Empirical Legal Studies

Howrey Associate Pay Scale: What Merit Really Means

According to this story, Howrey, a 630-lawyer firm headquartered in DC, has ditched the nearly universal associate lockstep pay model in favor of  a flexible approach that is purportedly linked to merit.  Several blogs have debated whether this "bold move" is smart business or seeds of an eventual recruiting disaster.  See WSJ Law Blog, Leiter, Moneylaw, Legal Ethics Blog, and Adam Smith.   IMHO, they are all most are missing the bigger picture of what is really going on.

Howrey claims that "top performers" will be paid more, but (I think) that is just code for associates working in high-margin practice areas.  These folks have a coveted skill set and are constantly being recruited on behalf of rival firms.   In other words, the market is setting different price points for, say, 5th year labor & employment associates versus their 5th year private equity or specialty-litig peers.   When partners with high-margin practices are losing associates, or associates in low-margin areas are getting raises they would never get in the lateral market, the "Partners with Power" are likely to lobby for--and get--an associate pay scale based on "merit".

Another datapoint corroborates this theory.  Earlier this year, Dechert, a 700+ lawyer Philadelphia-based firm, moved to a bifurcated associate lockstep system:  if you are in the favored Financial Services Group (FSG), you made up to $30K more than your non-FSG peers.   Remarkably, Above the Law posted an internal Dechert email that detailed the FSG premium for each associate year.  Certainly, Howrey's subjective "merit" system provides partners with better cover for meeting the market than Dechert's clumsy "caste system". 

It is noteworthy that Howrey specializes in IP, antitrust, and global litigation--so associate salary wars with the big Wall Street firms are very hard to swallow.  But the idea that Howrey is going to pay "low performers" less money is absurd.  If you are a true low performer, your work dries up and you leave.  But if you are superstar in a commodity practice area, your job is plenty safe; but expect to make less than your non-commodity peers.   The laws of supply and demand are finally being brought to bear on Biglaw firms--that is what changing the age-old associate lockstep system, not some newfangled management theory.

The theoretical and empirical angle is after the jump.

Drifting on the Supreme Court

Fresh from my mailbox, the July issue of the ABA Journal has an article on the ideological drift of Supreme Court justices. Author Richard Brust spoke with Lee Epstein of Northwestern University. Along with co-authors Andrew Martin, Kevin Quinn, and Jeff Segal, she has an article on this topic scheduled for an upcoming issue of the Northwestern Law Review.

“[S]ays Epstein, ideological drift is the rule rather than the exception. Of the justices appointed since 1937 -- the rise of the New Deal court -- almost all have grown either more liberal or more conservative during their tenures. Some have shifted several times. ‘Very few have not drifted,’ says Epstein. Of the 26 justices over the last 70 years who served for at least 10 terms, only four can be seen to have stuck to their original ideologies.”

Which four justices remained anchored to their original ideological dispositions? The answers are (after the break):

Up-to-the-Second Population Estimates

When you need an estimate of the United States’ population -- and not some out-of-date estimate from 2 minutes ago -- the Census Bureau’s POPClock has the number you need.

One birth every..................................   7 seconds
One death every..................................  13 seconds
One international migrant (net) every............  27 seconds
Net gain of one person every.....................  10 seconds

So does the Bureau of Justice Statistics have a similar clock? (See the previous post from today.)

UPDATE: It’s not run by the BJS, but there is a “drug war clock.” (H/T Andrew Sullivan)

Bureau of Justice Statistics Bulletin

The Bureau of Justice Statistics' Prison and Jail Inmates at Midyear 2006 bulletin is here. (Bulletin revised 6/27/2007)

WASHINGTON -- During the 12 months that ended June 30, 2006, the nation’s prison and jail populations increased by 62,037 inmates (up 2.8 percent), to total 2,245,189 inmates, the Justice Department’s Bureau of Justice Statistics (BJS) reported today. State and federal inmates accounted for 70 percent of the increase. At midyear 2006, two-thirds of the nation’s incarcerated population was in custody in a state or federal prison (1,479,179), and the other one-third was held in local jails (766,010).

The full press release is here. (Press release revised 6/28/2007)

Call for Student Papers - Interdisciplinary Submissions Encouraged

The deadline to submit abstracts for The Student “I”  conference is fast approaching. Some details:

Graduate and undergraduate students from all disciplines are invited to submit an abstract for The Student “I”, a student conference on October 25, 2007 at the Faculty of Law, University of Ottawa, Canada.

Preceding the Revealed “I” conference hosted by researchers from On the Identity Trail, this day long student conference brings together students from around the world, selected through a peer-review process, to present research relating to identity, privacy, anonymity, technology, surveillance, and other related topics engaged by the On the Identity Trail project.

Abstracts should not exceed 1,000 words (including notes and citations). Successful abstracts will seek to make an original contribution. Inter-disciplinary submissions are encouraged. Abstracts should be accompanied with a short bio, which should include the student’s program and institution of study, and an email address for correspondence. The deadline for abstracts is July 1, 2007.

More information can be found here.

The Fairness Doctrine: Sampling Fairly

On Fox News Sunday, Senator Diane Feinstein said she is considering whether the Fairness Doctrine should be revived because “there ought to be an opportunity to present the other side. And unfortunately, talk radio is overwhelmingly one way.” According to The Hill, the Fairness Doctrine is generating increased interest in Congress. So far, Exhibit A in this discussion is the new report from the Center for American Progress and Free Press, which attempts to document the imbalance in talk radio and comes out strongly in favor of government regulation to undo “the move toward lowest common denominator syndicated programming.” (p. 8) The report actually argues the Fairness Doctrine alone would be insufficient to remedy the imbalance and calls for more changes.

In part, the report bases its evidence on a non-randomly selected sample of the roughly 1700 radio stations classified as news/talk. The analysis includes the 257 news/talk radio stations owned by the Big Five station owners, Clear Channel, CBS, Citadel, Cumulus, and Salem. During the month of May 2007, 91 percent of the weekday political talk radio programming on these stations was conservative and 9 percent was progressive (or liberal). The report adds that 236 of these 257 stations (92 percent) “do not broadcast a single minute of progressive talk radio programming.” (p. 3) However, many of these stations probably don’t broadcast any political talk at all. About one-third of the 65 news/talk stations listed in Appendix C of the report lack any identified conservative or progressive talk.

The explanation for how the imbalance indicates a market failure is based mainly on a PEW study from last year. It found the national talk radio audience to be 43 percent conservative, 30 percent moderate, and 23 percent liberal. (PEW p. 38) These PEW numbers supposedly show there is unmet demand for progressive programming; however, the report does not disaggregate these national numbers and identify how many regions of the country actually have enough demand to sustain progressive programming but nevertheless have no supply.

With the programming so ideologically lopsided in the aggregate, perhaps it should be obvious that there is substantial unmet demand somewhere -- for example, the report says eight of the ten radio markets in Ohio have no progressive programming at all (p. 7) -- but the report is not convincing in explaining how the market is unresponsive to demand, either nationally or at the local level. The report speaks of syndicated conservative programs as having “artificial economies of scale” (p. 8), though the artificiality of the market is seemingly attributed to a lack of vigorous government regulation.

Setting aside why the market for talk radio is the way it is, I’ll focus on a sampling issue in this post. I'll save a coding quibble and some thoughts on an appendix of the report for a later post. (Appendix D provides some evidence that minority owners and owners of only a single radio station are more likely to broadcast progressive programs.)

An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law

I've just posted on SSRN a first draft (in preparation for the impending Conference on Empirical Legal Studies paper submission deadline) of my paper An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law.  I'd sincerely appreciate any comments on the piece at [email protected].  The Abstract:

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, too little is known about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as opposed to ideology—in environmental law cases. With special attention paid to how courts implement the Chevron doctrine, this Article empirically and doctrinally analyzes environmental law cases decided in the U.S. Courts of Appeals over a three-year period (2003-2005) to investigate what factors, including ideological, legal and institutional variables, impact judicial review of administrative agency interpretations of environmental statutes.

Relying on empirical analysis and descriptive data, this Article finds that environmental cases of statutory interpretation, usually litigated in the D.C., Second and Ninth Circuits, are dominated by EPA involvement and interpretation of the Clean Air and Clean Water Acts. This Article's findings confirm earlier research that judges vote in their perceived ideological direction and show the Chevron doctrine, when employed in environmental cases, works as expected—courts find most statutory provisions ambiguous and then affirm agency action. There is limited evidence that judges strategically use Chevron step one to achieve desired policy preferences—at the ideological extremes, conservatives deferred to Bush Administration agencies under Chevron step two, while liberals were more likely to reverse the agency by finding the statute unambiguous under step one. Legal preferences, however, do play some role in judicial decisionmaking, and not necessarily to achieve an individual judge's policy preferences. Invoking legislative history mildly corresponds to a liberal vote, yet ideology does not predict its invocation—suggesting a judicial philosophy toward legislative history actually impacts voting outcomes and lends support for the legal model of judicial decisionmaking.

