Empirical Legal Studies

Evidence of More Revolving Doors

"Revolving doors," evidently, are everywhere. While in a few sectors (e.g., financial regulators/financial services industries) research on revolving doors is well-developed, empirical research in other sectors is less so. The latter sectors include, e.g., an individual's path from a Supreme Court clerkship, to an appellate litigation group, and then back to the Supreme Court as an advocate. While "hunches" about this "revolving door" have persisted over time, data on former clerks' efficacy arguing in front of their former bosses remain scant. A recent paper, The Influence of Personalized Knowledge at the Supreme Court: How (Some) Former Law Clerks Have the Inside Track, exploits decisions in the Supreme Court Database between the 1979 and 2018 Terms and contributes to this data void. In their paper, political scientists Ryan Black (Mich. St.) and Ryan Owens (Wisc.) find evidence of an effect as the following figure implies.

The paper's abstract, summarizing core results, follows.

"When arguing at the U.S. Supreme Court, former High Court law clerks enjoy significant influence over their former justices. Our analysis of forty years of judicial votes reveals that an attorney who formerly clerked for a justice is 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who never clerked. What is more, an attorney who formerly clerked for a justice is 14 to 16 percent more likely to capture that justice’s vote than an otherwise identical attorney who previously clerked for a different justice. Former clerk influence is substantial, targeted, and appears to come from clerks’ personalized information about their justices. These results answer an important empirical question about the role of attorneys while raising normative concerns over fairness in litigation."

Evidence of a "Non-Revolving" Door

For years commentators have warned about a "revolving door" involving the SEC and the industry sector that it regulates. Much of the attention to such a revolving door, however, has overlooked one specific "side-door": namely, “[j]oining a plaintiffs’ side securities litigation firm would seem to be an appealing option for SEC attorneys looking to continue pursuing the same core mission of protecting investors and holding companies accountable for fraud and misconduct.” In a recent paper, The Non-Revolving Door, Alexander Platt (Kansas) argues that "the door between the SEC and the plaintiffs’ bar does not revolve."

To be sure, a few factors limit the results' scope. For example, the paper focuses on only a small number of leading plaintiffs' side law firms, a few SEC attorney roster years, and descriptive analyses. Any limitations notwithstanding, however, the results will likely interest securities law scholars. An excerpted abstract follows.

"This paper shows that the door between the SEC and the plaintiffs’ bar does not revolve. Among other things, I show that none of the ten leading plaintiffs’-side firms employ anyone with recent SEC experience doing plaintiffs’ side litigation; none of the enforcement attorneys I identified as working for the agency in 2015 left to do plaintiffs’ side litigation; none of the current upper- and middle-managers in the SEC’s enforcement division have any prior plaintiffs’ side experience; and only five of the enforcement attorneys I identified as working for the agency in 2019 had prior plaintiffs’ side experience.

This 'non-revolving door' between the SEC and the plaintiffs bar is an intriguing, overlooked feature of the securities enforcement in the United States. Among other things, it raises the prospect that SEC attorneys might have come to embrace the defense bar’s hostile and skeptical view of the social value of securities class action litigation, with significant consequences for the securities enforcement landscape."

Data on "Young Adult" Criminal Sentencing Experiments

As greater attention is paid to variation in cognitive development, especially across "younger" adults, criminal justice responses are almost inevitable. One such example involves an ongoing experiment in the Netherlands where, since 2014, legislation now allows courts to sentence young adults (ages 18 to 22, inclusive) under either juvenile or adult sentencing guidelines. The underling idea motivating this experiment is that some "young adult" offenders are less mature than others and, as such, may benefit more from the comparatively more "pedagogically oriented" juvenile sanctions than from adult sanctions that emphasize deterrence. In a recent paper, Characteristics of Young Adults Sentenced with Juvenile Sanctions in the Netherlands, Lise Prop (Govt. of the Netherlands) et al., exploit data on 583 criminal cases involving young adults to gain some initial empirical footing about whether and, if so, how the sub-pool of young adult criminals sentenced under juvenile guidelines differ from young adults sentenced under the adult guidelines.

