Empirical Legal Studies

New Variables and Perspectives For Assessing Potential Racial Bias in Consumer Credit Practices

Studies of bias in the consumer credit markets traditionally dwells on disparities in access to credit.  However, the possibility of bias persists even when access to credit exists.  Assessments of secondary or tertiary bias require researchers to explore and develop new dependent variables and models.  In Racial Dispersion in Consumer Credit Interest Rates, Wendy Edelberg (US Federal Reserve) considers whether race influences interest rates.  More specifically, "the primary goal of this empirical analysis is to estimate the role of race in interest rate determination after accounting for the financial costs of issuing debt."  An excerpted abstract follows.

"In this paper, I examine disparities in a variety of consumer loan interest rates using a reduced-form framework. I find that interest rates on loans issued before the 1995 show a statistically significant degree of unexplained racial heterogeneity even after controlling for the financial costs of issuing debt. However, racial dispersion in rates falls off for loans originated after 1995. The unexplainable racial disparity in consumer loan rates issued before 1995 implies that in this earlier period minorities faced unaccountably higher interest-rate premiums on the order of - in two examples - 20 basis points for first mortgages and 80 basis points for automobile loans. Overall, evidence of unexplainable racial dispersion in interest rates is more robust among homeowners than renters."

Some ELS Progress Notes from Bernie Black

Bernie Black (Texas Law) requested that I post the following:

A few progress notes, on the emergence of Empirical Legal Studies as a serious field within law schools.

1.  This year's second annual Conference on Empirical Legal Studies (CELS) attracted 350 submissions, up from 225 last year.  We're now at the same scale as ALEA, in far less time.  Please come! (it's at NYU this year, you can register and get details at http://www.law.nyu.edu/cels/)  We'll have about 100 presented papers, in another 25 at a poster session, in 5-6 concurrent sessions.  Same format as last year -- each paper gets a discussant.  On my read, the quality of the submitted papers is stunning -- our challenge will be to avoid the peril of being hyperselective, not the peril of too few good papers..

2.  Empirical research is getting noticed.  Many of you surely saw the front page New York Times article devoted to Brandon Garrett's article, "Judging Innocence".  This week, Kate Litvak got a full paragraph in the Economist for her research on SOX (Briefing Sarbanes Oxley:  Five Years Under the Thumb, Economist, July 28, 2007, at 73).

3.  On a (more) self-interested note, I'm just back from giving a keynote talk at the Brazil Finance Society annual meeting, on "Identification Strategies in Corporate Governance Research."  Giving an invited talk is hardly unusual, but for a finance society to invite a law prof?!  That didn't use to happen, ever.

4.  Looking forward, CELS has now lined up host schools through 2012, and we will organize a "Society for Empirical Legal Studies" (SELS) at this year's conference, to carry it forward after that, as the original organizers fade into obscurity.

Update: The Economist article can be found here.

Geographic Coding for Law Schools Now Available for Download

The placement patterns of most U.S. law schools are closely tied to their regional labor market.  In our 2006 ranking article, Andy Morriss and I documented the close relationship between geographic proximity and the number of large firms who participate in a school's OCI program.  More recently, I posted some interesting data suggesting that the presence of a regional law school (or schools) in a metropolitan area can depress the income of solo and small firm lawyers. 

To help capture these patterns, I have just posted new metropolitan area codes on the HM Rankings website, which link together Census Bureau FIPS codes for place, county, CBSA (Core Based Statistical Area), and CSA (Consolidated Statistical Area),  to the 2008 ABA Official Guide dataset.   These files are in both SPSS and STATA format.  They can be added to the base dataset using a simple join command.

For an overview of the CBSA and CSA coding system, which became the primary standard in 2003, see the documents posted at this link. 

Peer Review Moving Toward Law Review Model?

The new editor of Economic Inquiry just sent out a missive declaring:

More insidious, in my view, is the gradual morphing of the referees from evaluators to anonymous co-authors. Referees request increasingly extensive revisions. Usually these represent improvements, but the process takes a lot of time and effort, and the end result is often worse owing to its committee-design. Authors, knowing referees will make them rewrite the paper, are sometimes sloppy with the submission. This feedback loop - submitting a sloppy paper since referees will require rewriting combined with a need to fix all the sloppiness - has led to our current misery.  . . .

