Empirical Legal Studies

Blogging and Tenure

Over the years, a lot has been written about the risks of blogging during your pre-tenure years.  See, most recently, Verity Winship, "Blogging without Tenure."  Well, I blogged quite a bit as an untenured faculty member.  And fortunately, earlier this week I was recommended for promotion and tenure by my Indiana colleagues.  It is unlikely that blogging damaged my career because (I am told) the vote was unanimous. 

As a blogger, I want to publish the following section of my P&T personal statement, so that others that come after have at least one concrete data point to consider:

3.  Writings for the Legal Professions and Empirical Legal Studies Blogs

My inclusion of blogging under the scholarship heading is not meant to test the proposition that blog posts are scholarship. Rather, blogging has generated a wide range of professional opportunities for me and enhanced my visibility among legal academics. Since the spring of 2006, I have been a regular blogger with the Empirical Legal Studies (ELS) Blog. In June 2008, I also joined the Legal Professions Blog. Collectively, I have more than 200 blog postings, a substantial number of which discuss issues related to my legal scholarship. Many of my ideas for scholarship originally appeared in some form on the ELS Blog and were further refined by reader comments.  Several references to my work in the mainstream media were the result of reporters perusing the blogs. I believe that blogging has been a very good investment of time and has generated increased visibility for Indiana Law. A complete list of my posts is located in Attachment 7.

So there you have it.  I blogged because I wanted to be fully engaged in the world of ideas.   I also followed a few simple principles, which I will continue to follow:  (a) don't post half-baked ideas that attack serious ideas -- bake them fully, and then post; (b) blog about ideas I want to specialize in (with a few exceptions), which creates synergies with serious scholarship; (c) treat other people will respect and be ready to concede when someone else has the better of the argument or evidence -- getting it right is more important than being right. 

Of course, Dan Drezner remains a cautionary tale that goes in the other direction ... though Dan came of the process with his self-respect and a tenured job at another school within few short weeks.   Despite the folklore, intellectual timidity is not necessarily the best strategy for getting tenure or, more importantly, being comfortable in your own skin.

Two of my valued colleagues at Indiana who joined the faculty with me in 2003 also got the good news this week -- we went 3 for 3!

Law Blog Rankings

Paul Caron's Law Blog Rankings are available.  The ELS Blog is ranked #31 and #29, depending upon the measure.

Measuring Judicial Ideology

Those interested in assessing the possible influences of judicial ideology on decisions will want to read a recent paper, What is Judicial Ideology, and How Should We Measure It?, by Joshua Fischman (UVa) and David Law (Wash U.). An excerpted abstract follows.

"Scholars have for decades sought to measure judicial ideology and its impact on judicial behavior. They have not, however, taken care to identify the phenomenon that they are measuring in clear and convincing terms, or to evaluate different measurement approaches for their suitability to the task at hand. In this paper, we diagnose recurring weaknesses of the existing empirical literature, and we propose a measurement approach of our own that offers significant improvements over some of the most popular alternatives.

"First, we identify the major conceptual and methodological obstacles to the empirical measurement of judicial ideology. Foremost among the conceptual challenges to be faced are the difficulty of defining ideology and the associated challenge of disentangling ideological and nonideological preferences. The failure of empirical researchers to confront this challenge is a fatal one because it is impossible to design and select appropriate tools for the measurement of a phenomenon that has not been properly specified.... Second, we discuss the strengths and weaknesses of different measurement approaches, and their suitability to different types of research questions.... Third, we perform a head-to-head competitive evaluation of two popular measurement approaches and a third approach of our own devising.

"We test the predictive power of our approach against that of two popular proxy measures of judicial ideology-namely, party of appointing president and judicial "common space scores." For testing purposes, we use a data set that we coded consisting of approximately 1,900 asylum cases decided by the Ninth Circuit over a ten-year period. We find that common space scores perform only slightly better than party of appointing president at predicting actual judicial voting. Moreover, both proxy measures yield almost identical estimates of the impact of ideology on actual judicial voting."

Lott v. Levitt: Oral Argument Today

The Seventh Circuit heard the oral argument this morning in Lott v. Levitt. The panel includes Judges Ripple, Evans, and Sykes. Professor Jeffrey Parker of George Mason Law School argued for Lott. Slade Metcalf of Hogan & Hartson argued for Levitt.

