Empirical Legal Studies

Four Cheers for Meta-Analysis (Blumenthal)

One wonderful thing about this blog is the opportunity to learn about various different methodological approaches available for data analysis.  The workshops on methodologies and statistics (e.g. Northwestern's) are enormously helpful, and references for teaching and catching up on statistics have been as well.  Experimental work is very important, and relatively uncommon approaches such as MDS, network analysis, propensity score analysis, and others can give good insight into what is going on with both conventional and unconventional data.

But I'd like to highlight one approach that cuts across many of these, and in my view is one of the most important contributions ELS can make.  I'm a big fan of meta-analysis--of the quantitative synthesis of existing research studies--and advocate its use by ELS scholars, courts, agencies, practitioners, ice cream truck vendors, etc.

I've made some of my case for meta-analysis in a piece coming out in Temple Law Review, so I will be brief here.  First, descriptively, meta-analysis is just that--analysis one level up.  That is, primary research uses individual units (person, cases, courts, etc.) as the unit of analysis.  The individual units that meta-analysis involves, though, are the empirical studies themselves from a particular body of research.  Synthesizing the results of each study, the goals of meta-analysis are (1)  to identify the presence or absence of an effect in an existing empirical literature; (2) to evaluate the strength of that effect, for instance by summarizing the average effect across a set or subset of studies; and (3) to identify moderator variables, elements of the various studies that might have reliably affected their outcomes.  Thus, a good meta-analysis will identify and synthesize every study in a research area; find the average effect across all those studies in order to summarize the most current state of knowledge; and then systematically compare and contrast across studies, in order to identify methodological and substantive aspects of the various studies in a discipline that might be associated with the effect sizes they report.

Meta-analysis has a number of benefits, especially relative to the traditional narrative lit review: it is more comprehensive; it better avoids subjective judgments about what to include in a review; it is better at identifying "small" effects; it avoids over-emphasis on misleading statistical significance and p-values (focusing on effect sizes instead); emphasizes moderator variables; and, in my view, gives a better grounding for policy inferences.

Meta-analyses, unfortunately, are still rare in law reviews (Chris Guthrie and Dan Orr had one recently, but few others appear; they are cited sometimes, though).  They are used in court, usually in mass tort cases, but are often misunderstood by courts and experts.  My hope is that use of meta-analyses in ELS will increase--they serve well to summarize a body of research; they allow (or force) researchers and policy-makers to speak a "common language"--by making cherry-picking from existing studies more difficult--and, identifying moderator variables, they can prompt further research questions.

Blumenthal: Thanks for the Welcome

Thanks for the welcome!  I hope any upcoming posts won't drive readers back to grading . . . .

Chris Zorn Joins ELS Blog as a Permanent Editor

The ELS Blog is pleased to announce the addition of Chris Zorn as a permanent editor.  Chris is a professor of Political Science at University of South Carolina who will be joining the Penn State faculty in January 2008.  He is a noted methodologist with research interests covering a range of topics, including American and international political institutions, including federal government litigation, U.S. Supreme Court decision-making, international relations, and a wide array of quantitative methods.  Prior to his appointment at South Carolina,  Chris served as a Visiting Scientist and Program Director for the Law and Social Science Program at the National Science Foundation and Associate Professor and Winship Distinguished Research Professor of Political Science at Emory University.   He is also a perennial instructor in the ICPSR Summer Program.

The ELS Blog and its readership are really lucky to have Chris on board.  In addition to his tremendous technical abilities and skills, he is also a constructive critic and patient colleague who is always focused on our common goal of building knowledge.   Chris is a great asset to the ELS movement, and we look forward to his regular contributions. 

Guest Blogger: Jeremy Blumenthal

Since he did a great job in early March, Jeremy Blumenthal has returned as a guest blogger this week.  Jeremy is an Assistant Professor of Law at Syracuse University College of Law.   He earned his A.B., A.M., and Ph. D. in Social Psychology from Harvard University. He earned his Juris Doctor and graduated cum laude from the University of Pennsylvania Law School, where he was Editor-in-Chief of the University of Pennsylvania Journal of Constitutional Law and received several writing prizes. Most recently, he was a Faculty Fellow at Seton Hall Law School, teaching 1L Property and Law and the Social Sciences.  Previously, he clerked for the Honorable Maryanne Trump Barry of the U.S. Court of Appeals for the Third Circuit, and was an Associate for Latham & Watkins, LLP, in the Newark, NJ office.

Professor Blumenthal has published widely on topics in law and psychology, including demeanor evidence, the reasonable woman standard, victim impact statements, and more generally on the role of social science in assisting the legal system. He has also published in the areas of evidence and comparative law. His most recent publications focus on the role of emotions in the legal system; current research projects address topics in capital punishment, empirical work in law and psychology, and topics in property theory.

Since he did a great job in early March, Jeremy Blumenthal has returned as a guest blogger this week.  Jeremy is an Assistant Professor of Law at Syracuse University College of Law.   He earned his A.B., A.M., and Ph. D. in Social Psychology from Harvard University. He earned his Juris Doctor and graduated cum laude from the University of Pennsylvania Law School, where he was Editor-in-Chief of the University of Pennsylvania Journal of Constitutional Law and received several writing prizes. Most recently, he was a Faculty Fellow at Seton Hall Law School, teaching 1L Property and Law and the Social Sciences.  Previously, he clerked for the Honorable Maryanne Trump Barry of the U.S. Court of Appeals for the Third Circuit, and was an Associate for Latham & Watkins, LLP, in the Newark, NJ office.

Professor Blumenthal has published widely on topics in law and psychology, including demeanor evidence, the reasonable woman standard, victim impact statements, and more generally on the role of social science in assisting the legal system. He has also published in the areas of evidence and comparative law. His most recent publications focus on the role of emotions in the legal system; current research projects address topics in capital punishment, empirical work in law and psychology, and topics in property theory.

What Happens on Appeal

Continuing the practice of highlighting the work of our c0-editors, I am delighted to call attention to a  newly posted article by Theodore Eisenberg and Michael Heise.  The article, entitled Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal, follows on Eisenberg and Kevin Clermont's 2002 article, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments.  That earlier article documented differences in reversal rates depending on such factors as the nature of the lawsuit, the nature of the trial court decision (bench vs. jury), and who brought the appeal (plaintiff or defendant).  The new article extends the research into state courts, and the findings are both interesting and different.  The abstract follows:

Two findings dominate prior empirical studies of federal civil appeals. First, appeals courts are more likely to disrupt jury verdicts than bench decisions. Second, trial court defendants fare better than plaintiffs on appeal. But federal cases are limited by subject matter and comprise a small fraction
of the nation's civil litigation activity. This study, which exploits a uniquely comprehensive database of state court trials and civil appeals, presents the first statistical models of the appeals process for a comprehensive set of state court civil trials. Using data from 46 large counties consisting of 8,038
trials and 549 concluded appeals, we find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed
by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials. Both descriptive analyses as well as more formal selection models point to appellate judges' attitudes toward trial-level adjudicators as an important explanation for these asymmetric outcomes of civil appeals in state courts. Our results are generally consistent with prior research on federal court appeals but also suggest a higher reversal rate of trial outcomes in state court compared to federal court.

