Empirical Legal Studies

SCOTUS Cert Analytics

Insofar as the U.S. Supreme Court grants merits review to approximately 80 or so cases per Term, attention to those cases selected for review (as well as those not selected) warrant attention. And the good folks at Empirical Scotus are beginning to do just that. Indeed, a recent post "looks at whether and how the timing of certiorari (cert) petition filings affects the likelihood of a grant.  It does so looking at data based on petitions the Justices granted from the 2015 and 2016 Terms."

What they find is that the sweet-spot for most petition grants is found between 78 and 131 days with a sizable number of grants also taking place between 131 and 184 days.

As the data in this quick-and-dirty cross-section of SCOTUS petition grants relate to the Court's 2015 and 1016 Terms, those with some time and the inclination might consider building a slightly larger dataset so to exploit something of a natural experiment and compare cert granting trends for the standard nine-member Court and trends for the current eight-member Court. While presumably the traditional "Rule of Four" remains constant, the game theoretics likely change slightly for the Justices when Court membership temporarily moves from nine to eight.

Efficient Breach Experiments

As Maria Bigoni (economics--Univ. Bologna) et al. note, courts, judges, and citizens seem ambivalent with respect to the notion of the efficient breach that is taught in most first-year contracts classes. According to the authors, "laymen seem to track consequentialist (economic) reasoning in cases of loss-avoiding breach, while being deontological (moralist) in cases of gain-seeking breach." Such instincts typically reflect a "simplistic" grouping of efficient breach cases. In Unbundling Efficient Breach: An Experiment, the authors execute an experimental game designed to "exogenously varied the reasons for the breach—pursuing a gain or avoiding a loss—under a specific performance remedy." The experimental results imply that "the motives behind the breach induce sizable differences in behavior." The paper's abstract follows.

"Current law and economics scholarship analyzes efficient breach cases monolithically. The standard analysis holds that breach is efficient when performance of a contract generates a negative total surplus for the parties. However, by simplistically grouping efficient breach cases as of a single kind, the prior literature overlooks that gain-seeking breaches might be different from loss-avoiding breaches. To capture these different motives, we designed a novel game called Contract-Breach Game where we exogenously varied the reasons for the breach — pursuing a gain or avoiding a loss — under a specific performance remedy. Results from an incentivized laboratory experiment indicate that the motives behind the breach induce sizable differences in behavior; subjects are less willing to renegotiate when facing gain-seeking than loss-avoiding breaches, and the compensation premium obtained by the promisee is higher. Our analysis suggests that inequality aversion is an important driver of our results; indeed, inequality-averse subjects accept low offers more often in cases of loss-avoiding breaches than gain-seeking breaches. These results give us insight into the preferences and expectations of ordinary people in a case of a breach."

Randomized Controlled Trials: Challenges to the 'Gold Standard'

While in the legal domain such research design issues typically involve law and psychology papers, the "conventional wisdom" dwells on standard external validity challenges. As Andrew Gelman's (Columbia--Statistics) post makes clear, however, other challenges also lurk. That is to say, while a randomization strategy is invariably preferred, it cannot alone eliminate all research design concerns. As Gelman helpfully notes, "there’s more to inference than unbiasedness."

Lagging Variables: The How and Why

Lagging variables is frequently justified (or even necessary) in empirical legal research. This is particularly so in event-study research that seeks, e.g., to explore the influence of a new law, statute, court decision on various outcome variable(s) of interest. In such contexts researchers need to account for a natural delay in an hypothesized intervention's effect. This topic was raised in a recent Stata blog post (here) that also references relevant Stata coding.

As explained in the comments (slightly edited): "As for the reason behind it [lagging a var], ... this is a scientific, not a statistical issue.... Just generally, it is often the case when longitudinal data is available, that one expects the effects of one variable on another to appear with a delay. That is, this year's value of Y may depend on last year's value of X rather than on the current value. Indeed, it can be more general: sometimes one expects Y to depend on a value of X from several years back, or even jointly on more than one past year. Just when those situations arise depends on the subject matter and the science."