Empirical Legal Studies

Comparative Competition Law & Datasets

Consistent with JELS' impulse to recently launch a new genre of papers--"Research Notes and Datasets"--a recent contribution to this initiative, Competition Law Gone Global: Introducing the Comparative Competition Law and Enforcement Datasets, by Anu Braford (Columbia), Adam Chilton (Chicago), Christopher Megaw (WilmerHale), and Nathaniel Sokol, introduces and discusses a pair of datasets that provide future researchers with "a new foundation for empirical research on the legal regimes used to regulate markets."

"Competition law has proliferated around the world. Due to data limitations, however, there is little systematic information about the substance and enforcement of these laws. In this article, we address that problem by introducing two new datasets on competition law regimes around the world. First, we introduce the Comparative Competition Law Dataset, which codes competition laws in 131 jurisdictions between 1889 to 2010. Second, we introduce the Comparative Competition Enforcement Dataset, which provides data on competition agencies’ resources and activities in 100 jurisdictions between 1990 and 2010. These datasets offer the most comprehensive picture of competition law yet assembled and provide a new foundation for empirical research on the legal regimes used to regulate markets."

So far, so good. But the authors recently undertook yet another step that warrants attention (and praise). Specifically, Bradford and Chilton created a new website (here) that already includes an array of ready-to-use datasets (and associated codebooks) germane to comparative competition law (see, e.g., here). According to the project's website, "this project generates novel data on competition regimes across time and countries. Using these data, the project studies competition law and enforcement around the world, including exploring the diffusion of these laws and the effects they have on market outcomes."

Frankly, the construction and public distribution of helpful and important datasets are among the most the most under-appreciated of endeavors. Future scholars (and scholarship) will gain from initiatives like this one.

"p-Hacking" explained

One consequence of the on-going "replication" crisis in the social (and, increasingly, hard) sciences is a spike in the salience of the term "p-Hacking." The term "p-Hacking," as defined by Robert MacCoun (Stanford) in his recent essay, p-Hacking: A Strategic Analysis, “joins a growing taxonomy for describing the myriad ways in which ‘cold cognitive’ and ‘hot motivational’ biases can creep into the interpretation and use of research findings.” In his brief essay MacCoun dives deeply into the issue and proposes “four different models of p-hacking behavior and examining what kinds of aggregate patterns they might be expected to produce.” The abstract follows.

"The phenomenon of p-hacking occurs when researchers engage in questionable practices that enable them to report findings as being statistically significant. I offer four models of p-hacking behavior – unconditional, strategic, greedy, and restrained – and explore the implications of each model. I then discuss the implications of recent reforms (routine replication, pre-registration, and blinded data analysis) with respect to these models."

Law Students, Role-Induced Bias, and the Inefficacy of De-Biasing Intervention Efforts

Those who teach in (as well as, frankly, attend) law schools may find a recent paper by Holger Spamann (Harvard) interesting. In Lawyers' Role-Induced Bias Arises Fast and Persists Despite Intervention, Spamann presents results from his experiment with Harvard Law students testing for evidence of role-induced bias and the efficacy of de-biasing efforts.

The experiment draws on students in "the basic class on corporations/business organizations taught by the same instructor with identical materials at two top ten U.S. law schools in six of the seven semesters from spring 2016 through spring 2019.”  Class enrollments (N) ranged from 43 to 104. “The purpose of the exercise is to engage students in a cutting-edge topic of insider trading law, while hopefully demonstrating to students the existence of own-side bias through a post-survey review of their debriefing survey.” A summary of the paper's key findings follows.

“Lawyers’ role-induced bias arises fast and persists despite a simple intervention, at least in an experiment with law students. After only 40 minutes or less of engagement with a case, law students exhibit substantial role-induced bias towards the side they have been randomly assigned to represent in the classroom. Of students randomly assigned to represent petitioner or respondent in a mock Supreme Court oral argument of U.S. v. Newman , over 50% of those assigned petitioner’s counsel’s role predicted petitioner victory, as opposed to less than 20% of those assigned respondent’s counsel’s role, with randomly assigned justices in the middle. These differences in prediction were actually starker when the role assignment was performed a mere 30 minutes before the 10-minute mock argument than when the assignment was performed five days prior, before the students ever started reading about the relevant law. Reminding students before making their prediction that their role in the oral argument had been “that of an advocate, whereas we are now stepping back out and […] asking your opinion as a neutral, sober observer” has no detectable effect on their biased predictions.” Moreover, similar to earlier research, “the bias occurs almost evenly in male and female participants, who also report equal confidence in their predictions.”

Criminal Misdemeanors in State Courts

As greater legal and policy attention turns to the intersection of criminal law--in particular, public-order policing--and low-income and communities of color, the need for well-executed empirical work increases. While much of the public attention tends to focus on high-profile federal criminal activity, criminal misdemeanors in state courts represent three-quarters of all criminal activity. Consequently, to gain a more accurate picture of overall criminal law activity the misdemeanor context is an obvious one to examine. To this end, in a recent paper, Misdemeanors by the Numbers, Mayson (Georgia) and Stevenson (GMU) take a deep dive into data from eight specific jurisdictions between 2011 and 2016. The paper's core findings are described in the excerpted abstract:

"The resulting portrait reveals a system that disproportionately impacts poor people and people of color. Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction. There were substantial racial disparities in case-filing rates across locales and offense categories. The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted. The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice. At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice. As appreciation for the significance of lowlevel law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world."