Decision Making in the U.S. Court of Appeals

My colleagues on the ELS Blog are hopelessly modest, so I cannot count on them to mention, much less tout, their academic accomplishments.  Fortunately, based on my prior book orders, Amazon sent me an email informing me that I ought to buy Decision Making in the U.S. Court of Appeals (Stanford 2007)  by Frank Cross. 

According to Cass Sunstein, “This is one of the most important empirical studies ever of the federal judiciary. Many of Cross’s findings are striking and fresh, and he is able to show that the simple ‘realist’ story underrates the role of legal constraints—and that ideology matters too.”

Why Not a Ph.D. in Law?

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

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

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

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

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

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

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

"Back to the Future, Again?" -- ELS in Context

An interesting post by Jack Balkin over at Balkinization (here), stimulated by an earlier post by Einer Elhauge (here--now a series of posts at Volokh Conspiracy--and previously highlighted by Chris Zorn, here), contributes to an expanding conversation and manages to evoke the likes of Underhill Moore. For my money, Prof. Moore is one of the most under-appreciated "grandfathers" of the modern ELS literature. His "counting illegally parked cars on Grove Street" study endures (though, obviously, dated) as a classic.

Obligatory Baseball Post: Selection Bias

Einer Elhauge is guest-blogging over at Volokh, and raising a bunch of interesting questions.  One post draws a parallel between ELS and sabermetrics, leading one (clearly Boston-based) wag to ask, "if empirical legal studies are like sabermetrics, who is the legal equivalent of Joe Morgan?"

I'm not touching that one...  But, in the spirit of the (baseball) season, I'd offer the following instead.  Empirical researchers are taught early on to beware of selection bias -- drawing incorrect inferences from data which are nonrandomly sampled from a population.  (An example would be concluding that early humans lived predominantly in caves, on the basis of finding paintings, remains of fire pits, and so forth there; because such artifacts are more likely to survive in caves than elsewhere, the available archaeological data are subject to selection bias).  We also learn that there are ways of dealing with such data, including the class of "selection models" first developed by James Heckman.*

What does this have to do with baseball?  As it happens, my partner-in-crime Jeff Gill and I recently published a paper about the political dynamics of public opinion toward the designated hitter rule.  (That's the Yankees' Ron "Boomer" Blomberg, the first-ever DH, in the picture).  Our paper draws on data from a September 1997 CBS News poll which utilized a "screening" question.  Respondents (there were over 1,000 of them) were first asked how interested they were in watching or following baseball.  The 440 who responded "very interested" or "somewhat interested" were then asked a series of follow-up questions, including whether they approved or disapproved of the designated hitter; the other 600 or so respondents were not asked the follow-ups.

Our first thought was that the screening question raised the possibility of selection bias in the data, and our initial analyses used a Heckman-type selection model to correct for that.  (For those of you desperate for an alternative to grading final exams, an older version of the paper that includes the selection model results is posted here).  But one of the reviewers at QJPS pointed out (quite correctly) that, since the population of interest presumably only consists of individuals with some interest in baseball, the screening question posed no threat of selection bias.  That is, individuals with no interest in baseball presumably can't have opinions about the DH, and so omitting them from our analysis is not a problem.

I offer this example to underscore a point that often gets lost in researchers' concerns about selection bias: The fact that one's data are somehow subject to a nonrandom selection process does not necessarily mean that selection bias will be the result.  Too often, scholars -- including this one -- conflate the two, and rush to implement some sort of correction when in fact it none is needed.  Instead, the key question is always whether the selection mechanism leads to bias vis-a-vis the phenomenon of interest, something only a thoughtful consideration of the question(s) and the data can answer.

* Good references on selection bias include Heckman (1979 Econometrica), Berk (1983 ASR), Winship and Mare (1992 Ann. Rev. Soc.), and Stolzenberg and Relles (1997 ASR).  Selection bias in a qualitative-data context is reviewed by (among others) Geddes (1990 Political Analysis), King/Keohane/Verba (Designing Social Inquiry 1994, ch. 4), and Collier and Mahoney (1996 World Politics). More recently, Jonathan Koehler of the UT-Austin Business School has done some interesting experimental work on selection bias in a jury context.

 

Help Wanted: LSAC Director of Research

For those interested in empirical research of legal education and the legal profession, there is no better funding source than the LSAC Research Grant Program.  The LSAC recently created a new position, which will supervise this program:

Law School Admission Council (LSAC), an educational service organization that develops and administers the Law School Admission Test (LSAT), seeks the following: Director of Educational Research.

Responsibilities include managing LSAC’s educational and social-science research activities, serving as principal investigator for selected research projects, managing Research Grant Program, and designing or reviewing survey instruments. Other responsibilities include providing program-evaluation advice and managing external evaluation services, keeping abreast of relevant current research and informing senior staff of important research developments, and supervising staff within the Educational Research Group.

Requirements include an earned Doctorate in Higher Education Research, Psychology, Sociology, Applied Statistics or related field and experience in the management of research conducted by others. A demonstrated track record of peer-reviewed, published research; grants management experience; and facility with various statistical software packages also required. Interest in research focusing on the pipeline to graduate and professional school helpful.

I have posted the full announcement, which has contact information, here.

Opinion Assignment in the Federal Courts of Appeals

Edward Cheng (Brooklyn Law) has written The Myth of the Generalist Judge: An Empirical Study of Opinion  Assignment in the Federal Courts of Appeals.  The Abstract:

Despite the frequent rhetoric celebrating the generalist judge, do judges really believe in the generalist ideal? This Article empirically tests this question by examining opinion assignments in the federal courts of appeals from 1995-2005. It reveals that opinion specialization is a regular part of circuit court practice, and that a significant number of judges indeed specialize in specific subject areas. The Article then assesses the desirability of opinion specialization. Far from being a mere loophole, opinion specialization turns out to be an important development in judicial practice that promises to increase judicial expertise without incurring many of the costs commonly associated with specialized courts.

A 4-Credit 1L Course on the Legal Profession

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

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

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

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

Decisions, decisions...

Michael's pointer to the JSP post raises an issue, and some questions.  There are a lot of blogs, far too many to read all of them.  Of the ones on the ELS blogroll, I regularly keep an eye on only Balkinization, Prawfsblawg, and Volokh, with an occasional voyeuristic peek at Althouse.  A few really good ones are just a bit too focused outside my area(s) of interest to keep my attention; Rick Hasen's Election Law Blog comes to mind as an example.  Others I watch that might be of some interest to ELSers are Charles Franklin's Political Arithmetik (great for polls & survey research), Marginal Revolution, Andrew Gelman's blog, and the Social Science Statistics blog at Harvard (the latter recently had this nice post and discussion about differences between statisticians and "econometricians").

So, some questions: What do you read/write/comment on?  What great ELS-related blog(s) have I missed?  More important, how do you decide which ones to pay attention to?

Berkeley's JSP & "How Things Can Change Over Time"

Interesting post and discussion developing over at PrawfsBlawg about the social history of Berkeley's JSP program germane to the politics of scholarship in particular and empirical legal studies in general (and by implication).

Wish I'd Thought of That

Cultures of Corruption: Evidence from Diplomatic Parking Tickets, by Ray Fisman (Columbia) and Edward Miguel (Berkeley).

