Empirical Legal Studies

More on Punitive Damages

Punitive damages research continues to become richer and more textured. The increasing availability of data fuels this trend. In a recent paper, Stephen Choi (NYU) and Ted Eisenberg (Cornell) expand punies research into the securities arbitration context. In Securities Arbitration: An Empirical Study, the authors draw on a data set comprised of 6,800 securities arbitration awards and find that "claimants prevailed in 48.9 percent of arbitrations, and that 9.1% of those claimant victories included a punitive damages award. We also report that the existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims with higher compensatory awards. We test whether securities arbitration results in different punitive damages compared with litigation before juries and judges. The relation between punitive and compensatory awards did not differ substantially between securities arbitrators and data on juries available from periodic Civil Justice Surveys by the Bureau of Justice Statistics."

Conference on Empirical Research on the Legal Profession

Thanks to the Georgetown Center for the Study of the Legal Profession and the Georgetown Journal of Legal Ethics, on March 3, 2009 GULC will be holding another major conference on the empirical research on the legal profession.  As always, the public is welcomed to attend.  Details online here. 

One of the best features of the Georgetown conferences is the intense interaction between the academics and the practitioners -- both groups learn a lot and really enjoy the experience.  Over the years, the Center has generated a loyal following within the DC Bar.  

Congrats to Carole Silver, Mitt Regan, Jeff Bauman, and the editors of the Georgetown Journal on Legal Ethics for putting together a wonderful program.

Pearson v. Callahan

Check out this post by SCOTUSblog Guest Blogger Nancy Leong, a Visiting Scholar at Georgetown:

http://www.scotusblog.com/wp/guest-commentary-pearson-v-callahan/#more-8584

Her post takes an empirical approach to analyzing the Court's decision on Wednesday in Pearson v. Callahan, in which the Court held that it is no longer mandatory for courts to decide the merits of a constitutional claim before determining the validity of a qualified immunity defense raised against that claim.  Based on her previous analysis of a sample of over 600 randomly selected federal cases, her post predicts that the decision will result in less constitutional law articulation overall, but that a greater percentage of the law articulated will favor plaintiffs.

Should SCOTUS adopt panel decisionmaking?

I wish to recommend the following article:

George, Tracey E. and Chris Guthrie. "The Threes": Re-imagining Supreme Court Decisionmaking, 61 Vand. L. Rev. 1825-1860 (2008).

An Excerpt:

Article III is odd. In contrast to Articles I and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and then shifting. The Court's caseload, which is now almost entirely  discretionary, was once almost entirely mandatory. And the Court has altered its courtroom practices in a variety of ways; for instance, the Court once allowed advocates, who rarely submitted briefs, to present oral arguments that lasted for days!

These examples tell us something important about the past, present, and future of the Supreme Court. The current Court may consist of nine members who decide a small number of discretionary appeals en banc, but this was not always so, nor need it be so in the future. So, in light of the many important roles the Court plays in our constitutional democracy, how should it conduct its affairs?

In this Essay - the first in a series of essays designed to re-imagine the Supreme Court - we argue that Congress should authorize the Court to adopt, in whole or part, panel decisionmaking....

Funding for Civil Litigation Research

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 two rounds of funding resulted in thirteen grants totaling approximately $140,000.  Priority will be given to applications received by February 28, 2009.  For additional information, see http://www.abanet.org/litigation/researchfund.

Judicial Pay Redux

Yesterday's edition of the New York Times had an interesting article written by Adam Liptak discussing whether federal judges should receive a pay raise, an issue on which I have previously commented here. In the article, which is available here on the New York Times website, Liptak discusses two recent studies performed by Scott Baker and Mitu Gulati, Eric Posner, and Steven Choi, which both suggest that judicial quality would not improve with higher judicial pay. When I spoke to Adam Liptak last week to provide background for the story, my reaction to these studies was very similar to that of Frank Cross, who suggested that the "new studies went off the rails" because "'we don't have a good measure of judicial quality.'" In my opinion, empirical tools are relatively ineffective in studying highly subjective questions like the quality of judicial work. In part, the problem is that it is difficult to find two constitutional law professors who would agree on what constitutes quality work. I have had disagreements with colleagues, for instance, who argue that lengthy, scholarly opinions are of higher quality, while my view is that brevity and clarity should be the goals of judicial opinion-writing. Yet variables such as the number and length of published opinions and even how quickly the opinions are produced are often variables in these types of studies.

Bull or Bear Market for Empirical Legal Scholarship?

Jonathan Simon (Berkeley) poses a provocative question and triggers and interesting debate over at PrawfsBlawg. After assessing two earlier pushes for an empirical legal studies movement during the early and mid-twentieth century, Jonathan notes "this current empirical wave will be more enduring." The discussion underscores the need for a thorough empirical study of empirical legal scholarship.

Law & Economics (v. Finance) & the Future of Corp Law Scholarship

Roberta Romano's (Yale) interesting comments and reflections, presented at the AALS Biz Assoc panel, on the distinctions (albeit subtle) between the efficacy of formal economic versus finance PhD training for corporate law scholars warrant attention.  Rather than risk redundancy, however, interested readers can click here and get to Matt Bodie's (St. Louis) helpful summary (and comments) over at Prawfsblawg.

An Amazing Outlier

More on Judicial Pay

Chief Justice Roberts made the following (familiar) plea in his year-end report on the Federal Judiciary:

I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—Congress must provide judicial compensation that keeps pace with inflation. Judges knew what the pay was when they answered the call of public service. But they did not know that Congress would steadily erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases. Last year, Congress fell just short of enacting legislation, reported out of both House and Senate Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have been denied in past years.

Let me begin this post by stating at the outset that it is my opinion that Chief Justice Roberts is on solid ground in requesting cost-of-living adjustments (COLAs) that would keep judicial salaries on pace with inflation. (As a side note, all pay raises are a one-way ratchet because Article III does not permit Congress to diminish judicial salaries, even if the country were to go through an extended period of deflation as some economists now predict.)

But lost in these annual pleas for a pay raise is the fact that federal judges are statutorily entitled to an enormously generous pension package--one that entitles them to at least their salary at the time of retirement for the rest of their lives. Today, all federal judges are permitted to earn pension benefits with full pay if they satisfy the rule of eighty, which permits them to take senior status or retire on a sliding scale of age or service, beginning at age sixty-five and fifteen years of service, and ending at age seventy with ten years of service. Pursuant to 28 U.S.C. s 371, a judge that completely retires from active service is entitled "to receive the salary that he or she was receiving when he or she was last in active service." Meanwhile, if a judge satisfies the certification requirements required for senior status, then "during the remainder of his or her lifetime, [he or she] continue[s] to receive the salary of the office," which includes any pay raises passed by Congress. The income earned by both senior and retired federal judges is not subject to FICA taxes or the income taxes of many states, which means that the real income of federal judges actually rises upon their departure from regular, active service.

Chicago Tribune on Law Firms and the Economy

Yesterday's Chicago Tribune covered "the end of a great run for the industry." The reporter interviewed our own Bill Henderson for the article.

Judge Harlington Wood, Jr. (1920-2008)

Judge Wood died on Monday at age 88. Today's Chicago Tribune includes an obituary for him.

His memoir, An Unmarked Trail, is available here.

Judicial Pay Debate Data

Over at the Volokh Conspiracy Eric Posner brings logitudinal data to the judicial pay debate. The data come from a paper on the same topic, Are Judges Overpaid?: A Skeptical Response to the Judicial Salary Debate, by Stephen Choi (NYU), Mitu Gulati (Duke), and Eric Posner (Chicago).