published a response by John Lott to Jon Weiner’s op-ed piece. As far as I know, this letter contains Lott’s first public comment on the lawsuit.

2. The next day, James Lindgren (Northwestern) weighed in on the lawsuit on the Volokh Conspiracy. Unlike Lott’s complaint, Lindgren focuses on the context of the allegedly defamatory statement in Freakonomics, emphasizing that it is made right after raising questions about another one of Lott’s studies, a 1997 telephone survey. The question about the telephone survey is whether Lott actually conducted it. The statement about the failure to replicate Lott’s results involves a different study, and no one doubts that Lott conducted this one. Lindgren worries, however, that the juxtaposition of the comments about the two studies is misleading, perhaps suggesting that Lott did not conduct either one of them. But he still predicts the lawsuit will be unsuccessful.

3. Tim Lambert responded to Lindgren’s comments here. Lambert also discusses Lott’s evidence that he conducted the 1997 telephone survey.

New Book - Jeffrey Rosen on the Courts

The Most Democratic Branch: How the Courts Serve America
by Jeffrey Rosen (Oxford 2006)

“Jeffrey Rosen makes a powerful and accessible case for a restrained judicial role, one that will challenge liberal proponents of Warren Court activism and conservative proponents of Rehnquist Court activism. His work combines sound historical scholarship with important prescriptions for contemporary constitutional politics.”
-- Mark A. Graber, University of Maryland

Empirical Research and Interdisciplinary Translation

What a great introduction, Bill -- thanks!  We appreciate being invited to join this interesting conversation on the ELS Blog.  Stewart Macaulay and Bob Nelson will be my co-hosts, and together we'll try to do justice to describing the ongoing efforts of the scholars who've been involved in the New Legal Realism Project (NLR).

NLR began with a group of social scientists and law professors who were concerned about the difficulties involved in translating between law and social science.  Initial discussions were held at the American Bar Foundation and the University of Wisconsin's Institute for Legal Studies (ILS), both of which have had decades of experience in fostering the social science study of law.  The First New Legal Realism Conference, funded and organized by ABF and ILS, was held in Madison in June 2004.  Many of the papers from that conference are appearing in a unique publication collaboration between the Wisconsin Law Review, a student-edited law review, and Law and Social Inquiry, one of the leading peer-reviewed journals in the area of empirical research on law.  (Working out that collaboration turned out to be a very practical exercise in interdisciplinary translation!)  We've since followed up with a series of conferences and events, with more to come.

We started out with the observation that achieving a high standard in interdisciplinary translation requires some attention to the translation process itself.  On the one hand, legal professionals may try to pick up on social science findings without understanding the frameworks from which those findings emerge.  This can lead to misinterpretation of research results, or to reliance on faulty social science.  On the other hand, social scientists may also assume that the translation process is transparent, failing to grasp the very different epistemology and goals of legal language and processes.  I often quote Epstein and King's pithy summary:  "An attorney who treats a client like a hypothesis would be disbarred; a Ph.D. who advocates a hypothesis like a client would be ignored."  While law professors don't have to treat their favorite theories like clients, their training and professional culture can arguably predispose them to do so.  And, to the extent that they are debating normative and interpretive principles rather than empirical evidence, law professors have defensible reasons for proceeding differently than social scientists do.

Despite the many divergences among the social sciences, I do believe that social scientists have a distinctive shared commitment:  if our theories conflict with what we discover through well-established research, it is the theories and not the findings that need to be discarded or changed.  This operates as a check on researcher hubris -- on our very human tendency to see what we want to see in the data we collect.  (Dan Kahan provided a great example of this in his guest blog last week.)  It is also a check on power, because at its best, empirical research can permit our research subjects to talk back to us -- to shake and jar the assumptions and pre-given frames with which we approach them.  (And, because I was trained as an anthropologist, I have to say I think that well-done, rigorous participant observation is one of the best empirical methods for achieving this kind of check on theoretical assumptions.  But I know that other methods have their advantages as well!)

On the other hand, social science disciplines themselves differ in terms of methods, goals, and epistemological assumptions.  As Monahan and Walker explain in their classic text on social science in law, social scientists must often sacrifice precision in one part of the picture in order to obtain a fuller understanding of another (e.g., internal versus external validity).  Obviously, the more that we can combine different kinds of methods, the less we have to sacrifice.  Bill Henderson and Howard Gillman made a similar point in earlier posts on this blog.  I liked Howard's comment that "empiricism takes a variety of different forms."  As he correctly noted, excluding either qualitative or quantitative research from our definition of "empirical" is not only technically erroneous -- more importantly, it would cut off important sources of information.

