Empirical Legal Studies

Data on Health Care Quality's Imperviousness to Tort Reform

A recent paper by a Cornell colleague, Mike Frakes, will interest tort scholars (as well as health law specialists and economists). In Does Medical Malpractice Deter? The Impact of Tort Reforms and Malpractice Standard Reforms on Healthcare Quality, Mike exploits data from National Hospital Discharge Surveys to assess the impact of various tort reforms on avoidable hospitalization rates. Frakes finds only "modest" evidence of deterrence. The abstract follows.

"Despite the fundamental role of deterrence in the theoretical justification for medical malpractice law, surprisingly little evidence has been put forth to date bearing on its existence and scope. Using data from the 1979 to 2005 National Hospital Discharge Surveys and drawing on an extensive set of variations in various tort measures (e.g., damage caps) and malpractice standard-of-care rules (Frakes 2012a), I estimate a small and statistically insignificant relationship between malpractice forces and two metrics of health care quality emphasized by the Agency for Healthcare Research and Quality: (1) avoidable hospitalization rates (reflective of outpatient quality) and (2) inpatient mortality rates for selected medical conditions. At most, the evidence implies an arguably modest degree of malpractice-induced deterrence. For instance, at one end of the 95% confidence interval, the lack of a non-economic damages cap (indicative of higher malpractice pressure) is associated with only a 4% decrease in avoidable hospitalizations."

"False" Confessions, Plea Bargains, Experimental Designs & IRB

A recent paper now circulating on SSRN, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, intrigues for an array of reasons. The subject matter--defendants' willingness to plead to offenses they did not commit incident to a plea bargain--certainly provokes. Also notable is the research design employed. The researchers, Lucian Dervan (S. Ill.) and Vanessa Edkins (psychology, Florida Tech.), constructed an experiment in which college students actually felt they were "accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board." The study involved "dozens of college students, and taking place over several months ... revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases." Finally, insofar as this experiment involved human subjects, that the researchers managed to get their research project through IRB struck me as something of a minor miracle. An excerpted abstract follows.

"Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit. This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt."

The Court, Legitimacy, and Political Perceptions

The Court's recent ACA decision propelled attention to perceptions of Court legitimacy. Erik Girvan (Oregon) pointed me to a post by a pair of political scientists at Duke, Chris Johnston and D. Sunshine Hillygus, who consider  "Given that the Court ruled in favor of the constitutionality of the ACA bill, we were interested to see how Court legitimacy would vary across Democrats and Republicans. Would Democrats show higher levels of legitimacy because of the ruling? Conversely, would Republicans show higher legitimacy in spite of the ruling, because the Court remains relatively conservative overall?"

According to Johnston and Hillygus, "the present data support the conclusion that Supreme Court legitimacy is, to a meaningful extent, conditional on political predispositions as they relate to the output of the Court; however, what matters is how citizens perceive the Court’s output, and whether those perceptions are in line with their own preferences or not."

Jobs

While the ELS Blog is not a general employment information clearinghouse, we do note job postings of particular interest to ELS folks. The recent posting for an open position in US Legal History in the Jurisprudence & Social Policy Program at UC Berkeley is one such example.

"The Jurisprudence and Social Policy (JSP) Program in the School of Law at the University of California, Berkeley seeks applicants for a tenure-track or tenured faculty position in U.S. legal history. Candidates must hold a Ph.D. or equivalent degree in history or a closely related field; and must have an excellent record of historical scholarship related to law, as appropriate to career stage. Candidates with ABD status will be considered, but the successful candidate must have finished the Ph.D. within 6 months of appointment. The position is not restricted to any particular period of U.S. history, area of legal historical research or methodological approach. An ideal candidate should undertake research of interest both to the historical profession generally and to legal historians within the law school community. Given the multi-disciplinary character of the JSP Program, faculty members are expected to help support students across a range of socio-legal fields, as well as within their own area of disciplinary training. A JD is not required, though we welcome candidates who would enrich scholarship and teaching within the broadest community at Berkeley Law, including contributions to the professional J.D. program."

Those interested will find more information about Berkeley's JSP program here; more specific application information here.

More on a Ph.D. in Law

I've had a hunch for some time an initiative like this would emerge, despite classic "first-mover" hurdles. Reactions to Yale Law School's Ph.D. in Law program were both swift and varied. While Brian Leiter was quick to describe YLS's move as "the worst idea in the history of legal education," other commentators offer a more measured, "wait-and-see" take (e.g., here, here, and here).

If nothing else, Yale's effort represents another response (and a not implausible alternative to pursuing a J.D/Ph.D. in a traditional non-law discipline) to palpable changes to the law faculty entry-level hiring market. As YLS Dean Robert Post correctly notes, "You have to come in now with a portfolio of writing. People [law school hiring committees] require you to show your abilities as a scholar by what you've written."

Yale to offer a Ph.D in Law

Yale Law School will begin offering a Ph.D in law, with the first incoming class arriving in Fall 2013.  I learnd of this from a WSJ story; the Yale press release is here.  From the latter:

"Because the level of the scholarship expected of entry-level law professors has risen quite dramatically, increasing numbers of law professors now pursue Ph.D.’s in allied disciplines like economics, history, philosophy, or political science. Because such disciplines train students in standards and questions that are different from those of the law, the natural next step for the legal academy is to create our own Ph.D. program that can focus on the questions and practices of the law itself. Students obtaining a Ph.D. in law may, of course, engage in interdisciplinary studies, but their work will be anchored in the framework of legal scholarship." (Dean Robert Post)

The program is clearly designed to prepare individuals for careers on law faculty; and, interestingly, the program is only open to individuals who have already received a J.D. This makes it an interesting move by Yale, both from a "possible pool of candidates" perspective and (more broadly) given some of the other changes in law schools recently (and their likely knock-on effects for faculty hiring).  I'll have to mull this last bit over a bit more before commenting further, but my knee-jerk reaction is that this will further polarize the ranks of law school faculties with respect to credentals, focus, etc.

In related news, Gordon Silverstein, a political scientist formerly at (inter alia) Berkeley, will assume the position of Assistant Dean of Graduate Programs at YLS, effective Monday. He'll be in charge of the new Ph.D., as well as existing the LL.M. and J.S.D. programs. Congratulations, Gordon!

 

 

Always More Room on the ELS "Bandwagon"

Interesting post (and related discussion) over at PrawfsBlawg involving Martin Pritikin's (Whittier) initial "jump" onto the ELS "bandwagon" and into ELS scholarship. Notable to me is Martin's willingness to undertake the "heroic" task of data creation (rather than secondary analysis of existing data sets). It is also hearting to hear reports from participants about the efficacy of the growing number of empirical legal studies workshops. Finally, the comments' helpfulness evidences how the ELS community stands ready to assist those willing to engage.

CELS 2012 -- Paper Submission Deadline Extended (Now: Mon., July 16)

Those scrambling to finalize their CELS paper submissions will certainly welcome the decision by Conference Co-Presidents Dan Ho (Stanford) and John Donohue (Stanford) to extend the paper submission deadline until Midnight (PST) on Monday, July 16, 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.