Empirical Legal Studies

A Copyright Charity, For the Children

The Copyright Alliance has created a “charitable arm,” the Copyright Alliance Education Foundation. It “will develop educational programs aimed at helping America’s next generation of creators succeed.” CAEF also provides links to already existing “educational” materials on intellectual property law and promotes them for classroom use.

As an example, CAEF promotes the Electronic Software Association or ESA’s Join the ©Team curriculum, a set of materials that have been around for a few years now. While they are designed for elementary school kids, they are also a fun way for law students to discuss copyright and fair use, at least for a few minutes. I have used portions of the 4th and 5th grade materials in the discussion of copyright in my video game law seminar and may use the same materials in my intellectual property law survey course.

Here’s a problem from the curriculum materials for 4th and 5th graders about how to “copy right.” It’s accompanied by a picture of one boy giving a CD-ROM to another boy:

“Simon is giving Bob a copy of his class report on Harry Potter. What should he do to copy right?” (p. 19)

The answer, sort of, to this hypothetical is after the jump.

Yung on Activism (and Sotomayor)

Over at the Sex Crimes Blog, Corey Yung (John Marshall) discusses the preliminary results of a mostly sex crimes-free paper on judicial activism. He will be presenting the paper at Law and Society in Denver this Saturday.

For Yung, “Judges are ‘activist’ when they substitute their judgment in place of other constitutional actors when the formal model would predict otherwise.” For appellate judges, his operational measure of activism is tied to the standard of review on appeal. As the standard of review can be a hindrance to achieving a preferred outcome, activist judges should pay less attention to it. Yung therefore compares the reversal rates in cases (1) with and (2) without a deferential standard of review. The calculation for each judge is straightforward: Reversal Rate in Non-Deferential Cases minus Reversal Rate in Deferential Cases. The smaller the gap between the reversal rates in these two classes of cases, the more "activist" the judge.

Based on the (preliminary) data from 2008 for five circuits, the average reversal gap is 10.4%. Judges Calabresi and Posner have smaller reversal gaps at 3.7% and 4.3%, respectively. Judge Sotomayor comes in near the average at 11.7%. Judges Easterbrook and Wilkinson are at the more "restrained" end of the spectrum with reversal gaps of 22.1% and 35.2%, respectively.

For more, see Yung's post here.

Empirically Assessing Judicial Activism

Over at Balkinization Stephen Griffin beat me to the task of (favorably) noting a recently-released book by Stefanie Lindquist and Frank Cross (both at Texas), Measuring Judicial Activism. Published by Oxford, info on the book is here. As Stephen notes, "When they (Lindquist and Cross) cumulate the scores of judicial activism across all dimensions, the top activist justices turn out to be Douglas, Black, and Warren, with Brennan and Marshall close behind. Justices Burger and Frankfurter rank last. The book is consistently interesting and well worth reading."

Invitation to Empirical Workshop at 2009 Annual SEALS Conference

[From our good friend Ben Barton:]

Greetings.  This summer at SEALS (The Southeastern Association of Law Schools Conference) we are having an all day "how to" session on empirical legal studies on Friday, August 7th.  As part of that day we are planning an hour and a half session for small groups of panelists and presenters to meet to workshop new empirical research projects.  We are asking potential presenters to send in either a draft of a paper or a 4 page prospectus explaining their idea, so that the drafts/proposals can be selected and circulated ahead of time to a discussion group.  We will be favoring work that is still in a formative stage (i.e. not accepted for publication).  The workshop's emphasis will be on offering specific suggestions and constructive criticism.  Selected papers will be grouped for presentation by subject area.   

The current list of presenters who will be participating in the workshop as readers and commentators is quite impressive, including Professor Kenneth Dau-Schmidt, Indiana University School of Law - Bloomington; Professor Thomas Eaton, University of Georgia School of Law; Professor Theodore Eisenberg, Cornell Law School; Professor Michelle Harner, University of Nebraska College of Law; Professor Minna Kotkin, Brooklyn Law School; Professor Colleen Medill, University of Nebraska College of Law; Professor David Mitchell, University of Missouri School of Law; Professor Lori Ringhand, University of Georgia School of Law; Joshua D. Wright, George Mason University; Professor Jeffrey Yates, University of Georgia, Department of Political Science; and Professor Ben Barton, The University of Tennessee College of Law.

