Empirical Legal Studies

The Theory and Practice of Statutory Interpretation

In a new book by our too-modest co-ELS blogger, Frank Cross (Texas) offers a rare empirical  assessment of competing theories of judicial statutory interpretation. Frank's book, The Theory and Practice of Statutory Interpretation (Stanford Press), finds that "at least some presumptions of the theoreticians appear to be wrong. No theory is exempt from the risk of ideological willful judging, and pragmatism is the theory that was associated with the least outcome orientation."

Praise for Frank's book includes the following from Richard Pierce (GWU). "Cross's findings, based on careful empiricism, provide a welcome contrast with the often overwrought claims of many prolific proponents of particular interpretative methodologies. The important contribution to the field will be of value both for teaching and for research."

Selling BigLaw Short

It is mid-December and the vast majority of large law firms are frantically pressing their clients for their fees in order to pay down the firm's credit lines and generate a profit pool that can hold the partnership together.  See, e.g., Susan Beck, Collecting, But Hardly Calm and Cool, Am Law Daily (Dec. 10, 2008).  Every investor knows that leverage can be a wonderful thing in boom times but a killer in a down market.  In the last few years, law firms have expanded the use of two types of leverage:  (1) bank financing, often for working capital, and (2) salaried lawyers, in the form of contract attorneys, staff attorneys, associates, of counsel, and income partners, who each generate profits for the equity partners. 

Yet, with the potential for historically low collection rates, a large proportion of Biglaw firms are in one hell of a vise.  Salaried lawyers represent fixed costs.  And even if you lay them off, managers are under intense pressure to pay a reasonable severance (e.g., 6 months pay) to preserve the firm's reputation for an eventual recovery.  Further, firms with the most human capital leverage will nonetheless be stuck with vast expanses of Class A office space under lease terms negotiated during the salad days.  If Biglaw revenues go down 20% for the fiscal year, which is certainly in the realm of possibility for many firms with large capital market practices, profits could dive by 50% or more. 

Similar to what happened at Heller Ehrman, the grim financials could put the firms in violation of their bank lending agreements, see Drew Combs, Why Heller Died, The American Lawyer (Nov. 2008), thus requiring partners to pony up more cash.   Sensing trouble, lawyers with the most options start heading for the doors, initiating a sudden and rapid death spiral.  In short, there is good chance that several hallowed Biglaw firms, particularly those with weak balance sheets, will cease to exist sometime in early to mid 2009. 

Through the Law Firms Working Group, I have access to detailed financial reports for law firms in the Am Law 200 and the NLJ 250.  Here is what the revenues per lawyer (RPL) figures for Thelen and Heller Ehrman looked like for fiscal years 2003 to 2007:

Most firms in the Am Law 200 posted steady rises in RPL during the 2003 to 2007 time period.  But it is pretty amazing that in the cases of Thelen and Heller Ehrman, both old-line firms with established brands, seemingly modest diminutions in revenues were precurors to total collapse.  As noted by Marc Galanter and I in The Elastic Tournament, large law firms have become immensely fragile institutions.   As large firm lawyers, many of them young and connected to clients, flood the streets over the next several months, look for a new model of corporate law practice to emerge that is modest, thrifty, and more sustainable.

Closer to home for us academics, the collapse of Biglaw could have a signficant impact on law schools, particularly those at the top of the food chain who could pass along ever higher debt loads onto students because of a virtual lock on lucrative Biglaw jobs.  Cf. Mike Cahill, Legal Education Bubble?, PrawfsBlawg (Dec. 15, 2008).  Even if law school follows the usual countercyclical pattern of higher admission volumes, the lack of cheap capital in combination with the lack of high paying jobs may stifle enrollment.   It is time to pay attention and carefully evaluate assumptions we have formerly taken for granted.

Otto Kerner: Illinois Governor, 7th Cir. Judge, Felon

Here in Illinois we have some well-known difficulties with our elected officials. Various reports about Rod Blagojevich since Tuesday have run through our list of not-so-distinguished former governors. One is Otto Kerner, Jr., governor from 1961 to 1968. Kerner resigned in 1968 to join the United States Court of Appeals for the Seventh Circuit.