The system is broken.  Consequently, Economic Inquiry is starting an experiment. In this experiment, an author can submit under a 'no revisions' policy. This policy means exactly what it says: if you submit under no revisions, I (or the co-editor) will either accept or reject. What will not happen is a request for a revision.I will ask referees: 'is it better for Economic Inquiry to publish the paper as is, versus reject it, and why or why not?' This policy returns referees to their role of evaluator.

Illinois Traffic Stop Data

As part of an effort to investigate and eliminate racial profiling, Illinois police departments have been required since 2004 to collect and submit information to the state on all traffic stops. In 2006, the Illinois Department of Transportation received data from 974 law enforcement agencies on 2,515,518 traffic stops. (Thirty-six agencies failed to submit the required data, however.)

In addition to demographic information, the data also include the reason for the stop and the result, including whether the officer searched someone and whether the person consented to the search.

The one-page “Traffic Stop Data Sheet” completed by officers for each stop is here. Copies of the data for 2006 and previous years can be ordered from the Illinois Department of Transportation here.

A Couple More Interesting Papers Relating to the Supreme Court

Over on SCOTUSblog today, see here, I highlight a couple of papers that I enjoyed quite a bit, including one co-authored by our own Christopher Zorn.  The abstracts:

1. James L. Gibson & Gregory A. Caldeira, "Supreme Court Nominations, Legitimacy Theory, and the American Public: A Dynamic Test of the Theory of Positivity Bias."  SSRN Link

Social scientists have taught us a great deal about the legitimacy of the U.S. Supreme Court. Unfortunately, however, most research fails to consider how the public's views of political institutions like the Court change over time. But opinions can indeed change, with at least two types of “exogenous” sources - controversial Supreme Court decisions and politicized confirmation hearings - providing engines for attitude change. Events such as these may awaken attitudes from their hibernation, allowing for the possibility of updating. Two types of change seem possible: Attention to things judicial may be associated with exposure to highly legitimizing symbols of judicial power (e.g., robes), symbols that teach the lesson that the Court is different from ordinary political institutions and therefore is worthy of esteem. Gibson and Caldeira refer to this as “positivity bias.” Alternatively, events may teach that the Court is not different, that its role is largely “political,” and that the “myth of legality” really is a myth. Since so few studies have adopted a dynamic perspective on attitudes toward institutions, we know little about how these processes of attitude change take place.

Based on a three-wave national survey of ordinary Americans, we attempt to understand the influence of the Alito nomination/confirmation process on loyalty toward the Supreme Court. Our most important finding is that exposure to advertisements by interest groups for and against Alito's confirmation contributes to the erosion of support for the Court. These advertisements seem to encourage the belief that the Supreme Court is “just another political institution,” which, in the political climate in the country, is not an accolade. Politicized confirmation processes therefore seem to have considerable capacity to undermine the legitimacy of the Supreme Court itself.

2. Christopher Zorn & Jennifer Barnes Bowie, "An Empirical Analysis of Hierarchy Effects in Judicial Decision Making." SSRN Link

Students of judicial decision making have long speculated that the factors influencing judicial decision making operate to varying degrees at different levels of the judicial hierarchy. Prominent among these has been what we term the "Hierarchy Postulate": that the effect of judges' policy preferences on their decisions increases as one moves up the judicial hierarchy. Yet to date no study has examined whether the influence of policy preferences on judges' decisions varies across the full range of the federal courts. We analyze the factors that influence judicial decision making using a unique, original data resource on cases decided at each level of U.S. federal court hierarchy. Doing so allows us to evaluate the differential impact of policy preferences on judicial decision making while simultaneously holding constant the influence of idiosyncratic, case-specific factors on those decisions. Our findings robustly and consistently support the contention that ideological and policy-related effects on federal judges' decisions are larger at higher levels of the judicial hierarchy, while legal and case-specific factors dominate at lower levels.