From the abstract:

"...we exploit a natural experiment, the stationing of thousands of diplomats from around the world in New York City. Diplomatic immunity means there was essentially zero legal enforcement of diplomatic parking violations, allowing us to examine the role of cultural norms alone. This generates a revealed preference measure of government officials' corruption based on real-world behavior taking place in the same setting.  We find strong persistence in corruption norms: diplomats from high corruption countries (based on existing survey-based indices) have significantly more parking violations, and these differences persist over time."

As they say, read the paper.  Andy Gelman has a nice little discussion of this over on his blog, too.

A Matter of Style

My thanks to the ELSBlog crew for having me back.  Once again, I promise to try to resist the urge to self-promote.

Up first, a word about law reviews.  I don't publish in them, and probably never will, but it's not for a lack of desire to do so.  Rather, I (and, I suspect, many other law-interested social scientists) avoid them because of the many little impediments social scientists face when considering submitting our work to law reviews.  (Note that what's coming is not a rant about peer-review (or the lack thereof) in law journals; that's for another day).  While the catalog of those deterrents is not short -- biannual submission seasons,  the expedite process, the legal academy's weird death-grip on outmoded software (e.g., ExpressO accepting Word and Wordperfect files, but not PDFs), and so forth -- I'd suggest that the most significant is style.

Suppose I am writing an empirical paper on some law-related phenomenon, one that might be appropriate for publication in either a social science periodical like Law & Society Review or one or more law journals.  One of the first decisions I have to make is about the format/style of the paper: Are references in-line and parenthetical or footnoted and annotated?  Do I include a bibliography/list of references?  Does "id." beat out "a" and "the" as the most common word in the paper?

As anyone who works in both law and social science is aware, the decision is not a trivial one.  "Converting" a paper from a "legal" style to a "scientific" one (or vice-versa) is both tedious and a colossal waste of time and effort.  Yet many (most?) journals will not even consider papers that are formatted incorrectly, making such conversions almost inescapable.  (It's interesting to me that the most prominent exception -- the Journal of Empirical Legal Studies, which allows authors to use either a legal or a social-scientific citation style -- seems to publish a fair number of articles of both types).

At least some of the variation has to do with the different purposes citations serve in legal and scientific work.  The APA citation style (and its derivatives, like APSA style) focuses on giving "credit where credit is due,"  ensuring that authors document the sources of their statements.  On the legal side, the Bluebook's website states it best: "(T)he central function of a legal citation is to allow the reader to efficiently locate the cited source."  In the days when law journals were primarily written for and read by practicing attorneys, this emphasis made a good bit of sense; whether it does so now seems (to me) to be an open question.

The larger point is that such style differences are one more barrier to work that bridges the legal and social scientific academies. But what to do?  Throw out the Bluebook?  (I like that idea, but I'm sure many others won't).  Relax the style guidelines for some types of work, or eliminate them all together?  Barring that, what do you do to deal with this issue?

Do Judges Systematically Favor the Interests of the Legal Profession?

Former ELS Guest Blogger Benjamin Barton (Tennessee) has written Do Judges Systematically Favor the Interests of the Legal  Profession?.  The Abstract:

This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure.

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated?  Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice? The Article finishes with some of the ramifications of the lawyer-judge hypothesis, including brief consideration of whether our judiciary should be staffed by lawyer-judges at all.

Guest Blogger: Chris Zorn

This week we are pleased to welcome back guest blogger Chris Zorn, who is Professor of Political Science at University of South Carolina.  Chris' research interests are in the areas of law and judicial politics, quantitative methodology, and international politics.  His current research examines a range of topics in American and international political institutions, including federal government litigation, U.S. Supreme Court decision-making, and international relations, as well as research on event count, survival, and panel data models for quantitative research.  

Prior to his appointment at South Carolina (where he was recently promoted to full professor), Chris served as a Visiting Scientist and Program Director for the Law and Social Science Program at the National Science Foundation and Associate Professor and Winship Distinguished Research Professor of Political Science at Emory University.   Chris is a perennial instructor in the ICPSR Summer Program, teaching a course in Advanced Maximum Likelihood.  In January 2008, he will be joining the Political Science department at Penn State.  Finally, Chris is great citizen in the ELS movement who is always constructive in his comments and has lots of insights on how we can successfully integrate legal scholarship with social science methodologies.  We look forward to his posts. 

A Couple of Pitfalls of Formal Hypothesis Testing

In many ways, legal scholars have been unfairly criticized by scholars in other disciplines in our use of empirical methods.  I have personally read a great deal of very good empirical analysis conducted by legal scholars, often providing a perspective about legal institutions and the law that is sometimes missing from the work of other disciplines.  But I have also noticed one area of empirical methodology where we can no doubt improve: formal hypothesis testing.

We often criticize our students for failing to state a clear thesis and then referring back and adhering to that thesis throughout their papers.  An analogous problem sometimes exists in empirical legal scholarship, in which some papers fail to clearly state the hypothesis or hypotheses being tested.  In most political science papers, for example, I have noticed that the authors go to great lengths both to clearly state their hypotheses and the rationales,  scholarship, or intuitive reasons supporting such hypotheses.  Now I can't say that those portions of empirical papers are the most riveting, but they do guide the reader as the authors use various methodological tools to evaluate and test their theories.  I personally run my empirical papers past one or more of my political science colleagues (often including this week's visiting blogger: Tim Johnson) prior to submission in part to ensure that I have done an adequate job of supporting and stating my hypotheses in my own papers (which is not always the case). 

A second pitfall I have noticed in empirical legal scholarship often stems from the first.  Papers will occasionally throw around the language of hypothesis testing, such as Type I (i.e., a false positive) and Type II error (i.e., a false negative), without actually formally testing or even stating any hypothesis.  Often these are just errors of omission because it is sometimes clear from the text or the methodological tools used by the empiricist what theories are being tested, even if it requires some interpretation by the reader.  On other occasions, however, it is not at all clear what hypotheses are being tested, including what the null hypothesis looks like, and thus it becomes very confusing to the reader to use terms such as Type I and Type II error.

I do not mean to suggest that most papers suffer from either or both of these two pitfalls, but I have seen them in enough articles that I thought it worth mentioning.  I am also sure that there are other pitfalls of formal hypothesis testing that I have failed to cover in this post.  In addition, I think that legal scholars, as a group, are getting better at avoiding some of these problems as it is highly encouraging that scholars in other disciplines are increasingly citing and discussing our work.  Nonetheless, because legal scholars are sometimes criticized for our lack of empirical rigor, I felt like revisiting some of these issues would be beneficial to our readership.  Comments, as always, are most welcome.

The New Wal-Mart Effect

Michael Vandenbergh (Vanderbilt Law) has written The New Wal-Mart Effect: The Role of Private Contracting in  Global Governance, 54 UCLA Law Review 913 (2007).  The Abstract:

This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are inadequate to address the attendant environmental harms. This Article uses empirical data to examine how private contracting regulates firm behavior, focusing on supply-chain contracting. The Article shows that more than half of the largest firms in eight retail and industrial sectors impose environmental requirements on their domestic and foreign suppliers. This contracting, which the Article terms "the new Wal-Mart effect," reduces externalities by translating a complex mix of social, economic, and legal incentives for environmental protection into private contractual requirements.

