Empirical Legal Studies

Defending Liberty, Pursuing Justice

That, of course, is the motto of the American Bar Association.  Now, hot off the press from the upcoming MPSA meeting (search the program here) is a paper by Richard Vining, Amy Steigerwalt, and Susan Smelcer, "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees."  The punch line:

Our findings suggest the presence of some systematic bias toward Democratic nominees in the ABA's ratings, especially to the extent that a particularly nominee will be rated as "Well Qualified."

The authors are appropriately circumspect about the reasons for their findings.  Nonetheless, their results are very robust, and can't be dismissed lightly.  In addition to Adam Liptak's Sidebar column, the paper is already getting some play on the blogs (now including this one!), and it's definitely worth a read.

What Role Does Legal Academia Play in the Development of the Law?

A recent article posted on SSRN, Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate, asks the intriguing question of to what extent do law professors influence the development of the law.  To begin to answer the question, the authors apply social network theory to the social structure of legal academia, drawing on information on each tenure-track professor employed at an ABA-accredited law school.  The authors tracked where each professor received his or her American law degree (they excluded faculty without such degrees) and where the professor now teaches and then used this data to generate a network analysis.  This analysis produces visual representations of the resulting networks, like the one diagram below, which illustrates the centrality of a small number of schools – and especially Harvard and Yale –  in this academic network.
The authors caution, however, that such visualizations are not sufficient to understand underlying structural relationships.  They therefore apply several statistical measures: outdegree (the number of arcs emanating from each node, or more concretely here, the number of faculty members produced by each law school), hubs (measuring the relative prestige of the origin and endpoint of each arc, that is, the relative prestige of each institution – “Hubs are the schools with a high degree of influence on other influential schools...”), and closeness (measuring the tightness of connections between different institutions).  Like the visualization, these measures demonstrate an extreme skew towards the influence of a small number of schools.
Finally, the authors use the network analysis to model the rate at which ideas spread from one institution to another – the institutions’ intellectual infectiousness.  Although they acknowledge that this model involves a number of simplifying assumptions that themselves need to be examined, they argue that they provide a first cut at demonstrating how quickly and effectively new legal or intellectual paradigms can spread from one school to another where they are then incorporated into the education and socialization of future lawyers.  This is one possible mechanism by which changes in the law become widely accepted.
The piece has five authors all from the University of Michigan:  Daniel Katz, Josh Gubler, and Jon Zelner, Eric Provins, and Eitan Ingall.

Taking Upper Level Courses in the 1L Year?

Vermont Law School offers a joint JD/Masters in Environmental Law & Policy degree program for students wishing to maximize their time spent at VLS and in our environmental law program.  We have just revised our program to offer students the opportunity to take Environmental Law in the first year.   An empirical question: Are other schools adding upper level courses as electives to the 1L curriculum?

JELS (5:4)

Although the issue has been out for a while, I wanted to alert people to the issue's wonderfully eclectic collection of papers. Papers range from William Anderson & Marty Wells' provocative re-analysis of prior "impact of legalized abortion on crime" studies (Donohue & Levitt, 2001; Foote & Goetz, 2005) to Betsy Stevenson's assessment of the influence of unilateral divorce laws on female employment trends. In addition, Samuel Gross & Barbara O'Brien's paper examines data on false convictions in capital cases and Lynn LoPucki & Joe Doherty's study explores professional overcharging in the bankruptcy context.

Statistician Position at Berkeley Law

Rosann Greenspan at the Center for the Study of Law and Society just informed me of a position for a statistician at Berkeley Law.  The short version of the job description reads:

"The statistician would advise law and social science faculty and graduate students on data analysis using multivariate statistical modeling with both continuous and discrete dependent variables. The statistician would provide consulting and programming for database management and would assist with procuring data sets and setting up data for use with statistical packages used in the social sciences including SPSS, Stata, and SAS. The statistician would also provide consulting and assistance with statistical packages.  In addition, the statistician would provide consultation to editors of the California Law Review in reviewing article submissions that involve empirical analysis. The staff member would be housed at the Center for the Study of Law and Society but would serve the entire law school community."

The full ad is here; deadline is May 31, 2009.  I especially like the "provide consultation to the editors of the...law review" part; this might be a better model for law reviews than the full peer-review some have called for.

PSLRA-Motivated Research

The Private Securities Litigation Reform Act (PSLRA) continues to motivate interesting empirical legal research. In Do Differences in Pleading Standards Cause Forum Shopping in Securities Class Actions?: Doctrinal and Empirical Analyses, James Cox (Duke), Randall Thomas (Vanderbilt), and Lynn Bai (Cincinnati) argue that the Supreme Court's recent Tellabs decision "avoids deciding the hard issues that confront courts and litigants daily in the wake of the PSLRA's heightened pleading standard. As a consequence, the opinion keeps very much alive the circuits' disparate interpretations of the PSLRA's fraud pleading standard. To be sure, Tellabs might ultimately be applied by lower courts to narrow the range of permissible approaches to satisfying the strong inference standard, but leaves a good deal of room within which wide variations in approach will continue."

The authors then turn empirical and assess whether "plaintiffs' attorneys take advantage of the differences among the circuits' interpretation of the pleading standard to select more favorable venues to file their cases as some scholars have claimed[?] We find that 85% of the securities fraud class actions in our sample are filed in the home circuit of the defendant corporation. In the remainder of cases, those that are filed outside the defendant's home jurisdiction, our analysis shows that differences in the pleading standards do not explain a statistically significant amount of the reason for that decision."

An Empirical Snapshot of an Ever-Changing Bankruptcy Landscape

With the Dow below the 6,800 mark (as of 3:30 PM EST) for the first time since 1997, now is perhaps an appropriate time to turn our attention to bankruptcy scholarship. To this end, a recent paper by Bob Lawless (IL) et al. warrants attention as it is among the first wave of empirical assessments of the recently reformed bankruptcy code. In Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, the authors report that:

"Contrary to the advocates' claim that high-income filers would be driven from the system and, by implication, that those remaining would have more modest incomes, the data show no change in the income levels of bankruptcy filers after the amendments. These findings thus cast doubt on the suggestion that those purged from the bankruptcy courts - approximately 800,000 in 2007 alone based on trend extrapolation - were high-income deadbeats; they instead appear to have been ordinary American families in serious financial distress. The data also show that debtors filing for bankruptcy in 2007 have even greater debt loads than their counterparts from 2001, a development that seems to track a national trend of increasing consumer debt. The findings thus align with at least two predictions of some legal scholars. The first is that the bankruptcy reform bill was not aimed at high-income abusers but was instead a general assault on all debtors, regardless of their financial circumstances. The second is that debtors are waiting longer - and incurring more debt - before ultimately seeking bankruptcy relief, consistent with the so-called "sweat box" theory of credit card lending."