Empirical Legal Studies

Barnett on Heller & Method

Randy Barnett argued in Friday's Wall Street Journal* that District of Columbia v. Heller teaches the importance of interpretive philosophy or method in judicial decision-making and the importance of selecting judges who have the right interpretive philosophy. Barnett said:

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. . . . So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

(emphasis added)

The problem is that Heller can just as easily be used for the opposite teaching, that interpretive philosophy doesn't matter. As Barnett is arguing that method matters, Segal and Spaeth are surely still arguing that it doesn'™t. In Heller the five justices generally thought to have policy views somewhere to the right of center voted to strike down a highly restrictive ban on handguns. The four justices generally thought to have policy views somewhere to the left of center voted to uphold it. In other words, all the justices (maybe) just voted their policy preferences.

Based on a broader evaluation of his public statements and judicial decisons, Professor Barnett offers support for the view that method doesn't really matter to Scalia:

I would conclude from his Taft Lecture and his behavior on the Court that Justice Scalia is simply not an originalist. Whatever virtues he attributes to originalism, he leaves himself not one but three different routes by which to escape adhering to the original meaning of the text. These are more than enough to allow him, or any judge, to reach any result he wishes. Where originalism gives him the results he wants, he can embrace originalism. Where it does not, he can embrace precedent that will. Where friendly precedent is unavailing, he can assert the nonjusticiability of clauses that yield results to which he is opposed. And where all else fails, he can simply punt, perhaps citing the history of traditionally-accepted practices of which he approves.

Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted"€ Originalism, 75 U. Cin. L. Rev. 7, 13-14 (2006).

One case doesn't tell us whether the justices generally vote against their policy preferences when their interpretive methods dictate contrary outcomes, but if we were to select one case as an example that method matters, Heller is not the one.

*If the link to the Wall Street Journal's website ceases to work, Professor Barnett's piece is reprinted on Cato's website.

Network Analysis of Law Clerks and Judges

Over the next couple of weeks I plan to blog about some new research, with a particular focus on unusual techniques or interesting research questions.  Several of the research projects I will discuss came to my attention through the Law and Society Conference in Montreal at the end of May.

One interesting presentation was a paper entitled Hustle and Flow: A Social Network Analysis of the American Federal Judiciary by Daniel M. Katz and Derek K. Stafford, both political science graduate students at the University of Michigan.   Katz and Stafford are interested in the social structure of the judiciary and, more controversially, whether that structure has an effect on doctrine or case outcomes.  Different from the prevailing models of judicial behavior (attituindalism, legalism, or the strategic model), their hypothesis is that judges -- at least sometimes -- are influenced by "peer effects," not just by their own political views or by legal sources.  (Such social pressures could be a partial explanation for the panel and circuit effects documented on appellate courts.  See, for example, Kastellec, Jonathan P., "Panel Composition and Voting on the U.S. Courts of Appeals Over Time" (May 14, 2008). Available at SSRN: http://ssrn.com/abstract=1012111) and Kim, Pauline T., "Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects" (March 31, 2008). Available at SSRN: http://ssrn.com/abstract=1115357 ).

In order to study these social or peer effects, they must find a way to describe the social networks of the judiciary.  As an initial attempt to do so, Katz and Stafford employ new network analysis techniques to measure the paths that law clerks take between judges.  In other words, they chart the likelihood that a law clerk for, say, Judge Kozinski, will later clerk for Justice Kennedy, or that a law clerk for a particular district court judge will go on to clerk for a particular appellate court judge.  Their study "visualizes law clerk traffic" during the last Rehnquist natural court and produces some interesting representations of the relationships between judges.  (They identified about 900 clerks who moved from one judge to another during this period.)

The graphic depiction of these law clerk moves is one of the more interesting aspects of the study.  In one depiction, Supreme Court justices are, not surprisingly, clustered in the middle, but -- more surprisingly -- district court judges are "suffused throughout the network," not relegated to the periphery.  This is one representation, Katz and Stafford suggest, of the fact that judges with equivalent institutional authority in fact have different levels of influence.  Below is one such figure from the paper -- the Kamada Kawai Energized Network.  (Yellow nodes are Supreme Court justices; green are appellate court; and blue are district court judges.)