 

In February 1973, while still a member of the Seventh Circuit, Kerner and his campaign manager were convicted for "a variety of offenses arising out of their activities on behalf of certain Illinois racing interests in return for bribes of more than $ 150,000 each." United States v. Isaacs, 493 F.2d 1124, 1131 (7th Cir. 1974). See also United States v. Kerner, 895 F.2d 1159, 1160 (7th Cir. 1990). The charges were based on events occurring both before and after Kerner joined the court.

Trying a Seventh Circuit judge in the Northern District of Illinois raises some obvious concerns. Chief Justice Warren Burger therefore designated a judge from the Eastern District of Tennessee to preside over the trial in Chicago. Burger also designated senior judges from the Eighth, Second, and Tenth Circuits to hear the appeal. Before a Seventh Circuit panel free of any actual Seventh Circuit judges, Kerner argued in part that the district court lacked subject matter jurisdiction "to try a federal judge upon an indictment before his removal from office by the impeachment process." Isaacs, 493 F.2d at 1140. The panel disagreed, but it did reverse Kerner's convictions on some of the counts.

Although he took a leave of absence from the court after his indictment in December 1971 and lost his chambers and staff in April 1973, Kerner didn’t resign from the Seventh Circuit until July 1974, more than a year after his conviction. For all practical purposes, the Seventh Circuit was short one judge for three years. Judge William Bauer finally replaced Kerner in December 1974. Kerner spent under eight months in prison and died in 1976.

Note: In the photograph above, Judge Kerner is standing to the right of John Paul Stevens. This photo is found on page 178 of Rayman Solomon’s History of the Seventh Circuit 1891-1941 (1981), which at pages 179-180 discusses many of the details above. Two other sources for the information above are Robert Sprecher, Review of The Politics of Federal Judicial Administration, 1974 Ariz. St. L.J. 723, 733 (1974) and Robert P. Murrian, To Do Justice Between Man and Man: Tribute to Judge Robert L. Taylor, 55 Tenn. L. Rev. xi, xiii (1988).

SCOTUS Clerks (Shameless Self-Promotion Remix)

We've hosted some discussions about Supreme Court clerks here in the past, so I thought I'd draw readers' attention to Adam Liptak's story in his "Sidebar" column in the NY Times today.  Adam profiles a study in the DePaul Law Review by Todd Peppers and me on law clerk influence.  I'll let readers draw their own conclusions from the piece (and the study, for that matter).  But I will say that, while I'm usually more than a bit nervous about journalists interpreting empirical work, I thought Adam did a really great job in his write-up.

Update: U.S. News has just reposted the original 1957 article on law clerk influence written by (then-former-clerk) William Rehnquist.  Interesting reading.

How many steps in the Chevron dance?

I recently came across two articles on SRRN and forthcoming in the Virginia Law Review: Chevron's Two Steps by Bamberger and Strauss (Columbia) and Chevron Has Only One Step by Stephenson and Vermeule (Harvard).  Both articles provide theoretical models for judicial interpretation of statutes and agency decision-making process under Chevron.

There are at least four potential parts of judicial review of agency interpretations of federal statutes:
(1) Chevron Step 0: Not usually counted as a "step," addressing whether Chevron applies at all.  See Sunstein, Chevron Step Zero.
(2)  Chevron Step 1: A determination of statutory ambiguity using traditional tools of statutory construction.
(3) Chevron Step 2: A reasonableness inquiry into perhaps the nature of the policy choice or perhaps the agency decision-making process.
(4) APA/Hard Look Review: See State Farm.  Not counted as a "step," but may be implicated in Step 2.

After reading the papers above and their theoretical frameworks which suggest how judges should act and why, it continues to occur to me that very little data exist informing scholars how judges are actually dealing with Chevron.