To summarize, the NLR network of scholars is working to develop more informed and precise methods of translating between social science and law.  This requires that we begin by examining the issue of translation itself, as opposed to assuming linguistic transparency among disciplines.  If legal professionals are to obtain the fullest possible understanding of law in action, they will need to draw on the broad range of social science disciplines and methods currently available.  To achieve this, we will need a theory and practice of translation that is itself empirically grounded.  We will also need to synthesize research conducted using different methods  (something Bob will be talking about on Wednesday).
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A personal PS:   Here I want to add a comment that represents just my personal take on this issue of interdisciplinary translation.  (Like ELS researchers, NLR scholars come to the table with a variety of disciplinary and other positions -- this is mine.)  As a linguistic anthropologist, let me put in a quick plug for my field.  The past two decades of empirical research on language and communication in anthropology and sociolinguistics has shed some valuable light on processes of "translation" between different institutionally-based discourses (or, in the terminology of Michael Silverstein at the University of Chicago, "transduction").  One key finding is that our ongoing ability to communicate depends in structured ways on metalinguistic cues (and, specifically, on "metapragmatic" cues that signal us about how our speech connects with context).  Thus we are likely to miscommunicate when we translate across disciplines if we do not first examine divergences in metalinguistic assumptions and structures.  (This is not unlike Kahan's warning that we need to unpack underlying cultural worldviews in order to bridge communicative divides -- and indeed, language research has connected cultural worldviews with metalinguistic structure.  In my own research, I've used transcripts of first-year law teaching to examine some aspects of legal metapragmatic structuring.)
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There's lots more to say, and I'm looking forward to the discussion!  ABF Director Bob Nelson, whose well-respected sociological research on law has combined multiple methods, will lead off on Wednesday.  Tomorrow we'll get to hear from Stewart Macaulay, renowned for his research on relational contract and also co-editor of a classic text on social science of law.

Blog Forum - The New Legal Realism: It’s Not About Breakfast

A while back, Legal Realism became associated with an eccentric view of judicial behavior, i.e., that it is better explained by judges’ breakfast selections than anything remotely identifiable as law. As Judge Kozinski described it, “If the judge has a good breakfast and a good night’s sleep, he might feel lenient and jolly, and sympathize with the downtrodden. If he had indigestion or a bad night’s sleep, he might be a grouch and take it out on the litigants.” Alex Kozinski, What I Ate for Breakfast and Other Mysteries of Judicial Decision Making, 26 Loy. L. A. L. Rev. 993, 993 (1992-1993); see also Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. Chi. L. Rev. 381, 391 n.16 (1992) (referring to “the old realist thesis that the law is only what the judge had for breakfast”); Ronald Dworkin, Law’s Empire 36 (Harvard 1986) (“Some realists ... said there is no such thing as law, or that law is only a matter of what the judge had for breakfast.”). As many have pointed out before, this is not an accurate characterization of Legal Realism. See, e.g., Frederick Schauer, The Limited Domain of the Law, 90 Va. L. Rev. 1909, 1923 (2004).

But now there’s a New Legal Realism, and we want to help start things off right, lest it too become wrongly associated with one of the big three meals of the day. According to the New Legal Realism website, the basic idea “is to develop rigorous, genuinely interdisciplinary approaches to the empirical study of law.” This is right up our alley here at the ELS Blog. We are therefore pleased to have with us this week Professors Elizabeth Mertz (American Bar Foundation & Wisconsin), Stewart Macaulay (Wisconsin), and Robert Nelson (American Bar Foundation & Northwestern). They will explain New Legal Realism, what it is, what makes it new, and why it’s not about pancakes verses waffles.

Stats Software Updates, Replication, and Lessons Learned

While independently replicating each others results (just to be safe and prudent), a colleague and I inadvertently uncovered an issue whose import I had previously (but no more) underestimated--stats software updates.