 

 

It will be interesting to hear more from these authors as they apply their methods to other aspects of the judiciary.

Empirical Literature on Punitive Damages Cited in the Exxon Case

Today’s Supreme Court decision in the Exxon case relies heavily upon the empirical literature to punitive damages to evaluate the availability and scope of punitive damage awards under maritime law.  See footnote 13 (citing several studies shows that punitive damages were on the rise between the 1960s and 1990s but acknowledging more recent research, including Eisenberg, Heise, et al., Juries, Judges, and Punitive Damages: Empirical Analyses Using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data, 3 J. OF EMPIRICAL LEGAL STUDIES 263, 278 (2006), which document flat or decreasing punitive damage awards).

After a review of the empirical literature of punitive damages, including the relationship between punitive and compensatory awards, the Court concluded that the real issue it confronted was the "stark unpredictability of punitive awards."  The Court continues, "We are aware of no scholarly work pointing to consistency across punitive awards in cases involving similar claims and circumstances."   There are, however, studies based upon mock juries; the Court dismissed them because they were funded in part by Exxon.  See footnote 17. 

Over at the Election Law Blog, Rick Hasen questions the wisdom of this approach.

[I am familiar with many of the authors and studies cited in footnote 17and it] is really top notch work. So I find this footnote troubling. There will be cases (including election law cases) in which there are no extant studies on an empirical question at the heart of a case. At that point, it makes sense for litigants to fund such research. Indeed, when such research appears in an expert report subject to cross-examination, I assume the Court has no problem relying upon the evidence. So why should it be different when a litigant funds the research, particularly if the research has gone through peer review and of course if the funding source is disclosed so that the opposing side may probe for bias?

Good question.

Poster Presentation at 2009 AALS Annual Meeting

June 24, 2008

MEMORANDUM

To: Law Teachers

From: Jane M. La Barbera

Re: Poster Presentation at 2009 AALS Annual Meeting

You are invited to submit a proposal of a poster presentation for the 2009 AALS Annual Meeting in San Diego, California (January 6-10, 2009).

Please send your proposal by e-mail to [email protected] by September 30, 2008. The poster should state your name, the name of your law school, the Section for which you are submitting, a title of the poster, a description of what you will be presenting and an actual copy of the poster itself. Your proposal will be sent to the Section Chair and Chair-elect and they will review and select the posters that will be presented as the Section's posters at the 2009 AALS Annual Meeting. This is an opportunity to share your work with the larger academic community. If your Section is not sponsoring posters, you may still submit a poster proposal; the AALS Committee on Sections and Annual Meeting will review it.

The following AALS Sections are seeking proposals from individuals for poster presentations for the 2009 Annual Meeting:

• Clinical Legal Education

•  Education Law

• Evidence

• Legal Writing, Reasoning and Research

• Insurance Law

• International Law

• International Human Rights

• Law & the Social Sciences

• Professional Responsibility

•  Sexual Orientation and Gender Identity Issues

NWU Law's 2-Year JD: An Analysis

The blogosphere is abuzz with the announcement of NWU's 2-Year JD (Paul Caron collects relevant links here; the W$J Law Blog also has a post; and Gordon Smith (BYU Law, Conglomerate) just endorsed the move).  There is a lot of reaction to the program, especially in the comments at Above the Law, but not much analysis.  So I thought I would fill the void.  Moreover, this bold movement by NWU Law illustrates the power of empirical methods for institution building, so it falls nicely within the scope of the ELS Blog.

Is the 2-Year JD a good idea? 

It is easy for me (or anyone) to snap off an opinion on this topic, but the question itself is incomplete.  The relevant question is whether the 2-Year JD makes NWU Law better off as an institution, particularly through gains in its relevant labor markets--i.e. recruitment and placement. What is the likelihood that the school is making a foolish, ill-informed decision?  As a long time observer of law school market trends, I would discourage readers from underestimating NWU Law.

Consider this background information.  A few years ago, Andy Morriss and I wrote an empirical study on the market for high LSAT students.  See Student Quality as Measured by LSAT Scores, 81 Ind. L. J. 163 (2006).   Our primary dependent variable was change in median LSAT score between 1993 and 2004.  We were looking for factors that influenced this key US News rankings variable.  During this twelve year period, Northwestern Law had the largest gain of any school in the sample (164 to 169).   

