Empirical Legal Studies

Law School Debt

Erica Field (Harvard, Economics) has written Educational Debt Burden and Career Choice: Evidence from a Financial Aid Experiment at NYU Law School.  The Abstract:

"This paper examines the influence of educational debt aversion on the career choice of law school students, including the decision to attend law school and the decision to work in public interest law. To isolate the role of debt aversion, I analyze experimental data from NYU Law School's Innovative Financial Aid Study in which two career-contingent financial aid packages were randomly assigned to participating admits. Because the packages had equivalent monetary value and differed only in the duration of indebtedness, differences in career choices associated with financial aid assignment can be attributed to psychological debt aversion. The results indicate that debt aversion matters: In classes for which the lottery was announced prior to enrollment, participants randomly assigned to the low-debt package are nearly twice as likely to enroll. In classes without selective matriculation, lottery winners have a 36-45% higher rate of first job placement in public interest law. Both results are consistent with a simple model of debt aversion in which psychic costs of holding debt during and after school generate differences in the discounted lifetime utility of the financial aid packages and, hence, in the value of attending law school and of working in public interest law."

Administrative Law

I try to combine political science and law in my teaching and research of the administrative state. This past semester I taught Administrative Law (in the law school) and Politics, Economics, and Law of Administrative Agencies (a graduate seminar in the political science department). The seminar began with a brief survey of the principal theories of organizations—classic organization theory, principal-agent theory, transaction costs theory, and cultural/reputational theory. It then covered the following main topics: creation and structure of the federal administrative state (and occasional elimination of particular agencies); agency appointments (confirmation process and tenure of agency officials); delegation of legislative and adjudicative powers to agencies; and executive, congressional, judicial, and interest group oversight of agencies. The seminar’s primary approach was through positive political theory and empirical work concerning the American administrative state, but it also considered normative, historical, and comparative perspectives. I pulled readings mainly from political science, but also used some from law (where interesting empirical work is increasingly common) and other fields. I’m happy to share my detailed syllabus with any interested reader and would greatly appreciate any suggestions for improvement.

   

I have a series of research projects going (including some intensive data collection efforts concerning agency officials and agency regulatory agendas). I thought I would write about one project involving the Government Accountability Office (GAO, formerly the General Accounting Office) before returning to drafting my recommendation letters for students applying for clerkships. Using game theory and data on the GAO’s work, I examine the relationship between Congress and its primary “auditor” of the bureaucracy when the institutions may not share identical incentives and when the auditor must choose among various opportunities for oversight. In the principal-agent model developed, an auditor must consider how neutrality or political bias, or the perceptions of either, will operate given her own interests and the objectives of legislators. I show how a legislature can create socially optimal as well as socially perverse incentives for its auditor. With a partisan principal, an auditor may build a partisan reputation. Auditing politics, even for the nonpartisan auditor, may become political auditing. According to the model, the more evenly balanced the electoral chances of the parties, the less political auditing will occur.

   

I develop some empirical implications of this model and evaluate them using data on investigations by the GAO from 1978 to 1998. Although the GAO does not appear to shift significantly its portfolio of self-initiated investigations to please particular congressional majorities, it has increasingly performed work at the request or mandate of Congress, rather than on its own. The GAO also seems to issue recommendations to Congress and agencies in a targeted manner. The paper should be up soon on SSRN (I am waiting to incorporate feedback from my wonderful colleagues); I’ll send along a copy now if you email me. Again, feedback would be most appreciated.

   

I’ve enjoyed my stint as a guest blogger.  Thank you for having me. 

Helpful Articles

Adding to Bill Henderson's wonderful post, ELS on the Cheap, I thought I share some articles I have found immensely helpful in doing empirical work--pieces that describe common issues, what not to do (and what most people do anyway and what problems arise), and what to do instead.

1.  Panel Data

Beck, Nathaniel and Jonathan N. Katz. 1995. “What to Do (and Not to Do) with Time-Series Cross-Section Data.” American Political Science Review 89:634-47.

Wilson, Sven E. and Daniel M. Butler. 2004. “A Lot More to Do: The Promise and Peril of Panel Data in Political Science.” Working Paper.  (forthcoming in Political Analysis).

2.  Interaction Variables

Brambor, Thomas et al. 2006. "Understanding Interaction Models: Improving Empirical Analyses." Political Analysis 14: 63-83.

3.  Presentation of Results

King, Gary et al. 2000. "Making the Most of Statistical Analyses: Improving Interpretation and Presentation." American Journal of Political Science 44: 341-55.

There are many more.   What are some other readers' favorites?

Sander, Affirmative Action, and a Manhattan Project for Legal Education

In a provocative post over at Truth on the Market, Josh Wright asks, “where do we stand on the empirics of affirmative action?”

The catalyst for Josh’s post is the ongoing fallout from Richard Sander’s two articles on articles on affirmative action: A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (2004), which made an empirically based argument that racial preferences set in motion a pattern of "mismatched" credentials, hurting blacks in several ways; and The Racial Paradox of the Corporate Law Firm, 84 N.C. L. Rev. 1755 (2006), which suggests that the large attrition rates of young black associates at prestigious corporate law firms may be attributable to the reluctance of white partners to give important and challenging work to black lawyers, presumably because these young attorneys tend to have lower grades than their white counterparts. (Virtually all of Sander’s work in this area, including responses from critics, can be found here.)

As Josh notes, Paul Butler (GWU Law) recently made the claim that Sander’s work had been “persuasively debunked” by Devon Carbado (UCLA Law), among others. In fact, the relevant post by Carbado does not directly refute any of Sander’s arguments; rather, Carbado asks the broader question of what type of empirical evidence, beyond many of the bleak statistics cited by Sander, would be sufficient to establish that blacks have been hurt by racial preferences. That is certainly an important issue.

Josh Wright is skeptical of Carbado’s statement that it is hard to have an empirical discussion on a blog. After a worthwhile, cautious summary of the debate surrounding Sander’s work, Josh suggested that the ELS bloggers might want to weigh in on the issue—myself in particular because I participated in a Legal Affairs Debate Club forum with Sander in January of 2005.