US Courts of Appeals Database Update

Susan Haire (U of Georgia) and Ashlyn Kuersten (Western Michigan) have just released the update (1997-2002) to Don Songer's original US Courts of Appeals Databases (1925-1996).  Thanks to Kirk Randazzo (U of Kentucky), the database in SPSS, STATA and SAS formats can be downloaded through the Ulmer Project's website at:  http://www.as.uky.edu/polisci/ulmerproject/appctdata.htm

Also at the Ulmer Project's website can be found the updated version of the documentation, information on weighting cases by circuit and the most updated version of the Appeals Court Judgelist (which includes the most recent judge code information).

For information and coding procedures (including SPSS and SAS program codes) for merging the original databases and the updated version with both the Supreme Court Database and the Judicial Background Database, you can check out the website at Western Michigan University at:  http://www.wmich.edu/nsf-coa

Methodological Critique of OLS in Recent Abortion/Crime Papers

Although admittedly a bit technical, for an exceptionally important methodological critique of a series of recent papers exploring the relation between abortion and crime rates, see Numerical Analysis in Least Squares Regression With an Application to the Abortion-Crime Debate. In it, Bill Anderson (Cornell) and Marty Wells (Cornell) take up limitations with OLS that are especially salient to social science in general and empirical legal scholarship in particular.  From the abstract:

"The more ill-conditioned the data are, the more sensitive the computed solution is to perturbations in the data, and the more unstable the computed solutions are. Condition numbers can also be used to signal the presence of solution degrading collinearity in regression problems. We apply the various numerical analysis tools and model diagnostics to the abortion-crime debate, and show the regression analysis used in various papers addressing the abortion-crime debate can not be trusted."

An Empirical Portrait of the Modern Administrative State

Anne Joseph O'Connell (Boalt) has posted an excellent paper on SSRN titled Regulation Clock and Political Transitions: An Empirical  Portrait of the Modern Administrative State.  The Abstract:

Despite the administrative state's vast scope, we know frighteningly little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. It uses an immense new dataset I constructed from twenty years' (1983-2003) worth of federal agencies' semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions to examine variation in agency rulemaking activities. The Article focuses on rulemaking at the beginning and end of Presidential Administrations and around shifts in party control of Congress - midnight and crack-of-dawn regulatory activity - while also assessing some patterns outside those periods.

The empirical results offer rich new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each Presidential Administration. Cabinet departments (as a group), however, finished more actions after the 1994 election than in President Clinton's last quarter. Although the press highlighted President Clinton's spate of midnight regulations, President George H.W.
Bush began over one-third more rules in the final quarter of his term than did President Clinton or President Reagan.

The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice and comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, rulemaking without prior comment has increased across a wide range of agencies, a trend that may be strong enough to persist despite the Supreme Court's 2001 decision in United States v. Mead Corporation, which makes notice and comment rulemaking more attractive. Focusing on politics, these shifts in regulatory agendas during political transitions undermine theories of judicial deference based entirely on agency expertise. But they do not support a political accountability theory based solely on the President. Rather, the shifts call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.

The Law Firms Working Group

During the past several months I have been working behind the scenes to organize the Law Firms Working Group.  Today I am proud to announce our new website.

The Working Group is a collaborative research network of scholars who focus on law firms and the legal profession.  We currently have 38 members drawn from a wide array of universities and disciplines, including law, sociology, economics, business, and political science.  Our institutional sponsors are Indiana Law and the American Bar Foundation (ABF), which is the leading independent research institute for the empirical study of law and legal institutions.

One of the Working Group's most important assets is a special license with American Lawyer Media (ALM), which provides access to an enormous wealth of cross-sectional and longitudinal data.  This resource is now the basis for several specific projects by Working Group Members.

The Working Group's research model includes an ongoing dialogue between practicing lawyers and researchers.  The legal marketplace is changing rapidly, and practicing lawyers, students, and legal educators need accurate, realistic, and accessible research to help them adapt.   The Working Group will facilitate the exchange of ideas and perspectives among these different constituencies; these discussions will also inform the research process.  Our first lawyer-researcher forum is scheduled for October 12 in Chicago.

The Law Firms Working Group also has an excellent Resources page, which includes some fabulous research bibliographies and helpful law firm-related links.    Many thanks to my assistant, Erin Cowles, and the IU Law webmaster, Frank Burleigh, for helping me put together a very attractive and useful website.