This Article also makes a number of qualitative findings. Doctrinally, there remains much confusion and conflation in the circuits over how to apply the Chevron doctrine, manifested through poor opinion organization, befuddlement over the application of Chevron step zero, and multiple understandings of the difference between arbitrary and capricious review and the two Chevron steps. The circuits have shown, however, a strong willingness to defer, under any doctrine or framework, to agency action when environmental scientific expertise is required. Ultimately, this Article supports a more nuanced notion of judging in environmental cases that depends upon policy preferences, interpretive philosophies, standards of review, and scientific complexity.

Some Interesting Factoids on Legal Scholarship

We are laboring away here in Bloomington on our large-scale longitudinal database of legal scholarship [hereafter the AMD2H database, for Arewa, Morriss, Dau-Schmidt, Hook, & Henderson].   In a nutshell, we are carefully linking 80 years worth of bibliographic data from the Index of Legal Periodical (ILP) with 85 years of biographical information from the AALS directory and a newly created categorization system that reflects evidence of institutional hierarchy in the decades that preceded U.S. News. 

The large payoffs from this data-assembling enterprise are still months and years aways.  But the process occasionally provide a window on some interesting freestanding factoids.  Here are some:

• Before "disambiguation" (e.g, determining whether "Joseph Smith" is "Joseph B. Smith"), there are 314,331 unique authors in the ILP database.  Obviously, this number will go down as we clean the data.
• There are approximately 750,000 articles with one or more named authors.  The average output per author is 2.45 articles.  After disambiguation, this number will go up, but not radically.  (Note, this universe includes students, practicing lawyers, and law professors, so inferences of total academic productivity cannot yet be drawn.)
• Similar to Paul Caron's observation on the Long Tail of Legal Scholarship, the Top 1000 authors account for 9.1% of the entries (70,452).  In other words, 1/3 of 1% of the authors produced 9.1% of the entries.  After disambiguation, this disparity is likely to be slightly larger.  Let's save the "quantity versus quality" debate until later; beyond citation counts, good luck operationalizing a measure of quality.  Moreover, it is impossible to cite what was never written.

In addition to building the database, we are documenting, through a careful sampling process, the scope and coverage of the ILP database vis-a-vis a typical or exceptional author's total career productivity.  That process has also yielded some interesting insights. 

We hope to have one or two summary papers done by the fall, which will offer much more refined analyses, including trends over time.  Stay tuned.

Massive Data on Law Schools Now Available for Download

Prospective law students and advocates of alternative rankings have just gotten a major break.  The ABA Section on Legal Education and Admission to the Bar has posted all of its 2008 "Official Guide" data on its statistics website in downloadable Excel spreadsheet format. 

Kudos to the ABA for its willingness to be transparent and facilitate informed student choice.  Also, Ted Seto (Loyola, LA) and Tom Bell (Chapman) deserve credit for their public and persistent urging of the ABA to take this step.  (See here, here and here.)

Trying Not To Be a Hammer Looking for a Nail

I've been mulling over David Stras's recent post about whether methodology drives the research question or vice versa.  I think that this question points to one of the things that is particularly exciting about the current wave of interest in ELS.  Communication, joint research projects, and other kinds of cross-fertilization is increasing between legal academics (trained as lawyers) and social scientists who study the legal system.  These interdisciplinary discussions -- formal and informal -- carry with them the possibility of taking the best insights and tools from different disciplines to help us all understand the legal system better.

This enterprise is not always easy, of course.  In part this is because, as David points out, the scholar who, like him (and me), is not a methodologist but is interested in using the method most appropriate to the current research question must invest time and energy into learning and applying relatively unfamiliar approaches.  It is also difficult because, as he suggests, at least for junior scholars, there may be risks associated with a more eclectic style of scholarship: for example, risks of not having an easily summarized area of expertise, or risks of not having an easily evaluated body of scholarship. 

I think that there is a third area of difficulty -- or of opportunity, depending on how one looks at it.  For years, political scientists and legal academics have failed to speak to each other across "the Great Divide."as Gerald Rosenberg called it in a 2000 article in The Green Bag.  Engaging in that conversation now requires a willingness to challenge sacred cows (on both sides of the divide) and a thick skin to endure the responses to such challenges.  This can be daunting for well-established scholars; all the more so for junior academics.

One example of this dynamic can be found in 69 University of Chicago Law Review, winter 2002.   The Law Review sponsored an "Exchange: Empirical Research and the Goals of Legal Scholarship."  The opening piece, "The Rules of Inference," by Lee Epstein and Gary King, included criticisms of works by legal scholars, some of whom responded aggressively.  (Epstein and King, in their reply, at 60 U Chi. L. Rev. 191, deplored and discussed the "fireworks" in those responses.)

But as I said, this is also an area of opportunity.   Simply talking across the Great Divide is not enough.  I think that ELS provides an opening for scholars in a variety of related fields to help each other understand the strengths and weaknesses of their own approaches and received wisdom.

Building a Relational Database

If I had to write an essay on my summer vacation, this year's topic would be "Building a Relational Database."  As I noted a few months ago, the LSAC funded our proposal for a large-scale longitudinal analysis on the production and content of legal scholarship (my co-PI's include Funmi Arewa, Ken Dau-Schmidt, Peter Hook, and Andy Morriss).  The most difficult task in this endeavor is cost-effectively digitizing biographic information on every law professor who ever appeared in an AALS directory (from 1922 to 2007) and linking these individuals to the detailed bibliographic records contained in the Index of Legal Periodicals from 1928 to the present.

How does someone tackle a job this big?  My legal training has negligible value here.  It it really all about planning and collaboration among a team with a wide array of skill sets.  With the input of a talented database expert, Mark Newton, and our co-PI, Peter Hook, who is a law librarian with graduate training in information sciences, we are developing and implementing a process that--we theorize--will (a) maximize the capture of information and complex relationships, and (b) minimize key strokes and errors. 

So far, one of our greatest assets is the excellent workforce here in Bloomington.  We currently have a research team that includes four graduate students from the School of Library and Information Sciences (SLIS), two excellent college graduates who are headed to law school in the fall, and a brilliant University of Chicago undergraduate with an eagle eye for detail.   These talented folks are closest to the data and provide enormous insights that affect our planning process. 

Although the relational database itself will not produce a scholarly paper, I am really grateful for the opportunity learn a lot of new technical and managerial skills.  I am also developing a deeper respect for expert knowledge and team work.      

Markets and Discrimination

Jake Gersen (Chicago) has written Markets and Discrimination, forthcoming in the NYU Law Review.  I read this paper in draft form and have seen it presented as well... I highly recommend it.  The Abstract:

Despite decades of scholarship in law and economics, disagreement persists over the extent of employment discrimination in the United States, the correct explanation for such discrimination, and the normative implications of the evidence for law and policy. In part, this is because employment discrimination is an enormously complex phenomenon, and both its history and continued existence are closely linked to politics and ideology. However, some portion of this dispute can also be traced to the incomplete use of empirical evidence. Most economic theories of employment discrimination imply empirical relationships between discrimination and the market structure of particular industries and characteristics of their workforces.

Yet empirical work has most typically focused on either specific industries or the economy as a whole, and little systematic evidence about market structure and patterns of actual employment discrimination claims exists. This Article compiles and analyzes an original data set comprised of industry-specific measures of employment discrimination claims, market conditions, and labor force characteristics. In so doing, this Article contributes to an emerging literature that tests the core theoretical positions in the law and economics of discrimination literature, which in turn promises to advance understanding of both the causes of and remedies for employment discrimination.

Home Court Advantage?

Lee Epstein has an interesting new post at Balkinization, see here, discussing whether Supreme Court Justices more often affirm cases that come from the circuit to which they previously served (i.e., home court) before their elevation to the Supreme Court.   Based on her post, it sounds like this could be another interesting paper from Professor Epstein.

The Role of Judicial Ideology in Economic (Tax) Cases

Noting that "study after study confirms a strong correlation between judges' political preferences and their behavior in civil rights/liberties-type cases, but researchers have only rarely identified an association between politics and decisions in economics cases," a recently circulated paper by Nancy Staudt (Northwestern), Lee Epstein (Northwestern), and Peter Wiedenbeck (Wash U) asks the interesting question: "Why do judges appear to stand above politics in the areas of the law that are rife with conflict and controversy in the other two branches of government?"  From the abstract:

"Lawmaking in the context of taxation, bankruptcy, securities, antitrust, corporate law, to name just a few examples, is highly political in both the legislative and executive branches, as many empirical scholars have documented. For this reason, we seriously question the claim that judges are unique in that they have no political or ideological preferences when it comes to business and finance. Our conjecture is that the null findings in the literature are due to the technical difficulties associated with uncovering politics in large-N studies addressing economics decision-making rather than to a lack of judicial interest in these issues. But this is precisely the question we investigate here."

