Empirical Legal Studies

Journal of the Patent and Trademark Office Society ("JPTOS")--Call For Submissions

The Journal of the Patent and Trademark Office Society ("JPTOS"), a leading intellectual property law journal for over one hundred years, has recently returned from a publishing hiatus due to the pandemic and is eager to accept new article submissions. Moreover, the Journal’s incoming EIC, Timothy Hsieh (Okla City), a long-time ELS Blog reader, expressly noted that the Journal publishes “a fair amount of articles involving empirical analysis.”

JPTOS seeks articles involving intellectual property (patents, trademarks, copyrights, trade secrets, or hybrids between all such forms) or law & technology (blockchain, cryptocurrencies, NFTs, artificial intelligence, 3D printing, social media, privacy/surveillance, biotechnology, pharmaceuticals, COVID vaccine patents or patent policy and topics) and all related fields. JPTOS is one of the oldest intellectual property journals in the United States and for over a century has been at the forefront of various intellectual property debates.

Submissions may be directly emailed to: [email protected] (or to the Journal’s Scholastica location: https://jptos.scholasticahq.com/). Additional details regarding submission guidelines can be found at the Journal’s official website (http://jptos.org).

15th Annual Conference on Empirical Legal Studies (CELS)

Given the many disruptions incident to the COVID-19 pandemic, I am nothing short of delighted to announce that the Fifteenth Annual Conference on Empirical Legal Studies (CELS), presented by the Society for Empirical Legal Studies (SELS) and hosted by the University of Toronto Faculty of Law (Canada), is now scheduled for Friday, March 18, and Saturday, March 19, 2022.

CELS brings together scholars from an array of fields, including law, economics, political science, psychology, statistics, sociology, history, and policy analysis. Papers are selected through a peer-review process and each is assigned an individual discussant. CELS invites empirical papers that span all areas of empirical legal studies. Authors are encouraged to submit works-in-progress; however, submissions should be completed paper drafts that include main results. Submitted papers must also be unpublished (and are expected to be unpublished at the time of the conference). The paper submission portal will open August 1, 2021. The deadline for submissions is October 17, 2021.

Of course, while the conference organizers plan on (and sincerely hope for) an in-person event, given the ongoing uncertainties participants are urged to delay purchasing any non-refundable airline tickets at this moment. Additional conference information is found here.

A Descriptive Glance at Police Clearance Rates

While I have an admitted affinity for asking simple questions, sometimes it's the "simple" question that can help point the way toward more sophisticated empirical work. A recent paper by Andrew Leipold (Ill.), The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice, makes my point.

The paper begins by framing its core research question: "Recent incidents of police violence have led to widespread reform efforts, from modest proposals to change police practices to dramatic attempts to slash funding or abolish the police entirely. But largely ignored in the debate is a simple question – how well is law enforcement currently performing its core functions? In particular, how good are the police at finding the perpetrator, arresting that person, and gathering enough evidence to start the matter through the criminal justice system?"

Exploring police clearance rate data engages the question. And what Leipold finds is that "Clearance rates for violent and property crimes have been both quite low and amazingly steady for the last 40 years. These figures are counterintuitive, because during that same period, crime first rose and then decreased dramatically; law enforcement personnel numbers increased, and then flattened; and the legal enforcement landscape appears to have tilted in the direction of the police and prosecution. Each of these changes should have significantly affected the clearance rates, but even collectively, they did not."

The presentation of basic descriptive trend data amply supports Leipold's point. And what he argues is that "[w]hile there is no single explanation, the diversion of resources from index crimes and a change in focus toward crime prevention seem to have the most explanatory power." While how to interpret--or explain--the counterintuitive trends, of course, remains ripe for future work, part of the power of initial descriptive work is that it helps bring into sharper relief avenues for deeper and more methodologically sophisticated future research.

The Empirics of Rule 23(f)

While civil procedure scholars have spilled a lot of ink on class actions, until quite recently little of it is informed by data. To help remedy this, in a recent paper, Class Certification in the U.S. Courts of Appeals: A Longitudinal Study, Stephen Burbank (Penn) and Sean Farhang (Berkeley) exploit a class certification decision data set that includes USCA precedential panel decisions (1966 through 2017) and nonprecedential panel decisions (2002 through 2017). The data permit the authors to test various "conventional wisdoms," including those related to class certification appeal outcomes and Rule 23(f)'s potential influence. Among their findings includes, e.g., that, "contrary to conventional expectations, in the period since Wal-Mart and Comcast, plaintiffs have been winning certification appeals more frequently than they were formerly, and Rule 23(f) contributed to this recent success." More specifically, the paper notes "significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after." An excerpted abstract follows.

“There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

…

We find significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after. This variation suggests the hazards of generalizing about operation of that rule from experience in any particular period. Our models also show that, for reasons about which we can only speculate, interlocutory appeals since around 2000 have elicited more ideological voting behavior by judges, leading to greater polarization.”