After demonstrating that private environmental contracting is an important part of global environmental governance, the Article examines the efficacy and accountability of this regime. The Article concludes that the private contracting regime often is preferable to the alternatives: lax national and international regulation of firms in many exporting countries, and markets that lack private environmental contracting. Finding much promise in the private contracting regime, the Article concludes by suggesting new strategies for governments, nongovernmental organizations, and firms.

Written Opinions and Judicial Decisionmaking

In a very interesting new article forthcoming in Georgetown Law Review, Chad M. Oldfather of Marquette University Law School discusses whether writing really or necessarily makes judicial decisionmaking better, in light of psychology research and experimentation suggesting that under certain conditions a phenomenon of verbal overshadowing makes decisionmaking worse.  This article is an interesting companion to David Hoffman, et al.'s recent scholarship, discussed here , on when and why judges write opinions.

The abstract of Professor Oldfather's article follows:

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive - that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of generating an opinion uncontestably outweigh the benefits - such as in the case of evidentiary rulings made during the course of trial. Still, the understanding remains that writing will result in some positive contribution to the process.

This article calls that assumption into question. Drawing upon an emergent body of psychological research into the effects of both oral and written verbalization on decisionmaking effectiveness, it argues that certain types of decisions are likely to be worse if made via a process that incorporates writing. Decisions involving complex, context-intensive judgments that are best resolved via the weighing of largely inarticulable considerations are susceptible to a phenomenon called verbal overshadowing. In these situations attempts to justify a decision can lead the decisionmaker to focus on more readily verbalizable features of  the problem to the exclusion of those inputs that are more important to proper analysis.

The article also investigates the significance of writing to the fulfillment of the other two (aside from accuracy-enhancement)primary functions of judicial opinions, namely the creation and memorialization of precedent and the enhancement of legitimacy, and to consider the differing ways in which these functions are implicated at the trial and appellate levels. The goal is not so much to generate definitive answers as to better identify the costs and benefits provided by written opinions so as to more completely ground ongoing debates concerning when opinions should be issued, what form they should take, and who should author them.

The Oyez Database of Supreme Court Oral Arguments

Today I would like to focus on a topic that has been the center of my research agenda for the past decade -- analysis of Supreme Court oral arguments and how these proceedings affect the Court's decision making.   In particular, I would like to bring to the attention of our readers a database that Jerry Goldman (Northwestern University) and I are working on (with Brian MacWhinney of Carnegie Mellon and Mark Liberman of Penn).  This database, will include all audio the Court has released beginning with the Warren Court up through the present day.   Simultaneously, we are appending sentence aligned transcripts to the audio so that the text and audio are fully searchable. 

Additionally, we have created software that will allow users to search, code, and save data from the arguments or opinion announcements.  We envision these data being used across disciplines -- from political science, to law, linguistics, history, and rhetoric.  Already we have collected cases back through the early 1990s and we already have audio files back to 1979.  These are in the process of being digitized and appended to their transcripts.  In short, hope to provide thousands of hours of transcripted audio that scholars can use to analyze the Court's arguments.

As an outlet for scholarship using these data Jerry and I are now editing "The Oyez Series on Oral Arguments" with books series with the University of Michigan Press.  We encourage and welcome any and all ideas for books or edited volumes that would use our data .  If you have ideas, or would like to learn more about the data and access to it, please contact me at [email protected]

New Article on Affirmative Action in Higher Education

In light of Richard's discussion last week on affirmative action, I thought I would post the abstract of a new paper by John Lott and Mark Ramseyer (that I hope to personally read soon), see here, which challenges some of the traditional hypotheses about peer effects with respect to affirmative action in higher education.  The SSRN abstract sounds interesting:

In the Grutter case, Justice O'Connor suggested that universities could justifiably try to enroll a critical mass of minority students. Enroll fewer than that critical mass, reason some observers, and minority students will feel too marginalized to perform at their highest levels. In this article, we test whether minority students perform better with other students from their ethnic group in a class or school. To do so, we assemble data on the ethnicity and performance of each student in all classes at two law schools - for three years at one, and for sixteen years at the other. We find no consistent evidence that having additional students from one's ethnic group raises a student's performance. Instead, we find some evidence that having additional ethnic peers lowers performance - albeit by a very small amount (US, Canada).

Regional Law Schools and Lawyer Income

I recently conducted a survey of billing and financial information for the Indiana State Bar Association (ISBA).  The results are going to be presented at an upcoming conference of solo and small firm lawyers.

One of the most surprising findings was the lower incomes of small firm lawyers (i.e., five or fewer lawyers per firm) in large metropolitan areas versus  mid-sized and small and rural markets.  For example, in my sample of approximately 1,200 Indiana lawyers in private practices, lawyers working full-time in 1 to 5 lawyer firms in large metropolitan areas [see map below, click to enlarge] made an average of $112,712 (n=318), versus $117,284 in mid-sized markets (75,000 to 200,000 residents) (n=104) and $117,741 in small and rural locales (n = 84). 

Note that these results are not driven by leverage of a few high outliers; the entire distribution tends to be lower in the larger metro areas.  Since household incomes are generally higher in these same locales, I would have predicted the exact opposite pattern. 

In the famous Chicago Lawyers study (aka Chicago Lawyers I), Jack Heinz and Edward Laumann carefully analyzed their random sample of 800 lawyers and determined that the most salient division was between lawyers who served organizational clients, such as corporations, and those that provided personal services to individuals and small business.  These two groups, which reflect a division that tracks not only clients but income, educational backgrounds, social networks, and bar affiliations, comprise the "two hemispheres" of the legal profession.   In my sample, the attorneys in the 1 to 5 lawyers firms are the segment most likely to provide personal legal services; they also make up 52.3% of the private practice respondents.

So why are personal service lawyers making less money in larger markets?  My working hypothesis is that graduates of urban law schools tend to stay in the area (indeed, many lived in the metro area before law school), thus oversupplying the region with personal service lawyers, heightening competition, and decreasing income.  If this is true, it has important implications for so-called "local" law schools.   Some additional data and my analysis follow the jump.

Using Archival Data to Analyze the Supreme Court

I want to thank the Editors ELS blog for having me as a guest blogger this week.  I appreciate the opportunity to talk about research and methods issues as they relate to my research and to our field more generally. 

Today I would like to discuss the use of archival data sources to analyze judicial decision making. A good many scholars have used, or are now using, archival data -- in particular from the private papers left by retired Supreme Court justices.  These papers have provided both qualitative and quantitative data that has helped us better understand the inner workings and decision making process of the U.S. Supreme Court.  Such work, however, has not always been the norm.

Since the advent of the behavioral revolation with with Pritchett's analysis of the Roosevelt Court scholars have used data that is easy to locate -- namely the final votes Supreme Court justices or lower court judges cast -- to explain the decisions they make.  More importantly, these data have ben widely used to predict future behavior.  Clearly, through the Supreme Court and the Attitudinal Model Revisited such data have been vitally important to our field. 

However, a group of scholars in the past 25 years have turned to an even richer source of data to get a grasp on judicial behavior at the U.S. Supreme Court.  Following the lead of Walter Murphy in Elements of Judcial Strategy this group has conducted extensive analyses of the private papers of former Supreme Court justices.  Such work has taught us a great deal about the Court's agenda setting process, its oral arguments, conference discussions, and the bargaining and accomodation process that leads to a final opinion that sets legal policy.