Based on other information we had regarding Northwestern, this gain seemed like a paradox.  During this same period, NWU Law implemented a policy that strongly encourages interviews and gave extra weight for work experience.   Aggressively pursuing these goals seemed like it would undercut the objective of higher LSAT scores.   So how did Northwestern get a larger gain than 190 other schools?   We asked this question to several people at NWU Law.

It turns out that human nature was working in its favor.  Although the interview process is ostensibly about learning more about the students, the applicants themselves can learn quite a bit about NWU Law--e.g., its business curriculum, placement record, alumni network--which can (and probably did) alter preferences in favor of the school.  Further, because some of the interviews were in person, prospective students got tours of NWU facilities, which are on Lake Michigan, very modern, and in a swanky, attractive location in downtown Chicago.  So the school's yield among business-minded law school applicants with work experience started to go up.  This self-selection process then gained more momentum and fundamentally changed the profile of the student body, including higher LSAT scores. 

During this time period, all other law schools--most moving to a "pure numbers" approach--had smaller gains (or losses) on LSAT scores.  Moreover, Northwestern was simultaneously developing a truly distinctive profile that could be showcased to employers.   Folks, this is true Moneyball/Moneylaw.

More after the jump.

JELS 5:2 (June 2008)

On behalf of the editors I am pleased to announce that Journal of Empirical Legal Studies (JELS) subscribers (individual or institutional) should have received (or will soon receive) Vol.5, No.2 (June 2008).  This issue features an array of papers ranging from Kuo-Chang Huang's study of the relation between legal representation and case outcomes in Taiwan to Tom Miles' very clever analysis of the FBI's "Ten Most Wanted" list.

ABA's Litigation Research Fund -- RFP

Bruce Green (Fordham) asked that I pass along the following information on a source of funding for relevant research.  Note that the description evidences a preference for empirical projects.

"The ABA Section of Litigation invites applications to The Litigation Research Fund which makes individual awards of between $5,000 and $20,000 to support original and practical scholarly work that significantly advances the understanding of civil litigation in the United States.  The Fund was established in 2007 to support research and writing projects relevant to litigation policy and practice, with preference given to works with an empirical foundation. The first round of funding in early 2008 resulted in seven grants totaling approximately $70,000.  Priority will be given to applications received by August 31, 2008."

For additional information, contact: Professor Bruce Green, [email protected].

What Not To Do, Part II: Stars...

Natural and social scientists have long had a practice of using asterisks ("stars") to indicate statistical significance in tables.  I'll leave aside (for now) the question of whether this is a good practice or a bad one (and, for that matter, whether we ought to be doing statistical significance testing at all), and instead focus on the (mis)use of "stars."

Here's another example from a recent, well-respected law review.  If we focus on the use of "stars," the table illustrates three potential issues:

(1) First, there are simply too many levels of them.  Having separate numbers of asterisks for P < 0.2, 0.1, 0.05, and 0.01 is overkill.  One or -- at most -- two asterisks is always enough; convention says to indicate P < .05 and/or .01, and stop.

(2) Second, there is no indication of the "tailedness" of the significance tests.  This is important, if for no other reason than that it goes directly to how many stars appear next to each estimate.

(3) Finally, there's the issue of "stars" next to estimates for the constant term.  Scholars routinely and unthinkingly include them (and, for that matter, P-values) in their tables even when they have no hypothesis about (or even any interest in) that term.  Here, for example, the star on the constant in Model Two indicates that we can reject the hypothesis that the constant term is zero (i.e., that the probability of a lawsuit is 0.5 when all the other covariates are equal to zero) at P < 0.2.  One's initial impulse to say "who cares?" is bolstered by the fact that such a condition implies that the hypothetical IPO amount was $0, which (I'd wager) is not an in-sample value.

I don't want to come across as completely negative. The authors managed to avoid a few other common mistakes when using "stars," including placing them next to the standard errors / t-statistics (rather than the parameters) or using a gaggle of arcane symbols (daggers, double-daggers, etc.) in place of asterisks. And, in general, this is a pretty good table; while the variable names are a bit cryptic, having variable descriptions in the table notes helps. I'll talk more about table-related matters in my next post.