Obviously, this is an academic minefield, especially for the untenured. Am I dumb enough to take the bait?

Co-Authorship

Picking up the most recent journals to arrive in my office (selection bias, one coder, etc.), I find the following:

American Political Science Review (May 2006): two articles by one author (each), six articles by two authors, two articles by more than two authors.

American Journal of Political Science (July 2006): ten articles by one author, four articles by two authors, five articles by more than two authors.

American Economic Review (June 2006): three articles by one author, ten articles by two authors.

Harvard Law Review (June 2006) (excluding student pieces): one book review by one author and one article by two authors (that, if I can shamelessly say, cites my dissertation work on the GAO, more on my research in an upcoming post).

Yale Law Journal (June 2006) (excluding student pieces and the colloquium): three tributes by one author, one article by one author, one essay by two authors.

Columbia Law Review (June 2006) (excluding student pieces): one essay by one author, one article by one author.

I would have thought the law review numbers on co-authored work would be even lower. Does anyone know what those numbers are, looking more systematically? How can law schools encourage more co-authored papers, especially for empirical work? How is co-authored work treated in the tenure process, in law or in other fields? Some of my colleagues did very little co-authored work as untenured faculty members but now, with tenure, routinely publish with others. I recall some thread on this topic in the past several months but could not find it with some quick web searching, so I apologize for any repetitive posting. (Raymond Sauer has an interesting piece, Estimates of the Returns to Quality and Coauthorship in Economic Academia, in the Journal of Political Economy (1988) (JSTOR link provided), on the effects of co-authorship on economists' salaries).

Data on Agency Spending

OMB Watch, a non-profit established in 1983 (to make OMB more transparent), soon will start a website with information on federal grants and contracts. According to a recent OMB Watch email, “[c]urrently, it’s nearly impossible to find out how much agencies are spending, what they are spending it on, and who it’s going to.” This site should provide a nice source of data for scholars. You can vote on potential names for the website now, (including my favorite, www.federaldollars.org).

Dissensus on the Courts of Appeals

Bill Ford and I have just finished our working draft of a paper entitled An Empirical Analysis of Dissensus on the United States Courts of Appeals (now available on SSRN), a follow-up piece to an earlier paper forthcoming in the Maryland Law Review, looking at what factors impact (dis)agreement rates on the courts of appeals.  We would appreciate any feedback on the paper.

The Abstract:

"Judges often emphasize that decision-making on the courts of appeals is a product of collegial deliberation among judges. Many factors may help promote judicial collegiality or create dissensus in the courts. We examine aggregate disagreement - or dissensus - on the United States Court of Appeals for the First, Seventh, Ninth, and D.C. Circuits and attempt to explain dissensus as a product of several variables: the ideological makeup of the court, the size of the court, the addition of new members to the court, the chief judge's years of experience, the number of judges with trial court experience, workload, and a measure of aggregate co-tenure, which is the average number of years of shared service on the court for each pair of judges on the court. Using both pooled and individual OLS estimates for the four circuits, we find only limited evidence that these variables contribute to the aggregate levels of disagreement on these courts."

Highlights from "The Stata News"

My copy of The Stata News  just arrived.  The Stata News is "a quarterly publication containing announcements of new releases and updates, NetCourse schedules, new books, user meetings, new products, and other announcements of interest to Stata users."  There is no charge for receiving the Stata News, so I recommend that you request that the publication be mailed to you by clicking here.  Two new books mentioned in the new issue may be of interest:

New Introduction to Multiple Time Series Analysis  by Helmut Lütkepohl & Common Errors in Statistics (2d Edition) by Philip I. Good and James W. Hardin.

Also, there's a recently added feature to Stata: "New command xtset simplifies the declaration of panel data, just like tsset and stset for time-series and survival time datasets."  Remember to type "update all"  for these free updates for Stata 9 users.

Lott v. Levitt: Reply Filed

The defendants filed their reply memorandum today. A passage relevant to the blogosphere's discussion of the case:

While scholars and academics may certainly have read Freakonomics, the Excerpt appears in the context of a book whose audience consists of mainstream readers and consumers, as demonstrated by the fact that Freakonomics has been on the New York Times bestseller list for over a year. Therefore, while Plaintiff goes on at length to explain [the Excerpt's meaning] in the eyes of an academic  ... a reasonable reader in the general population would not necessarily attribute Plaintiff's academic-specific meaning to the term "replicate."

(Reply Memorandum at 5-6.) The defendants did not really fight over the academic meaning of replication, either here or in the earlier filings. That battle was confined to the blogs.

Now, it's the court's turn.

Posner and Realism

Orin Kerr recently posted a link to William O. Douglas' "This I Believe" essay from the early 1950s.  In the process, Orin also linked to Judge Posner's memorable 2003 essay in the New Republic that reviewed Wild Bill,  Bruce Allen Murphy's biography of Douglas.  This has sparked a new round of comments on Posner's remarkably (and for some, refreshingly!) blunt observations.

Brian Leiter suggests that "[i]t would be salutary, indeed, if Judge Posner's observations were read aloud at the start of every confirmation hearing for a Supreme Court Justice; perhaps, then, we might have a grown-up discussion of the relevant merits and demerits of the nominees."  Brian excerpts one of the essay's key passages:

The supreme court is a political court. The discretion that the justices exercise can fairly be described as legislative in character, but the conditions under which this "legislature" operates are different from those of Congress. Lacking electoral legitimacy, yet wielding Zeus's thunderbolt in the form of the power to invalidate actions of the other branches of government as unconstitutional, the justices, to be effective, have to accept certain limitations on their legislative discretion. They are confined, in Holmes's words, from molar to molecular motions. And even at the molecular level the justices have to be able to offer reasoned justifications for departing from their previous decisions, and to accord a decent respect to public opinion, and to allow room for social experimentation, and to formulate doctrines that will provide guidance to lower courts, and to comply with the expectations of the legal profession concerning the judicial craft. They have to be seen to be doing law rather than doing politics.