Judges, Politics, and Sentencing

Criminal law and sentencing wonks will want to see Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, by Max Schanzenbach (Northwestern) and Emerson Tiller (Northwestern). The study matches offenders to the sentencing judge and controls for political party of the judge's appointing president and crime type. An excerpted abstract follows:

"We confirm the widely-held belief that political ideology matters in criminal sentencing – specifically, Republican-appointed judges give longer sentences than Democrat-appointees with regard to certain crimes. More interestingly, we find evidence consistent with positive political theory that such decision making is nested within the broader political-ideological relationship of the sentencing judge and the overseeing circuit court."

New ICPSR Data Releases

Just announced today, here.  Several interesting datasets, including:

• Network Analysis of Corporate Political Action, 1980 [United States]
• Uniform Crime Reporting Program Data [United States]: Arrests by Age, Sex, and Race, 2005
• Uniform Crime Reporting Program Data [United States]: Hate Crime Data, 2005
• Uniform Crime Reporting Program Data [United States]: Police Employee (LEOKA) Data, 2005
• Uniform Crime Reporting Program Data [United States]: Property Stolen and Recovered, 2005

What Insights can Complex Systems Provide to the Legal Literature

The Edelman/George paper on Sunstein as a legal Erdos, which Jason just blogged, uses social networking analysis.  This is part of a broader movement in the academy to analyze the structural complexity that underlies a wide array of social phenomena.   

One of our regular readers, Daniel Katz (a JD-MPP who is a PhD candidate in political science and public policy at Michigan) has a strong interest in this area.   Computational or Agent-Based Modeling potentially offers significant insight to the legal literature.  If you know of the existence of a forum or research group that links together scholars interested in strengthening the bridge between the complex systems and legal literatures, Daniel would love to hear from you.  If not, Daniel may be the natural person to start one.

What do Mathematician Paul Erdos and Legal Scholar Cass Sunstein have in common?

Paul Edelman, a professor of mathematics and law at Vanderbilt, and Vanderbilt law professor Tracey George have recently completed a working paper examining collaboration networks in legal scholarship.  They were inspired, in part, by Erdos numbers in mathematics:  Paul Erdos was a brilliant and influential mathematician who co-authored articles with a large number of scholars.   Mathematicians now talk about their degrees of separation from Erdos as a sign of their connection to the hub of mathematics.  The Edelman/George paper attempts to identify a legal Erdos as a way of examining collaboration networks in law.  They ultimately conclude that Cass Sunstein is the legal Erdos, and then identify the Sunstein 1s and 2s.  The paper is intended to be a fun yet informative study of collaboration in law, building on work that Vanderbilt Law Professor Chris Guthrie and Tracey George have done on that subject. 

 

Edelman and George have attempted to correctly name all of Sunstein's co-authors (1s) and those co-authors' co-authors (2s), but they may have missed some and/or misspelled/misidentified others.  Thus,  the paper is posted on SSRN with a note requesting corrections and additions (http://ssrn.com/abstract=1000689). 

The authors are curious to hear from people who are Sunstein 3s and 4s as they stopped short of collecting that information given the tremendous amount of resources required to do so.  Since many Sunstein 1s and 2s (and likely 3s and 4s) are ELS Blog readers, feel free to email the authors with any relevant information/corrections/additions.

The Abstract of the Paper is below the fold: 

Salaried Public Defenders Get Better Outcomes that Court-Appointed Lawyers

The New York Times reports on a very important study by Radha Iyengar, a postdoctoral fellow at the  Institute for Quantitative Social Science at Harvard.  In an nutshell, Iyengar's study, "An Analysis of the Performance of Federal Indigent Defense Counsel," finds that federal public defenders get better outcomes than (more expensive) court-appointed lawyers.  The reasons are quite interesting and potentially far-reaching.  Make sure you read the last line of the following abstract:

The right to an equal and fair trial regardless of wealth is a hallmark of American jurisprudence. To ensure this right, the government pays attorneys to represent financially needy clients. In the U.S. federal court system, indigent defendants are represented by either public defenders who are salaried employees of the court or private attorneys, known as Criminal Justice Act (CJA) attorneys, who are compensated on an hourly basis. This study measures differences in performance of these types of attorneys and explores some potential causes for these differences. Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act.