If you are interested in participating, please send your submission to both Lori Ringhand ([email protected]) and Ben Barton ([email protected]) by June 15th.  Authors whose papers are selected will be notified by July 5. You are welcome to submit a paper even if you are not currently registered to attend the SEALS conference, but authors whose papers are selected for presentation will be expected to attend. The SEALS Conference is held every year at a lovely beachfront location.  This year it is being held at the Ritz Carlton Palm Beach. Registration and additional information about the conference can be found at: http://sealslawschools.org/.

Tenure and Fulbright

Dear Empirical Legal Studies Blog Readers and Friends,

I thought I’d share with you some great news.

First, I just received tenure following a unanimous vote of the faculty and the Board of Trustees.  Thus, I’m now a Professor of Law.

Second, I’ll share the announcement of my Dean: “I am pleased to announce that Professor Jason J. Czarnezki of the Vermont Law School has been selected as a Fulbright Scholar for the 2009-2010 academic year.  Professor Czarnezki will travel with his family to China where he will teach environmental and natural resources law.  The U.S.-China Fulbright Program has indicated its support for the Vermont Law School's China Program, a partnership with Sun Yat-sen University and USAID, and, in an effort to build further relationships and in the interests of institutional cooperation, it is anticipated that the placement for Professor Czarnezki will be at Sun Yat-sen (Zhongshan) University in Guangzhou.”

"How To" Empirical Panels at the SEALS Conference (AKA "How can I hang out at the Ritz Carlton in Palm Beach Florida?")

There are a series of "how to" empirical panels at the SEALS (Southeastern Association of Law Schools) Conference this summer on Friday, August 7 at the Ritz Carlton Palm Beach  (location not a typo).    The Call for Papers can be found here and program for the empirical legal studies panels can be found here.  A full description of SEALS and a copy of the full program can be found here: http://sealslawschools.org/.  For further information contact Ben Barton ([email protected]) or Lori Ringhand ([email protected]).

Judge Edwards: "no body of empirical evidence to support any claim to the contrary"

It's not everyday that I receive an article reprint from a federal judge.  Today I received in the mail an article entitled "Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking," 58 Duke L.J. 1895 (2009), by the Honorable Harry T. Edwards of the D.C. Circuit and Michael A. Livermore.  (I haven't found an online link yet.)

Given the provocative cover letter, I'd encourage readers to check it out.  The cover letter reads:

"Our bottom line is simple: the decisions of federal appellate judges are not highly politicized and there is no body of empirical evidence to support any claim to the contrary."

First Signs of a New Equilibrium in Entry-Level Salaries

According to today's Am Law Daily, Philadelphia-based Drinker Biddle announced that instead of deferring its 37 incoming associates for six months to a year, it is going to institute an intensive training programs run by its partners, professional development personnel, and various firm clients.  To pay for this program, it is going to cut entry level salaries to $105,000 (from $145,000 to $160,000 depending upon the market).  Thereafter, the salaries will go to the "prevailing rate" in the spring 2010. [Query: what will that rate be?  Even it is higher than $105K, maybe Drinker is better off getting associates who self-select into its more training-intensive model.]

Frankly, this is the first sign I have witnessed of a sensible medium term strategy by an Am Law 200 law firm.  Further, this approach is very close to the associate pay models hammered out by the four FutureFirm 1.0 teams.  Remarkably, all four teams (each with four partners, three in-house lawyers, and three associates/law students) traded away the $160K pay scale for a entry level job that guaranteed meaningful training, client contact, and other perks, such as greater job security (e.g., a 3-year contract at $80,000 per year) and loan payback programs.