Yeh, most students cover this in Con Law.   I suspect the attitudinalists might want to read the whole essay, which is here. 

Credit Slips: A Discussion on Credit and Bankruptcy

A new group blog, call Credit Slips, has just been launched.   The intellectual brain power behind this new forum is extremely impressive:  Elizabeth Warren (Harvard Law),  Robert Lawless (Illinois Law),  Melissa Jacoby (UNC Law),  Katie Porter (Iowa Law), John Pottow (Michigan Law), Angie Littwin (Harvard Climenko Fellow), and Deborah Thorne (Ohio Univ. Sociology).  Credit Slips is particularly of interest to the ELS blog because it includes the leading empirical scholars in the areas of consumer credit and bankruptcy.   

Although it is not intuitively obvious to the non-observer, the changing institutional relationships in this arena are literally reshaping American society.   (Perhaps our political science readership might add something to the dialogue?)  I look forward to reading (and linking to)  cutting edge research at Credit Slips.

Presidential Signing Statements

The ABA's "Task Force on Presidential Signing Statements and the Separation of Powers Doctrine" released its report on Sunday evening. Marty Lederman has an interesting post on the report's conclusions. He also notes the "terrific archival work of Phillip Cooper, Christopher Kelley and Charlie Savage, demonstrating the Bush Administration's prodigious use of signing statements to announce the President's constitutional doubts about numerous statutory enactments, and the President's intentions to construe and implement numerous statutory provisions in a manner inconsistent with legislative intent."

Integrating Empirical Studies into Law School Courses?

I am interested in learning how law professors integrate empirical legal studies broadly defined (e.g., case studies, hypotheticals, published articles) into their doctrinal law courses.  For example, in criminal law courses are students ever assigned articles on sentencing disparity?  In health or environmental law courses, are students assigned case studies focusing on the measurement of risk regulation or liability allocation?

I am collecting information and resources on how empirical legal studies can be integrated into the classroom.  Please comment or email me at [email protected] with information/documents/articles/exercises/etc. that provide students with applications of empirical information (data, studies, etc.) to a substantive area of the law.

Thanks.

Guest Blogger: Anne Joseph

This week's guest blogger is Anne Joseph, an Assistant Professor of Law at Boalt Hall.  Ann received her law degree from Yale and her Ph.D in Political Economy and Government from Harvard.  Before joining the Boalt faculty, she clerked for Justice Ginsburg of the U.S. Supreme Court, was a trial attorney for the Federal Programs Branch of the U.S. Department of Justice’s Civil Division, and clerked for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit.

Anne's primary areas of research are administrative law; agency design and reorganization; tenure of agency officials; shifts in regulatory activities; agency oversight (including congressional hearings and U.S. Government Accountability Office auditing of policy programs); and science and the law. In 2006, she received an award from the Hellman Family Faculty Fund, which is given annually to "promising assistant professors who show capacity for great distinction in their research," for her empirical project, Called to Account by Separated Powers: Regulatory Activity, Oversight, and Turnover of Federal Agency Leaders.

Did BAR/BRI violate antitrust laws?

Ever since my clerkship, I've truly enjoyed watching the status of class action lawsuits, especially in the antitrust context.  Today I received my Class Action Notice for the class action lawsuit against BAR/BRI and Kaplan as I purchased a BAR/BRI bar review course between August 1997 and present.  Class action plaintiffs allege that BAR/BRI violated the federal antitrust laws by agreeing with Kaplan, Inc., to prevent competition in the market for full-service bar review courses.  For more information see www.barbri-classaction.com.

Every time I get a Class Action Notice or Notice of Settlement, I wonder: (1) If I exclude myself from the class, could I, with additional effort, improve upon my monetary recovery?, and (2) If I object to the settlement, might this precipitate an offer from the defendants in exchange for withdrawal of the objection?

Simply, will exclusion or objection lead to pecuniary gain worth more to me than a 5% off coupon for my next BAR/BRI course?   (For the record, the most I've ever received as a class action plaintiff is $12.00.)

Are there any data  or studies dealing with settlement amounts in the class action context?

Environmental Risk

Kip Viscusi (Vanderbilt) has written Regulation of Health, Safety and Environmental Risks.  The Abstract:

"This paper provides a systematic review of the economic analysis of health, safety, and environmental regulations. Although the market failures that give rise to a rationale for intervention are well known, not all market failures imply that market risk levels are too great. Hazard warnings policies often can address informational failures. Some market failures may be exacerbated by government policies, particularly those embodying conservative risk assessment practices. Labor market estimates of the value of statistical life provide a useful reference point for the efficient risk tradeoffs for government regulation. Guided by restrictive legislative mandates, regulatory policies often strike a quite different balance with an inordinately high cost per life saved. The risk-risk analysis methodology enables analysts to assess the net safety implications of policy efforts. Inadequate regulatory enforcement and behavioral responses to regulation may limit their effectiveness, while rising societal wealth will continue to generate greater levels of health and safety."

What is the Economic Analysis of Law?

We earlier discussed whether Empirical Legal Studies is (or should be) a distinct subfield such as Law & Economics.  While I think ELS is still developing its identity, L&E has come a long way since Bentham, and later Coase, Becker, Calabresi and Posner.  For those of you who might be interested in a survey of L&E,  Polinsky and Shavell have written Economic Analysis of Law, a short entry for the forthcoming New Palgrave Dictionary of Economics (Second Edition) introducing the topic and surveying the economic analysis of five primary fields of law: property law; liability for accidents; contract law; litigation; and public enforcement and criminal law.

Empirical Scholarship for "Younger" (read: Untenured) Legal Scholars

An interesting thread developing over at the Conglomerate considers  Should Young Scholars Engage in Empirical Legal Research?  As others have already noted, many of our counterparts in the social sciences would likely turn the question on its side and ask:  Do law schools really grant tenure without some sort of empirical research on a candidate's CV?  (Of course, these same social scientists wonder about student-edited law reviews as well.)