Although the authors characterize their findings, drawn from U.S. Supreme Court tax cases decided between 1940-2005, as "preliminary," they conclude that their findings support rejecting "the null hypothesis that politics plays no role in judicial decision making that involves business and finance."

Does the Research Question Drive the Methodology or Does Methodology Drive the Research Question?

As I was pondering possible future writing projects over the past few days, I began thinking about the different ways to approach interdisciplinary scholarship.  A greater number of scholars in recent years seem to let methodology drive the research question.  For instance, a researcher might use a particular type of game theory to explain behavior in a broad swath of substantive legal areas.  That scholar might become an expert at game theory, but may have no special expertise in any particular subject matter such as torts or criminal law.  An advantage of such an approach is that the scholar becomes very familiar with a particular set of methodological tools that may permit a fresh look in a variety of substantive legal areas.  On the other hand, a disadvantage of such an approach may be that, without special expertise in the subject matter of the project, a scholar may have more difficulty putting his or her findings in context or may not be familiar with the exceptional attributes of the subject matter being studied.

My preferred approach to scholarship is to allow the research question to drive the methodology.  Rather than repeatedly employing a particular methodology in a wide variety of subject areas, I look for questions that I personally find fascinating and to which I do not know the answer.  Although most of my work is empirical, such an approach requires me to venture outside of my comfort zone for some of my writing projects, including the legal history project that I discussed over the weekend with respect to the life and jurisprudence of Pierce Butler.  One advantage to this approach is that, unlike methodologically-driven research, I find that it is easier to gain a broad perspective and expertise about a particular legal subject matter or legal institution.  For me, all of my research questions center around the federal judiciary and the Supreme Court, and I by no means consider myself a methodologist.  An obvious disadvantage is that scholarship driven by a research question often requires scholars to use methodological tools that they have not employed previously.  It therefore often takes greater time, patience, and care to allow the research question to drive the methodology.  (The exception, of course, would be strictly doctrinal scholarship, in which the research question still drives the project but there is no need to learn or employ new methodological tools because law school, practice, and/or a clerkship provide ample training for such scholarship.) 

I do not think that one approach is better than the other, and it may be that most scholars employ a hybrid of the two approaches when approaching their scholarly pursuits.  I wonder which of the two approaches is more risky though, especially for untenured professors?  Which approach is more common in the legal scholarly community?  Are there other approaches that I am simply omitting from the discussion?  Although this post is admittedly abstract, I think it is worth addressing some of these questions as these are the types of issues that new law professors who want to do interdisciplinary work face as they enter the legal academy. 

The Private Sector and the Power of Social Network Analysis

After my one week of immersion in Social Networking Analysis, I became convinced of two propositions.

1. This powerful set of tools can reveal key dynamics within any organization, industry, or social setting, broadly construed, and thus formulate more effective polices/strategies/tactics; this power can be harnessed for good or evil. 
2. Because of the nature of the required data, university researchers are at a huge disadvantage.  The most sophisticated research in this area is being done by the private sector, which has fewer privacy strictures (i.e., human subjects/IRB regulations) and a strong motive to fund proprietary research.

In contrast to other social science methods, social network analysis requires complete data of a social setting rather than a sample.  Thus, if your data is derived from survey data, you need response rates of 90 to 100%, which are rare.  Yet, in this digital age, monitoring computer activity is a very cheap and effective to assemble the required dataset. 

For example, emails provide an excellent record of who communicates with whom; and content analysis can be performed by software.   This is great data, but for most research questions, the human subjects issues will be intractable.   Because this research has important commercial implications, the private sector is well positioned to pick up the slack.   

Prediction:  Expect to see more researchers leaving the academy to pursue research opportunities in the private sector.   It is not just about the money--their new employers are likely to have access to better data.

The Future of Personal Papers and Archival Research?

I spent an enjoyable day in the personal papers of Justice Pierce Butler, which are housed at the Minnesota Historical Society.   The Butler family kindly gave me permission to use these restricted papers for an article on Justice Butler that I am writing for a conference at Vanderbilt Law School next spring.

As I was reading the hand-written correspondence between Justice Butler and his various family members, friends, and colleagues, it struck me that archival research may look a bit different in the future.  Justice Butler's correspondence tells such a rich story, both about Butler's professional accomplishments and his family, but also about his temperament and passions.  Today, in contrast, so much correspondence takes place electronically, primarily via e-mail, and it is rare to receive a hand-written letter with the exception of greeting cards at holidays.  Unlike the letters of the past, electronic communications as a general matter tend to be shorter, less personal, and do not reveal quite as much about the relationship between the sender and the person to whom the correspondence is addressed. 

Besides enjoying the content of the documents, I kept asking myself the question of what the personal papers of the future will look like?  Will prominent individuals donate their hard drives to document repositories in the future?   Will we, as researchers, be searching servers full of electronic documents rather than reading the rich hand-written notes of the past?  If the answers, as I suspect, to the foregoing questions are yes then I believe that archival research is bound to be less interesting (but perhaps easier) in the future.   

Dababase on Wrongful Convictions

In a column in Law Technology News that reviews new law-related web resources, lawyer & blogger Robert Ambrogi reports on a new database at University of Texas that tracks wrongful convictions.   If I were a criminal law scholar trying to find a good empirical project--or, more aptly, looking for a project that could improve the functioning of our criminal justice system--I would be giving this resource a very close look.  Here is Ambrogi's description:

The Tarlton Law Library at the University of Texas School of law has created the Actual Innocence Awareness Database to track developments related to wrongful convictions. The database contains citations (and links, when the materials are online) to popular media, journal articles, books, reports, legislation and Web sites. Materials are classified by the primary causes of wrongful conviction: forensics/DNA, eyewitness identification, false confessions, jailhouse informants, police or prosecutorial misconduct and ineffective representation. There is also a general category, and the entire database can be searched.

Kudos to the Tarlton Law Library for assembling this database.

The Geographic Network of Large Law Firms

As I noted earlier this week, I attended a 5-day ICPSR course on Social Network Analysis.  Yesterday, I decided to take some of the network  software out for a spin by analyzing a dataset I have on branch offices of National Law Journal 250 firms (the 250 largest firms by number of lawyers) for 2006. 

The chart below [click to enlarge] is a "2-mode" network sociogram that depicts degrees of interconnectedness between cities (blue squares) and NLJ 250 firms (red circles). 

Here are some quick interpretative guides:

• Cities.  You'll note that lots of firms tend to have offices in New York, Washington, Chicago, L.A., and San Francisco. Hence, the network algorithm places these locations in the center.  City nodes are scaled by the number of NLJ 250 HQ's in the city.  New York has the most (35), followed by Chicago (19) and Washington (17).  Why is London in the center?  Because firms with offices in London overwhelming have offices in NYC and Washington.  For some contrast, I added labels for some outer-periphery cities.
• Firms.  Larger firms, depicted by larger circles, are clustered in the space between or around the important cities.  In other words, large firms are integrally linked to large cities--very large firms all have a presence in most or all of the key cities.  The outer periphery represents firms with more distinctive networks of less important cities.  The farther apart the circles, the more dissimilar the firms' networks.

There is nothing truly new or novel in this graph (those will come later), though it does suggest that large firm practice in a larger city probably entails substantively different (probably more specialized) work than large firm practice in smaller markets.  A lawyer contemplating where to begin his or her career might contemplate the glass ceiling imposed by taking a job at an outer-periphery location or firm.  Among other modes of analysis, I will eventually generate 30 charts like the one above (from 1978 to 2007) to create an animated "flip book" showing how this constellation has changed over time.   

Kudos to Stan Wasserman, Bernice Pescosolido, and Ann McCranie for putting on a terrific ICPSR workshop.  Thanks to their class, I have five years worth of research ideas.

Update to Common Space Scores

An announcement from Chad Westerland, U of Arizona:

For those who might be interested, Lee Epstein, Andrew Martin, Jeff Segal, and I would like to announce an update to our Judicial Common Space ideology scores. These measures are an attempt to provide preference estimates for Supreme Court justices that are directly comparable to preference measures of Courts of Appeals judges, members of Congress, and the President. Our data extend to 2005 and now correspond with the most recent version of Keith Poole's Common Space scores. The scores can be downloaded along with the corresponding paper at:  http://epstein.law.northwestern.edu/research/JCS.html

The Political Economy of the Roberts Court

Professor Maxwell Stearns of the University of Maryland School of Law recently posted an interesting new paper entitled "The Political Economy of the Roberts Court" on SSRN, see here.   It is a provocative paper, and I would like to draw your attention to my lengthy analysis of the piece on SCOTUSblog, see here.  For fans of social choice theory, this paper is right up your alley (though I am somewhat critical of the piece in my post).   I have posted the abstract after the jump.