Both Marie Provine (Case Selection in the United States Supreme Court, Chicago: University of
Chicago Press, 1980), and Jan Palmer's work on the Court's agenda setting process relied heavily on these papers as well as justices docket books.  As he notes, "The primary sources used to gather the dataset are the docket books of Burton, Douglas, Clark, and Reed.  The secondary sources are the docket books of Murphy, Jackson, and Frankfurter and the conference lists of Rutledge, Burton, Douglas, and Clark.  The tertiary sources include case files, cert and bench memos, and conference notes of Vinson, Reed, Douglas, Clark, Burton, and Rutledge" (Palmer 1990, 42).  More recent work analyzes Justice Blackmun's docket sheets and memos from the cert. pool in an effort to better understand the degree to which clerks influence the cases the Court will hear.

My own work -- which focuses on how oral arguments at the Court affects justices' decisions -- also makes extensive use of these rich archival data.  For instance, Jim Spriggs, Paul Wahlbeck, and I find evidence from notes Justice Blackmun took during oral arguments that the quality of advocacy can and does affect how justices decide.  For a copy of this paper, click here.  This argument is based on grades that Blackmun gave to almost every attorney who appeared at the Court during his tenure.

Others have also used the justices papers to analyze conference and the opinion writing stage.  For instance, Epstein and Shvetsova (2002) use the papers to analyze how justices may add issues to the agenda to reach outcomes that are more favorable for them.  Similarly, Spriggs, Wahlbeck, and I show how the Chief Justice may pass on his opporunity to vote at conference to manipulate the outcome of a case. 

Finally, among other work, two excellent books use the justices papers to analyze how the opinion writing and bargaining process affects Court decisions.  In Choices Justices Make, Epstein and Knight (1998) use the papers to show that justices act strategically with one another as they move towards a final decision on the merits.  Additonally, Maltzman, Spriggs, and Wahlbeck (2000) use papers from Justice Brennan, Powell, Marshall, and Douglas to quantitatively test how the bargaining and accomodation process affects justices' final decisions.

The point I want to make today is simply this -- there is much fine work in our field that uses archival data to explain and predict political behavior.  We need to continue to think about how we can use such data -- as well as data from lower courts -- to study more parts of  judicial decision making than simply final votes.  As Nancy Kassop (1993) put it, "A case is more than its outcome, and the parts that came before deserve some  attention for the role they played in contributing to the final result."

Guest Blogger: Timothy Johnson

This week's guest blogger is Timothy Johnson, Professor of Political Science at the University of Minnesota.  Tim's research and teaching interests include American Politics, judicial politics, Supreme Court decision-making, Supreme Court oral arguments, executive/judiciary relations, and the evolution of the norm of respecting precedent. He is the author of Oral Arguments and Decision Making on the U.S. Supreme Court (SUNY Press, 2004) and the coauthor of Religious Institutions and Minor Parties in the United States (Praeger Press 1999, with Chris Gilbert, David A.M. Peterson, and Paul Djupe).

Tim's work has also been supported by the National Science Foundation. His first grant (IIS-0324992), 'ITR SCOTUS: A Resource for Collaborative Research in Speech Technology, Linguistics, Decision Processes, and the Law' (with Jerry Goldman, Brian McWhinney, and Mark Liberman), is an effort to digitize all U.S. Supreme Court oral arguments from 1955-present, with an emphasis on using the audio to analyze how oral arguments affect the Court's decisions. The second grant (SES-0550276), 'Collaborative Research: The Establishment of Stare Decisis in the American Legal System' (with James F. Spriggs II and Paul J. Wahlbeck) focuses on the examination of the how the norm of respecting precedent affects the decisions of judges within the American legal system.

What Determines Traffic Citations?

It's all about safety, right? Er, maybe not. Michael Makowky and Thomas Stratmann of George Mason offer this analysis in a recent paper:

In this paper we study the political economy determinants of traffic fines. Speeding tickets are not only determined by the speed of the offender, but by incentives faced by police officers and their vote maximizing principals. Our model predicts that police officers issue higher fines when drivers have a higher opportunity cost of contesting a ticket, and when drivers do not reside in the community where they are stopped. The model also predicts that local officers are more likely to issue a ticket when legal limits prevent the local government from increasing revenues though other instruments such as property taxes. We find support for the hypotheses. The farther the residence of a driver from the municipality where the ticket could be contested, the higher is the likelihood of a speeding fine, and the larger the amount of the fine. The probability of a fine issued by a local officer is higher in towns when constraints on increasing property taxes are binding, the property tax base is lower, and the town is less dependent on revenues from tourism. For state troopers, who are not employed by the local, but the state government, we do not find evidence that the likelihood traffic fines varies with town characteristics. Finally, personal characteristics, such as gender and race are among the determinants of traffic fines.

The paper is available on SSRN here and discussed in the Chicago Tribune here. Various accounts of the importance of considering monetary incentives when evaluating traffic enforcement patterns can be found here, here, here, here, here, here, here, here, etc. (H/T to theNewspaper.com for the links in the last sentence.)

Studying Affirmative Action: Taking Back the Narrative

The Bakke case was widely regarded as a victory by supporters of affirmative action because in Bakke, the Court, speaking through Mr. Justice Powell, rejected claims that it was unconstitutional to consider race in deciding which students to admit to institutions of higher education. Bakke is still good law, and, following its reaffirmance in Grutter, attention to race in admitting students is still, for the moment, allowed. Yet both legally and strategically supporters of affirmative action should find more to deplore about Bakke than to praise. Bakke could have held, as four Justices would have had it hold, that affirmative action was permissible because limited efforts to consider race in efforts to redress the heritage of racism and pernicious ethnic disadvantage did not trigger strict scrutiny under the 14^th Amendment. Instead it held that remedial and other social justice arguments for affirmative action were unpersuasive, and that affirmative action was saved from unconstitutionality only because the educational interest in diversity outweighed the presumptive invalidity of racial classification and the allocation of rewards, in part, on that basis. Justice O’Conner in Grutter reaffirmed Bakke’s reading of the why affirmative action was permissible, though her use of examples from business and the military could be read as implying that the value of diversity to society might also be a compelling state interest. She did not, however, explicitly say the latter.

Studying Affirmative Action: What’s Going On?

In defending his Stanford Law Review article, Richard Sanders has more than once said that “It takes a theory to beat a theory,” or words to that effect. The implication is that he has offered the only theory, what he calls the “mismatch theory,” to explain the performance of black students in the Bar Passage Study Data and that his theory should stand (with the further claim that policy should be based on it) until a better one comes along. I don’t accept Professor Sander’s claim about what makes for accepted theory, even if he is quoting eminent scientists, for the lack of competition does not argue for accepting a theory poorly supported by data. The well known “theory” that the earth is held in place because it rests on the back of a giant turtle should, for example, be rejected even if no other explanation for the earth’s not falling through the firmament is advanced, simply because there is no evidence apart from assertion and the fact that the earth seems stable in space to support the theory. Nor did it take a better theory to debunk the Utah group'sclaim of having generated cold fusion; all it took was numerous failures to replicate their results. Still it is fair of Professor Sander and others to ask what does explain the relatively poor performance of black law students as revealed by the data collected in the Bar Passage Study, and what might be done about it. These are questions that were posed to Professor Sander and me in June of 2006, when we appeared jointly before the United States Commission on Civil Rights. Below is the answer (slightly edited, with footnotes omitted) that I gave in my written testimony to the USCCR. (Entire testimony available on request to [email protected].