New Book - Mann & Ornstein on Congress

The Broken Branch: How Congress is Failing America and How to Get It Back on Track
by Thomas E. Mann & Norman J. Ornstein (Oxford)

Availability: Amazon / B&N / Oxford

From the Description:

"Mann and Ornstein, two of the nations most renowned and judicious scholars of government and politics, bring to light the historical roots of Congresss current maladies, examining 40 years of uninterrupted Democratic control of the House and the stunning midterm election victory of 1994 that propelled Republicans into the majority in both House and Senate. The byproduct of that long and grueling but ultimately successful Republican campaign, the authors reveal, was a weakened institution bitterly divided between the parties. They highlight the dramatic shift in Congress from a highly decentralized, committee-based institution into a much more regimented one in which party increasingly trumps committee. The resultant changes in the policy process--the demise of regular order, the decline of deliberation, and the weakening of our system of checks and balances--have all compromised the role of Congress in the American Constitutional system. Indeed, Speaker Dennis Hastert has unabashedly stated that his primary responsibility is to pass the president's legislative program--identifying himself more as a lieutenant of the president than a steward of the house. From tax cuts to the war against Saddam Hussein to a Medicare prescription drug benefit, the legislative process has been bent to serve immediate presidential interests and have often resulted in poorly crafted and stealthily passed laws. Strong majority leadership in Congress, the authors conclude, led not to a vigorous exertion of congressional authority but to a general passivity in the face of executive power."

Bias in Judicial Opinion Footnotes?

Stephen Choi (NYU) and Mitu Gulati (Georgetown) recently circulated an interesting paper on SSRN, Do Republican Judges Cite Other Republican Judges More?  The abstract:

"The past decade has witnessed an explosion in empirical
articles seeking to rank judges in terms of their relative
performances on the bench. The dominant method of ranking these
judges has been to use citation counts, specifically counts of
citations by other judges. Critics have pointed out that the use
of citation counts for ranking purposes is problematic unless the
citation counts are first tested for the presence of biases,
particularly political bias. Using data on citation practices in
federal circuit court opinions from 1998 to 1999, this Article
seeks to test for the presence of bias in citations. Our findings
suggest bias along three dimensions. First, judges base outside
circuit court citation decisions in part on the political party
of the cited judge. Judges tend to cite judges of the opposite
political party significantly less compared with the fraction of
the total pool of opinions attributable to the opposite political
party judges. Second, judges are more likely to engage in biased
citation practices in certain high stakes situations. These high
stakes situations include opinions dealing with certain subject
matters (such as individual rights and campaign finance) as well
as opinions in which another judge is in active opposition. Third,
judges cite disproportionately more to those judges that cite
back to them frequently, suggesting the presence of citation
clubs."

New Report - Overkill

In Overkill, a report published by the Cato Institute, Radley Balko argues that SWAT teams are now routinely used in inappropriate situations. Earlier this year, for example, the Washington Post reported that SWAT "serves nearly all of the warrants [in Fairfax County] after an investigation has found probable cause to seize evidence -- whether it is bloody clothes, weapons or documents." Tom Jackman, "SWAT Tactics at Issue After Fairfax Shooting," Washington Post B01 (Jan. 27, 2006) (emphasis added).

Apparently, there are little data on the costs associated with SWAT raids, whether in the form of property damage or loss of life. These costs go up when the raids are carried out with no-knock warrants, since the resulting confusion increases the likelihood of mistakes, e.g., innocent homeowners thinking the police are criminal intruders and grabbing for a gun. (Example?) As a result of the Supreme Court's decision in Hudson v. Michigan, we may have even more of these raids, so it is important to know the risks and consequences, even if the data are far from comprehensive. 

Balko, who was cited by Justice Breyer in his Hudson dissent, compiles all the media reports of troubling SWAT raids he can find. (Examples of these raids often show up on his blog.) Because Balko relies on media reports, his 289 examples from 1985 to 2006 are surely only a subset of the relevant ones. These examples are fully cataloged on the Cato website with an interactive map here.  You can highlight all the examples at once on a map of the U.S. or select only certain types of examples. You can also generate a description of the examples by state, year, and type.

Review of New Kalman book on Yale Law

Paul Horwitz at Prawfsblawg recently posted a review of Laura Kalman's recent book,  Yale Law School and the Sixties:  Revolt and Reverberations (UNC Press 2005); he also links to other reviews by Al Brophy and Orin Kerr.   

Kalman, who is a historian at UC Santa Barbara (and attended one year of law school before heading off to graduate school), is one of the leading commentators on legal realism and liberalism within the legal academy.   I recently finished Kalman's first book, Legal Realism at Yale, 1927-1960 (UNC Press 1986), which was fascinating.  As I have noted before, I think the history of legal realism is highly germane to the success (or failure) of empirical legal studies ... I'll elaborate on that topic in a future post.   Moreover, because Yale educates a disproportionate number of law professors, understanding that institution's history provides a useful context to understand the vagaries of modern legal academia.   

Anyway, Paul has given a nice introduction to the second Kalman book on Yale; I hope to read that volume in the coming weeks.

Lott v. Levitt: Replication Revisited

Last week, Lott filed his opposition to Levitt’s and HarperCollins’ motions to dismiss and explained his argument about the meaning of replication. Recall that Lott claims as follows: “‘replicate’ has an objective and factual meaning in the world of academic research and scholarship.... the clear and unambiguous meaning is that ‘other scholars’ have analyzed the identical data that Lott analyzed and analyzed it the way Lott did in order to determine whether they can reach the same result.” (Complaint ¶ 12.) The key point here is that replication means only one thing, using the identical data and analyzing it in the same way as the original analysis. It’s replication in the sense of verifying the original results. It does not involve a new sample. It does not involve a new model.