Overall, results from their cross-sectional study find that characteristics indicating "maturation" problems across different domains were "more prevalent among young adults sentenced with juvenile sanctions" and, accordingly, provide some initial descriptive support for the impulse to treat young adult offenders differently when it comes to sentencing. The paper's abstract follows.

"Since 1 April 2014, young adults aged 18 up to and including 22 years can be sentenced with juvenile sanctions in the Netherlands. This legislation is referred to as ‘adolescent criminal law’ (ACL). An important reason for the special treatment of young adults is their over-representation in crime. The underlying idea of ACL is that some young adult offenders are less mature than others. These young adults may benefit more from pedagogically oriented juvenile sanctions than from the deterrent focus of adult sanctions. Little is known, however, about the characteristics of the young adults sentenced with juvenile sanctions since the implementation of ACL. The aim of this study is to gain insight into the demographic, criminogenic and criminal case characteristics of young adult offenders sentenced with juvenile sanctions in the first year after the implementation of ACL. A cross-sectional study was conducted using a juvenile sanction group and an adult sanction group. Data on 583 criminal cases of young adults, sanctioned from 1 April 2014 up to March 2015, were included. Data were obtained from the Public Prosecution Service, the Dutch Probation Service and Statistics Netherlands. The results showed that characteristics indicating problems across different domains were more prevalent among young adults sentenced with juvenile sanctions. Furthermore, these young adults committed a greater number of serious offences compared with young adults who were sentenced with adult sanctions. The findings of this study provide support for the special treatment of young adult offenders in criminal law as intended by ACL."

Comparing Coefficients in Different Regression Models

Prompted by a question (here) on Statalist relating to efforts to compare (with a TTest) whether coefficients in two separate regression models systematically differ I stumbled upon the suest command. With the suest command, one can, e.g., regress one model, store its results, regress a second model, store its results, and then compare them with the test command. "This will yield a chi2 statistic with 1 degree of freedom. You can run this for each variable." This will help one assess whether the coefficients are the same in each regression model or not. For a very helpful (and brief) video tutorial, click here.

Kicking "Problem" Cops "Down the Road"?

Recent public attention to police departments reminded me of a draft paper I saw a few months ago, The Wandering Officer, that, since then, has appeared in print in the Yale Law Journal (click here). What the paper's authors, Ben Grunwald (Duke) and John Rappaport (Chicago), mean by a "wandering" officer is an officer fired by one department, sometimes for serious misconduct, who then finds employment as a sworn law enforcement officer at another agency. While the potential problems posed by "wandering" officers are obvious, less obvious within the criminal justice community, however, is the extent, character, and magnitude of the "wandering" officer phenomenon itself.

The paper digs into this phenomenon and with the benefit of a large data set from Florida identifies some broad, basic descriptive contours. The data set draws on "128,616 full-time law-enforcement job stints that spanned at least one day between 1988 and 2016; they correspond to 98,169 unique officers." While through 1998 officers under investigation were frequently allowed to "resign" before any involuntary termination, following 1998 the data set identifies those officers who resigned “'in lieu of separation' or 'while being investigated' for misconduct." The paper's three core findings are described in the excerpted abstract, below.

"... We report three principal findings. First, in any given year during our study, an average of just under 1,100 officers who were previously fired—three percent of all officers in the State—worked for Florida agencies. Second, officers who were fired from their last job seem to face difficulty finding work. When they do, it takes them a long time, and they tend to move to smaller agencies with fewer resources in areas with slightly larger communities of color. Interestingly, though, this pattern does not hold for officers who were fired earlier in their careers. Third, wandering officers are more likely than both officers hired as rookies and those hired as veterans who have never been fired to be fired from their next job or to receive a complaint for a “moral character violation.” Although we cannot determine the precise reasons for the firings, these results suggest that wandering officers may pose serious risks, particularly given how difficult it is to fire a police officer. We consider several plausible explanations for why departments nonetheless hire wandering officers and suggest potential policy responses to each."