I am not a criminal procedure scholar, so I cannot comment on whether a civil rights class action would get very far.  But the underlying empirics are pretty damming.

The Bloomington Legal Scholarship Team

Someday we hope that the ADM2H relational database will open the door to some pathbreaking work on legal bibliometrics and the social processes that comprise the legal academy.   If this comes to pass, these are the folks who spent the summer of 2007 in Bloomington, Indiana making it possible.   

Front row from left:  Caitlin Watt, Jeong Lee, Bill Henderson (co-PI)
Middle row:  Amy Price, Amy Ihnen, Vaughn Ganiyu
Back row:  Ken Dau-Schmidt (co-PI), Daniel Pierz, Kabara Korth, Peter Hook (co-PI)

We are in front of the Beck House, where we are using the office space of the Indiana Journal of Global Legal Studies.  Not pictured are Funmi Arewa (co-PI, Northwestern Law), Andrew Morriss (co-PI, Illinois Law), and Mark Newton (our database expert)

Statistics and Splitting the Ninth Circuit

A friend of mine, Brian Fitzpatrick of Vanderbilt Law School, published an op-ed in the LA Times yesterday regarding whether a split of the Ninth Circuit would result in fewer "extreme" opinions.  He assumes that there are six "extreme" judges in the Ninth Circuit, and that a split will result in three "extreme" judges in each circuit.  Over at SCOTUSblog, we point out a number of problems with Brian's assumptions and calculations, see here.  Over at Volokh, Frank Cross weighs in on the issue here.

The Supreme Court's Deference Continuum, An Empirical Analysis

Eskridge and Baer have written The Supreme Court's Deference Continuum, An Empirical Analysis  (Chevron to Hamdan), forthcoming in the Georgetown Law Journal.  The Abstract is below the fold.

Law School Data in SPSS and STATA Format Ready for Download

Now that my position on rankings scholarship is part of the public record,  I am pleased to announce a simple website where Andrew Morriss (Illinois Law) and I have posted for download:

• 2008 ABA Official Guide dataset in both SPSS and STATA format
• Variable key
• Rudimentary codebook
• Documentation log
• An excerpt from the Official Guide with helpful explanatory text for some of the variables

We are posting this data because we feel that comparative analysis of legal education and law schools needs to be (a) transparent, and (b) subject to replication by responsible researchers.   This is our contribution to that goal. 

For our broader views in this area, see our op-ed in the June 2007 issue of The American Lawyer and our rankings articles on SSRN.

In Defense of "Rankings Scholarship"

A few years ago, I had a long conversation with the one of the legal academy’s most successful scholars. During this exchange, he/she opined that the study of rankings was a mere pastime for legal academics--albeit a pastime he/she quite enjoyed--rather than a topic that warranted the sustained attention of serious scholars.   Since I was writing my contribution to the “Next Generation of Law School Ranking” at the time, I remember thinking to myself how strange it was that a rigorous analysis of the “800-pound gorilla” of legal education, chocked full of practical policy suggestions, was ipso facto less weighty than an article read by a handful of specialists. 

Although I agree that my colleague accurately conveyed the prevailing wisdom, I have gradually concluded that the low-brow status of rankings research has more to do with the norms of the academy than the larger enterprise of knowledge creation.  Moreover, an ostrich-like approach to our changing times has huge risks that are irresponsible to ignore.  For these reasons, I am now willing to openly defend the value and significance of  so-called “rankings scholarship.”

The study of rankings is primarily the study of markets within a multi-billion dollar legal education and legal services industry. Rankings scholarship owes its existence to the rapid proliferation of information, made available by U.S. News and other sources, to evaluate the relative benefits of a 3-year, $100,000+ investment. This development has gradually eroded away the cartel-like control over legal education enjoyed by several organizations that historically have been very friendly to—or in some cases, staffed by—legal educators.   

This transition period is loaded with incentives to slant law school information.  It is also fraught with uncertainty and the potential for sub-optimal equilbria that inflate costs, mislead students, and invite radical change in how law schools are accredited.