Evans and Sykes asked all the questions. Ripple remained silent. I have only glanced at the briefs, but based on the questions and comments during the oral argument, Lott’s chances do not look very good. The audio file of the argument should be available on the Seventh Circuit’s website later today.

UPDATE: An mp3 of the oral argument is now available here.

Gender and Lawyer Salaries

Neil Buchanan (GWU) uses U. Mich. Law School alum data in his paper that explores the complex relation between gender and lawyer salaries.  His paper reports that:

"... fathers tend to receive higher salaries than non-fathers (a "daddy bonus"). In addition, mothers earn less than non-mothers (a "mommy penalty"). There is also some statistical support for the inference that there is a penalty associated purely with gender (women earning less than men, independent of parenthood), another result that is unique to the literature.

Analyzing full- or part-time status as well as work hours also suggests a key difference between women and men. Those who take part-time status are almost entirely women who take on child-rearing duties, and they reduce their work hours by an average of approximately thirty percent. These statistical results are, however, significantly less reliable because of the very small numbers of respondents (male or female) who work less than full time."

Understanding the Financial Crisis

Like everyone else, I am struggling to get my head around exactly what happened to produce our current financial crisis.  That is a precondition of anticipating the longer term consequences.  In a single paragraph, this is what (I surmise) happened. 

Sometime during the 1990s, momentum began to build on Wall Street for securitizing home mortgages in new and exotic ways.  Residential real estate seemed like an attractive business because the yields were decent, the historical default rates were low, risk of loss was mitigated by pooling thousands of mortgages (which were, themselves, divided into parts), and the underlying assets (homes) generally went up in value, sometimes by a lot in major metropolitan areas.   Institutional investors had an insatiable appetite for these debt instruments, which were graded as safe by all the major rating agencies.  Further, respected companies like AIG wrote insurance on these instruments on the theory that they would never have to pay.  All the risk was supposedly hedged by "credits swaps," which are fancy and unregulated contracts between private parties.  So money gushed in.  Because virtually any loan could be sold the next day to Wall Street (who, in turn, could repackage them for a large profits within a short time), banks and other mortgage originators could make money with no risk (zero risk!).   This cycle continued even though the pool of mortgage applicants became weaker and weaker--eventually people with (a) bad credit, (b) no assets, and (c) no job.  This had the predictable effect of driving up the price of real estate to a frothy bubble. 

If we want to get back to good old-fashion, sane capitalism where risk is actually assessed before a lender gives a borrower money (and I do), we need to know what the underlying asset (a home) is really worth. 

Here, the news is not good.  According to this story in the New York Times, the price of real estate could tumble throughout 2009.  Frankly, this is where analogies to the 1930s seem like they have some traction.  When an average person's largest asset turns out to be a terrible investment, they have lost a lot of money in the stock market (any thoughts about privatizing Social Security now?),  and banks are failing left and right, it has a devastating effect on society's ability to pool risk--all the money ends up in the mattress, so to speak.   No surprise, people like my grandparents who lived through the Great Depression tended to be very cautious and risk averse with money.

Frankly, the issue now is not how to regulate Wall Street--the investment banks are gone.  It is how to unwind this mess.  The larger tragedy here is not the loss of money; it is the loss of trust by ordinary people in basic financial and commercial institutions.  They worked hard and played by the rules. Yet many of their homes will be worth less than what they paid for them, and retirement seems beyond reach.   Unregulated capitalism failed.  Like it or not, government is the only entity that can fill the breach. 

These two stories from This American Life, both 1-hour long audios, are the two best resources I have found on these topics:

• The Giant Pool of Money, May 9, 2008
• Another Frightening Show on the Economy, October 3, 2008

Lott v. Levitt - Oral Argument Approaches

The oral argument before the Seventh Circuit is currently scheduled for Tuesday, October 21st at 9:30 a.m.

The Drift Toward Pure Numbers Admissions

Law schools are part of a production function for entry level lawyers.  Therefore, if law schools alter their admissions practices, the character and complexion of the hiring pool can shift in significant ways.   