There are several reasons why Drinker Biddle's move could set the stage for a new equilibrium:

• Making "Better Lawyers Faster."  The real problem with the $160K pay structure is that associates become too expensive to train, at least on the client's dime.  $105,000 is more than the $60,000 to $75,000 one-year hiatus offered by several firms.  But think about it.  A firm can bill out the associates at rates below a paralegal and easily recoup the difference.   Further, the associates are learning the clients' businesses and observing partners and senior associates.  In the fall of 2010,  Drinker Biddle associates will be worth a lot more to clients than associates who took the year off.  This training is akin to the original Cravath system, which was designed to make "better lawyers faster."
• Continued Soft Entry Level Market.   With zero voluntary attrition at most Am Law 200 firms and the go-go days of Silicon Valley (97-00) and Wall Street (04-07) gone for the foreseeable future, the entry level supply pipeline is going to back up into the 2010 and 2011.   Thus, there is a decent chance that Drinker Biddle will enjoy a few years of sensible $105,000 salary structure.  In a world where revenues are unlikely to climb anytime soon, reducing costs is the only viable road to profitability.   More significantly, the lower costs and better trained workforce could become a source of long-term competitive advantage.
• Owning your Market Space.  Up until 2009, virtually every law firm in the Am Law 200 was a market follower.  Drinker Biddle lacks to the cachet to be market leader, even in Philadelphia ($605,000 in FY 2008 PPP, which is #92 in the Am Law 100).  Thus, why not be a first mover where many competitors are likely to be too snobbish and bull-headed to follow your lead?  Based on upon my observations from FutureFirm, and my discussions with Indiana 1Ls, I predict that $105K + training will be magnet for many law students.  Keep in mind, more elite firms cannot even offer a firm start date. 
• Reality is Underrated.  To my mind, it is preferable to be a so-called "middle-market" firm with a sensible cost-structure and a contented client base than an so-called top-market firm with a bloated cost-structure and clients who don't want your junior associates to work on their matters.  Am Law 200 firms can and do sometimes implode, especially when the partnership goes into denial.  Drinker Biddle, to it credit, appears to have a plan.
• $105,000 and the Six-Figure Barrier.   It is unclear to me whether $105,000 is the optimal entry level salary for a lawyer who wants the very best training opportunities to launch one's career.  I suspect the optimal figure may be lower (e.g., $80,000 per year moving up to $120,000 to $200,000 within three years).  But I do think that dropping under the $100,000 barrier may have created perceptions problems for Drinker Biddle that may outweigh any short-term financial gains--e.g., Philly rivals mimicking Drinker's strategy, but coming in above the psychologically powerful six-figure barrier.  Yet, now, if some firms dicker around at $115,000, Drinker can move to that number next year with zero lost in market credibility, said figure being the so-called "prevailing rate."

Arguably, Drinker Biddle is the first Am Law 200 firm to not "waste a crisis."  It will be interesting to see how other firms respond.

Supremely Empirical

As long as every other interested party is weighing in on Pres. Obama's first S.Ct. nomination, the least I can do is endorse Dave Hoffman's proposal for a nominee that, at a minimum, possesses a general familiarity and comfort with empirical methods. Although I can understand it when judges choose to simply ignore salient (and, I hope, well-crafted) empirical evidence brought before them (however much it might pain me), when judges (especially Justices) choose to engage with empirical work, however, they really should avoid botching things. In Exxon, Justice Souter's recent high-profile bungling (or "debacle" as Dave notes here; subsequent scholarly work on the issue is found here) falls below what I expect from my law students.  Dave's conclusion warrants repetition:

"The point is that at least some exposure in statistics and social science techniques is quickly becoming part of a well-rounded legal education. It should also be part of what we look for in a Justice."

Henderson's Hierarchy of Blogging

Regrettably, I have not posted a substantive blog post since Dec. 16, 2008.  Although few things are more enjoyable than blogging (primarily because blogging relies heavily on reading and thinking), over the last several months I have been swallowed up by other priorities.   To convey what happened, I have created Henderson's Hierarchy of Blogging, which is a shameless rip-off of Maslow's Hierarchy of Needs, a staple of undergraduate education during the '70s and '80s.