Order of Names in Co-Authored Scholarship

According to this recently posted paper, the order of your name in a co-authored article may have an effect on your career.  Here is the abstract for Mirjam Van Praag & B.M.S. Van Praag, "The Benefits of Being Economics Professor A (and Not Z)":

Alphabetic name ordering on multi-authored academic papers, which is the convention in the economics discipline and various other disciplines, is to the advantage of people whose last name initials are placed early in the alphabet. As it turns out, Professor A, who has been a first author more often than Professor Z, will have published more articles and experienced a faster growth rate over the course of her career as a result of reputation and visibility. Moreover, authors know that name ordering matters and indeed take ordering seriously: Several characteristics of an author group composition determine the decision to deviate from the default alphabetic name order to a significant extent.

(Many thanks to Danny Sokol for the tip.)  Perhaps Mirjam and B.M.S. are married; because of the ordering of the names, I would presume that Mirjam did more work on the article.

Second Annual Conference on Empirical Legal Studies

Second Annual Conference on Empirical Legal Studies

New York University Law School

http://www.law.nyu.edu/cels

9-10 November 2007

Second Announcement & Call for Papers

 

Submission Deadline July 1, 2007

http://hq.ssrn.com/conference=CELS-2007

 

The Second Annual Conference on Empirical Legal Studies will be held at New York University School of Law in New York. The conference will feature original empirical and experimental legal scholarship by leading scholars from a diverse range of fields. 

 

Last year’s conference had approximately 230 participants and more than 85 presented papers. We expect that this year’s conference will be at least as large.

 

The conference will start at 9:00 a.m. on Friday November 9, 2007. Paper presentations will conclude at 1:15 p.m. on Saturday November 10 in order to allow participants to return home that afternoon. For those staying on, there will be two methodology discussion sessions (one introductory and one advanced) from 2:30 to 4:00 p.m. and a reception from 6:00 to 8:00 p.m. on Saturday.

 

The deadline for submission of papers is July 1, 2007. Details about submissions are included below.

 

There is a conference fee of $60 ($30 for students). This fee covers all activities including meals and refreshments. It also covers a one-year membership in the Society for Empirical Legal Studies (SELS) as well as a one-year subscription to the Journal of Empirical Legal Studies (JELS) (students paying the discounted fee will receive only the on-line version).  Given the size of the conference, we cannot reimburse expenses (except for some presenters with special needs, as discussed below).

 

Scholars whose papers are accepted for presentation at the conference will be invited (but not required) to submit the work for possible publication in JELS. In addition, the JELS editors expect to publish abstracts of all presented papers (including poster session papers) in the special issue (with author consent).

Health Courts Data

Some of our readers may be interested in the following announcement:

Michelle Mello and David Studdert of the Harvard School of Public Health and the University of Melbourne have made information about their work on a proposal for policy experiments with administrative compensation for medical injury ("health courts") available online at http://www.hsph.harvard.edu/faculty/michelle-mello/current-projects/. 

 

Additionally, the project is being featured this week on the blog of the Portfolio of the Robert Wood Johnson Foundation, Pioneering Ideas (http://blogs.rwjf.org/). They will be publishing several posts about our research, and the blog will also feature posts by their partner in this effort, Paul Barringer of Common Good, as well as commentary by the Foundation.  Comments are welcome.

 

You can also read about other current projects of Law and Public Health researchers at Harvard at http://www.hsph.harvard.edu/faculty/michelle-mello/current-projects/ and http://www.hsph.harvard.edu/faculty/michelle-mello/recent-research-highlights/.

 

You can ask to be included on announcements of forthcoming research papers using the email form at http://www.hsph.harvard.edu/faculty/michelle-mello/contact-us.html

Shrinking Docket

Related to David's post, Chief Justice Roberts gave a speech recently in which he argued that the reasons for the Supreme Court's shrinking docket were:  1) fewer pieces of significant legislation from Congress; 2) more uniform statutory interpretation in the lower courts; and 3) the ability of lower courts to find relevant cases online.  (Hat tip to the Brennan Center's Fair Courts Elert.  A link to the AP article on the speech is here.)

Empirical analysis anyone?

Studying Affirmative Action: Values, Analysis and Care

Few people, scholars included, approach a topic like affirmative action in higher education, without prior views about the political morality and general desirability of the practice. Affirmative action is not unique in this respect. Targets of study, ranging from the death penalty, to the environment, to free market as opposed to regulatory approaches to corporate governance, may be topics which the scholar, as citizen, cares deeply about or is even ideologically or psychologically committed to.  This is not necessarily unfortunate. Outstanding research often grows out of a researcher’s passions.  Prior commitment to a position, especially passionate commitment, may nonetheless pose problems as it may affect how research is done and the reception accorded the results of research. For legal scholars, however, strong commitments often pose few difficulties. Because much legal research is normative, advocacy of a position, even passionate advocacy, is often appropriate to the genre. If a person has been blinded by his or her strong preferences, weaknesses in an argument or analysis are usually evident to the critical reader, and knowledgeable readers can recognize failures to adequately review a literature or to fairly summarize it. Moreover, much normative writing does not turn on the “truth” of disputed propositions, but rather invokes values that are neither true nor false or depends on readings of cases or statutes that are similarly neither true nor false.

Empirical research too may benefit from the passionate involvement of the researcher in a topic, even when involvement reflects not only value commitments but also strong a priori views about the state of the empirical world. One who opposes the death penalty, for example, may oppose it in part for religious reasons and in part because she believes that it is imposed in a racially biased manner. To demonstrate the latter proposition, she may undertake a study of the role race plays in the administration of the death penalty. In doing so, however, she may be using data that is, for the time being at least, exclusively hers, and only those aspects of the data that she discloses will be known to readers. While a report of this research may be criticized for failing to use appropriate or best methods, a detailed critique will usually take considerable effort even for those familiar with the topic, and without the author’s data aspects of reported analyses must be taken on faith.

Teaching Evaluations, Race, and Gender

First of all, I would like to thank the editors for inviting me on board as a permanent editor.  I am honored and delighted to be here and to join such an illustrious group.

For my first post, I thought I would mention an article that addresses the subjects of several recent discussions.  Last August, ELSBlog hosted a one-day forum on the relationship between teaching and scholarship in law schools.  A good part of that discussion focused on the accuracy of teaching evaluations.  More recently, there have been posts about the effect of the gender of the litigation team and oral advocate on outcomes in the Supreme Court and on scholarship about implicit racial bias  and its impact on judges and jurors.