On the input side, the data are crystal clear:   over the last fifteen years, the rankings arms race has pushed U.S. law schools toward a pure numbers approach to admissions.   The more interesting question, however, is whether prestige-conscious law firms are now, inadvertently, experiencing any fallout.   First the data.

Law schools operate in an environment of supply and demand and are famously counter-cyclical.  When Silicon Valley was booming in the late 90s, law school applicants plummeted.  When the economy faltered in the early 90s or after 9/11, applicants spiked.  Therefore, to examine how admissions practices have changed over time, it is important to pay attention to the underlying applicant pool.  Below are trend lines for median LSAT scores by USNWR rank for 1994 and 2007, which reflect classes that entered in the fall of 1993 and 2006 respectively.  During those two admissions cycles, the number of applicants was virtually identical:  89,600 (1994) and 88,700 (2007).

Obviously the blue line (2007) is higher than the orange line (1994).  In fact, despite slightly fewer law school applicants, the average median LSAT increased by 2.18 points (std. dev. of 1.99). For the record, only three schools fell out of Tier 1 between 1994 and 2007.  And it cannot be explained by the ABA policy shift that instructs law schools to no longer average LSATs for reporting 25th, 50th, and 75th percentile figures, thus slightly pumping up the volume of high LSAT scores.  That change was not enacted until the summer of 2006. 

Here is the same analysis for UGPA (1994 data came from the Princeton Review, 2007 from the ABA):

Although we might chock some of the higher UPGAs (avg. of +.17, std. dev. of +.12) on grade inflation between 1994 and 2007, it is likely that schools were also trying to maximize this number. More after the jump ... .

From the IRB: What to do if the Conversation Hurts You

Another IRB example for those who collect them:

“Because we conducted our research under the auspices of the IRB at Massachusetts General Hospital, we were required to use the hospital’s standard ‘informed consent’ form, which covers all of its highly diverse research—most of which involves drug trials or new medical and surgical procedures. Consequently, even though we were only talking to people in an office [about violent video games], we were obligated to tell the participants in our focus groups that if they suffered any side effects from our conversations, they should immediately go to the nearest hospital emergency room!”

Lawrence Kutner & Cheryl K. Olson, Grand Theft Childhood 67 (Simon & Schuster 2008).

More on Presidential Politics

As seen in my previous post, there seems to be far more accessibility to empirical work on presidential politics this year than in 2000 or 2004.  Check out these sites with discuss forecasting the electoral vote and a "reverse Bradley effect."

Data and Presidential Politics

For those of you who are political junkies and data junkies, check out this website: www.fivethirtyeight.com

Conducting Empirical Legal Scholarship: The Advanced Course, October 24-26, 2008

This is the last call for a workshop Lee Epstein and Andrew Martin will be teaching later this month. On Friday, October 24, 2008 through Sunday, October 26, 2008 Lee Epstein and Andrew Martin will be teaching a workshop called "Conducting Empirical Legal Scholarship: The Advanced Course." This workshop will be held in Chicago, and is co-sponsored by Northwestern University and Washington University. The workshop is now open for registration at:

 

http://www.law.northwestern.edu/faculty/conferences/empiricalworkshop.html

 

The workshop is designed for those who have some experience with empirical legal research, and an understanding of elementary statistics (at the level taught in the introductory workshop). Topics to be covered will include: multiple regression, regression models for limited dependent variables, presenting results from non-linear models, data visualization and graphics, and matching methods for causal inference.

 

Please visit the website for all logistical details. Feel free to contact Andrew Martin ([email protected]) with substantive questions.

The Asymmetric Application of Arbitration Clauses

Today's NYT includes a story (p.B4) on how large companies are far less likely to "use arbitration clauses in contracts with each other than they are in contracts with consumers." The Times story pivots on a study by Ted Eisenberg (Cornell), Geoff Miller (NYU), and Emily Sherwyn (Cornell). According to the authors, the asymmetric use of arbitration clauses flows from an effort to use "arbitration as a way of avoiding class action litigation.  Because it is not worth it to a single upset consumer to sue a big company, the only thing those companies fear is your having a plaintiffs’ lawyer aggregate you and people like you into a class action.”