For the last five months, I have spent most of my time toggling between Levels 1 and 2.  On a good day, I broke into Level 3.  I desperately longed for my Level 5 days--reading, thinking, and blogging.   

The most substantial activity over the last five months has been Indiana's new 4-credit 1L Legal Professions course.  In my case, this included two sections of 50 students each, a wide array of new teaching materials and assessment methods, organizing outside speakers for class, meeting with students, and participating in weekly instructor meetings.  It was a grueling but highly rewarding experience.  Suffice to say that my students, through their six and seven member Practice Groups, did some immensely creative that far exceeded my expectations.   I was bowled over by the power of group intelligence--far beyond what a mere individual could accomplish.  Moreover, I learned a huge amount from my colleagues as we taught the same materials, often in very different ways.

Another major commitment was the organization of FutureFirm 1.0, a "collaborative competition held at Indiana University Maurer School of Law on April 17-19.  Starting with a fact pattern for the fictional law firm of Marbury & Madison LLP, four teams of ten players (each comprised of four actual law firm partners, three actual in-house lawyers, and three actual associates/law students) worked over the weekend to formulate a new law firm model that would enable the firm to "survive and thrive over the next 20 years."  FutureFirm 1.0 was a hugely successful event, thanks in no small measure to the  expert facilitation by Anthony Kearns, the national risk manager for the Legal Practitioners Liability Committee in Austrialia.  Hildebrandt made the weekend especially interesting by putting up $15,000 in prize money.

With my few hours of remaining time, I kept some travel and writing commitments, ate a few meals with my family, but generally fell woefully behind in my non-student email and virtually all other facets of my life.   To the legions of people I have disappointed/irritated over the last five months, please accept my apologies.   In another week, I hope to be back to some modicum of Level 4/5 activity.  

Revisiting the Nuts and Bolts of Scholarship

My Vermont Law School colleague Cheryl Hanna has, over the past many years, presented the talk on the nuts and bolts of scholarship for new law teachers at the AALS New Law Teacher's Conference. I thought it would be helpful to make available to the blogosphere and new law professors two pieces Cheryl has written for the Conference.    The original article can be found at http://www.aals.org/nlt2004/hanna.pdf and an this year's update that includes a section on SSRN is entitled Revisiting the Nuts and Bolts of Scholarship (download it by clicking on the title).

Souter's Pen

I guess it's not totally irrelevant that Chris posted about Souter, given the discussion of the ABA ratings and the new vacancy on the Supreme Court he just created...though the pen thing would not, I think, be predictive of either decision making or nomination...  Anyway, I wanted to take the opportunity the pen post created both to thank Amy and Rich for spending some time with us discussing their research, and to think about the ramifications of that research for some of the names being batted around for Souter's seat.  I think we all agree that the pick will be a female, which means, according to Rich and Amy's research, a lower expected ABA rating.  In addition, the pick may well be a non-judge (Jennifer Granholm, anyone?), which would also lead to a lower ABA rating.  However, the pick is being made by a Democrat...So, Rich and Amy, what does your research say about the rating a Granholm might receive?  Does ideology trump judicial experience?  [Perhaps tangentially, will the President letting the ABA back in on the process make their determination more relevant to the Senate?  Does the Senate distinguish between WQ and Q?  Or does it just not vote for someone who is not qualified?]

David Souter's Pen

(Please excuse the slightly off-topic nature of this post, but this was too good not to pass along).

One of my hobbies (my spouse would say "afflictions") is collecting and using vintage fountain pens.  In the pursuit of that afflic... er... hobby, I came across this discussion, the central point of which is that Justice Souter is also a fountain pen aficionado; specifically, he uses "an old Esterbrook from forty or fifty years ago."

Fountain pen nuts will immediately know what I mean when I say that I can't think of a more Souter-esque pen than an "Estie."  They have a reputation as "blue collar" pens -- no Mont Blancs here -- but while they're not flashy, they are unfailingly reliable.  (Full disclosure: My very first fountain pen was a red Esterbrook J, purchased while I was still in graduate school; it lives on my desk to this day).

