Empirical Legal Studies

Empirical Legal Scholarship & Coauthorship

Tom Ginsburg and Tom Miles (both at Chicago) explore the relation between empirical legal studies and coauthorship trends in Empiricism and the Rising Incidence of Coauthorship in Law. According the to authors, "one common prediction is that academic collaboration rises with scholarly specialization. As the complexity of a field grows, more and more diverse types of human capital are needed to make a contribution. This paper presents two tests of whether empiricism has spurred more co-authorship in law." An excerpted abstract summarizes their findings.

"First, the paper shows that the fraction of articles in the top fifteen law reviews that were empirical or co-authored (or both) trended upwards between 2000 and 2010. The increase in empirical articles accounted for a substantial share of the growth in co-authored articles, and the correlation between co-authorship and empiricism persisted after controlling for numerous other influences. Second, the paper examines the articles published since 1989 in two prominent, faculty-edited journals specializing in law & economics: the Journal of Legal Studies and the Journal of Law, Economics & Organization. Co-authored articles were far more common in these journals than in the general-interest, student-edited law reviews – a pattern which itself is consistent with the specialization hypothesis. The share of articles without empirical analysis or formal models in these journals plummeted over this period, while co-authorship rose sharply. These results support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of co-authorship in legal academia."

JELS 8:1 & Troubling Trends on the Arbitration Front

I am pleased to report that the current issue of JELS (8:1, Mar. 2011) is available online and, once again, on time. JELS Editor Ted Eisenberg's comments on two arbitration papers (one in JELS and another in JLS) follow.

"Two new empirical articles on arbitration provide some potentially troubling results. In An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 Journal of Empirical Legal Studies 1 (2011), Alexander Colvin analyzes thousand of arbitration outcomes and finds a low employee win rate (21.4 percent), finds strong evidence of a repeat player effect in which employee win rates and award amounts are significantly lower where the employer is involved in multiple arbitration cases, and finds evidence of a significant repeat-employer-arbitrator pairing effect that is adverse to employees.

In Punitive Damages in Securities Arbitration: An Empirical Study, 39 Journal of Legal Studies 497, 518 (tbl. 4) (2010), Stephen J. Choi and I report a decline in investor success in securities arbitrations.  Investors received a positive award in 53 percent of arbitrations in 1992 but that figure declined to 32 percent in 2006."

The Titanic, Self-Interest, and Social Norms

In one of the more ingenious, creative, and elegant studies I've come across in a while, Bruno Frey (Zurich), David Savage (grad student, Queensland Univ. of Tech.), and Benno Torgler (Queensland Univ. of Tech.), in Behavior Under Extreme Conditions: The Titanic Disaster, exploit archival data and a quasi-natural experiment provided by the Titanic's tragic sinking to test theories about how people behave in extreme situations. An excerpted abstract follows:

"For social scientists, evidence about how people behaved as the Titanic sunk offers a quasi-natural field experiment to explore behavior under extreme conditions of life and death. A common assumption is that in such situations, self-interested reactions will predominate and social cohesion is expected to disappear. However, empirical evidence on the extent to which people in the throes of a disaster react with self-regarding or with other-regarding behavior is scanty. The sinking of the Titanic posed a life-or-death situation for its passengers. The Titanic carried only 20 lifeboats, which could accommodate about half the people aboard, and deck officers exacerbated the shortage by launching lifeboats that were partially empty. Failure to secure a seat in a lifeboat virtually guaranteed death. We have collected individual-level data on the passengers and crew on the Titanic, which allow us to analyze some specific questions: Did physical strength (being male and in prime age) or social status (being a first- or second-class passenger) raise the survival chance? Was it favorable for survival to travel alone or in company? Does one's role or function (being a crew member or a passenger) affect the probability of survival? Do social norms, such as "Women and children first!" have any effect? Does nationality affect the chance of survival? We also explore whether the time from impact to sinking might matter by comparing the sinking of the Titanic over nearly three hours to the sinking of the Lusitania in 1915, which took only 18 minutes from when the torpedo hit the ship."

The Empirics of Legislative 'Sausage-Making'

Assessing what lobbyists do from an empirical perspective is the focus of a recent and interesting paper by Marianne Bertrand (Chicago-Business), Matilde Bombardini (U. British Columbia), and Francesco Trebbi (U. British Columbia). Is it Whom You Know or What You Know? An Empirical Assessment of the Lobbying Process exploits an array of publicly-available data and considers competing models of lobbying. The abstract follows.

"Some believe that lobbyists’ main role is to provide issue-specific information and expertise to congressmen to help guide the law-making process. Others believe that lobbyists mainly provide the firms and other special interests they represent with access to politicians in their “circle of influence” and that this access is the be-all and end-all of how lobbyists affect the lawmaking process. This paper combines a descriptive analysis with more targeted testing to get inside the black box of the lobbying process and inform our understanding of the relative importance of these two views of lobbying.

We exploit multiple sources of data covering the period 1999 to 2008, including: federal lobbying registration from the Senate Office of Public Records, Federal Election Commission reports, committee and subcommittee assignments for the 106th to 110th Congresses, and background information on individual lobbyists.

A pure issue expertise view of lobbying does not fit the data well. Instead, maintaining connections to politicians appears central to what lobbyists do. In particular, we find that whom lobbyists are connected to (through political campaign donations) directly affects what they work on. More importantly, lobbyists appear to systematically switch issues as the politicians they were previously connected to switch committee assignments, hence following people they know rather than sticking to issues. We also find evidence that lobbyists that have issue expertise earn a premium, but we uncover that such a premium for lobbyists that have connections to many politicians and Members of Congress is considerably larger."

What Happens to Adoption if States Promote IVF Through Insurance Mandates?

I. Glenn Cohen (Harvard) and Daniel Chen (Duke) venture into the interesting though complex intersection of reproduction technology, state regulation of insurance, and adoption in Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should it Matter?  The abstract follows:

"For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and have argued against enactment of state mandates for that reason.
 
First, we interrogate the normative premises of the argument and expose its contestable implicit assumptions about how the state should balance the interests of existing children waiting for adoption and those seeking access to reproductive technology in order to have genetically related children.
 
Second, we investigate the unexamined empirical question behind the conclusion: does state subsidization of reproductive technologies through insurance mandates actually reduce adoption; that is, is there a trade-off between helping individuals conceive and helping children waiting to be adopted? We call the claim that there is such an effect the 'substitution theory.' Using the differential timing of introduction of state-level insurance mandates relating to IVF in some states and differences in the forms these mandates take, we employ several different econometric techniques (differences-in-differences, ordinary least squares, two-stage least squares) to examine the effect of these mandates on IVF utilization and adoption. Contrary to the assumption of the substitution theory, we find no strong evidence that state support of IVF through these mandates crowds out either domestic or international adoption."