Although internal labor markets have operated for decades within the legal academy, the advent of rankings has given rise to a strong external market for law students. The internal labor market for law professors is based on scholarly productivity, but the external market for students is based on future employment prospects and value-added by individual law schools. Success in these markets require two very different institutional strategies, and only a handful of schools—already at the top of the food chain—have the resources to play them both.

Yet, law schools are run primarily by tenured faculty.  This is a group with little practice or expertise in making hard choices that will be judged by market market forces.   And rather than thinking through difficult institutional issues, many legal academics have a strong incentive to just focus on their scholarship in the hopes of landing a lateral offer at a place with more resources and thus fewer problems--i.e., in the language of L&E, there is a collective action problem.

To this group, yes, rankings scholarship can be dismissed as a pastime. But even if positional competition works well for many law professors in the short run, there are serious structural limits to how long the current system can continue. For those interested in an orderly transition to a new legal education marketplace that serves the interests of students, practicing lawyers, and society, the serious study of rankings-cum-markets is an absolute necessity.

HLS Jumps Into The Faculty-Edited Peer-Reviewed Law Journal Pool

While ELS Blog posts debate the comparative merits of faculty- and student-edited law journals, the legal scholarship market continues to move. Perhaps sensing a trend that they wanted to become a part of (or one that they could no longer safely ignore), the Harvard Law School faculty, led by Mark Ramseyer and Steven Shavell, announced the creation (in 2008) of the Journal of Legal Analysis. According to Ramseyer, the Journal will cover "the broader field of law." Ramseyer also notes that “having articles edited by peers is helpful because it draws  on the judgment of scholars in the field.” This is especially so "due to the interdisciplinary nature of the articles that will be published." (The HLS press release is here; Brian Leiter's observations are here; Gordon Smith's here; Larry Solum's here.)

Economics is "often a triumph of theory over fact"

So says Alan Blinder, professor of economics at Princeton and former vice-chairman of the Federal Reserve Board, in this article from today's New York Times.  Here is an excerpt.

“There is much too much ideology [among professional economists],” said Alan S. Blinder ... .  Mr. Blinder helped kindle the discussion by publicly warning in speeches and articles this year that as many as 30 million to 40 million Americans could lose their jobs to lower-paid workers abroad. Just by raising doubts about the unmitigated benefits of free trade, he made headlines and had colleagues rubbing their eyes in astonishment.

“What I’ve learned is anyone who says anything even obliquely that sounds hostile to free trade is treated as an apostate,” Mr. Blinder said.

And free trade is not the only sacred subject, Mr. Blinder and other like-minded economists say. Most efforts to intervene in the markets — like setting a minimum wage, instituting industrial policy or regulating prices — are viewed askance by mainstream economists, as are analyses that do not rely on mathematical modeling.

That attitude, the critics argue, has seriously harmed the discipline, suppressing original, creative thinking and distorting policy debates. “You lose your ticket as a certified economist if you don’t say any kind of price regulation is bad and free trade is good,” said David Card, an economist at the University of California, Berkeley, who has done groundbreaking research on the effect of the minimum wage.

Obviously, we here at the ELS Blog are supportive of any efforts to use empirical research to check our fundamental assumptions.  Because of the huge influence of economics on public policy, this internal debate is a very healthy development for all of us.

New SSRN Journals

I would just like to repeat Frank Cross's post of about a month ago, see here, alerting our readership to two new SSRN journals that have a substantial empirical focus, one of which is edited by our own Frank Cross (Law and Courts).  The other, Law and Politics, released an issue today.  You can sign up for one or both of these journals through the "subscriptions" option of your "SSRN User Headquarters."  They are listed among the SSRN legal subject matter journals.  The descriptions of the journals follow:

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.

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.

What Are You? & The "Zoology" of Legal Academia

As Matt Bodie notes over at PrawfsBlawg, a fascinating debate is percolating about whether it's better to be a "fox" or a "hedgehog" when it comes to legal academia and one's legal scholarly career. Easily the best one of this series is Larry Solum's (Illinois) post on an issue that straddles a growing number of blogs.  Well worth a read.