Discussing "Bias and the Bar" II

Sara - We definitely need to think more about how we can operationalize some of the features of "judicial temperament." I personally need more time to really think this through, so I instead thought it might be good to write about the question that keeps running through my head as I try to operationalize judicial temperament. The issue I'm struggling with, and which I'd love to hear the thoughts from others, is how we guard against imputing too much to the obvious proxies we'd have to use. For example, to play devil's advocate, I'm interpreting your suggestion of using the Congressional staff variable to reflect the quality of "open-mindedness" as implying that the political nature of the job might actually point towards close-mindedness. The question is whether that is reading too much into what it means - or what the ABA perceives it to mean - when someone has served on a Congressional staff. We thought about it in two terms: (1) an obviously political position, but also (2) a not-always-good substitution for traditional legal experience, especially given the political nature of the job. Put another way, did the person get the nomination because of their political service, or due to their qualifications? However, is the acknowledgement of the political flavor of the appointment and the nominee's background the same as measuring whether a nominee will be viewed by the ABA as "open-minded"? Alternatively, by this definition, our inclusion of the Years as Public Interest Lawyer could be seen as another measure of potential "open-mindedness" or "commitment to equal justice" given the equal justice-nature of much public interest work. But, again, are we presuming too much to suggest that the ABA views such work in this manner? Finally, what are service as a government attorney? The vast majority of people in this category - which we found the ABA viewed positively - serve as some type of prosecutor. Is this a signal of substantial courtroom and/or litigation experience, or could one possibly somehow link such experience - either positively or negatively - to some of the suggested ways of understanding "judicial temperament" in the ABA's guidelines? More broadly, how do we make sure that even our operationalization of these terms does not in and of itself make judgments? For example, does it (or should it) matter who the staffer worked for in Congress? Does it matter what issues the staffer focused on?

Of course, much of this relates back to Sara's initial post about the impact of the ABA's investigations - it's not merely that someone was a judge, but that the ABA attempts to determine whether they really were a fair and impartial judge. The problem, however, is that we have little to work with on the outside. We could obviously attempt to look into the information brought forth by others (i.e., the media, interest groups, senators, etc.), but (a) most nominees receive little attention if any, and (b) the information we hear publicly about is likely to be somewhat biased. In fact, as a side note, a big problem is the lack of information on nominees -- when I was constructing a list of nominees who were opposed by interest groups, there were a surprising number who has zero articles written about their nominations, including passing mentions that they were nominated and/or confirmed. Which brings us back to the issue of how do we attempt to explain something - or some idea - for which we only have limited information and potential proxies?

Thoughts?

Finally, we will certainly work on creating a more nuanced ideology measure. The one question, Sara, is were you referring to the distance between the ABA committee and the nominee or the distance between the Judiciary Committee and the nominee? The issue is that, and forgive me if I’ve totally misunderstood your post, is that I'm just not sure what it would mean to hypothesize that the ABA Standing Committee's ratings are influenced by how ideologically distant the nominee is from the Senate Judiciary Committee. This would in turn have to mean that we believe that the ABA is more likely to rate nominees highly in times of unified government (when the ideological distance would be closer), and rate them less well in times of divided government (when the ideological distance would be farther). And, this would suggest the ABA's ratings are in part driven by the makeup of the Judiciary Committee, rather than based on the nominee's background.  Obviously, if we could create some measure of the ABA Committee's ideology that we could then compare to the nominee's ideology, that would be great.... Last thought: yes, determining whether the bias has switched over time is definitely a worthy question; the issue, as always, is getting the data.

Sara - thanks again for really pushing me/us to think about these issues!

Re: Chris's post yesterday, the only possible response is to say thank you for such a great suggestion, and the reminder to pay close attention to how one describes what their model actually does - and for providing us with all of the information on how to put that suggestion into action! We appreciate the guidance!! And, we'll let you know what we found as soon as we're done.