The Chevron doctrine's complexity makes empirical inquiry especially difficult.  The Miles/Sunstein piece Do Judges Make Regulatory Policy? An Empirical Investigation of 'Chevron' is excellent, but they do not seek to separate out the various Chevron "steps."   My own paper An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law  suggests a number of problems, at least in the environmental law context, exist in implementing Chevron.  For example, some judges do turn Chevron into a single step process, and some judges see no difference between step 2 and hard look review while others do.

Thus, I'm curious to learn what other papers are in this forthcoming issue of the Virginia Law Review....  Perhaps a paper entitled, "Does Chevron Really Have Four Steps?"

College Applications & Athletic Prowess

As the college football bowl season ramps up, I thought that a recent paper by Devin G. Pope (Penn--Wharton) & Jaren C. Pope (Virgina Tech) was especially timely. In Understanding College Application Decisions: Why College Sports Success Matters, the authors assess the influence of college athletic success on applications (proxied by sent SAT scores). Using College Board (SAT) data, the paper finds:

"[T]hat college sports success has a large impact on student application decisions. For example, a school that has a stellar year in basketball or football on average receives up to 10% more SAT scores. Certain demographic groups (males, blacks, out-of-state students, and students that played sports in high school) are more likely to be influenced by sports success than their counterparts. We explore the reasons why students might be influenced by these sporting events and present evidence that attention/accessibility helps explain these findings."

Conference on Building Theory Through Empirical Legal Studies

Here's one not to miss: The Center for the Study of Law and Society at Berkeley Law will host a Conference on Building Theory Through Empirical Legal Studies on Friday, April 24, 2009.  The description follows:

"Empirical Legal Studies is often associated with sophisticated quantitative work and less often associated with theory.  The Center for the Study of Law and Society at the University of California, Berkeley is holding a one day conference to highlight and to foster discussion about the ways in which empirical legal studies (both quantitative and qualitative) can be used to generate, test, and elaborate socio-legal theory.  Speakers from both the legal academy and the social sciences will present ongoing theoretically-informed empirical work and discussants, as well as the audience, will be invited to engage in a productive dialog about the intersection of empirical legal studies and law and social science theory. We also hope to foster connections across disciplines and among scholars in this area that will continue long after this initial conference. The conference will feature a Keynote Address by Richard Lempert, Stein Distinguished University Professor Emeritus of Law and Sociology at the University of Michigan and former director of the Social and Behavioral Sciences Division at the National Science Foundation. The presentations that follow are organized into three panels: Litigation, Complaint Mobilization, and Inequality; Law and Organizations; and Judicial and Agency Politics."

The full program is available at the conference website. There is no fee to attend, but the CSLS folks are asking that those planning on attending register by February 1, 2009.

The Case for a National Civil Justice Survey

My Cornell colleague, Ted Eisenberg, recently circulated a paper that persuasively argues for instituting a national civil justice survey (modeled after the National Crime Victimization Survey).  Ted's paper, The Need for a National Civil Justice Survey of Incidence and Claiming Behavior, summarizes the existing leading sources of data along with their various limitations.  The abstract follows.

"Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behavior are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combinations of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating a national civil justice survey, analogous to the National Crime Victimization Survey."

Indiana Law Receives $35 Million Naming Gift; University Foundation Provides 100% Matching Funds

Today is pretty special.  Indiana Entrepreneur Michael Maurer (IU Law '67) has donated $35 million to the Law School, henceforth renaming it the Michael Maurer School of Law.  During the press conference, Indiana University President Michael McRobbie reported that the gift is eligible for Indiana University matching funds, "effectively doubling the $35 million gift."  This builds upon the $25 million Lilly Foundation gift we received last year, which also resulted in additional matching funds from the University. 

Michael ("Mickey") Maurer stated that scholarship money he received as a second year student at Indiana Law, which came from a law firm with several successful alumni, was the inspiration for the gift.  The full story from the Indiana Business Journal (a publication Maurer owns) is here.