Although Lott could have made a strong case for the application of Virginia law if he is domiciled there, he agrees with the defendants that Illinois law applies. (Lott’s Opposition at 7 n.5.) Presumably, the court will be happy to skip the choice of law issue if the parties aren’t fighting over it. Under Illinois law, there are two types of defamation, defamation per se and defamation per quod. Thomas v. Fuerst, 345 Ill. App. 3d 929, 934 (Ill. App. Ct. 2004). For a statement to be defamatory per se, it must be “so obviously and materially harmful” to the victim’s reputation that injury can be presumed. Id. See Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10 (Ill. 1992). Additionally, it must fall into at least one of five specific categories of statements, one of which is “words that prejudice a party, or impute lack of ability, in his or her trade, profession or business.” Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88 (Ill. 1996). A statement not falling into the limited category of defamation per se may still constitute defamation per quod. Id. at 102-04. Defamation per quod includes a statement that is not in one of the five categories but is still defamatory on its face or a statement that is defamatory after considering additional facts extrinsic to the statement itself. Id. at 103. A claim of defamation per quod requires the plaintiff to plead special damages. Id.

The attitudinal model, cont'd

I have a few comments on yesterday’s post from Prof. Wilson. Those on ELS who are not on the lawcourts listserv will have missed the comments from Bert Kritzer on this issue, so after I post this, having obtained Bert’s permission, will post his response as well.

Social scientists frequently and appropriately run regressions on aggregate data, even when individual-level data are available. We ask why the president’s aggregate approval rating is high or low when we have individual level responses. We examine Congressmen’s aggregate voting behavior, either across the board (as scaled through NOMINATE-style procedures), or on narrower issues (through ADA, ACU, or NARAL support scores), even though we have their individual-level roll calls.

William Rehnquist voted in the liberal direction about 21% of the time during his career; William Brennan about 80% of the time, and most justices fall somewhat in between. It is a legitimate question to ask what explains the variation amongst all the justices in those totals. It ends up that an exogeonous measure of the justices’ attitudes explains about 60% or so of the variation in those aggregate votes, whether the aggregates are of civil liberties cases, or an expanded set that covers virtually all cases.

Of course, the fit will be lower when one moves from the justice level (the aggregate votes of justices) to the justice-case level, i.e., the individual-level votes of justices in specific cases. Methodologically, this is because we now have to explain not only variance across justices, but variance within justices that are caused by case level factors. Needless to say, measures of justices’ attitudes that do not vary within the justice by the issue area cannot pick up variance within a justices’ votes. Theoretically, at this level, the attitudinal model calls for the interaction between attitudes and case stimuli. Any model that includes only attitudes at this level is incomplete. And it is at this level, not at the aggregate level, that multi-level modeling would be called for (and indeed would even be possible).

New Book - Graber on Dred Scott

Dred Scott and the Problem of Constitutional Evil
by Mark Graber (Cambridge University Press)

Availability: Amazon / B&N / Cambridge

From the Description:

"An examination of what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of good society. In order to form a 'more perfect union' with slaveholders, late eighteenth century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom."

The Attitudinal Model

I received this request yesterday from Bill Henderson, one of the ELS editors: “Since our audience is not entirely law and courts people familiar with the attitudinalist literature, I was wondering if you would consider a blog entry that summarizes the central findings of your work with Spaeth and the various critiques that have arisen in response.”

Bill: sure.

For those who want the full treatment, the best single source on this is probably The Supreme Court and the Attitudinal Model Revisited (hereafter SCAMR) But for those seeking a quick summary, here goes.

The attitudinal model holds that judges decide cases in light of their sincere ideological values juxtaposed against the factual stimuli presented by the case. Thus, for example, as searches by the police grows more intrusive, first liberal, then moderate, and then conservative judges should become increasingly likely to reject the search.

Legal Profession Panels at LSA

My good friend John Flood (Westminister Law & Sociology) has just posted a round-up of legal profession papers (most of them empirical, broadly defined) at this year's Law & Society Annual Meeting.   This was a very good year at LSA for those of us interested in this topic.

Global Cities and Law Firms

At the recent Law & Society Annual Meeting in Baltimore, I presented some early data from a project entitled "The Changing Economic Geography of Large U.S. Law Firms."   Thus far, my research has been a multidisciplinary journey into such fields as economics, regional science, geography (dominated by U.K. researchers),  and sociology.   

The literature that has surprised me the most are the multiple books, articles, and readers on "World Cities" or "Global Cities."  In short, a Global or World City is a hub of international commerce.   As production of goods becomes more dispersed, centralizing the logistics and strategy of the enterprise become more important.  Ironically, a Global City is not defined by a large number of corporate headquarters per se; rather, its the presence of "advanced producer services"--investment bankers, accountants, consultants, advertising executives, and, of course, lawyers.

There are lots of methodologies for defining and ranking Global Cities (e.g., concentrations of producer services; airline volume and connections; number of bank and stock exchanges, etc.); but at least for lawyers, five U.S. cities always make the cut:  New York, Washington DC, Chicago, Los Angeles, and San Francisco.  Further, NYC is always number one.

Some interesting graphics on this topic are below the fold.

IRB Mission Creep at Brown University

Ross Cheit recently posted a comment about his ongoing frustrations with the IRB process at Brown University. Since his comment is attached to an older post from our blog forum on IRBs, it may be missed by many readers. He said he wouldn't mind if I reproduced it here:

I have been fighting a losing battle against mission creep and other IRB craziness at Brown for years.

I have a collection of experiences that are almost too bizarre to believe. They prevented an undergraduate of mine from asking a question about views on reparations in a survey of other undergraduates because the question was considered "too sensitive." (She was told it had to go to full board review, and of course there was no time for that given that they had already spent months reviewing her thesis protocol.)

And they have just announced a new policy that says that undergraduates cannot be PIs on their own research. The reasoning: they are still learning the IRB process. We have tried without success to explain that they are also still learning to do research in general, which is why their work does not "contribute to generalizable knowledge"!

But no. Any opportunity to expand their jurisdiction is justified in the name of "ethics." It's madness. There is no sense that the federal statute never anticipated any of this. Meanwhile, they are expanding the definition of what undergraduate projects count as research.

I am discouraged and outraged, but at least because of this blog I no longer feel alone in this battle.

The original post by Jack Katz, "Outside of Biomed Research, IRBs are Essentially Censorship Agencies," is here.