New York Police Department (NYPD) Stop, Question, and Frisk Database, 2006

ICPSR's recent data releases are online here.  Here is the summary of the New York Police Department (NYPD) Stop, Question, and Frisk Database, 2006, which looked interesting:

These data were originally collected by New York Police Department officers and record information gathered as a result of stop question and frisk (SQF) encounters during 2006. These data were used in a study carried out, under contract to the New York City Police Foundation, by the Rand Corporation's Center on Quality Policing. The release of the study, "Analysis of Racial Disparities in the New York Police Department's Stop, Question, and Frisk Practices" (Rand Document TR-534-NYCPF, 2007) generated interest in making the data available for secondary analysis. This data collection contains information on the officer's reasons for initiating a stop, whether the stop led to a summons or arrest, demographic information for the person stopped, and the suspected criminal behavior.

The Geography of Stock Prices

There is an interesting story in the Sunday New York Times about a recent study by George Korniotis (Fed Bd of Governors) and Alok Kumar (Texas Business), entitled "Long Georgia, Short Colorado: The Geography of Return Predictability" (on SSRN here). 

In a nutshell, the article documents that individual investors are overinvested in businesses that are located closer to them. Thus, when state or regional economic conditions deteriorate relative to the country as a whole, the sale of stocks--to maintain one's standard of living--has a predictable, disproportionate effect on the stock prices of companies headquartered nearby. There is also some interesting methodology in this paper, at least for those of us interested in testing the effects of geography on business or law.  Here is article abstract:

This paper shows that returns of U.S. state portfolios are predictable. In the presence of local bias and incomplete risk sharing, consumption smoothing motives of local investors generate predictable patterns in the returns of local stocks. Specifically, local investors require higher average future returns to hold risky local stocks when local economic conditions worsen and they face stronger borrowing constraints. The state portfolio returns are predictable both in the short-run (one quarter ahead) and the long-run (up to 24 quarters ahead). The predictability is stronger among less visible firms and in regions where investors exhibit stronger local bias and hold more concentrated portfolios. Trading strategies that exploit the state-level predictability earn annual risk adjusted returns of around 6-8%. Overall, these results indicate that the stock return generating process contains a predictable local component.

Help wanted: Executive Director for the Georgetown Center for the Study of the Legal Profession

Here is a terrific opportunity for a lawyer interested in advancing the study of the legal profession.

Executive Director
Center for the Study of the Legal Profession
Georgetown University Law Center  

     The Center for the Study of the Legal Profession at Georgetown University Law Center is seeking an Executive Director who will work closely with faculty Co-Directors of the Center on a variety of projects furthering the mission of the Center. That mission is to promote scholarship on the profession that is informed by awareness of the dynamics of modern law practice; to furnish practitioners with broad perspectives on developments in the profession, as well as research from a variety of fields that is relevant to law practice; and to provide students with a sophisticated understanding of the opportunities and challenges of a career in practice. The Center expects its projects increasingly to explore the impact of globalization on the legal profession.

     In collaboration with the Center’s Co-Directors, the Executive Director will design, select, and coordinate research projects on the profession for which the Center provides financial support; plan symposia on research, trends, and developments relating to the profession; devise programs to provide practitioners with the results of research on the profession; arrange for programs, workshops, and speakers on the profession for both faculty and students; work with and advise Law Center faculty and relevant administrators on how to incorporate scholarship and different perspectives on the profession into the curriculum; ensure that the Center’s financial contributions to projects match its available resources; and, as appropriate, explore sources of funding for the Center. Projects may be at the Center’s own initiative or in response to an interest in collaboration that has been expressed by persons or organizations outside the Center.

      The position requires a law degree, or advanced degree and experience with research on the legal profession, and at least four years of experience in a law school, legal practice, or organization engaged in research on the legal profession. The Executive Director will need to be able to manage several projects simultaneously, and to interact regularly with practitioners, scholars, and other members of the academic community. Competitive compensation package. Application process will be expedited (ideal start time - mid to late August).