In our specific instance, Stata's move from version 9.0 to 9.1 (I now use 9.2) implicated, among other commands, those germane to clustered standard errors.  One result of Stata's update was ever-so-slightly different output (again, only relating to our clustered standard errors).  Because we were working off the identical data and do files (but, alas, as we subsequently realized, slightly different Stata versions) any discrepancy alarmed us.  An incidental hallway chat with Ted Eisenberg reminded me of Stata's version control command which allows users to run prior Stata versions.  Once I did, exact replication (and much relief) emerged.  (And for purposes of this discussion, let's set aside disputes about what "replication" might mean in a legal sense.)  Because I frequently flip between stats packages (e.g., SPSS and Stata), I've always been mindful of subtle differences between stats software packages.  This episode taught me that I need to be similarly sensitive to subtle differences across versions within a software package.

To the extent that this is an issue that will likely persist over time, perhaps we need to develop a norm promoting the disclosure of the software version used to generate results so that those following our footsteps can save some time.

The Upside of Data Cleaning

Over the last two weeks, I am been cleaning and checking a large longitudinal dataset on the geography of large law firms and Fortune 500 companies.  A large portion of this work has been done by research assistants.  I am now left with coding and cleaning all the special cases and running various checks for reliability.

Although this work is time-consuming and tedious, the upside is that it is largely rote work that does not require intense concentration.   To help pass the time, I have spent many hours listening to various audio files on NPR.  I am a big fan of Fresh Air with Terry Gross.  Here are some of the more interesting segments I recently heard:

• Sharon Weinberger, EIC of Defense Technology Int'l, on her new book, "Imaginary Weapons: A Journey Through the Pentagon's Scientific Underworld."  The interview includes a facinating discussion of the scientific peer-review process.
• Washington Post Congressional correspondent Juliet Eilperin on her new book, "Fight Club Politics", which provides a detailed (and persuasive) chronology of factors that have produced the intense partisanship in the U.S. House of Representatives.
• An interview with the author of a recent article on Sweatshops in U.S. Territories (and the lobbying efforts that have made them possible).
• Actress CCH Pounder, who plays a detective on the FX drama, "The Shield."   Pounder is black but is from Guyana and was schooled in Britain; in contrast, the characters she plays are usually African-American. This is a stunning interview on issues of race in the U.S.
• Neil Young and Jonathan Demme on their new documentary, "Heart of Gold."
• Law professors Jack Goldsmith and Tim Wu on their recent book, "Who Controls the Internet."
• NY Times journalist Louis Uchitelle on his recent book, "The Disposable American," which chronicles the history (and rise) of layoffs in the U.S.

All this intellectual stimulation while doing "boring" data coding and cleaning.  Not bad.

US Sent. Commission Data -- 2005 Releases

I want to echo a recent post by Doug Berman over at the Sentencing Law and Policy blog on the timely release of US Sentencing Commission data.  The Commission recently released its 2005 Annual Report and 2005 Sourcebook of Federal Sentencing Statistics.  The official description of these new materials follows:

"The 2005 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2005.  See the Commission's 2005 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit and national sentencing data."

For sentencing and crim law folks in general and empirical wonks in particular, these resources (particularly the Sourcebook) add to a critical (and growing) data base.  As Doug notes, scholars pushing theories about or assessing the efficacy of the Booker decision (e.g.) might want to look at what is actually happening with federal sentencing.

State Judicial Elections

Governing.com has an interesting article on what may shape up to be the most expensive and political campaign year ever -- for seats on  state courts.  (The article is here.)  In the article, Zach Patton notes that, because of court decisions and legislation as well as increased spending by special interests, judges are no longer insulated from politics and openly campaign on issues that may well come before them on the bench.  Donors fund judges who agree with them on cultural and social issues (like abortion) and on tort liability issues.  And the money is rolling in like crazy.  In 2004, the average cost (reported by Justice at Stake and cited in the article) was $640,000; up 45% from 2002.  In Illinois in that year, two Supreme Court candidates combined to raise more than $9.3 million. The U.S. Chamber of Commerce is also a big player, spending $120 million on funding for business-friendly judicial candidates in the last four years.   

This obviously creates a controversy with two strong sides.  On the one hand, we have folks who appreciate knowing the views of judicial candidates, enabling voters to use more information in their decision making, and promoting the freedom of speech of the candidates.   Given what we know about judicial decision making and the role of ideology therein, should judges "pretend" not to be political or should they put it all out there and let folks decide for whom they'd rather vote?  On the other hand, folks suggest that this increase in "regular politics" has real consequences for judicial independence and the nation's trust in and regard for the courts.  Anyone interested in weighing in?

Law and Society Association: Collaborative Research Network on Culture, Society, and Intellectual Property

William Gallagher of Golden Gate Law forwarded me this announcement on a new Law & Society Colloborative Research Network, which touches on empirical themes in IP law.