Effect of "High Score" Rule on Volume of LSAT Repeaters

A couple of years ago, Paul Caron flagged an obscure ABA rule change that required law schools to report the highest LSAT score of an admitted student versus the prior practice of averaging.  Paul and Moneylaw blogger Tom Bell foresaw a likely surge in the number of repeat test-takers--but without any appreciable benefit.  Repeat score are, in fact, less accurate in predicting law school grades -- though, let's not kid ourselves, law schools are not looking at the LSAT anymore for predicting 1L performance.  It also costs a lot of time and money.  And if upper class white kids are better able to afford test preparation courses, it is likely to exacerbate the racial performance gap. 

Well, the data is in for the October 2008 cycle.  It is indisputable that applicants are figuring out the implications of a low LSAT score in the US rankings era (fewer admissions letters, few scholarship dollars) and the potential upside/no downside of taking the exam again. Despite a -1.7% drop in first-time takers, the repeater volume is up 16.8%.  In the Northeast, where the positional competition is the most intense, there has been a staggering 33.7% increase. 

From an individual perspective, I know it makes sense to take the test a second or third time. Indeed, it is comforting to many to have that option.  But in the aggregate, this policy really just opens the door for a protracted zero sum game.  If law schools were making better decisions because of the second or third scores, the additional time and expense could be justified.  The second scores, however, are less reliable than the first and second combined. 

Understanding these dynamics, the regulator (the ABA Section on Legal Education and Admission to the Bar) is supposed to set rules that are in the best interests of the students and the profession -- not law schools or testing agencies. Sam Stonefield of Western New England Law wrote a very detailed objection to this policy. He was prescient.  I appreciate the time he took to spell it all out.

ABA Journal's Top 100 Law Blogs

The Empirical Legal Studies Blog has been selected by the ABA Journal as one of its Top 100 law blogs.

Says the ABA Journal: "These law professors are “data junkies,” usually not likely to share an anecdote or a theory without a study to back it up. They find and dissect law-related studies that appear in both the mainstream media and legal scholarship, and they also provide details about up­coming conferences in their field."

 

LSA/ABF/NSF Law and Social Science Dissertation Fellowship and Mentoring Program

The December 21 deadline for this unique fellowship opportunity is fast approaching:

 

The Law and Society Association, in collaboration with the American Bar Foundation and the National Science Foundation, seeks applications for the Law and Social Science Dissertation Fellowship and Mentoring Program (LSS Fellowship).

 

Awards

Fellowships are held in residence at the American Bar Foundation in Chicago, IL where Fellows are expected to participate in the intellectual life of the ABF, including participation in a weekly seminar series. LSS Fellows will receive a stipend of $25,000 per year beginning fall 2009 and are eligible for up to two years of support. Fellows will attend LSA annual meetings in both years of the fellowship and the Graduate Student Workshop in the first year of the fellowship. Fellows will receive up to $1,500 for research and travel expenses each year. Relocation expenses up to $2,500 may be reimbursed one time.

Eligibility:

Third and fourth year graduate students who specialize in the field of law and social science and whose research interests include law and inequality are invited to apply. Fellowship applicants should be students in a Ph.D. program in a social science department or an interdisciplinary program. Humanities students pursuing empirically-based social science dissertations are welcome to apply. Only U.S. citizens and permanent residents are eligible to apply.

Application Materials Required:

Applicants should submit: (1) a 1-2 page letter of application; (2) a 2-3 page description of a research project or interest that relates to law and inequality (broadly defined) with a statement of how the applicant became interested in the research topic; (3) a resume or curriculum vitae; (4) a writing sample (a paper written for a graduate-level course or dissertation prospectus); (5) three letters of recommendation from faculty members (including one from the faculty member who will serve as the departmental liaison -- typically the applicant’s advisor).

 

Please send TWO complete sets of application materials by December 21, 2008. One set to Mary McClintock, Law and Society Association, University of Massachusetts, 40 Campus Center Way, Amherst, MA 01003-9244 and the other to Roz Caldwell, Program Associate, American Bar Foundation, 750 N. Lake Shore Drive – 4th Floor, Chicago, IL, 60611.

For more information, please contact Mary McClintock at LSA, [email protected]  or Laura Beth Nielsen at [email protected].