     Please address electronic submissions of resumes and letters of interest to: Mitt Regan, Professor of Law, Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, DC, 20001, [email protected]. Georgetown University is an Equal Opportunity Employer.

Empirics, Gender & ACL Injuries

Prompted by a relatively recent NYT Sunday Magazine cover story, Paul Cassell (Utah) ignited an interesting thread (and comments) over at the Volokh Conspiracy.  Presumably, a careful longitudinal study is surely underway, though the research design is tricky.

Trends Affecting Solo and Small Firm Lawyers

This past weekend, I attended the ISBA Solo & Small Firm Conference in Fort Wayne, Indiana (see related post at Legal Professions blog).  I was asked to moderate the panel on the "Future of the Solo & Small Firm Practice."  To prepare, I pulled together some interesting trend data.   

Drawing upon the insights of Marc Galanter's seminal article, "The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts," 1 J. Empirical Leg. Studies 459 (2004), I obtained comparable data for Indiana.  Here is what I found, with annotations and comments under each slide:

Since the mid-1970s, the percentage of civil matters resolved through a bench trial has dwindled by a factor of five.

Less than 3 in 1000 civil matters in Indiana state court are resolved through a jury trial.  Back in the mid-1970s, 14 in 1000 ended this way.   Obviously, this has an impact on the skill set of lawyers and, in turn, their ability to credibly bargain within a shadow of a jury trial. 

Alternatively, maybe clients are better served through ADR.  Consider these figures, which are based on federal employment law cases in arbitration versus federal court.

More over the jump.

Northwestern & Wash. U.'s Conducting Empirical Legal Scholarship Workshop

Information on the workshop, organized by Lee Epstein (Northwestern) and Andrew Martin (Wash U) and scheduled for June 23-25 in Chicago, is found here.  A summary follows.

"The Conducting Empirical Legal Scholarship workshop is for law school faculty interested in learning about empirical research. Leading empirical scholars Lee Epstein and Andrew Martin will teach the workshop, which provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop."

What Not To Do, Part I: Naming Variables

Summer has arrived, finals are graded, and ELSers' thoughts inevitably turn to research and writing.  With that in mind, I'm beginning a semi-regular series of posts titled "What Not To Do."  The goal is to point out some common mistakes people make in presenting empirical/statistical analyses, and to suggest some better practices.

The first subject is naming variables, and has two parts.  The first has to do with giving names to variables.  While many variables "natural" names reflect their "natural" coding (think about a variable called age, for example), most (e.g., gender, or race, or partyid) do not.  This occasionally leaves researchers in a bad spot; returning to some analyses done weeks or months before, one might wonder "Does gender=1 mean males or females?"  A better practice is to choose variable names that indicate directionality whenever possible: female instead of gender, white instead of race, GOP instead of partyid, and so forth.  (Of course, assigning variable and value labels will solve this problem, and is also good practice...)

Second, there is an unfortunate tendency to use variable names (of the sort used to identify variables in databases) in tables, figures, text, and the like.  An anonymized example (culled from a relatively recent issue of a good law review) is here:

  The variable names here are, shall we say, a bit opaque; moreover, they were clearly culled directly from the software output ("SubEqInv"? "LoneClub"?).  The result is a table that violates Rule #1 of Tables and Figures: They should "stand on their own."

A better practice is to use variable descriptions, rather than statistical-software variable names, in tables and figures; an example of such a better use (also from a recent issue of a well-regarded law journal) is here:

Here, the names are full descriptions of the variables, and the result is a much clearer picture of what's going on in the analysis.

I'll talk more about tables of results in Part II.

Transfer Students, Part-time Programs, and US News Rankings: A Response to Ribstein

Larry Ribstein and I are having an exchange on the facts and significance of law school transfer policies.  Following up on my prior post, Larry takes me on over at Ideoblog.  Note that Brian Leiter got the ball rolling yesterday with this post.   Larry is such a formidable intellect that I will surely lose this debate if I remain cornered in his comments section, where I cannot effectively present more data.   Sometimes your own blog comes in handy.