The collaborative research network (CRN) on Culture, Society, and Intellectual Property is devoted to the promotion and dissemination of multi-disciplinary and collaborative research relating to intellectual property. In affiliation with the Law and Society Association, this CRN seeks to encourage interactions among scholars from diverse disciplinary and perspectives who focus on the legal, social, and cultural dimensions of intellectual properties—including patents, copyrights, trademarks, trade secrets, and rights of publicity. The goal of this CRN is to encourage creatively eclectic approaches to the study of intellectual property from a variety of perspectives and employing diverse methodologies—including empirical approaches to the study of intellectual property, broadly construed.

Participants of the Empirical legal Studies Blog who might be interested in joining this CRN are encouraged to contact either Coordinator listed below. If there is sufficient interest, CRN members who want to discuss their empirical approaches to intellectual property and the potential for collaborative work (including coordinating session panels at future Law and Society Association meeting (e.g., for next year’s meeting in Berlin) may meet informally for coffee at the upcoming LSA meeting in Baltimore.

For further information, please contact William Gallagher, [email protected] and Shubha Ghosh, [email protected]

Empirical Studies of Chevron

Sunstein and Miles (Chicago) have just finished Do Judges Make Regulatory Policy? An Empirical Investigation of  'Chevron'.  They find that "on the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices.  Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern. Similar patterns can be found on federal appellate courts."

This piece builds upon the numerous existing empirical studies in administrative law and of Chevron in particular (see, e.g., Schuck & Elliot, 42 Duke L.J. 984 (1989); Revesz, 76 NYU L. Rev. 1100 (2001); Kerr, 15 Yale J. Reg. 1 (1998)).  Sunstein once again confirms the impact of ideology in judicial voting, yet here Chevron deference provides a way to operationalize law.  In a way this in an effort to get at how and if law itself is used strategically.  I myself am working on a piece in one of my substantive areas of interest (environmental law) looking more closely at how Chevron deference may be used strategically (e.g., use of Chevron Step 1 versus Step 2 as compared to simply overall deference rates), while attempting to operationalize ideology (using GHP scores) and various legal variables other than Chevron.  The difficulty is in hypothesizing what legal factors impact decisions in a specific area of law (e.g., might legislative history from a liberal Congress be important in a case interpreting an environmental statute), and whether one can consistently discern from a judicial opinion whether a judge is actually invoking Chevron Step 1 or Step 2.  Then I can get at some questions such as: Would a liberal judge invoke legislative history to decide a case under Chevron Step 1 in a environmental group challenge (e.g., Sierra Club) to a less stringent EPA regulation?   

Lott v. Levitt: Quick Update II

On Wednesday, June 7th, Levitt and HarperCollins filed their memoranda of law in support of the motions to dismiss filed on June 2nd. HarperCollins’ memorandum deals with Count One, which is based on the passage in Freakonomics. Levitt’s memorandum adopts HarperCollins’ argument regarding Count One and then moves on to address in detail Count Two, which is based on the allegedly defamatory e-mail.

Lott’s response is due by Monday, July 10th. Levitt’s and HarperCollins’ replies are then due by Monday, July 24th. 

Survey of Income and Program Participation

Lauren Willis (Loyola LA) writes:

"Several members of Congress just sent a letter to OMB re:  the government's planned funding cuts from the Survey of Income and Program Participation (SIPP), the main (and often only) data source for income and expense dynamics of US households.  The attachment to the letter, listing the ways in which the data is used, is particularly compelling." 

The letter is available  here and here.

Lauren is concerned that while in the short term, cutting SIPP may save money, in the long term the lack of good data will prove costly. 

Why will West Wing's Will Bailey Run for Congress?

As an avid The West Wing fan, I wondered why Will Bailey would run for Congress.  Alas, Maestas et. al have written, "When to Risk It? Institutions, Ambitions, and the Decision to Run for the U.S. House" (American Political Science Review, Vol. 100, No, 2, pp. 195-208, May 2006).