CELS Deadline Extended

Second Annual Conference on Empirical Legal Studies

New York University Law School

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

9-10 November 2007

Announcement & Call for Papers

Submission Deadline Extended to July 5, 2007

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

New SSRN Journals

I would like to alert our beloved readership, should it be unaware, of two new SSRN journals, called Law & Politics and Law & Courts.  From the SSRN release:

Law and Politics is dedicated to the distribution of empirical and
theoretical scholarship from a multidisciplinary perspective. The
journal welcomes any submissions that analyze politics and the legal
process, democratic institutions, the separation of powers, the
impact of politics on development of law, and any other abstracts
that examine the political nature of law. Contributions from legal
scholars, political scientists, economists, sociologists,
psychologists, and other disciplines are welcome.

The URL below will let you browse all abstracts and papers in this
journal:
http://www.ssrn.com/link/law-politics.html

Law and Courts will distribute abstracts of working papers,
forthcoming articles, and recently published articles dealing with
judicial decisionmaking, including the determinants of decisions, the
influence of outside parties and other institutions, and the societal
impact of those decisions.

The URL below will let you browse all abstracts and papers in this
journal:
http://www.ssrn.com/link/Law-Courts.html

Two Book Reviews Not To Miss

The most recent issue of Perspectives on Politics has reviews of Lawrence Baum's Judges and their Audiences: A Perspective on Judicial Behavior and Mark Graber's Dred Scott and the Problem of Constitutional Evil.  Jeff Isaac, the book review editor, cleverly has each author review the other's book, and then gives each author the opportunity to write a short response to the other's review.

Baum and Graber are two smart guys, with two very different ways of "doing" empirical work on courts and the law, so reading each engaging with the other's arguments is a treat.  Especially interesting are Graber's points about empirical (what he calls "behavioral") political scientists' willingness to tackle normative questions.  He notes that "Judges...is organized around problems of political science, not problems in the political world... The reasons why we must better explain judicial behavior are taken for granted."

I have certainly noticed this tendency as well, particularly among those whose work has been strongly influenced by economics.  (For example, similar concerns to Graber's came up at a recent conference I attended, which brought together (normative) political theorists with a number of committed public choice / law-n-economics proponents).  Which begs a couple questions: Why do so many empirical folks shy away from asking and answering explicitly normative questions?  And what -- if anything -- are we missing as a result?

ATSRTWT.

An Argument for Bayesian Approaches

In a recent paper, Should Legal Empiricists Go Bayesian?, Jeff Strnad (Stanford) makes a case for Bayesian (rather than frequentist) approaches that should interest Bayesians as well as non-Bayesians.  Jeff makes the particular point that Bayesian models can "enable a much more natural connection between the normative or positive issues that typically motivate such studies and the empirical results." He concludes that Bayesian methods "have much to offer legal empiricists." Despite the paper's "heft" (108 manu pp.--you've been forewarned), it is well worth a read.

ICPSR Course on Social Network Analysis

This week I am walking across the IU-Bloomington campus to attend the ICPSR summer course "Social Network Analysis: Theory and Methods."   

Although network analysis has been around for nearly a century, the confluence of digitized data and cheap computer processing has given rise to a virtually limitless number of applications.  For example, just to today I learned that the Google search algorithms rely on network analysis (measuring and calculating eigenvector and eigenvalues) to place the most salient web page on the top of the search list.  Similarly, network analysis produced the insight that social isolation is more predictive of heart disease than cigarette smoking.  (I need to read the the paper that produced this insight to ascertain if they chased down all the covariates of social isolation.)  Of course, there are vehicles such as facebook and myspace, which are fostering new and powerful (and observable) social networks.

I started the course with three social networking projects:  (1) lateral partnership movement among large law firms, (2) geographic connections between law firm branch offices, and (3) movement of law faculty between law schools (as I noted here, from 1928 to the present).  But after one day, I am beginning to even more applications.

This is my second summer taking an methods class at ICPSR.  From this limited frame of reference, I continue to be impressed with the organization, quality of instruction, seamless technology, and focus on practical application.  I am looking forward to a very fruitful week.

Thanks and So Long for Now (Blumenthal guest)

Thanks to the ELS Blog hosts for the invitation to return (and for extending my guest stint), and to readers who checked out my posts and didn't laugh.  I appreciate the opportunity to share some thoughts and look forward to continued discussion about ELS.  Thanks!  ----JB

Last One on ELS and Paternalism (Blumenthal guest)

One last point about ELS and paternalism, on the third objection I identified--that paternalism reduces people's opportunities to learn.  And with this one I'll be brief.

Again, there are at least two reasons to encourage learning from mistakes.  One is so that people come to know an objectively better solution to a particular question or issue or judgment; a second is that such learning can be a rewarding, valuable experience in itself.  I referred to Klick & Mitchell's recent work on paternalism, where they discuss the learning issue; David Shapiro phrased the second theme nicely some time ago, suggesting that "the very ability to choose--which necessarily implies the ability to make poor choices by some objective standard--is critical to the growth of our diverse intellectual, emotional, and volitional capacities."

Of course, for learning to be helpful in either case there must be not only the opportunity, but also the ability and the motivation to learn.  Well-known psychological research (e.g., reviewed here), as well as more recent neuropsychological findings, show that people are prone to confirmation biases or "motivated reasoning," where individuals prefer information that will support already held beliefs or attitudes.  Personality factors (such as dogmatism), knowledge factors, and social factors (such as our perceived similarity to someone who might make a similar mistake) influence whether we learn from our mistakes--the psychologist to whom Klick & Mitchell refer suggests in his review that because of such factors, "learning is by no means automatic when people are shown the errors of their ways."

And, of course, there must be a second chance.  The New Hampshire drivers who suffer fatal accidents because of not wearing a seat belt don't learn to use one the next time.  Some scholars have suggested that paternalism may thus be more appropriate in contexts where decisions can have "irreversible consequences."

I said I'd be brief.  And in the blog context, my goal is more to raise issues for discussion and empirical research than to refute or defend particular lines of argument.  But I would suggest that for the "learning" objection, as with the knowledge-of-preferences and autonomy arguments, empirical research--rather than just ipse dixits--will be helpful in furthering such discussions.

LSSSE Data and MoneyLaw/MoneyBall

The ELS Blog and our friends over at MoneyLaw continue to debate if and how the MoneyBall philosophy can be applied to the law school universe. See, e.g., here, here, here, and here.  My original "treatise length" (by blog standards)  statement of MoneyBall/MoneyLaw is archived here.   

My bottomline on MoneyLaw/MoneyBall is simple:  The metric is money.  Sure, MoneyBall can be used to identify future professors who will produce more and better scholarship, but that will take an institution only so far.  MoneyBall principles therefore need to be deployed to build a better institution.  Better institutions engender loyal alumni and attract benefactors who want to finance a powerful vision of the future.  That money can be used to recruit gifted students and buy and keep academic talent--and the institutional mission and culture of the law school could be just as magnetic as the extra funds.  The longer the track record, the more exponential the effects.

So how would a "Billy Beane" administrator build a better institution?  The answer to that question became much clearer recently as IU Law assembled a longitudinal dataset of five years of information from the Law School Survey of Student Engagement (LSSSE).  The survey includes a wide range of questions, such as:

• Student evaluation of their academic and intellectual experiences
• Law school assessment methods (e.g., exams and graded assignments)
• Type and quantity of law school writing
• Type and quantity of extra-curricular and co-curricular activities
• Student satisfaction with various types of counseling and academic and technical support
• How students allocate their time
• Student evaluation of the educational environment on several dimensions
• Quality of students relationships with peers, faculty and administrators

The five years of data shows trendlines for IU Law internally (i.e., to see if our scores have gone up, down, or sideways) and IU Law externally as benchmarked against (a) other public law schools, (b) other schools of comparable size, (c) selected peer schools, and (d) the sample as whole.   

Having just reviewed this data, it is remarkable how well the pieces fit together--the comparative strengths, weaknesses, and, mostly importantly, where we may have been fooling ourselves.  In short, we have an empirical basis to evaluate our institution, set priorities,  allocate scarce resources, and actually measure our progress--just like any first-rate organization.

IU Law is one of two law schools in the nation that has participated in LSSSE every year since its inception.  We are now poised to garner a large return on this investment.  Kudos to our Dean, Lauren Robel, for her early and steadfast commitment to this important initiative.

Examining the Cost of Litigation

An interesting paper by Bernie Black (Texas) et al. examines litigation costs with the benefit of actual data. The paper, Defense Costs in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988-2004, finds in the med mal area that real defense costs increased approximately 4.6% per year (during the duration of the study). As the paper notes, "rising defense costs imply a decline in the “efficiency” of litigation, at least as measured by transaction costs." An excerpted abstract follows.