In a nutshell, here is Larry's argument:  I don't have solid evidence that a large number of schools have embraced a class-shrinking policy; further, a .37 gain in a school's median LSAT in exchange for a 10% decline in full-time class size is too big a price for too small a prize [no one had these parameter estimates at the time!].  Hence, the existence of the transfer gaming strategy is speculative.  Since all law schools are trying to be as selective as possible on entry level LSAT scores, why not compensate for some of this underinclusion of qualified people by admitting proven performers as transfers?  If we fully disclose and understand the risks, the costs will be properly internalized by prospective transfer students and law schools.  Under this analysis, Larry surmises there is no obvious right answer on transfer policies.

Larry underestimates the data.  Before reviewing the significance of the statistics in the table below, it is important for readers to understand the basic calculus for gaming the US News LSAT variable:   

• The median for full-time enrollment is the only measure that matters.  PT and transfer statistics are irrelevant.
  
• Most schools are tuition dependent and cannot afford to shrink the 1L class without a countervailing revenue stream.
• One revenue neutral strategy is starting or expanding part-time programs, applying less stringent standards to PT admits, and letting students transfer to FT after the first year.  This strategy, however, is not going to be very effective for a non-urban law school.
• Another is constricting the 1L class (to get the credentials boost) and making up the revenues through more liberal transfer policies.  This strategy, however, only works if a school has plausible lower ranked schools to draw from.  Florida State, with cheap in-state tuition and many lower ranked schools in the state,  fits this profile, though the magnitude of their transfer program (#1 on Leiter list at 24.6%) is pretty shocking.
  

Knowing that shrinking FT 1L enrollment is the lynchpin of the gaming strategy, here is the mean and "left side" of the FT% change distribution--i.e., the schools with lowest growth/largest shrinkage in full-time 1L enrollment.

Note that the data are compiled by quartile because the first full USNWR rankings predated the current "tier" format.  Some observations:  (1) the average change in FT 1L enrollment was positive throughout the law school hierarchy; (2) nonetheless, in each quartile, 25% or more of all law schools shrank their 1L FT class between 1992 and 2004; (3) schools with part-time programs tended to have the largest declines/smallest growth in full-time 1L enrollment, presumably because transfers AND part-time gaming were available to them; (4) the minimum FT% change variable is very low in most cells--why?  I have heard of schools that created "special" summer programs that excluded large numbers of full-time students from their ABA and US News numbers.   If all the surrounding facts became know regarding these programs, it may shock the conscience of most readers, including us lawyers.

The bottomline is this:  64 law schools shrank their 1L full-time entering class between 1992 and 2004, 27 by more than 10%.  At the same time, PT enrollment has boomed and the number of PT programs has grown (by 10 in quartiles 3 and 4).  We don't have transfer data for 1992 to 2004 because the attrition data was only published beginning in 1997, when the ABA-LSAC Official Guide began publishing in a standardized format to respond to pleas from US News that law schools were lying to them.  See Measuring Outcomes, at 11-12.  But the 1997 to 2005 data shows large increases in non-academic 1L attrition, which is the category that includes outbound transfers.

With these trend lines in place, it is easy to see the flaw in Larry's normative defense of liberal transfer policies:   

[Because we have no solid evidence of class shrinkage policy,] the overall conclusion is much more ambiguous than the one Bill draws. The tradeoff would seem to be one of adverse social impact for more opportunity for students who prove themselves to "trade up." With adequate disclosure of the risks, those tradeoffs are internalized by the students and the schools.

Because it is harder to get admitted as a full-time 1L at many law schools (because the entering FT class has shrunk),  these displaced students will be pushed into the transfer market to upgrade the pedigree of their JD degrees.   Sure, we can disclose the risks identified by LSSSE (we could but we generally don't) and presume that our students are all adults and thus can weigh the costs and benefits of transferring.   But collectively, the shrinking supply of 1L FT slots, at least at schools with some regional or national market power, has forced these trade-offs on a larger number of students.  In light of the LSSSE data, more 1L admissions under whole person review (and thus fewer slots for transferring 2Ls) would improve the social networks and law school experience of many students.   Further, the creaming of transfers saps the ability of lower ranked schools to reap the benefits of their innovations.   

Frankly, I don't see any plausible reading of these facts that make students, as a group,  or legal education as a whole (rather than individual, higher ranked law schools) better off.   