So it turns out that there is scholarship on the relationship between bias and student evaluations.  In Bias, the Brain, and Student Evaluations of Teaching,  an article that will appear in St. John's Law Review in November, Deborah J. Merritt of Ohio State Moritz College of Law argues that students' stereotypes and biases affect their evaluations of their professors, and in ways that may particularly disadvantage women and minorities.  The abstract explains that student assessments of teaching "respond overwhelmingly to a professor's appearance and nonverbal behavior."  Merritt reports that "ratings  based on just thirty seconds of silent videotape correlate strongly with end-of-semester evaluations."  The very interesting article includes an impressive and eye-opening survey of research and concludes with recommendations for creating a more meaningful system for evaluating teaching.

The American Presidency Project

Check out The American Presidency Project.

According to the website: "Hosted by UC-Santa Barbara, this is the "only online resource that has consolidated, coded, and organized into a single searchable database: • The Messages and Papers of the Presidents: Washington - Taft (1789-1913); • The Public Papers of the Presidents: Hoover to Bush (1929-1993); • The Weekly Compilation of Presidential Documents: Clinton - G.W. Bush (1993-2007)." The archive area also includes executive orders, proclamations, and press conferences."

Studying Affirmative Action: Some Unappreciated Complexities

One issue that has not been disputed to date in the litigation on race-based affirmative action has been whether schools that were sued to stop the preferential admission of minorities in fact engaged in affirmative action. In every case the schools sued had policies that espoused affirmative action, and they admitted they were following these policies. But suppose they had not admitted to affirmative action admissions. Could the plaintiffs have proved that the defendant schools were engaging in race-based affirmative action?

The question is not purely academic, or at least it might not remain so. A number of states, my home state of Michigan among them, now preclude race-based affirmative action, and the word is that those opposed to affirmative action plan ballot proposals to ban affirmative action in numbers of other states. Judging from recent referenda, if such proposals make the ballot, they are likely to pass. If they do, or where they have, should it appear that there are more blacks, Hispanics, Native Americans, or members of other minority groups on campus than race-blind admissions would bring, law suits might well ensue. Unlike earlier litigation, however, plaintiffs would be attempting to prove facts – the existence of forbidden affirmative action – rather than seeking to argue the constitutionality of an admittedly ongoing process. How hard will it be to do this?

The 'New' Media: Bloggers and the Courts

Today, at the Seventh Circuit Bench-Bar Conference, I was on a panel entitled "The 'New' Media:  Bloggers and the Courts."  My fellow panelists included Christine Hurt, Ann Althouse, Howard Bashman, Rick Garnett, and Eugene Volokh.  The Honorable Diane Sykes of the Seventh Circuit moderated our panel.  (Needless to say, I was very pleased to be included on a panel with such distinguished colleagues.)  Before our panel, Supreme Court reporter Joan Biskupic of USA Today discussed "The Evolution of Media Coverage on the Supreme Court" and there was a panel discussion entitled "Traditional Media' s Coverage of the Supreme Court." 

Some items struck me about this entire morning devoted to essentially media, technology, and the law.  First, blogs and the internet are having a major impact on "traditional media."  It's clear that, to keep up with the bloggers, the way of doing business has changed for reporters (e.g., blogs of their own, quicker deadlines, articles of different substance).  Second, the availability of electronic information such as The Oyez Project and SSRN (and any of the other databases we link to on the ELS Blog) are, unfortunately, not widely known.  Third, there is a gross disparity among individuals in understanding what blogs are and what they do.  Fourth, many consider blogs to have a unique influence on the public discourse and possibly the courts.  Yet, some attendees were concerned that bloggers posting about pending cases may be inappropriate.  Fifth, the ELS Blog was described as more "academic in nature" than most other legal blogs, serving as a forum "for high-level exchanges of commentary on law and legal scholarship."  I think this was in response to our advanced content level and lack of posts regarding gossip or popular culture.

Finally, the best quote of the day belongs to Ann Althouse:  "Judges can't write a really bloggy blog."

For my co-panelists' take, see here and here (though it sounds like more details from them are forthcoming).

The Problematic Value of Mathematical Models of Evidence

For our readers interested in the relationship between statistical analysis and evidence, check out The Problematic Value of Mathematical Models of Evidence by Allen & Pardo.

Studying Affirmative Action: Correcting the Record

I would like to begin by thanking the Editors of the ELS blog for inviting me back for a repeat performance. I am going to use this opportunity mostly to talk about issues that arise in empirical investigations of affirmative action. I will use this kick-off contribution, however, to talk specifics and to correct misinformation that exists in the literature, which was unfortunately widely publicized in the New York Times. This misinformation stems from an article that Professor Richard Sanders published in the North Carolina Law Review that examines the career paths of black attorneys who begin their careers at large (100 lawyer +) law firms and reports that that these young attorneys leave large firms at very high rates relative to whites. This finding is later used to question the skill levels of young black attorneys and as evidence of adverse consequences, both in law school and thereafter, to affirmative action.

I wish to be clear at the outset that although I think Professor Sander’s argument misleads because crucial data are wrong, I do not mean to criticize Professor Sander for using these data when he did. At that time the data Professor Sander relied on seemed to be the best publicly available data, even if they were not the best suited to his purpose. Moreover, not only do the assumptions he made to justify relying on his data appear at least plausible, but he also attempted to check his most crucial inference with other publicly available data. Indeed, it is precisely because his efforts to be careful lend plausibility to his use of the data and consequent conclusions that it is important to correct the data record.

In his North Carolina Law Review article, Professor Sander suggests that black associates leave large (100 lawyer +) law firms in their first few years and before the partnership decision at dramatically higher rates than whites. While there are a variety of plausible explanations for this, including the arguments that blacks suffer from prejudice and hostile atmosphere and the claim that most young large firm associates are looking for ways out and blacks simply have more attractive opportunities to leave than whites, Sander’s preferred explanation for at least a large part of this disparity is that black associates are less well equipped to do the work large firms demand than whites and that this is in large measure attributable to law school and law firm affirmative action.

Guest Blogger: Richard Lempert

This week, we are pleased to announce Richard Lempert (Michigan Law School) as a guest blogger, who returns to us following an interesting and provocative set of posts back in August 2006.

Professor Lempert is particularly concerned with the problem of applying social science research to legal issues. This is reflected in much of his work, particularly his work on juries, on capital punishment and on the use of statistical and social science evidence by courts, as well as in his service as an original panelist in the National Science Foundation's Law and Social Science Program and with the National Research Council's Committee on Law Enforcement and the Administration of Justice, which he chaired from 1987-89. He is the author (with Joseph Sanders) of An Invitation to Law and Social Science and co-editor (with Jacques Normand and Charles O'Brien) of Under the Influence? Drugs and the American Work Force. From 1982-85, he edited the Law & Society Review.  He is a recipient of the Law & Society Association's Harry Kalven Jr. Prize prize for outstanding socio-legal scholarship and has held visiting fellowships at the Center for Advanced Study in the Behavioral Sciences and at the Russell Sage Foundation. In 1993 he was elected a fellow of the American Academy of Arts and Sciences. He currently serves as the secretary of Social, Economic, and Political Sciences Section (K) of the American Associate for the Advancement of Science.

$51 Million Gift to Marquette Law School

While the ELS Blog rarely posts off-topic news, this news promises to be a transformational moment for the Marquette University Law School:

An alumni couple will donate $51 million to Marquette University toward construction of a new Law School facility, Marquette President Robert A. Wild, S.J., announced today. The donation is the largest gift ever made by individuals to a Wisconsin college or university, and is one of the largest ever to a law school in the United States.