"We study litigation costs for personal injury tort claims in Texas over 1988-2004, relying on a detailed source of case-level data on defense legal fees and expenses, and Texas state bar data on lawyers' hourly rates. We study costs in medical malpractice cases in detail, and costs in other types of cases in less detail. Controlling for payouts (which are roughly flat), real defense costs in medical malpractice cases rise an estimated 4.6% per year, roughly doubling over this period; the rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense counsel are flat, so rising rates cannot explain this increase. Costs correlate strongly with payouts. Medical malpractice insurers predominantly used outside counsel, occasionally used inside counsel, and rarely used both in the same case. Surprisingly, medical malpractice insurers did not react to the sustained rise in defense costs by adjusting their expense reserves, which did not increase either in real dollars or relative to reserves for indemnity payouts, and declined substantially as a percentage of defense costs."

Conference: American Psychology/Law Society

The annual conference of the American Psychology/Law Society will be held on March 5-8, 2008, in Jacksonville, FL.  Announcement here; call for papers (Sept. 21 deadline) should be posted soon.  This year's conference (July 3-8, 2007) is being held in Adelaide, Australia, in conjunction with the European Association of Psychology & Law and the Australian and New Zealand Association of Psychiatry, Psychology and Law.

The APLS conference is a great opportunity for ELS scholars, as the presentations tend to be heavily in certain areas of psychology, and law school academics are often under-represented.  It's also a great way to build interdisciplinary connections.

Empirical Work on Property Issues (Blumenthal Guest)

The variety of topics to which ELS can profitably be applied--as shown, for instance, by the recent AALS conference and by the successful ELS conferences--is, of course, both encouraging and daunting.  As one perhaps atypical example, a month or so ago there was an interesting exchange on the PropertyProfs listserv, looking for examples of empirical legal articles examining property issues.  I am certain there are more than the ones identified, as this request focused on real property--and I hope readers might identify more, please!--but the ones that were mentioned are excellent examples of the sort of useful ELS work that can be done.  Thus, in no particular order, here are the ones mentioned:

• Joyce Palomar, The War Between Attorneys and Lay Conveyancers--Empirical Evidence Says "Cease Fire!", 31 Conn. L. Rev. 423 (1999)
• N. William Hines, Real Property Joint Tenancies: Law, Fact, and Fancy, 51 Iowa L. Rev. 582 (1966)
• N. William Hines, Personal Property Joint Tenancies: More Law, Fact, and Fancy, 54 Minn. L. Rev. 509 (1970)
• Michael H. Schill et al., The Condominium v. Cooperative Puzzle: An Empirical Analysis of Housing in New York City, available at SSRN: http://ssrn.com/abstract=502362
• Vicki Been & Ioan Voicu, The Effect of Community Gardens on Neighboring Property Values, available at SSRN: http:ssrn.com/abstract=889113
• Dean Lueck & Jeffrey A. Michael, Preemptive Habitat Destruction Under the Endangered Species Act, 46 J. L. & Econ. 27 (2003)
• Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 Mich. L. Rev. 101 (2006)
• Ann E. Carlson & Daniel Pollak, Takings on the Ground: How the Supreme Court's Takings Jurisprudence Affects Local Land Use Decisions, 35 U.C. Davis L. Rev. (2001)
• Leigh L. Linden & Jonah E. Rockoff, There Goes the Neighborhood? Estimates of the Impact of Crime Risk on Property Values from Megan's Laws, NBER Working Paper No.W12253 (2006)
• Robert Ellickson, Order Without Law (1991)
• Ward Farnsworth, Do Parties to Nuisance Cases Bargain After Judgment?: A Glimpse Inside the Cathedral, 66 Chi. L. Rev. 373 (1999)
• Mark D. West, Losers: Recovering Lost Property in Japan and the United States, 37 Law & Soc. Rev. 369 (2003)
• Robert H. Sitkoff & Max M. Schanzenbach, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, 115 Yale L.J. 356 (2005)
• Max M. Schanzenbach & Robert H. Sitkoff, Perpetuities or Taxes? Explaining the Rise of the Perpetual Trust, 27 Cardozo L. Rev. (2006)
• Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes, 75 Ind. L.J. 1231 (2000)
• Lior Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437 (2006).

More on Grades and Success in Big Firms (Sander guest-entry 3)

I've been slow to post a third entry this week because some of the comments on my first entry made me think more carefully about the table I posted Monday (entitled "White Michigan Grades at Private Firms with 100+ Lawyers) and the conclusions I drew from it.  I went back to the data and offer below a refined analysis.

There are two significant weaknesses in Monday's table. First, I included all Michigan alumni in creating the deciles, but of course many alumni did not return surveys. These non-respondents are part of the "base" on which the rates are calculated. So the author of the first comment, who noted that the proportion of Michigan grades joining firms seemed way to low, had a good point. (Among respondents, about 37% started at firms with 100+ lawyers and 47% started at firms with 50+ lawyers. The numbers would probably be higher today because firms are bigger.) Second, the time periods covered by the first two columns and the third column are significantly different; the first column looks at graduates from 1977 to 1990, while the third (15-year column) looks at grads from 1967 to 1985. Even though I noted the data were not literal attrition rates, many readers took them to be that.

After some thought about these limitations, I concluded that a better way to look at the association between GPA and success at big firms was to look directly at survival rates for big firm associates. The Michigan alumni surveys ask respondents how long they stayed at their first job after graduation, and how many jobs they've had. It's thus possible to see how many grads who started at big firms stayed at the same firm for the next fifteen years (and, in nearly all cases, became a partner at the firm).

The table below summarizes such an analysis. Those tracked here were respondents to the 15-year alumni survey from 1987 to 2000 who reported that their first job after law school was at a firm with 50 or more attorneys; these are divided into grade deciles, and tracked by whether they are still at the same firm. (I used a 50-attorney threshold because many of these attorneys started their careers in the 1970s, when a 50-attorney firm was considered "big".)

(a) Grade Decile	(b) White respondents to 15-year survey who started at firms with 50+ lawyers	(c) Those in (b) who were still with original firm 15 years later	(d) Those in (b) no longer at original firm	% Still at Original Firm (c/b)
1	25	1	24	4%
2	32	3	29	9%
3	58	7	51	12%
4	62	12	50	19%
5	94	13	81	14%
6	136	33	103	24%
7	157	26	131	17%
8	207	55	152	27%
9	236	56	180	24%
10	185	60	125	32%
Total	1192	266	926	22.3%

To illustrate how to read this table, look at the first row of data.  Of 1192 Michigan 15-year alumni who provided information on their first job and who started their career at a big firm, 25 (2%) had grades that put them in the lowest decile of all Michigan students.  Of those 25, only 1 was at the same firm 15 years later - a 4% "survival" rate (reported in the last column, as (c/b).

The last column thus gives us an idea of how grades affect tenure among those at big firms.  The relationship is quite strong -- the correlation of grade decile and the "survival" rate is more than .90.

With this added context, let me make some observations responsive to the posted comments and other emails I've received:

1) I don't contend that high law school grades themselves have a direct causal effect on success in big firms. I contend that high grades measure various things that are related to later success. Those things might conceivably include actual learning in various law classes; more likely, they include facility with legal analysis, cognitive skills and writing ability, and also such things as ambition, drive, lack of a social life, etc.

2) Obviously another factor that affects "survival rates" to partnership are choices about career, family, and lifestyle. Those choices are certainly very different for women and men, and they might vary across racial lines, too. But in The Racial Paradox, I showed that during the early years of associate experience (the years for which the After the JD project supplies good data), white men and white women had essentially identical experiences, while those of blacks and Hispanics diverged dramatically. So for women, attrition due to personal choices or to "glass ceilings" presumably sets in later.

3) Several of those posting comments suggested that minority patterns of attrition must be far higher than those explained by these grade variations. The Michigan data can't really answer this question, because the samples of nonwhites in big firms are very small (a total of 43 nonwhites in the 15-year alumni dataset reported starting at big firms). The numbers we do have for UMLS nonwhites are roughly consistent with those for whites:

(a) Grade decile range	(b) Nonwhite respondents to 15-year survey starting at firms with 50+ lawyers	Proportion of (b) at same firm 15 years later	Comparable rate for whites
1-3	30	10%	10%
4-6	9	22%	20%
7 or higher	4	25%	25%

Again, the sample sizes are far too low to draw conclusions from this second table; the close match of percentages is largely happenstance. And of course the dynamics facing nonwhites are very different. As I observed before, the nonwhites with low grades face two extra obstacles: first, they are likely to be at more elite and challenging big firms than are the whites with low grades; second, they are likely to be "stereotyped" as second-rate even when they are not. On the other hand, minorities may benefit from some affirmative action at the promotion and partnership level -- though clearly, if this happens, it is much less than the use of racial preferences in the hiring of associates.

As this second table suggests, nonwhite hires at big firms have far lower GPAs than white hires; nearly two-thirds of the nonwhites are in the lowest two deciles, compared to 5% of the whites.

The story told in these short blog entries is a brief summary of a more complicated story laid out in The Racial Paradox. I've tried here to grapple with the responses of those skeptical of the data.  My hope (perhaps a forlorn one) is that critics will go beyond mere skepticism to try and develop an alternative explanation consistent with all of the available data.