Rural Black Land Loss

Thomas Mitchell (Wisconsin) has written Destablizing the Normalization of Rural Black Land Loss: A  Critical Role for Legal Empiricism.  The Abstract:

"Mitchell’s study exemplifies the New Legal Realist goal of combining qualitative and quantitative empirical research to shed light on important legal and policy issues. He also demonstrates the utility of a ground-level contextual analysis that examines legal problems from the bottom up. The study tracks processes by which black rural landowners have gradually been dispossessed of more than 90% of the land held by their predecessors in 1910. Mitchell points out that despite the continuing practices that contribute to this problem, there has been very little research on the issue, and what little attention legal scholars have paid to it has proceeded in an empirical vacuum. The article proceeds to examine existing data, and to describe the ongoing empirical research being conducted on black rural land loss in the U.S. south by Mitchell and his team. Mitchell concludes that a thoroughly contextual analysis (combining qualitative with quantitative methods) is necessary if we are to achieve an accurate understanding of the process by which law contributes to black rural land loss in this country.  This kind of understanding will permit more effective policy decisions, both within and outside of the law."

Culture Wars or Cultural Cognition?

This week I’ve made a series of posts on the phenomenon of cultural cognition and its implications for law. I want to thank the organizers of ELS Blog for giving me the opportunity to describe this body of work, and also all the readers who’ve commented on- and off-line.

To wrap up, I’m going to discuss one more fun thing I think cultural cognition can do: explain the role of culture in electoral politics.

Whether the American electorate is culturally polarized is a question that itself polarizes professional observers of American politics. For most journalists and even some academic commentators, the answer is clearly yes. “Culture outweighs economics as a matter of public concern,” writes Robert Frank in his best seller What’s the Matter with Kansas? Most political scientists, however, take a different view. “The simple truth,” asserts Morris Fiorina in Culture War? The Myth of a Divided America, “is that there is no culture war in the United States--no battle for the soul of America rages, at least none that most Americans are aware of.”

Risk Regulation and Cultural Identity Affirmation

This is my second post on the normative and prescriptive implications of cultural cognition for risk regulation. In the first I argued that cultural cognition undermines proposals to rely on politically insulated experts, on markets, or on simple majoritarianism for dealing with societal risks. I now want to identify a regulatory strategy that cultural cognition does support. I’ll call it “cultural identity affirmation.”

The psychological mechanisms that construct cultural cognition imply that individuals’ perceptions of risk are motivated by a type of cultural-identity self-defense mechanism. Because guns are integral to valued social roles within their way of life, for example, relatively hierarchical and individualistic persons (particularly hierarchical and individualistic males) are likely to react skeptically to any evidence that weak gun control laws promote crime and result in gun accidents. By the same token, egalitarian and solidaristic persons are drawn to the idea that commerce and industry threatens the environment in part because that conclusion justifies regulating activities their values condemn as entrenching inequality and valorizing unconstrained self-interest.

None of this is to deny that there is a truth of the matter about the risks posed (or not posed) by guns, by industrial pollution, and by myriad other activities the dangerousness of which is a point of cultural contention. But the phenomenon of cultural cognition does imply that the simple discovery and dissemination of truth cannot be expected to generate consensus on what societal risks are real and how they should be ameliorated. In order for the truth to be commonly accepted, it must be presented in a form, or under circumstances, that dissipates the threat it poses to certain groups’ cultural identities.

The Cultural Evaluation of Risk

So far I have discussed cultural cognition generally and outlined one interesting dynamic associated with it (“the white male status anxiety effect”). I now want to start to address the normative and prescriptive implications of cultural cognition for risk regulation.

Debates over risk regulation typically involve two competing models of risk perception. One, which can be called the rational weigher model, assumes that individuals (in aggregate, and over time) process information about risk in a manner consistent with expected utility. This position (which is associated with Kip Viscusi, among others) counsels a generally restrained role for governmental risk regulation: if people left to their own devices can be expected to make choices that maximize their well-being, then devising legal regimes and institutions to regulate risk-taking is both wasteful and inimical to individual freedom.

The irrational weigher model, in contrast, asserts that individuals systematically misprocess risk information as a result of cognitive limits and biases. Proponents of this view such as Cass Sunstein and Stephen Breyer advocate entrusting matters of environmental regulation, consumer protection, workplace safety and the like to experts, who should be insulated as much as possible from politics to avoid the distorting influence of the public’s misapprehension of risk.

Cultural Cognition: Theory, Sources, Methods, Results

In my last post, I wrote about the “white male status anxiety effect,” which describes how cultural cognition generates demographic variation in risk perception. I now want to fill out the background on cultural cognition, describing briefly (okay, “briefly” is a pathetic lie; sorry) the theory behind it, its sources, the methods we’ve used to investigate it so far, some key empirical findings, and some follow-up studies now in the works.

