Empirical Legal Studies

JELS (11:3, 2014)

I am pleased to note the arrival of JELS' most recent issue, 11:3 (Sept. 2014). I am particularly pleased to note that this issue maintains JELS' perfect on-time publication record. The diverse set of papers in this issue ranges from the Foreign Corrupt Practices Act to defensive medicine.

Ideology and Legal Scholarship

While legal scholars have explored the relation between judges' ideology and case outcomes for years, they have shied away from assessing legal scholarship from a similar lens. Until now. In An Empirical Study of Political Bias in Legal Scholarship, Adam Chilton (Chicago) and Eric Posner (Chicago) explore whether legal scholarship reflects legal scholars' political ideology. Setting aside standard concerns about measurement error, this paper will certainly capture attention (e.g., here). The abstract follows.

"Law professors routinely accuse each other of making politically biased arguments in their scholarship. They have also helped produce a large empirical literature on judicial behavior that has found that judicial opinions sometimes reflect the ideological biases of the judges who join them. Yet no one has used statistical methods to test the parallel hypothesis that legal scholarship reflects the political biases of law professors. This paper provides the results of such a test. We find that, at a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship."

Reshaping Data Sets

In a perfect world, data sets arrive complete, without any missing data, and shaped consistent with the desired unit of analysis. In the real world, however, many data sets requires manipulation. A recent thread on the Stata forum underscores the utility of the 'reshape' command.

State Supreme Court Judicial Elections & Tort Decisions

A growing body of research, particularly in political science, assesses possible relations between how state court judges are elected and retained and case outcomes. Building off prior work finding relations in such hot-button areas as capital punishment an abortion, in Supreme Court Elections and Tort Law Decisions Herbert Kritzer (Minn.) extends this inquiry into the area of tort reform.

Drawing on more than "38,000 votes by justices on state courts of last resort compiled by the State Supreme Court Data Project, the analysis shows some possible effects, but those effects are contingent on (a) which side brings the appeal (plaintiff or defendant), and (b) how the interdependence among the votes is modeled. Because of these ambiguities, the results are at best suggestive that retention system may have some effect on how the justices decide tort law issues."

Kritzer concludes that "while it appears that selection/retention related issues show some relationship with the direction of state supreme court decisions in tort cases, it is hard to make an argument that there are causal relationships pointing in a consistent direction."

Data From Law's Shadow

While much of legal scholarship focuses on litigation outcomes, virtually all legal disputes resolve prior to a bench or jury trial. Thus, efforts to understand legal disputes need to account for settlements that consume more than 90 percent of all cases initiated. And within the world of settled cases, mediation fulfills an important role. A paucity of data, however, hamstrings efforts to study settlement activity.

A recent paper, Inside the Caucus: An Empirical Analysis of Mediation from Within, by Daniel Klerman (USC) and Lisa Klerman (USC), exploits a rare mediation outcome data set involving one of the author's mediation activities. The data are limited, however, insofar as they involve a single mediator's experience and concentrate on employment disputes. Limitations notwithstanding, they nonetheless provide an unusual insight into an understudied slice of legal disputes. A summary of the paper's general findings follow.

"... The mediator studied here achieved a settlement rate of over 94%. There are very few gender differences, whether one looks at the gender of the plaintiff or the gender of the lawyers. For example, settlement rates are the same for male and female plaintiffs and lawyers. On average, cases settle much closer to the defendant’s first offer than the plaintiff’s, irrespective of case type, size of law firm, or other factors. A mediator’s proposal appears to be the most effective mediation technique. A mediator’s proposal was used in almost ninety-percent of cases, and, when it was used, the settlement rate was over ninety-nine percent."

Thinking Through Causation

In an interesting review essay, Andrew Gelman (Columbia) discusses the all-important move from describing what to assessing what if or why. Obviously, inference is more complex than description. Gelman considers two broad classes of inferential questions. One involves "forward causal inference." That is, what might happen if we do X? A second is "reverse causal inference," or what causes Y? Equally interesting are Gelman's thoughts on what characterizes persuasive inferential claims.

“The most compelling causal studies have (i) a simple structure that you can see through to the data and the phenomenon under study, (ii) no obvious plausible source of major bias, (iii) serious efforts to detect plausible biases, efforts that have come to naught, and (iv) insensitivity to small and moderate biases (see, e.g., Greenland 2005). Two large unresolved problems are, first, how to best achieve these four steps in practice and, second, what sorts of causal claims to make in settings where we are not able to satisfy these conditions.”