ELS and Paternalism #2: On ipse dixits (Blumenthal guest)

A second familiar objection to paternalism is based on autonomy: simply put, people's freedom to make choices, even non-optimal ones, should be valued per se.  Alternatively, as a a sort of mixed utility and autonomy argument, we should value people's preferences for the freedom to make choices.  That is, the freedom to choose should also be protected because people value that freedom itself.

The posting title refers to a line from John Robertson, discussing precommitment strategies (i.e., a form of self-paternalism): he suggests that potential gains from such strategies "should not be shunted aside with an ipse dixit about personal liberty."  And empirical research may bring into question this second general objection to intervention as well, in at least two ways (thus preventing an ipse dixit shunt).

First, it seems that in fact, people often prefer not to have to make decisions.  We prefer to leave our options open (to "leave doors open")--that is, to retain the option of changing our minds, even when that approach comes at the expense of decision quality.  In fact, the simple act of considering alternatives and choosing between options can increase the appeal of the foregone option.  We ask others to make decisions for us.  And, of course, we procrastinate--and, despite realizing that we procrastinate, and making efforts to correct that tendency, it seems that self-imposed deadlines are often ineffective.

Second, when we do make decisions, both the preference for choice, as well as having more options from which to choose, can lead to less utility and worse decisions.  Empirical research shows that although people often want a decision to be reversible--that is, they prefer the possibility of changing their mind--they are often less satisfied with their choice when it is reversible compared to when they make a decision and are "stuck" with it.  More broadly, recent findings call into question the traditional assumptions that choice generates utility and psychological well-being.  In fact, too much choice can be conflicting, difficult, and may lead to decreased experienced utility.  Thus, the assumption that people value making decisions is often mistaken; moreover, even when it is correct it can lead to decreased, not increased, utility.  (Indeed, in some instances marketers have picked up on this: Iyengar and Lepper cite an instance of Proctor & Gamble reducing the number of available versions of a shampoo brand from 26 to 15, and then "experiencing a 10% increase in sales."  Provocative but not conclusive.)

Thus, empirical findings raise questions about another aspect of the autonomy argument.  Again, these questions do not mean the argument is invalid, or that paternalistic policies necessarily trump any claim to individual autonomy.  The data simply suggest that the standard objections must meet higher hurdles than have heretofore been set, in order to fully persuade.

The Latest Law & Society Review

Two articles in the latest Law & Society Review (Vol. 41, No. 2, June 2007) may be of interest to our readers:

• Lawyers, Justices, and Issue Salience: When and How Do Legal Arguments Affect the U.S. Supreme Court? by McAtee & McGuire
• Does the Lawyer Matter? Influencing Outcomes on the Supreme Court of Canada by Szmer, Johnson, and Sarver

An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review

Jonathan Nash (Tulane, visiting at Chicago) and Rafael Pardo (Seattle) have posted An Empirical Investigation into Appellate Structure and the  Perceived Quality of Appellate Review on SSRN.  The Abstract:

Commentators have theorized that several factors may improve the process, and thus perhaps the accuracy, of appellate review: (1) review by a panel of judges, (2) subject-matter expertise in the area of the appeal, (3) other lawfinding ability, (4) adherence to traditional notions of appellate hierarchy, and (5) the judicial independence of appellate judges.  The considerable discussion that has expounded upon these theories has occurred in a vacuum of abstract generalization.

This Paper adds a new dimension by presenting results from an empirical study of bankruptcy appellate opinions issued over a three-year period. The federal bankruptcy appellate structure provides certain litigants the choice to appeal, in the first instance, to one of two distinct appellate tribunals - district courts and bankruptcy appellate panels (BAPs) - whose structural features relating to the theorized qualities of appellate review differ. As BAPs appear to have more of the features associated with the quality of appellate review, the study tests the theory through various hypotheses that focus on the perception held by other federal courts within the bankruptcy appellate structure of the quality of appellate review provided by these distinct appellate tribunals. The data show that federal courts have perceived BAPs to provide a better quality of appellate review.

Having unearthed evidence that supports the theoretical notions underlying the quality of appellate review, this Paper concludes that commentators and policymakers ought to be encouraged to explore further, in a more detailed manner, the question of how appellate structure can be designed to provide better results.

ELS and Paternalism (Blumenthal guest)

As I mentioned, I think there are at least three categories of objections to paternalistic intervention, and I wanted to identify empirical research relevant to those objections.  The first centers around the traditional claim that people know their own preferences and, as a result, are best able to identify those preferences and make their choices--certainly better than a third party.  Oft-repeated, the objection is, of course, associated with John Stuart Mill: "[W]ith respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else."

A facile response is one used to justify intervention in the first place--"look at the bad decisions people make!"  In the health context, the prevalence of obesity has doubled over the last 30 years.  Smokers underestimate their risk of dying from lung cancer, despite overestimating the link between smoking and cancer.  In the market context, cognitive biases may allow sellers to manipulate buyers; erroneous estimates of the likelihood of one's own breach, or that of the other contracting party, may lead to parties bearing risks that they did not fully consider, or to failure to consider appropriate remedies for breach.  And, of course, many people make poor financial decisions in the context of pensions or investing.

But an anti-paternalist responds--among other things--that perhaps people are not being irrational; they in fact are identifying their preferences, and deriving pleasure even from objectively detrimental activities.

One reply points to the burgeoning literature on affective forecasting.  Substantial empirical research (recounted lucidly and entertainingly by Dan Gilbert in Stumbling on Happiness) shows that people are surprisingly inaccurate in identifying their emotional reactions to future events, both positive and negative, and as a result have difficulty knowing what makes them happy or unhappy.  This research is becoming more familiar in the law, and has been imported into the paternalism discussion (as well as a number of other contexts).  Briefly, though, such findings "challenge a fundamental assumption that [supports various] forms of autonomy in decision-making . . . , namely, the assumption that people are able to make choices in their own best interests."

Simply saying that people don't always know what's best for them isn't dispositive, of course, nor does it address the Millian notion that "I know my preferences better than someone else."  But there are empirical reasons to think that in some cases, experts--or simply third parties--do better.  This may particularly be so in the context of risk perception.  For instance, ordinarily, third parties over-estimate the risk preferences of others.  However, particularly in the context of negative events, individuals' over-optimism tends to reduce their perceptions of self-relevant risks.  In a sense, the over-estimation by third-parties could in fact be relevant to bring estimates closer to the truth.  More directly, Hsee and Weber's research shows that when the target of a risk judgment by a third-party is made salient--made visible, for instance, even without actual interaction--the over-estimates become more accurate.  Thus, it may be that simply identifying the target individual to the third-party may ameliorate over-estimation by that third-party, and may result in more accurate risk estimation than when the judgment is left to the individual.  Finally, of course, is the likelihood that a third-party may be less susceptible to immediately experienced factors that bias decisions (such as mood).  More objective, "calculation"-based decision-making tends to ameliorate emotion-based "probability neglect," and might warrant placing decisions in the hands of third parties less susceptible to such immediate emotional biases.

Of course, none of these findings mandates paternalism, nor do they conclusively refute objections to paternalistic intervention.  But they are helpful in moving the ball forward and incorporating more ELS information into the discussion.  To the extent affective forecasting research suggests that we in fact do not know what makes us happy, and to the extent the risk perception research suggests that perhaps third parties can do better, the Millian criticism of intervention must say more.

Google Reader

I realize that quite a few readers have already moved to blog reader or aggregator software, but I finally made the switch (to Google Reader) a couple of weeks ago.    This post is for the remaining stragglers. 

In a nutshell, if you like reading blogs, you will love the speed, efficiency and organization provided by Google Reader.  It is very easy to use and relatively intuitive to learn.  I am told there are better readers out there, and I will eventually explore those.  But for the moment, my reading of blogs (or anything with an RSS feed) has become a lot more fun.

Some Good News About Women in Law (Sander guest-entry 2)

I wrote The Racial Paradox to compare minorities and whites, but one of the big surprises to me in writing the piece came from comparing white men and white women in big law firms. In reviewing data from the After the JD study (based on surveys from four thousand-odd new attorneys in 2002-03, including several hundred second- to fourth-year associates in big firms) I expected the "gender" gap in satisfaction and work experiences to be smaller than the "race" gap, but still noticeable. What I found were, more often than not, statistically identical patterns for the two sexes. 51% of white men were dissatisfied with their mentoring and 37% wanted more training, compared with 47% and 33% rates for white women. 47% of white men, and 47% of white women, were responsible for keeping the client updated on half or more of the matters they worked on. 25% of the white men, and 28% of the white women, supervised other attorneys or paralegals on half or more of their cases. Despite the many problems in big firms, here was evidence of something very positive.

