Empirical Legal Studies

"Conventional Wisdom" in Criminal Law

Among the many aspects of the criminal justice system amenable to criticism, "life sentence without the possibility of parole" ("LWOP") has received particular attention recently, principally due to claims about its increased use. LWOP was conceived decades ago as a substitute for the death penalty. Consequently, while capital punishment wanes in the United States, a steadily increasing number of defendants is sentenced to LWOP. The surge in LWOP sentences has attracted critical attention. For example, a recent ACLU Report, critical of LWOP, asserts that "over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses."

Such a claim, of course, is empirical and warrants closer examination. Craig Lerner (George Mason) undertook such an examination and subjected the ACLU's claim to data. In Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System, Lerner contributes to this debate by reporting findings from "every inmate sentenced to LWOP in eight states." While limited to the sample of eight states, his key findings are summarized in the excerpted abstract.

"... In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes. Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment. Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.... Even in jurisdictions that impose LWOP for crimes labeled 'nonviolent,' the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes."

Why Survey Data Make Me Nervous

While plausibly funny, Andrew Gelman's (Columbia--Stats & Poli Sci) post on survey responses (as well as the comments) fuels unease about survey data.

Randomized Field Experiments Bibliography -- A Request

At Jim Greiner's (Harvard) good suggestion, I pass along the following request.

Jim, along with Andrea Matthews, a recent HLS grad, seek assistance on a research project. They are attempting to find as many examples as possible of what they call “randomized field experiments in the United States legal profession.” They define their search as follows: A field experiment conducted in which randomization (or something close to it) was done for the purpose of gaining knowledge in a setting in which randomized (or approximately randomized) assignment replaces a decision/judgment that would otherwise have been made by a member of the U.S. legal profession. To be sure, Jim and Andrea understand that their definition does not correspond to all studies in which randomization (particularly randomization done for another purpose, such as to maintain an appearance of fairness, as when judges are randomized to cases) can be used to gain important knowledge. They have focused on the set of studies identified above because their current research interest is in the way that randomized studies challenge the prevailing epistemological norms and professional identity of those in power in United States law.

To help illustrate what they're looking for, a draft 3-pp bibliography (embedded below in separate pages) illustrates what they've gathered thus far. Jim and Andrea hoping blog readers might know of others and ask that anyone who might know of more email Jim directly at: jgreiner(at)law.harvard.edu

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Judicial Ideology & Natural Experiments

Empirical studies seeking to assess the influence of ideology on judges' decisions are comparatively well-developed in the literature. Less tested, however, is the assumption that the political party of the nominating president and the relevant state senators (who share the nominating president's political party) influence federal district court judges' decisions. To get at this more narrow research question, Jonathan Nash (Emory), in Interparty Judicial Appointments (JELS, 12:4, 2015), exploits a natural experiment. As Nash explains, "[B]etween 1977 and 1998, New York was represented in the Senate by one Democrat and one Republican who had an agreement to divide appointments to the district courts in the state: the senator who shared party affiliation with the president would be allocated three of every four appointments, while the “out‐of‐party” senator would be allocated the rest." An excerpted abstract follows.

"The article employs a novel data set - consisting of all federal district judges appointed to the federal bench in New York during the time period in question, and the senator who recommended each nominee to the nominating president. If the dominant theory - that the party of the recommending senator affects judicial decision making - holds, then one would expect the theory's explanatory power to be at its apex where senators of different parties recommend judges at the same time to the same president. Yet, using median prison sentence length as a proxy for ideology in decision making, the empirical analysis finds no evidence that senatorial ideology has a statistically significant effect on district judge decision making. At the same time, it finds that, indeed, the nominating president's ideology does have a statistically significant effect. The findings are instead consistent with the minority view of lower federal court judges’ ideological leanings - that a lower federal court judge's ideology is in large part a function solely of the nominating president's ideology."

Blind Analysis

Robert MacCoun (Stanford) and Saul Perlmutter (Berkeley) recently published a fascinating comment in Nature, Blind analysis: Hide results to seek the truth, in which the authors urge empiricists to employ “blinding” at all levels of study, including data analysis. As the authors note:

“Many motivations distort what inferences we draw from data. These include the desire to support one's theory, to refute one's competitors, to be first to report a phenomenon, or simply to avoid publishing 'odd' results. Such biases can be conscious or unconscious. They can occur irrespective of whether choices are motivated by the search for truth, by the good mentor's desire to help their student write a strong PhD thesis, or just by naked self-interest.

We argue that blind analysis should be used more broadly in empirical research. Working blind while selecting data and developing and debugging analyses offers an important way to keep scientists from fooling themselves.”

5th Annual Western Empirical Legal Studies Conference -- Call for Proposals

I am delighted once again to pass along information from Joe Doherty (UCLA) about the 5th Annual Western Empirical Legal Studies (WELS) Conference at UCLA on March 12, 2016. Insofar as WELS is consciously pitched to "law and graduate students," (emphasis added) it fills an important need and presents a wonderful opportunity for interested students. Click here for more information. (Please note the 1.8.2016 proposal deadline.)

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Call for Papers: 5th Annual Western Empirical Legal Studies (WELS) Conference at UCLA School of Law

Proposal Deadline: January 8, 2016.

The UCLA School of Law's Empirical Legal Scholars Association (ELSA) is proud to announce the 5th Annual Western Empirical Legal Studies Conference, on March 12, 2016, at the UCLA School of Law.

This is a conference for students (Masters, PhD, and JD) who are conducting empirical research on law, legal actors, and legal institutions (judicial behavior, access to justice, bankruptcy, crime, etc.).  It provides a unique forum for junior scholars to present original research and to receive focused feedback from students and law school faculty engaged in similar projects.  The first four conferences attracted participants from over a dozen campuses across the U.S.A., Europe, and Asia.

Future SELS Global Conferences

In light of the explosive growth in and demand for empirical legal scholarship world-wide, the Society for Empirical Legal Studies ("SELS") launched the SELS Global initiative. The initiative is already bearing important fruit and the list of future international conferences continues to grow. Forthcoming conferences include:

1. SELS Global Junior Empirical Legal Studies Workshop, Dec., 16-17, 2015, at Hebrew University of Jerusalem, Israel. This conference is co-sponsored by SELS, Hebrew University, and the Center for Empirical Studies of Decision Making and the Law.
2. First Conference on Empirical Legal Studies in Europe (CELSE), June 21-22, 2016, at University of Amsterdam, Netherlands. This conference is co-sponsored by SELS and the Amsterdam Center for Law and Economics.
3. CELS Asia Conference and the 4th International Conference on the Empirical Studies of Judicial System, June 13-15, 2017, at Academica Sinica, Taiwan. This conference is co-sponsored by SELS, CELS Asia, and Academica Sinica.