Tort Reform & Private Health Care Costs

Ronen Avraham (Northwestern) and Max Schanzenbach (Northwestern) recently circulated a paper that will interest tort and health law scholars. In Impact of Tort Reform on Private Health Insurance Coverage, the authors use changes in private health care coverage as a proxy for the effect of the tort reform on health care costs. The authors draw on private health insurance coverage because reliable and stable measures of health care costs are not readily available over time and across states. A summary of the paper's findings, drawn from the abstract, follows.

"In triple-difference specifications, we find that reform generally increased health insurance coverage for the most price-sensitive groups (the young, the self-employed, and the single). We also find that those uninsured around the time of reform were more likely to obtain private insurance after reform. Given the multicollinearity of many reforms, it is difficult to gauge the impact of individual reforms. However, the evidence suggests that limitations on punitive and non-economic damages do not affect private insurance coverage, while caps on total damages, collateral source reform, and reforms to liability and payment structure are associated with increased private insurance coverage for price-sensitive groups. Accordingly, we conclude that some tort reforms are effective in reducing healthcare costs. The magnitude of the effects on price sensitive groups suggests that some tort reforms can reduce health care costs by as much as two percent."

New ICPSR Data Releases

Just posted today, here.

Violent Crime: It's the Lead?

In an article questioning how much credit Rudolph Giuliani deserves for reducing crime in New York City, today's Washington Post discusses the research of economist Rick Nevin. Nevin argues that variations in violent crime are significantly related to childhood exposure to lead. He has studied crime rates and lead exposure in nine countries and concluded that "[s]ixty-five to ninety percent or more of the substantial variation in violent crime in all these countries was explained by lead."

The Post article is here. A more detailed discussion of Nevin's research is here.

SCOTUSblog Statpack

On the very day that the Supreme Court released its final opinions of the term, the folks at SCOTUSblog made available their statpack   Available for downloading in its entirety or in parts, the statpack includes:
1. End of Term Summary Memo, principally by Ben Winograd
2. Justice Agreement – All cases
3. Justice Agreement – Non-unanimous cases
4. Visual Representation of 5-4 decisions, principally by Ben Winograd
5. Opinion Tally, principally by Adam Chandler
6. Circuit Scorecard
7. Decisions by Final Vote
8. The Court’s Workload
9. Opinion Authors by Sitting
10. State of the Docket for OT07
Thanks very much to SCOTUSblog for providing this resource.

Empirical Work in the Tax and Administrative Law Fields

With many of us having a keen interest in law and courts or law and politics, I thought I would post a couple of papers from one of my esteemed colleagues, Kristin Hickman, who is doing some nice empirical work in other areas of law: the tax and administrative law fields. The abstracts of the articles follow:

1. Kristin Hickman, Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance With Administrative Procedure Act Rulemaking Requirements, 82 Notre Dame Law Review ___ (2007), click here for SSRN link.

The Treasury Department and the Internal Revenue Service have a strange relationship with Administrative Procedure Act notice-and-comment rulemaking procedures. Treasury acknowledges the general applicability of APA procedural requirements when it promulgates regulations interpreting the Internal Revenue Code. Treasury also maintains that most Treasury regulations are exempt from the APA's public notice and comment requirements. Nevertheless, Treasury purports to utilize those same procedures anyway in promulgating most Treasury regulations.

This Article documents a study of 232 separate Treasury regulation projects for which Treasury published Treasury Decisions and notices of proposed rulemaking in the Federal Register between January 1, 2003, and December 31, 2005. In connection with this study, this Article compares Treasury's actual practices and exemption claims with current doctrinal trends in courts evaluating compliance with APA requirements across administrative agencies.

The Article documents the study's finding that, in 40.9% of the projects studied, Treasury failed to follow APA notice and comment requirements. The Article also concludes that, as interpreted by the courts, established exceptions from those requirements generally do not apply to excuse this noncompliance. Consequently, among other implications, many Treasury regulations, including some of Treasury's most complex and controversial rulemaking efforts, are susceptible to legal challenge for failure to adhere to APA rulemaking requirements.

2. Kristin Hickman & Matt Krueger, In Search of the Modern Skidmore Standard, 108 Columbia Law Review ____ (forthcoming 2007), click here for SSRN link.