To investigate further, I recently used the AJD to explore "dissimilarity indices" across gender lines. The dissimilarity index is a simple measure of how integrated or segregated two populations are from one another. If men and women are distributed across occupations in exactly the same way, the index is 0; if there is complete separation, the index is 1. In the American workforce generally, the level of gender occupational dissimilarity is in the neighborhood of .5 -- a number which has fallen some in the past generation, but remained stubbornly high despite the broad influx of women into the workforce.

Traditionally, men and women lawyers have been at least somewhat segregated in two ways: the type of employer they go to work for, and the area in which they specialize. Women have tended to be overrepresented in government and non-profits; men have concentrated in private firms, especially (compared to women) in smaller firms. Within firms, women were more likely to work in family law or probate; men dominated many of the commercial and "big business" fields.

That seems to be changing.  In the AJD sample, the breakdown of men and women across sectors looks like this:

Setting	% of AJD women in setting	% of AJD men in setting
Very small firms (<5 lawyers)	10.1%	12.9%
Small firms (6-20 lawyers)	13.5%	14.4%
Medium-sized firms (21-100)	10.5%	11.3%
Large firms (101-299)	8.2%	8.7%
Very large firms (300+)	19.5%	20.3%
Government / public interest	25.3%	16.7%
Corporate, misc.	8.7%	9.7%
Solo	4.3%	6.2%

The differences have not vanished, but they are generally quite small. Overall, the index of dissimilarity from this data is .09.

If we look at areas of legal specialization, the story is (to me) even more surprising. I analyzed the distribution of AJD men and women across 24 specialized areas, adding up the proportion of time each attorney said they spent in each area. The totals are remarkably similar for men and women; here's a partial summary for associates at very big (300+ attorney) firms:

Area of practice	% of total time spent in area for:
	Women at big firms	Men at big firms
Civil litigation	21.7%	19.8%
Commercial law	5.9%	5.2%
General corporate	12.0%	13.1%
Intellectual property	7.8%	12.8%
Family law	0.2%	0.2%
Real estate commercial	4.0%	3.6%
Securities	8.2%	11.2%

Overall, the male/female index of dissimilarity in practice areas for associates at these very large firms is .13. For all eight practice settings, the average index is .18.

To get some sense of how much has changed, I examined the Chicago Lawyers dataset, which is based on the extensive interviews by Heinz et al of some eight hundred Chicago attorneys in 1994-95. I created two comparison groups: lawyers who started their careers before 1982, and lawyers who started their careers between 1988 and 1993 (this second group would thus be similar, in terms of the stage of their careers at the time of data collection, to the AJD lawyers.) Here are the results:

Lawyers compared	Index of dissimilarity across practice settings	Index of dissimilarity across 24 fields of law (average index across eight practice settings)
Chicago lawyers entering practice before 1982 (interviewed in 1994-95)	.37	.60
Chicago lawyers entering practice between 1988 and 1992 (interviewed in 1994-95)	.26	.35
AJD lawyers entering practice in 1999-2000 (surveyed/interviewed in 2002-03)	.09	.18

Some of the Chicago field-indices are a bit skewed (biased upward) because there were relatively few women in some settings. And it may be a little misleading to compare Chicago data with national data. But the trend suggests that something remarkable has happened. Over the course of a generation, it seems, gender segregation in the law shifted from being very high to being relatively low. Young women lawyers, at least, seem to be converging with young men lawyers both in their choice of paths and their ability to "get on" those paths.

None of this is to deny that women of all races are securing big firm partnerships at low rates. The first wave of the AJD (looking at lawyers 2-4 years out of school) does not allow us to understand what happens at partnership time (the second wave, now underway, should), but the problems are foreshadowed in the AJD data. Women associates at big firms are more concerned about the long hours and the conflict between their job and their family life; their attrition rates are low during the early years with the firm, but a smaller proportion of women than men see a long-term future with the firm. Those are important issues, not addressed in this note. But they should not obscure the remarkable convergence of men and women lawyers in their early careers.

Legal Reasoning, Law Reviews and Clerking

The September 2006 Issue of the Journal of Legal Education has some intriguing articles that may be of interest to our readers:

• The Development of Legal Reasoning in Law Students: An Empirical Study by Stefan H. Krieger
• Law Review Article Placement: Benefit or Beauty Prize? by Dennis Callahan and Neal Devins
• "Why Clerk?  What did I Get Out of It?" by Stephen L. Wasby

Seat Belts, Paternalism, and New Hampshire--"Live Free and Die?" (Blumenthal guest)

The New Hampshire State Senate recently rejected a bill that would have mandated seat belt use for all adults.  According to the media, New Hampshire is the only U.S. state without some such law.  The discussion involved, unsurprisingly, issues of paternalism and "being told what to do"--squibs from earlier stories in the New York Times noted that "For many residents, buckling up and being required to buckle up are 2 different things," and one proponent of the bill noted that the debate "harkens [sic] to the libertarian 'don't tell me what to do' streak that characterizes much of [NH] politics."  The Times stories also noted that "New Hampshire has the lowest rate of seat belt use in the country, 49.6 percent," and that "77 percent of fatal crashes in the state involved occupants who were not wearing seat belts."

Paternalism, of course (whether asymmetric, libertarian, emotional, or other), is increasingly discussed in legal academia.  Much of the connection to ELS is in the context of evaluating whether particular interventions (as just one instance, Thaler and Benartzi's SMarT investment approach) in fact improve welfare on some specific outcome.

Less empirical analysis, I think, goes to the justification of such "paternalistic" intervention, and I hoped to post a few comments in that context, using the New Hampshire example as a vehicle [sorry, pun intended] for mentioning empirical research relevant to some of the usual objections to "telling someone what to do."  Existing empirical work may indicate that we need to look a little harder at such objections--and I think providing empirical grounds for such a discussion is a fruitful effort for ELS in any context.

Offhand I can imagine at least five such objections, falling roughly into three categories.  First is the classic Millian notion that people know their own preferences, and as a result are best at identifying and choosing their own preferences.  Second is the classic autonomy argument: people's freedom to choose should be valued per se ("don't tell me what to do!") ; relatedly, people's preference for the freedom to choose should be valued per se.  Third, people learn from their mistakes, and should therefore be allowed to make them--perhaps simply for the substantive benefit of learning what is correct, perhaps to "build character."  Jon Klick and Greg Mitchell get at this third category in their recent response to libertarian paternalism (among many other points, of course).

(At least two other objections, mentioned recently by Ilya Somin on the Volokh Conspiracy, involve the accountability of chosen "experts" who make paternalistic decisions and whether those experts should get the final word.  A related one, of course, involves public choice and capture.  I'll set those aside to the extent that they involve evaluation of the means of effectuating interventions once it's decided that paternalism is appropriate [except where Somin, for instance, notes that "Although the expert is more knowledgeable than I am about technical issues in his field, I am more knowledgeable than he is about my own values"--the first category identified above].)

Again, my goal is not to take sides, but rather to point out another instance of ELS's potential to advance a substantive policy discussion.  In short upcoming posts I'll try to identify some empirical research relevant to each of the five objections above.

New Evidence on GPA and Success In Law Firms

Can better data resolve deeply-felt issues? My entry today might be viewed as a little experiment on this question. But first, some background.

Last summer, I published The Racial Paradox of the Corporate Law Firm, a piece that explored the fate of minorities at big, elite law firms. I pointed out that while minorities are very well-represented among the starting associates at these firms, blacks and (to a somewhat lesser extent) Hispanics have far higher attrition rates than whites, leaving few black and Hispanic senior associates around when partnership decisions are made. I laid out various possible theories to explain these high attrition rates, including two different ways discrimination might affect the outcomes. And then I laid out a variety of new and fairly detailed data on the characteristics and experiences of new associates. Though I found much of the evidence consistent with more than one theory, I concluded that it was very likely that the aggressive use of racial preferences by law firms contributed to the problem. There was no doubt that firms were granting enormous preferences – in one large dataset of new associates at big firms, the median black GPA was at the 18th percentile while the median white was at the 75th percentile. Wouldn't a big disparity in grades produce a disparity in work quality? It was hard to explain many of the patterns otherwise:

--Black and Hispanic associates had experiences that closely matched those of white men on the “external indicia” of their jobs -- things like salary, hours, and representation on firm committees. But they tended to get fewer work assignments, were given less responsibility on those assignments, and were far less satisfied with the training and mentoring they received, compared with white male associates. Importantly, the problems a group had in these areas closely matched the size of their credential gap with white male associates. Blacks reported the most serious problems, and received the largest hiring preferences, then Hispanics, and then Asians. White women, who appeared to have exactly the same credentials, on average, as white men, reported virtually no differences from white men in mentoring, work assignments, or levels of responsibility -- and indeed reported very high levels of satisfaction.

--Smaller law firms appeared to be much less likely to use large racial preferences in hiring associates. I could not find any statistically significant difference in the grades of black and white associates, for example, though probably there's some disparity. Correspondingly, blacks at small firms generally are far more satisfied on issues like mentoring and work responsibility than their counterparts at big firms, and by most indicators, there's not a significant black-white gap in small-firm experiences.