Raymond A. and Kathryn A. Eckstein of Cassville, Wis., and Boca Raton, Fla., made the gift as an “expression of gratitude” to the university. Ray Eckstein is a 1949 graduate of the Law School and a transportation entrepreneur. Kay Eckstein received her bachelor’s degree from Marquette in speech in 1949.

The full University press release is available here.  For more details, see the Milwaukee Journal Sentinel article.  The artist's rendering of the proposed new law school is truly spectacular.

Measuring Institutionalization

Bernard Harcourt of the University of Chicago Law School is guest blogging at the Volokh Conspiracy this week. One of his topics is the very interesting graph below, which shows the institutionalization and homicide rates in the United States from 1934 to 2001. The line that is higher for the first half of the graph represents the institutionalization rate in the United States, counting those institutionalized in both prisons and mental hospitals.  The other line represents the homicide rate.

 

The Supreme Court's Plenary Docket

Over at SCOTUSBlog, Tom Goldstein had an excellent post Tuesday about the state of the Supreme Court's plenary docket for October Term 2007.  There is now a 25-case shortfall for the fall, and it looks like it will be really difficult, perhaps impossible, for the Court to fill that shortfall between now and the summer recess.  In a separate post at SCOTUSBlog, I discuss at length a 2004 article by Peggy and Richard Cordray, 36 Ariz. St. L.J. 183 (2004), that studies the seasonality of the Court's selection of plenary cases and examines some of the trends that occur when the Court is trying desperately to fill its docket.  Among other things, these historical trends suggest that we will see a lot of grants between now and the end of the Term as the Court feels pressure to fill the October, November, and December argument calendars.  We will also probably see a ton of grants, just like this Term, around November, December, and January as the Court attempts to fill the remaining slots during the Spring.

The Coase Theorem

Francesco Parisi (Minnesota Law) has written Coase Theorem for the New Palgrave Dictionary of Economics.  The Abstract:

The Coase Theorem holds that, regardless of the initial allocation of property rights and choice of remedial protection, the market will determine ultimate allocations of legal entitlements, based on their relative value to different parties.

Coase's assertion has occasioned intense debate. This article provides an intellectual history of Coase's fundamental theorem and surveys the legal and economic literature that has developed around it. It appraises the most notable attacks to the Coase Theorem, and examines its methodological implications and normative and practical significance in legal and policy settings.

Carolyn Shapiro Joins the ELS Blog

The Empirical Legal Studies Blog is pleased to announce the addition of Carolyn Shapiro, an Assistant Professor of Law at the Chicago-Kent College of Law, as a permanent editor.  Carolyn earned a B.A. with general and special honors in English from the University of Chicago, an M.A. from the University of Chicago Harris Graduate School of Public Policy and a J.D. (high honors) from the University of Chicago Law School, where she was articles editor of the University of Chicago Law Review and a member of the Order of the Coif.  After graduation, Carolyn was a law clerk for Chief Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit and for Justice Stephen G. Breyer of the U.S. Supreme Court. Carolyn's scholarly interests include federal courts and labor and employment law, and she is the founder of the Empirical Legal Studies Junior Faculty listserv.  (Click here to learn more of the ELS Listserv.)

Study of N.B.A. Sees Racial Bias in Calling Fouls

While Michael linked to the paper below, it is also the subject of a NY Times article entitled Study of N.B.A. Sees Racial Bias in Calling Fouls.  Two highlights from the article:  First, the caption under the headlining photo--"Minnesota Timberwolves guard Mike James, left, said he did not think he was treated differently by white and black officials"--says a lot about the need for systematic empirical inquiry.  Second, the NY Times engaged in peer-review--"Three independent experts asked by The Times to examine the Wolfers-Price paper and materials released by the N.B.A. said they considered the Wolfers-Price argument far more sound."  The article also discusses multivariate regression and  Dallas Mavericks owner Mark Cuban's viewpoint on statistics.  It's a must read!!!

Race, Referees, and Fouls in the NBA

As the NBA marches into its playoff season, a recent paper by Joseph Price (Cornell, Econ--grad. student) and Justin Wolfers (Penn, Wharton) will interest fans (and scholars). In Racial Discrimination Among NBA Referees, Price and Wolfers compare the rates at which white referees call fouls on black players (and black referees call fouls on white players).  An excerpted abstract follows.

"The essentially arbitrary assignment of refereeing crews to basketball games, and the number of repeated interactions allow us to convincingly test for own-race preferences.  We find that—even conditioning on player and referee fixed effects (and specific game fixed effects)—that more personal fouls are awarded against players when they are officiated by an opposite-race officiating crew than when officiated by an own-race refereeing crew.  These biases are sufficiently large that we find appreciable differences in whether predominantly black teams are more likely to win or lose, according to the racial composition of the refereeing crew."

Peer-Reviewed Law Journals Are Coming...

This Blog has written numerous times on the merits of peer-reviewed versus law journal placement (see, e.g., here and here).  On the subject I once questioned whether hybrid law journals would develop that would take advantage of both faculty expertise and student editing.  I wrote, "Stated another way, is there a journal model that could take full advantage of both student and faculty efforts?"  The future is now. 

First, this phenomenon will begin to arise in the specialty journals where faculty in those fields will take an increased role in article selection.  In today's mail, I received this letter from the Golden Gate University Environmental Law Journal that states, "In addition to our student editorial board, the ELJ's Faculty Editor (Adjunct Professor Paul Kibel) is directly involved in the article selection and editing process."   I'd hope, at some point, that tenure-track faculty will also be part of such processes.  Some law reviews already informally solicit faculty feedback; perhaps it's time to formalize the process.   And specialty journals are uniquely situated to do this--student editorial boards could make the first cuts and faculty boards could make final decisions.  Faculty members are far more willing to read papers in their areas of expertise than all the submissions received by general-subject journals.  Thus, schools with a specialty journal that also employ a good number of faculty in that field are prime candidates for implementing some sort of peer-review process.  (And I commend the Golden Gate University Environmental Law Journal on their effort which I am especially pleased to see in my field of environmental law.)

Second, to make some type of peer-review the norm in all general-subject law journals (and I leave to another day to discuss what type of peer-review), the elite law schools would have to be on board, using all of their faculty as reviewers in their areas of expertise.  This would be a huge commitment by a Law School, its Law Review, and its Faculty, but it may have a substantial payoff.

Circuit Court Decisions

Knowing well that Frank would never shamelessly plug himself, I will do it for him (and against his wishes). I am delighted to announce that the ELS blog's very own Frank Cross (Texas) has written a book, Decision Making in the U.S. Courts of Appeals, just released by Stanford University Press, that will assuredly interest those who study judicial decisionmaking. Frank's book makes an important contribution to an increasingly rich (and empirical) literature. From the dust-jacket:

"This groundbreaking book analyzes the decisions made by the United States circuit courts over the past half century. These courts have a profound impact on the law—they issue many more decisions in many more areas of law than the Supreme Court. Cross demonstrates that while the courts' judges are influenced by ideology and by the appointing president, legal requirements exercise a much stronger influence on their decisions. He also shows that these courts are independent of the other branches of government and free from undue influence of various parties. The book further introduces new research on the precedent-setting power of decisions."