Datasets

Yesterday I noted Rachel Barkow’s terrific paper, which makes a strong case that originalist methodology influenced the non-capital jury votes of Justices Scalia and Thomas, leading them to support criminal defendants in circumstances that they otherwise might not.

I would like to return to that paper today for a different reason. Subscriber to the lawcourts and conlawprof listservs will know that legal scholars frequently post requests wanting to know, say, the percent of time that Scalia and Thomas voted together in criminal rights cases, or the percent of times that O’Connor or Kennedy joined 5-4 decisions, or how often the court issued judgments rather than opinions during the Warren, Burger, and Rehnquist Courts, etc. Rachel’s paper was a bit more complex, trying to examine the voting behavior of Scalia, Thomas, Rehnquist, Kennedy, and O’Connor in capital and noncapital criminal procedure cases when they did not vote as a bloc.

One way to do this, as Rachel did, was by hand, combing through the U.S. Reports or one’s favorite online source. An alternative is to use Harold Spaeth’s U.S. Supreme Court database. I just fired up STATA and in less than five minutes I knew that Scalia and Thomas have voted together 92.0% of the time in criminal procedure cases; that through their careers O’Connor joined 68.43% of the Court’s 5-4 decisions and Kennedy joined 69.2% (these figures could readily be broken down by term, natural court, issue area, etc.), and that the number of cases resulting in judgments of the Court under Warren, Burger, and Rehnquist was 69 (1.93%), 149 (2.77%), and 93 (2.59%) respectively. Rachel’s problem is more complex and would probably take a little more time, but the point is still the same.

There are tradeoffs to using Spaeth’s database, of course. Judgment calls have to be made, and in using someone else’s data you need to rely on that person’s judgment. I do note, though, that unlike many datasets, Spaeth provides intercoder reliability tests.

There are also start-up costs: learning to use an appropriate statistical software program (the database comes in SPSS, SAS, STATA and ascii formats); and learning to use the database appropriately. E.g., the database can be configured to include or exclude secondary issues and laws included in the case, additional dockets from the same case, cases with or without oral argument, decrees, tied votes, etc. I do note that Lee Epstein and I plan to provide a workshop next year on using the Spaeth database, and a few other well-used ones too.

For now, ELS scholars can find databases to their hearts delight housed at the University of Kentucky’s Ulmer Project

Taking Law Seriously

Different scholars mean different things when they discuss the role of law in judicial decision making. For post-positive theorists, all that matters is that judges sincerely attempt to find the best answer to legal questions. Jason Whitehead of USC just presented a fine paper presenting this view at the Law and Society meetings.

Jason’s paper aside, one problem with this approach is that it does not fully recognize the innate and largely subconscious human ability to convince ourselves of what we prefer to believe. If all that is asked by judges is that they sincerely believe in (i.e., have convinced themselves of) the appropriateness of their decisions, then short of Bush v. Gore, it’s hard to know when judges would fail this test.

I think we are better off conceiving of law as a potential and potentially measurable influence on judges’ behavior. To determine the impact of law is not much different than determining the impact of other social phenomena. Simply put, judges’ decisions should change -- not deterministically, but at the margins -- as law or legal arguments change, holding alternative phenomena constant. A recent example of this is a paper by Rachel Barkow of NYU Law school, who combines quantitative and qualitative methods to argue that a commitment to originalist methods leads Scalia and Thomas to support criminal defendants in non-capital jury cases far more often than we would expect given their ideology.

Lott v. Levitt: Lott's Response Filed

John Lott has posted his response to the motions to dismiss filed by Levitt and HarperCollins. The response was filed yesterday. It can be found in pdf form on Lott's website.

Tim Lambert appears to have the first (though brief) take on Lott's arguments. Or maybe it was Ted Frank at Overlawyered. Frank's reaction: "Lott seems to have the better of this exchange as a matter of positive (if not normative) law because of the liberal pleading rules that make it nearly impossible to dismiss a case on the pleadings."

Systematic Content Analysis of Judicial Opinions

Mark Hall and Ronald Wright of Wake Forest have written Systematic Content Analysis of Judicial Opinions.  Mark and Ron are actively requesting feedback on the project; specifically they would like to learn about (1) other examples of work using content analysis that were inevitably missed in the review; and 2) any additional helpful techniques or practice pointers to include in the paper.

The Abstract: 

Despite the interdisciplinary bent of legal scholars, the academy has yet to identify an empirical methodology that is uniquely its own. We propose that one standard social science technique - content analysis - could form the basis for an empirical methodology that is uniquely legal. It holds the potential for bringing social science rigor to our empirical understanding of caselaw, and therefore for creating what is distinctively a legal form of empiricism. To explore this potential, we collected all 122 examples we could find that use content analysis to study judicial opinions, and coded them for pertinent features.

New Book - Elkin on Constitutional Design

Reconstructing the Commercial Republic: Constitutional Design After Madison

by Stephen L. Elkin (Univ. of Chicago Press)

Availability: Amazon / Barnes & Noble /
U. of C. Press

From the Description:

"James Madison is the thinker most responsible for laying the groundwork of the American commercial republic. But he did not anticipate that the propertied class on which he relied would become extraordinarily politically powerful at the same time as its interests narrowed. This and other flaws, argues Stephen L. Elkin, have undermined the delicately balanced system he constructed. In Reconstructing the Commercial Republic, Elkin critiques the Madisonian system, revealing which of its aspects have withstood the test of time and which have not.

The deficiencies Elkin points out provide the starting point for his own constitutional theory of the republic—a theory that, unlike Madison’s, lays out a substantive conception of the public interest that emphasizes the power of institutions to shape our political, economic, and civic lives. Elkin argues that his theory should guide us toward building a commercial republic that is rooted in a politics of the public interest and the self-interest of the middle class. He then recommends specific reforms to create this kind of republic, asserting that Americans today can still have the lives a commercial republic is intended to promote: lives with real opportunities for economic prosperity, republican political self-government, and individual liberty."

Where Attitudes Come From

I think that at this point most ELS scholars are comfortable with the notion that attitudes play a crucial role in judicial decision making, even if that role varies by judge, by court, and even by case. The well-established importance of attitudes in judicial decision making leads to the question of where attitudes come from.