Transfer Students -- The Data

Brian Leiter has just posted rankings of the Top 10 law schools by percentage of transfer students.  See Schools that Take the Largest Number of Transfers (Relative to the Size of Their 1L Class).  It is generating a lot of traffic, see, e.g, Paul Caron and Larry Ribstein, in part because Brian names names. 

Last fall I posted charts that showed the same data ordered by 2007 U.S. News rankings.  I took a lot of heat in the comments from readers who wanted to defend these liberal transfers--many by people who benefited from the ability to trade up.   This system of liberal transfers has other defenders as well.  For example, professors at higher ranked schools often justify these policies by arguing that they are opening doors for hardworking students who have proven themselves.  My critique, however, was based on a macro-level social wealth perspective--i.e.,  do the benefits of liberal transfers policies outweigh the costs?   Here are some facts:

More transfers.  Between 1997 and 2004, non-academic 1L attrition, which is the ABA-LSAC Official Guide category that would include transfers, has increased at statistically significant levels.  See Morriss & Henderson, Measuring Outcomes, Fig. 2 and accompanying text.  I would posit that this coincides with a rankings payoff of higher entering credentials, not a rethinking of admissions policies driven by principles of equity and opportunity.  We should not confuse colorable justifications, which lawyers are expert at, with underlying motivations of self-interest.

Rankings gains.  By the way, these gaming strategies actually produce higher LSAT scores relative to non-gaming schools.    See Henderson & Morriss, Student Quality as Measured by LSAT Scores, at 191. 

Effects within schools.  According to the 2005 LSSSE Annual Report, transfer students were less likely to:

• Perceive their relationships with other students to be as positive as students who did not transfer.
• Work with other students outside of class to complete an assignment.
• Have serious conversations with students who are different from themselves.
• Discuss ideas from reading or assignments with others outside of class.
• Work on a paper or project that required integrating ideas.
• Participate in cocurricular activities.

P. 14-15.  The report continues, "These findings underscore that many of the strongest student relationships are formed during the first year of law school before transfer students join the campus community."  (p. 15). Note these findings describe group results.  Please spare me anecdotes in the comments about well-adjusted transfer students.  We cannot generalize, and thus make policy, from individual data points.  We need a representative sample, which LSSSE provides.

Harms to Curricular Innovation.  If the best students from Tier 3 and 4 are siphoned by Tiers 1 and 2, lower ranked schools have one hell of a time demonstrating the value of their curricular innovations.  And these innovations often require immense commitments of time and money.  The substantive value may be there, but the school will not get an adequate return on the investment.   So incentives to innovate are diluted.

So my point is very simple:  Instead of shrinking the 1L class and taking more transfer students, a better system would admit more 1L students using whole person review (the policy that all of the legal academy allegedly embraced in the Grutter litigation) rather than a cynical numbers-driven approach designed to maximize entering credentials for U.S. News purposes.   I realize that some people would be made worse off under this system (and these people tend to know who they are, so they are noisy).  In contrast, the people who would benefit are largely nameless and invisible.  But this approach eliminates the educational costs of excessive transfers and preserves incentives for healthy institutional competition based on curriculum and teaching.  From a social wealth perspective, which is better?

At the end of the day, the increase in transfers represents a giant collective action problem.  But it could be solved if U.S. News reworked its methodology.   The putative regulator here is the ABA Section on Legal Education and Admission to the Bar.  Are they even paying attention?  I often wonder.  After the jump are the charts that show net transfers by U.S. News rank.  It is very ugly.

Trial Court Experience and Appellate Court Decisions

In The Effect of Trial-Judge Experience on Appellate Decisionmaking Behavior, Nick Linder and John Niles (both at Duke) report results from a study that analyzes "3,222 appellate votes from criminal sentencing cases that came before the U.S. Court of Appeals for the Ninth Circuit between 2003 and 2007, " and controls for an array of factors, including trial-judge experience, that might influence appellate decisionmaking behavior.

The authors find that although prior experience as a state trial judge causes an appellate judge to be more likely to vote to affirm, neither experience as a federal trial judge nor experience from both state and federal trial benches has any statistically significant effect. Finally, the effect of state trial-judge experience diminishes when lower courts have greater discretion.