This Article offers a comprehensive examination of the Skidmore standard for judicial review of agency legal interpretations as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. First, the Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. In the study, we evaluate two competing conceptions of Skidmore review - the independent judgment model and the theoretically more deferential sliding-scale model - and conclude that the appellate courts overwhelmingly follow the sliding scale approach. Also, contrary to two other, significantly more limited studies, we document that Skidmore review is highly deferential to agency interpretations of law, with agency interpretations prevailing in more than 60% of Skidmore applications. Drawing from the Skidmore applications studied, we then analyze more qualitatively how the appellate courts apply the Skidmore review standard as a sliding scale and identify where those courts are struggling to make sense of Skidmore's dictates within that model. To resolve the lower courts' difficulties, we propose reconceptualizing Skidmore's sliding scale as balancing comparative agency expertise against the potential for agency arbitrariness. Finally, we note several burgeoning issues concerning the scope of Skidmore's applicability and offer preliminary thoughts for addressing those questions.

ABA Moves to Tighten Bar Standards: What it Means

Leigh Jones of the National Law Journal has a story on a proposed ABA bar passage requirement that would set brightline benchmarks as a condition of accreditation.  According to a recent ABA News Release, an ABA-accredited law school would have to satisfy at least one of two criteria:

1. "Under the first option, a school would have to show that in three or more of the most recent five years, in the jurisdiction in which the largest proportion of the school’s graduates take the bar exam for the first time, they pass the exam above, at or no more than 10 points below the first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the primary one, the schools also would be required to demonstrate that at least 70 percent of those students passed their bar examination over the two most recent bar exams."                                                                                  
2. "Schools unable to satisfy the first alternative still could comply by demonstrating that 80 percent of all their graduates who take a bar examination anywhere in the country pass a bar examination within three sittings of the exam within three years of graduation."

There are a lot of potential problems here.  Foremost is the huge variation in bar passage standards from state to state.  In every jurisdiction, the  ostensible purpose of the bar exam is to screen for "minimal competency" in legal knowledge.  But the wide range in MBE cut scores and "equating" practices (which convert essay and MPT scores to the same scale and distribution as the MBE) has been aptly described by Gary Rosin (South Texas Law) as "federalism run amok."  See Unpacking the Bar: Of Cut Scores, Competence and Crucibles (May 2007).

Second, the testing taking population varies enormously from state to state.  See Morriss & Henderson, Measuring Outcomes  (2007).  Because of the explosive growth in the corporate law sector, large number of top law students from across the country take the New York, Virginia, and California bar exams.  Further, this trend will only become more pronounced in the coming years.  This means that lower-ranked schools in these jurisdictions (or bordering states, who will likely be affected by the 20% graduates/70% passage rule) will be tilting into ever-greater headwinds.

The Polls - Presidential Favorites

The Rasmussen Reports recently asked Americans whether they have favorable or unfavorable views of every president from George Washington to The Decider. Naturally, Washington and Lincoln are the tops. Nixon and Bush are, well, not. The winner of the "not sure" category, with 74% not sure, is the guy in the picture. (Rhymes with Tohn Jyler.)

The full results are here and here. (There is clearly an error with the results for McKinley.)

UPDATE: The McKinley error has been corrected. He received a response of "very unfavorable" from 4% of respondents, not 40%.

H/T The Washington Monthly

JELS 4:2 (July 2007)

Once again, on behalf of the editors, I am pleased to announce that the latest issue of the Journal of Empirical Legal Studies (4:2) is available (here for e-subscribers) and, once again, on time. Hard copies for JELS subscribers and libraries are "in transit." The topicality of published papers in 4:2 ranges from an evaluation of Project Safe Neighborhoods in Chicago (abstract here) to estimates of jury false convictions (abstract here).

New Data Releases at ICPSR

The Inter-University Consortium for Political and Social Research (ICPSR) has posted some new data releases here.  Based on the titles, some interesting looking datasets include: "United States Entrepreneurial Assessment, 2004"; "Annual Survey of Jails: Jurisdictional-Level Data, 2004"; "Measuring Police-Community Interaction Variables in Indianapolis, 1999-2000"; and "Police-Public Contact Survey, 2005."

ICPSR has very strong documentation standards.  It would be terrific if this norm took hold in the ELS community.