Social background theory argues that attitudes come from shared environmental influences, such as one’s father’s occupation, the region where one went to college, and other such factors. This model, though, almost certainly overstates the case of shared environmental influences. Psychologists and behavioral geneticists have been amassing evidence for decades now showing that the extent to which personality factors are influenced by one’s environment, they are largely determined by the idiosyncrasies experienced by the individual, and less so by the environmental factors that one shares, say, with a sibling. Evidence for this includes the findings that the correlation between unrelated siblings (i.e., adopted children raised as siblings in the same household) is fairly small. Alternatively, the correlation in personality among identical twins reared apart is fairly substantial. These and other twin-based studies suggest a substantial heritable component to personality.

Recent work by John Alford, Carolyn Funk, and John Hibbing reports similar findings for political attitudes (Hibbing and Alford, December 2004 Perspectives on Politics; Alford, Funk and Hibbing, May 2005, American Political Science Review). They report heritability effects on political attitudes ranging from .41 (school prayer) to .18 (support for federal housing assistance) with an average heritability coefficient across 28 political items of .32. The average effect for the unshared environment is a robust .53, but the effect for the shared environment (e.g., fraternal twins reared together) is only .16.

I provide here the heritability coefficients for other political attitudes likely to be of interest to judicial scholars:

Socialism .36

Death Penalty .31

Censorship .30

Gay Rights .28

Abortion .25

None of this means that there are specific genes for these policies, but more likely, that there are combinations of genes that influence egalitarianism, openness to outgroups, a desire for order, etc., that in turn influence these attitudes.

Hibbing and Alford suggest implications of these findings for the criminal justice system, war, and the creation of political institutions.  For those unfamiliar with their work, it's well worth reading.

Civil Appeals in State Courts

An important resource for empirical legal scholars--the U.S. Bureau of Justice Statistics--announced a new research report at last week's Law & Society Annual Meeting. 

An abstract for the Appeals from General Civil Trials in 46 Large Counties, 2001-2005 report follows:

"Presents information on general civil cases concluded by bench or jury trial in 2001 that were subsequently appealed to a State’s intermediate appellate court or court of last resort. Information presented includes the flow of civil cases through the appeals process and the effect of appeals on trial court outcomes. The report describes the types of civil bench and jury trials appealed, the characteristics of litigants filing an appeal, the frequency in which appellate courts affirm, reverse, or modify trial court outcomes, and the percentage of appeals that produced a published opinion. Cases further appealed from an intermediate appellate court to a State court of last resort and the impact of that final level of appeal on litigation outcomes are also described. This report is part of a series examining civil litigation in the United States."             

    Notable findings include:

• Among tort trial cases concluded in 2001, litigants filed appeals in approximately 33% of product liability and 18% of medical malpractice trials.
• Forty-three percent of civil appeals were dismissed or withdrawn prior to disposition.
• Trial court verdicts or judgements that found for plaintiffs were reversed or modified on appeal at higher rates compared to trial court outcomes favoring defendants.

Guest Blogger: Jeffrey Segal

Our guest blogger this week is Jeffrey Segal, someone who requires very little introduction.  Jeff is professor of political science at SUNY, Stony Brook.  He received a Ph.D. from Michigan State University.  He is the author or coauthor of several books, including The Supreme Court and the Attitudinal Model (2002); Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (1999); and Senate Elections (1992).

Pilot project on a new test of lawyering ability (i.e., broader than the LSAT)

The LSAT is a controversial test for many reasons.  One of the main critiques is that the skills that it measures--three closely related forms of verbal reasoning ability--are only a subset of the abilities relied upon by successful lawyers.  In many legal contexts, for example, engagement, empathy, affect recognition, oratory skills, sense of humor, discretion, and integrity (+ many more) are probably more important that raw reasoning ability.   Of course, the LSAC reference manuals are crystal clear than the LSAT is only valid for predicting first-year law school grades.  Yet, for a variety of reasons related to nature of law school competition, the LSAT has become the primary gatekeeper for the profession.

Fortunately, an ambitious empirical project by Majorie Schultz (Berkeley Law) and Sheldon Zedeck (Berkeley Psychology) seeks to improve the current system of law school entrance exams (see ABA Journal story). The project, which began in 2001 with grant funding from the LSAC, explores the possibility of creating a test that captures a broader array of characteristics relevant to success as a lawyer.   Note that the most difficult threshold task of the project is to operationalize into measurable attributes what it means to be a "successful" or "competent" lawyer.   

According to the story,  Schulz and Zedeck have conducted extensive interviews with hundreds of law alumni, faculty, judges, clients, and hiring partners to generate a list of 26 "effectiveness factors" for practicing lawyers.  Remarkably, this research has lead to a pilot test (starting this month) open to 25,000 graduates of Boalt Hall and UC Hastings. 

The next threshold will be demonstrating the test's validity--i.e., empirical evidence that the scores really do measure the putative attributes in a reliable way.  Anyway, this is a truly visionary project that was difficult to get off the ground.  Whether the project successes or fails, the world is better off from their efforts to address this complex, high-stakes issue.  Kudos to Schultz and Zedeck!

Hamdan - An Editorial Roundup

Last week, Walter Dellinger referred to Hamdan v. Rumsfeld as “the most important decision on presidential power and the rule of law ever.” Mark Graber offered some cold water, arguing that it was too early to gauge Hamdan’s importance. It’s “the sort of decision that is likely to depend a great deal on the future course of American politics,” said Graber. Well, it’s been a week. The future is now. It’s time to take stock.

So how is Hamdan doing in the broader world of American politics? The New York Times liked it. The Wall Street Journal didn’t. Of course, we like to be more systematic here at the ELS Blog, but this means I’ll have to focus on only one small part of the political discussion. Here, I’ll consider only newspaper editorial boards and what they thought of Hamdan, but I’ll go beyond just the elite national papers. The punchline is that they overwhelmingly supported the Supreme Court’s decision, which is probably unsurprising, but even right-leaning papers favored the Court over the President by a substantial margin.