Certainly, if big-firm racial preferences in hiring produce differences in performance that correlate with race, they will also produce invidious negative stereotypes in the minds of big-firm partners that could further hold back strong minority associates. But, I argue, if firms use radically different GPA thresholds for different racial groups in hiring, we ought to expect both differences in performance and negative stereotyping.

From the time I first presented this paper to a symposium at the University of North Carolina, it has evoked two types of responses. The first reaction -- always very vocally expressed -- is that my entire argument unjustifiably assumes that grades have something meaningful to do with the on-the-job performance of lawyers. The second reaction -- always expressed quietly, usually one-on-one and often from lawyers who have sat on the hiring or promotion committees of big firms -- is that my article gets it exactly right, but that any firm which publicly said so would expose itself to a lawsuit.

Public discussion of the article tends, therefore, to be a bit skewed. In November, after the New York Times ran a careful, thoughtful piece about The Racial Paradox, it ran a fluffy follow-up piece in the Week in Review, in which education reporter Jonathan Glater asked various law firm partners how important grades were for success at their firm. A typical response was 'Gee, I never would have made partner if they'd looked at my grades.'

This is disingenuous in two ways. I certainly don't contend that firms look at law school transcripts when they decide which associates to promote to partner. My point is that, other things equal, associates with high GPAs will tend to perform better, and thus will tend to build stronger reputations at the firm and succeed more often. And if this isn't true, then why would big firms set such high GPA standards in their entry-level hiring, and why would they pay such high salaries to lure the highest-GPA students?

The Racial Paradox did present some data showing that higher-GPA students tended to be more successful at big firms (e.g., Table 13), but I realized after the article was published that my presentation of the data was somewhat too abstract to really drive the point home. With further analysis, I've developed a clearer way to show the underlying patterns. The data below comes from the University of Michigan Law School's famous alumni surveys. UMLS has for many years sent out questionnaires to its alumni five and fifteen years after graduation. It links this data to actual transcript information, so that we know how each respondent performed in law school. By looking at this data, only for whites, we can accurately see the effect of grades on outcomes without the usual confounding effects of race and law school.

White Michigan Grads at Private Firms with 100+ lawyers (per 1000 graduates)

Grade Decile	Joining big firms after graduation	At big firms, 5 years out	At big firms 15 years out (gen'ly partners)	Partnership rate (per 1000 grads)
1	39	40	16	1.6%
2	80	68	15	1.5%
3	126	92	32	3.2%
4	168	130	29	2.9%
5	177	149	55	5.5%
6	190	167	86	8.6%
7	243	200	103	10.3%
8	247	219	123	12.3%
9	239	235	127	12.7%
10	221	237	169	16.9%
Number of cases	1731	1537	755
Median percentile	63	66	73

For this analysis, I grouped the white alumni from UMLS into ten equal groups based on their actual law school GPA. The table shows the rate at which these graduates (at rates per 1000 grads) worked at firms with 100 or more lawyers. Just after graduation, for example, white UMLS grads with grades in the 3rd decile had a 12.6% chance of working at a big firm (126 per 1000), while grads in the 10th (top) decile had a 22.1% chance -- a reflection, no doubt, of the easier time high-GPA grads would have getting jobs in big firms. The next two columns show how many grads were still at big firms 5 and 15 years after graduation. (I haven't tracked individual career histories for this analysis, so it is not identical to an attrition study, but it is very similar to one.) There is some erosion in numbers by the 5th year, and much more erosion between the 5th and 15th year (by which time partnership decisions have been made). And the rates of erosion are very highly correlated with GPA. Thus, for every 126 grads in the 3rd decile who are big firms in Year 1, there are 32 by year 15 (one-fourth as many). In the top grade decile, the Year 15 numbers are still about three-quarters as large as the Year 1 numbers. Indeed, in this population, there is nearly as much sorting by GPA after the initial hiring process as there is during the initial hiring process.

In other words, this data shows clearly that GPA matters a lot to one's success and longevity in the world of big firms. And, since this data is just for whites, we know that discrimination is not playing a role in these outcomes (unless, as seems unlikely, firms do pay attention to transcripts after hiring).

Moreover, if we think about this data carefully, we'll see that low GPAs will probably have even more harmful effects when they arise from racial preferences. In the table above, I can't distinguish between different sorts of big firms. But it is likely that the high-GPA whites are at tougher, more competitive firms (on average) than are the low-GPA whites. Their success rates are swimming upstream against more competitive environments and lower partnership rates. Naturally, low-GPA whites have both a better chance of being hired, and of succeeding, at a firm which is big but not super-elite. If we could control for firm quality, the GPA disparities in outcomes in the chart would probably be much greater.

For racial minorities, this caveat does not apply. The most elite firms are the ones most aggressive in using racial preferences, so huge grade disparities divide races within the same firm. So just how, exactly, can one argue that "grades don't matter" in the face of this data?

Guest Blogger: Richard Sander

This week, the ELS Blog is pleased to welcome back guest blogger Richard Sander, who is an economist and law professor at UCLA School of Law.  Sander is best known for his empirical work on racial preferences in legal education (Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan L. Rev. 367 (2004)) and corporate law firms (The Racial Paradox of Corporate Law Firms, 84 N.C. L. Rev. 1755 (2006)). 

Although this work has garnered no shortage of critics, Sander's earlier scholarship and professional activities belie the perception that his work is motivated by politics or ideology.  During the last 20 years, Sander has been a ardent advocate of fair housing laws and worked on the successful campaign and transition team of Harold Washington, the first black mayor of Chicago.  Since joining the UCLA faculty in 1989, Rick has served as President of the Fair Housing Congress of Southern California, founded the Fair Housing Institute, and helped the City of Los Angeles design and implement what was, at the time, the nation's most ambitious living wage law. He also participated in the effort to develop outreach programs that sharply increased the local use of the Earned Income Tax Credit, generating tens of millions of dollars annually for LA's poorest working families. 

In addition to scholarship on housing integration and living wage laws, Sander has done important empirical work on legal education, including effective strategies in academic support programs and how law students perceive the law school experience.  At UCLA, Sander teaches courses in Property, Quantitative Methods, Urban Housing, and Policy Analysis.  We look forward to his postings over the coming week.

Physician Insurance, Med Mal, & Malpractice Claim Payouts

An under examined component of the medical malpractice field involves the relation between physician insurance behavior and med mal claim payouts.  One traditional roadblock to research in this area has been access to (that is, the absence of access to) closed-claim insurance data.  A recent paper by Kathryn Zeiler (Georgetown) et al., Physicians' Insurance Limits and Malpractice Payments: Evidence from Texas Closed Claims, 1990-2003, exploits one of the few available databases.  A brief summary of the paper's findings follow in the excerpted abstract.

"Physicians' insuring practices influence their incentives to take care when treating patients, their risk of making out-of-pocket payments in malpractice cases, and the adequacy of compensation available to injured patients. Yet, these practices and their effects have rarely been studied. Using Texas Department of Insurance data on 9,525 paid malpractice claims against physicians that closed 1990-2003, we provide the first systematic evidence on levels of coverage purchased by physicians with paid liability claims and how those levels affect out-of-pocket payments and patient compensation. We find that these physicians carried much less insurance than is conventionally believed, that their real primary limits declined steadily over time, that policy limits often act as effective caps on recovery, and that personal contributions by physicians to close claims were rare."

Follow-up on Meta-Analysis

Steven Erickson has thoughtfully raised some issues / concerns about meta-analysis in the Comments section of my previous post.  Comments often can get lost, so I wanted to bring attention to that other perspective.

Empirical Legal Studies and IRBs

The Law & Society Association has created a committee to explore issues related to Institutional Review Boards (IRBs).  One of the committee members, William Gallagher (Golden Gate Law), asked that I post the following query.  I will post my own response in the comments section.

Malcolm Feeley, the current President of the Law and Society Association, has established a committee to examine issues relating to Institutional Review Boards (IRBs) and law and society research. As a committee member, I have been asked to look into potential issues that may affect law school-based scholars. As part of that effort, I am requesting legal scholars who do empirical work—broadly construed—in a law school setting to contact me with any information about their experiences with IRBs at their institutions. This is obviously not an attempt to do a comprehensive survey, simply to begin to focus on particular IRB issues that may pertain to law school researchers in particular (if any). 

Among the issues that I am interested in learning more about are (1) whether your law school has an IRB procedure that is separate from the rest of the university (if you are not in an independent law school); (2) whether your independent law school has an IRB; and (3) generally what your experiences have been with the IRB procedure at your institution—e.g., have you requested approval? A waiver? What result? Any additional information would be welcome as well.

If you are willing to provide this type of information, please send me a message by e-mail to: [email protected] [and/or post a comment below.  BH].