As we use the term, “cultural cognition” refers to the impact that certain key group commitments have in shaping individuals’ factual beliefs about law and public policy. The core idea, which can be called the cultural cognition thesis, is that culture is prior to fact on charged policy issues. Normatively, culture might be prior to fact in the sense that cultural values determine what significance individuals attach to the consequences of environmental regulation, gun control, the death penalty, and the like. But more importantly, culture is cognitively prior to facts in the sense that cultural values shape what individuals believe the consequences of such policies to be.

The "White Male Status Anxiety Effect"

In a series of posts this week, I will discuss ongoing work that I and several other scholars are doing on cultural cognition. The posts will describe the basic theory of cultural cognition, the methods we are using to investigate it, our key empirical findings relating to it, and some of its implications (positive and normative) for law.

But to introduce the topic, I thought it might be interesting to describe one particular, and particularly provocative, dynamic associated with cultural cognition. I’ll call it the “white male status-anxiety effect.”

This label (which I’ll admit is not 100% accurate as a descriptive matter!) is a play on the “white male effect,” a term used by scholars of risk perception. See, e.g., Melissa Finucane, Paul Slovic, C.K. Mertz, James Flynn & Theresa A. Satterfield, Gender, Race, and Perceived Risk: The "White Male" Effect, 3 Health, Risk, & Soc'y 159 (2000).  White males, these scholars have shown, are less concerned with all manner of risk--of global warming, gun accidents, various medical procedures, etc.--than are women and minorities. Various hypotheses have been offered to explain the white male effect: that white men are more informed than women and minorities, that women and minorities feel more vulnerable or less able to protect themselves, that women (and perhaps minorities) are more empathetic than white men. But none has been borne out by empirical examination.

So we (Paul Slovic, John Gastil, Don Braman, C.K. Mertz and I) decided to consider another possibility. The reason white males are less afraid of various risks, we surmised, is that they (or really, certain ones of them) are more afraid of something else, viz., the loss of status they would experience were activities essential to their cultural roles stigmatized as dangerous and worthy of regulation.

Guest Blogger: Dan Kahan

This week's guest blogger is Dan Kahan who, among other things, will blog about The Cultural Cognition Project at Yale Law School.  Dan Kahan is the Elizabeth K. Dollard Professor of Law and Deputy Dean at Yale Law School. In addition to risk perception, his areas of research include criminal law and evidence. Prior to coming to Yale in 1999, Professor Kahan was on the faculty of the University of Chicago Law School. He also served as a law clerk to Justice Thurgood Marshall of the U.S. Supreme Court (1990-91) and to Judge Harry Edwards of the United States Court of Appeals for the D.C. Circuit (1989-90). He received his B.A. from Middlebury College and his J.D. from Harvard University.

The Cultural Cognition Project is a group of scholars from Yale and other universities interested in studying how cultural values shape the public's risk perceptions and related policy beliefs.   Cultural cognition  refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. Project members are using the methods of various disciplines -- including social psychology, anthropology, communications, and political science -- to chart the impact of this phenomenon and to identify the mechanisms through which it operates. The Project also has an explicit normative objective: to identify processes of democratic decisionmaking by which society can resolve culturally grounded differences in belief in a manner that is both congenial to persons of diverse cultural outlooks and consistent with sound public policymaking.

Abstract - Network Analysis and the Law

James Fowler, Timothy Johnson, James Spriggs, Sangick Jeon, and Paul Wahlbeck have a new paper entitled “Network Analysis and the Law: Measuring the Legal Importance of Supreme Court Precedents.” Here is the abstract:

We construct the complete network of 28,951 majority opinions written by the U.S. Supreme Court and the cases they cite from 1792 to 2005. We illustrate some basic properties of this network and then describe a method for creating importance scores using the data to identify the most important Court precedents at any point in time. This method yields dynamic rankings that can be used to predict the future citation behavior of state courts, the U.S. Courts of Appeals, and the U.S. Supreme Court, and these rankings outperform several commonly used alternative measures of case importance.

The paper can be found here.

 

Do Newspapers Affect Voting Behavior?