Call for Papers

The brief version of the announcement: "Junior scholars writing in the area of Torts are invited to submit papers for 'Tort Law and the Modern State,' a conference to be held at Columbia Law School, New York City on September 15-16, 2006. The Conference is sponsored by Columbia Law School and the Randolph Speakers Fund and is being organized in connection with the launch of a newly formed peer-reviewed journal, the JOURNAL OF TORT LAW, http://www.bepress.com/jtl."

The deadline for submissions is July 28th. For the full announcement, follow the link to the journal homepage or click is here.

Striking Down Federal Law

A significant number of professors use the summer as an opportunity to send out reprints of their articles.  Today I received one that may interest ELS Blog readers:  Segal & Westerland, The Supreme Court, Congress, and Judicial Review, 83 North Carolina Law Review 1323 (2005). 

The authors test whether the Supreme Court is more constrained by Congressional preferences in constitutional cases than in statutory cases.  They find little support for this proposition, and instead find that the Court's likelihood of striking down federal legislation between 1949 to 2001 is most closely associated with the conservatism of the Court.

New Book - Schofield on Political Change

Architects of Political Change: Constitutional Quandaries and Social Choice Theory

by Norman Schofield (Cambridge University Press)

Availability: Amazon / Barnes & Noble

From the Description:

 

"This work offers a set of extended interpretations of Madison's argument in Federalist X of 1787, using ideas from social choice theory and from the work of Douglass North, Mancur Olson, and William Riker. Its focus is not on rational choice theory itself, but on the use of this theory as a heuristic device to better understand democratic institutions. The treatment adapts a formal model of elections to consider rapid constitutional change at periods when societies face quandaries. The topics explored in the book include Britain's reorganization of its fiscal system in the eighteenth century to prosecute its wars with France; the Colonies' decision to declare independence in 1776; Madison's argument about the 'probability of fit choice' during the Ratification period of 1787-88; the argument between Hamilton and Jefferson in 1798 1800 over the long run organization of the US economy and the election of Lincoln in 1860."

Indiana Law Reception at Law & Society

On July 8th from 6:30 to 8:00 pm, Indiana Law be hosting a reception for Law & Society Annual Meeting attendees.    Any ELS Blog reader attending the conference is hereby invited.  This is a great opportunity to discuss the meeting, meet old friends, and make new ones.  Here is the location information:

    McCormick & Schmick's
    711 Eastern Avenue
    Pier 5/Inner Habor
    Baltmore, MD 21202
    (about two blocks from the hotel)

No RSVP is necessary.  If you have any questions, please contact our events coordinator, Nikki Rolf.

Judicature Editorial on ELS

The most recent issue of Judicature has an editorial on the ELS "movement."  The editorial notes that ELS is emerging "as a distinct subfield within the legal academy, a development with potentially profound implications both for legal education and, in the long term, for the legal system itself."  Well, we certainly hope so. 

This article is an important development because Judicature (published by the American Judicature Society (AJS))  has a influential readership that includes legal and social science academics, judges, and practicing lawyers.   The AJS editors noted both The Journal of Empirical Legal Studies and the ELS Blog.  This quote reflects reflects why they are optimistic about the future of ELS:

As a new generation of attorneys, judges, and legal scholars [influenced by ELS] begins to think more systematically about legal matters, and to integrate insights from the social sciences into their work, those insights stand to play a more important role in efforts to reshape and reform the legal system. To take but one example, denunciations of courts and judges tend to share the assumption that courts are very powerful.These critiques start from the premise that, when courts rule on an issue, they largely determine the outcome on that issue. In contrast to this view, empirical research by political scientists and others on the implementation and impact of court decisions raises serious questions about that assumption. Greater attention to—and continuation of—empirical research on such dynamics holds the promise of betterinformed debates about the role and powers of courts.

Hat tip to an anonymous reader.

Bobblehead News

Today's Los Angeles Times covers the "fascination with Supreme Court bobbleheads[.]" It's "part of a small but growing craze that began in the spring of 2003, when the Green Bag — which describes itself as ‘an entertaining journal of law’ — put out its Rehnquist figure."

One lawyer paid $2,100 for Rehnquist and $800 for Stevens. Catch the craze here.

New Book - The Founders & Guns

A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America

by Saul Cornell (Oxford University Press)

Availability: The Oxford website lists it as an August 2006 book, but it is available now. (Barnes & Noble's release date seems to be incorrect too.)

See Amazon or Barnes & Noble.

From the Description:

"Americans are deeply divided over the Second Amendment. Some passionately assert that the Amendment protects an individual's right to own guns. Others, that it does no more than protect the right of states to maintain militias. Now, in the first and only comprehensive history of this bitter controversy, Saul Cornell proves conclusively that both sides are wrong. Cornell, a leading constitutional historian, shows that the Founders understood the right to bear arms as neither an individual nor a collective right, but as a civic right--an obligation citizens owed to the state to arm themselves so that they could participate in a well regulated militia. "

DIGs

Yesterday, in Linda Greenhouse's NY Times article entitled "Roberts Is at Court's Helm, but He Isn't Yet in Control" she notes that:

"The term's closing weeks were particularly ragged. The court issued no decision in a major patent case that had drawn intense interest from the business community, announcing two months after the argument, over the dissents of three justices, that the case had been 'improvidently granted' — they should not have agreed to decide it — in the first place."

And also yesterday, unearthed from my pile of office mail, I found the following reprint: Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wis. L. Rev. 1421 (also available on ssrn).  The article examines how often and in what types of cases DIGs are issued, as well as address the instutitutional and jurisprudential issues raised by its use.  For example, they conclude that "[t]he DIG was more likely to be used in constitutional cases, as compared to other cases, perhaps allowing the Court to avoid more difficult cases until future occasions."

Supreme Court Term Overview

Georgetown's Supreme Court Institute has released its overview of the October 2005 Supreme Court term, which is chock full of information on voting patterns, key cases, etc. The report can be found here.

Hat tip to Bradley Joondeph (Santa Clara Law) for the alert on the Law & Courts listserv.