Empirical Legal Studies

MA v. HHS and En Banc Review

As people probably know by now, today a three-judge panel struck down Section 3 of the Defense of Marriage Act.  One question that has come up in various places is whether the defenders of DOMA will ask the First Circuit for an en banc review or proceed directly to the Supreme Court.  Interestingly, the First Circuit's opinion contains this line:

"Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district court's stay of its injunctive judgment, pending further order of this court." 

Now, we've known for a long time that en banc decisions are more likely to be reviewed by the Supreme Court; as H.W. Perry noted in his terrific book over twenty years ago, the justices often like cases to "percolate" before coming to the Court.  And the first Circuit, despite its small size, does on occasion decide cases en banc (see, e.g., here).

At the same time, as I and others have noted elsewhere, the First Circuit -- which has only five active judges -- generally has a low rate of en banc review of panel decisions.  Moreover, the decision here was (a) unanimous, and (b) made by three of the circuit's five active judges (Judges Lynch, Boudin, and Torruella), without participation by any of the circuit's senior judges or any district court (or other appellate court) judges sitting by designation.

But even if the respondents are confident of a cert grant, does it make sense to petition for an en banc rehearing?  As has been widely noted, the panel that issued the decision was comprised of two Republican appointees and one Democratic one.  A quick look at the First Circuit judges' "GHP scores" (above) indicates that the composition of ideologies in the First Circuit panel is essentially the entire range of the circuit (note that there is no score available for Obama appointee Judge O. Rogeriee Thompson). That would suggest that the likelihood of a reversal en banc is exceedingly low.

Judicial Decisionmaking, When It Comes to Retirement

While judicial decisions continue to attract sustained interest from empiricists, far less is known about other aspects of judges' conduct, including their decisions to retire. In Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, Stephen Burbank (Penn.), S. Jay Plager (CA-FC), and Gregory Ablavsky (Penn.) bring some preliminary data to bear on this issue, including on factors that motivate judicial retirements. While the analyses are descriptive, they contribute to an important foundation for further study. An excerpted abstract follows.

"This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of assuming senior status or retiring.

The study’s findings include many matters either not previously observed or not previously established. ... Responses to a questionnaire sent to all judges in senior status (with a return rate of 83%) permitted the authors to confirm that the two major influences on the decision to take senior status are the desire to help the judge's court by creating a vacancy and the desire to take advantage of federal tax (FICA) savings. Those responses also confirm that, contrary to much of the political science literature, strategic partisan behavior plays only a very small role in these decisions."

How to Write an Empirical Research Paper

For any students (or faculty, for that matter) contemplating a summer research project, Andrew Gelman (Columbia--Poli Sci) offers quite helpful, quick advice on how to approach writing up a research paper (here).

CELS 2012 -- Call for Papers

Call for Papers CELS 2012

The Seventh Annual Conference on Empirical Legal Studies (CELS 2012), sponsored by the Society for Empirical Legal Studies, will be held in Palo Alto at Stanford Law School on Friday, November 9, and Saturday, November 10, 2012.  Paper submission deadline: Sunday, July 8, 2012, midnight (PST).

Conference History

The annual Conferences on Empirical Legal Studies (CELS) were launched in 2006, in response to the growing level of empirical scholarship in law schools and elsewhere. It has thus far been held at University of Texas (2006), NYU (2007), Cornell (2008), USC (2009), Yale (2010), and Northwestern (2011), and is scheduled for Stanford (2012), Penn (2013), and UC Berkeley (2014), in each case with generous support from the host school.

Baldy Fellowships

The Baldy Center for Law & Social Policy at SUNY-Buffalo plans to award several post-doc, mid-career, and senior fellowships for the 2012-13 academic year. The Fellowships are geared toward "scholars pursuing important topics in law, legal institutions, and social policy." The Baldy Center invites applications from an array of disciplines, including "law, the humanities, and the social sciences." What I found particularly notable (and attractive) is that "Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research." (emphasis added) Those interested can find more info here.

Defunding Political Science at NSF

Late last night, on a nearly party-line 218-208 vote, the U.S. House passed an amendment (by Rep. Flake, R-AZ) to HR 5326 to "prohibit the use of funds to be used to carry out the functions of the Political Science Program in the Division of Social and Economic Sciences of the Directorate for Social, Behavioral, and Economic Sciences of the National Science Foundation."  The Monkey Cage has some of the relevant links.  Efforts like this have been mounted before -- most recently in 2009, by Sen. Tom Coburn -- but none have gotten this far.

The actual debate on the defunding amendment (all five minutes of it!) is here, in the CR.  I am not enough of a student of the appropriations process (or of legislative politics in general) to speculate on what might happen next.  But I do think that if I were Subra Suresh, Myron Gutmann, or the SBE Advisory Committee -- or, for that matter, the directors of the NIJ, any of the NIH agencies, etc. -- I would be very concerned about the precedent that this would set.  For Congress to begin micromanaging the NSF at the program level raises some serious concerns about the politicization of science.

Call for Papers: AI and the Law

Robert Richards, proprietor of the Legal Informantics Blog, points out a call for papers for a special issue of Artificial Intelligence and Law focused on "modeling policy making."  Of particular note for ELS folks is that the special issue welcomes submissions on "the first three phases of the policy cycle: agenda setting, policy analysis, and lawmaking."

Stata Users' Favorite Commands

The folks over at The Stata Blog recently polled readers (obviously, a non-random selection of Stata users) on their favorite Stata command. While some may find the results (here) themselves interesting, others might find unfamiliar commands that could prove useful.