Now available on SSRN: Does the Media Matter? A Field Experiment Measuring the Effect of Newspapers on Voting Behavior and Political Opinions.  The Abstract:

"This paper reports the results of a natural field experiment to measure the effect of exposure to newspapers on political behavior and opinion. The Washington DC area is served by two major newspapers, the Washington Times and the Washington Post. We randomly assigned individuals either to receive a free subscription to the Washington Post, to receive a free subscription to the Washington Times, or to a control group. We then conducted a public opinion survey after the 2005 Virginia gubernatorial election. We find that those assigned to the Post treatment group were eight percentage points more likely to vote for the Democratic candidate for governor than those assigned to the control group. We find similar but weaker evidence of shifts in public opinion on specific issues and attitudes."

Thanks

Given all the action going on the comments to Bill's last post, I think it's safe for me to say that I've had more than my fair share of time on the ELS blog this week.  Thanks to the ELS gang for inviting me to the party.  Two of the scholars I most admire (Lee Epstein and Jeff Segal) are going to be sitting in the comfortable and luxurious Guest Blogger Seat over the next few weeks, and like all of you I'm looking forward to their contributions.

Lott v. Levitt - Motions to Dismiss Filed

Yesterday, Levitt and HarperCollins both filed motions to dismiss. The only significant difference between the two motions is that Levitt’s must deal not only with the statement in Freakonomics, but also with the statement in the e-mail to John McCall about Lott’s arrangement with The Journal of Law & Economics. Levitt’s motion to dismiss can be found here.

The arguments for dismissing both counts are essentially the same, that the statements in the book and the e-mail are non-actionable statements of opinion protected by the First Amendment and that neither statement is capable of a defamatory per se meaning under Illinois or Virginia law.

The topic of primary interest around here, the meaning of replication in academic research, is not discussed in the motions to dismiss. However, its meaning is mentioned as a major factual issue in the Joint Initial Status Report filed yesterday, though the defendants dispute the legal materiality of the word’s meaning. The motions do say that the statement in Freakonomics “is capable of a reasonable, non-defamatory per se construction under Illinois law,” which would seem to make the meaning of replication material, but I will leave such things to the defamation experts.

"You Can Observe a Lot Just by Watching"

Earlier this week, Howard Gillman wrote a terrific post that reminded us that within the broader academy, "empirical" denotes a lot more than just quantitative analysis.   Howard's comments harkened me back to earlier posts by law professor bloggers who asked what traction they could get from qualitative work.  (For example, Lior Strahilevitz on "Big Tent" Empiricism;  Dan Filler on Qualitative Empirical Legal Research; and Victor Fleischer on Case Studies.)   

In turn, I ran across this short essay by economist Susan Helper, which is directly on point: "Economists and Field Research: 'You Can Learn a Lot Just by Watching," [JSTOR] 90 Am. Econ. Rev. 228 (2000).  [The title quotes the inimitable Yogi Berra.] Helper's first few paragraphs put things into perspective:

Modern economics began with Adam Smith's visit to a pin factory, which helped him explain how the division of labor worked.  However, not many economists today do much fieldwork, which involves interviews with economic actors and visits to places they live and work.  ...

Economists today typically do their research using econometrics and mathematical modeling.  These techniquess have many strengths but share the weakness of distance from individual economic actors.  In contrasts, field research allows direct contact with them, yield several advantages.

1.  Researchers Can Ask People Directly About Their Objectives and Constraints. ... [examples]

2.  Fieldwork Allows Exploration of Areas with Little Preexisting Data or Theory. ... [examples]

Criminal Law Empirical Legal Studies

Two new articles have been posted on SSRN that address issues in criminal law, pro se defendants and sentencing post-Booker.  Frank Bowman (Missouri) has written The Year of Jubilee . . . or Maybe Not: Some Preliminary  Observations about the Operation of the Federal Sentencing  System After Booker.  Erica Hashimoto (Georgia) has written Defending the Right to Self Representation: An Empirical Look  at the Pro Se Felony Defendant.

The Polls - Homosexuality and Gay Marriage

With the President about to make an announcement in support of a constitutional amendment to ban same-sex marriage, a just updated AEI report entitled Attitudes about Homosexuality and Gay Marriage should be of interest. Here is the abstract:

Updated for Spring 2006, this study is a compilation of public opinion polls on acceptance of homosexuality, gay marriage, civil unions, partner benefits, party identification and voting of gays, employment, and adoption. The study includes all of the latest polling data as well as important historical trends for comparative purposes.

The report is 52-pages long with numerous polling results. Assorted highlights from an earlier version of the report can be found here. The full text in pdf form of the current version can be found here.

(via Andrew Sullivan)