Empirical Legal Studies

Litigants' Overconfidence

In Do Lawyers Really Believe Their Own Hype and Should They?: A Natural Experiment, Zev Eigen (Northwestern) and Yair Listokin (Yale) cleverly exploit a ready natural experiment (student moot court competitions) to control for self-selection that limits most studies of lawyers' confidence in the legal merits of their clients' positions. The abstract follows.

"Existing research suggests that practicing litigators are too confident in the merits of their clients’ cases. But practicing attorneys often self select (1) the area of law in which they practice, (2) the side on which to practice within that area, (3) law firms with whom they practice, and (4) the clients they represent. We explore whether, after stripping away these selection-biases, legal advocates are still overconfident in their clients’ claims by exploiting a natural experiment involving participants in moot court competitions at three U.S. law schools. Students are randomly assigned to advocate for either petitioner or respondent, so none of the selection-bias problems above are present. We find that following participation in moot court contests, students overwhelmingly perceive that the legal merits favor the side that they were randomly assigned to represent. We also find that overconfidence is associated with poorer performance in advocacy as measured by legal writing instructors. Theoretical and practical implications are discussed."

Israel Supreme Court Decisions By The Numbers

After may, many hours of coding Israel Supreme Court decisions, my Cornell colleague, Ted Eisenberg, along with co-authors Talia Fisher (Tel Aviv, Law ) and Issachar Rosen-Zvi (Tel Aviv, Law), present results of their analyses in Israel's Supreme Court: An Empirical Study. Where appropriate (and possible), the paper draws helpful comparisons to U.S. courts. The abstract follows.

"This article reports the results of an empirical study of the Israel Supreme Court (ISC). It covers the outcomes of 2,734 cases (as of this writing), all decided in 2006 and 2007, and describes the cases by subject area, litigant-pair characteristics, and source of jurisdiction - mandatory or discretionary. In mandatory jurisdiction cases, the ISC affirmed lower court rulings in about 75% of district court criminal case appeals and about 67% of district court civil case appeals. In discretionary jurisdiction cases, the ISC rarely granted review. It agreed to review about 6% of petitions in criminal cases and about 10% of petitions in civil cases. In discretionary cases in which the ISC did grant review, it tended to reverse at a much higher rate than in mandatory jurisdiction cases, with an affirmance rate of 55% in criminal cases and 14% in civil cases. The government fared far better than other litigants in obtaining reversals of lower court rulings and in securing review of those rulings. Sentencing issues dominated the criminal docket and criminal cases predominated over civil cases. Reversal rates were not substantially different from those in cases with analogous jurisdiction in U.S. state courts of last resort except in discretionary jurisdiction civil cases. The ISC tended to reverse such cases at a higher rate than U.S. courts."

Bleg: Law School Courses on Empirical Methods

My friend and sometimes-coauthor Todd Peppers (Roanoke College / Washington & Lee School of Law) asked me to make the following request to the ELS community:

"John Keyser and I co-teach a course called “The Role of Social Science in the Law” at the Washington and Lee Law School.   While John and I taught a fairly ordinary version of the course during our first time teaching the class, this year we have added simulations in which law students have to  assume the roles of attorneys who are faced with using or critiquing the use of social scientific research in mock cases.  Given our experiences in creating this course, I am interesting in finding out which law schools and law school professors are offering courses on empirical methods for law students.  Specifically, I’m interested in courses that don’t simply teach the methods themselves, but take the additional step of using these new skills to (1) examine how judges and lawyers use/abuse social scientific research in the courtroom, or (2) examine how social scientists study judicial behavior.   I’d also be interested to hear what textbook or articles the professors use, as well as any simulation materials."

Comments welcome, or reply to Todd at [email protected].

More on ELS & "Technical Fetishization"

A while back I linked to Brian Leiter's curious thoughts about ELS and the production of "too much" (and "too much" mediocre) empirical legal scholarship. Somewhat predictably, the post triggered commentary (as Brian's post was likely designed to do). To keep ELS Blog readers current, I want to update on even more recent commentary from Dave Hoffman (here) and Josh Wright (here).

The Empirics of Family Law: Influence of Child Support Guidelines on Divorce

In Child Support Guidelines and Divorce Rates, Margaret Brinig (Notre Dame) and Douglas Allen (Simon Fraser) draw on a large dataset (National Longitudinal Survey of Youth (NLSY)) to assess how variations in child support guidelines influence decisions to divorce. The paper's abstract follows.

"A child support guideline is a formula used to calculate support payments based on a few family characteristics. Guidelines began replacing court awarded support payments in the late 1970s and early 1980s, and were later mandated by the federal government in 1988. Two fundamentally different types of guidelines are used: percentage of obligor income, and income shares models. This paper explores the incentives to divorce under the two schemes, and uses the NLSY data set to test the key predictions. We find that percentage of obligor income models are destabilizing for families with high incomes. This may explain why several states have converted from obligor to income share models, and it provides a subtle lesson to the no-fault divorce debate."