Empirical Legal Studies

Data on POTUS Pardons

Discomfort with POTUS pardon activity seems to arise anew as administrations (Dem and Rep) turn over and POTUS power transfers. And this discomfort has likely increased over time. While the Constitution’s language in Article II, section 2 regarding the scope of executive clemency and the limitations upon its exercise is quite brief, it bestows upon the POTUS functionally unchecked pardon authority. Insofar as judicial review of POTUS pardon authority is virtually non-existent, the exact legal contours of POTUS authority in this space remain opaque.

How POTUS pardon activity distributes in this zone of potentially nonrenewable Art. II authority is the subject of a recent (and lengthy) RAND report, Statistical Analysis of Presidential Pardons. Distilling their results to a single point, the authors converge on the following, perhaps unremarkable, finding. “If one had to describe a petitioner in our analysis case files more likely to receive a presidential grant of pardon than others (and to do so without controlling for other petitioner and evaluation process characteristics), Table S.2 suggests it would have been a non-Hispanic white male who was a U.S.-born citizen and was in his late twenties when the underlying offense (a white-collar crime such those involving tax violations, embezzlement, forgeries, or counterfeiting) was committed.” The report's abstract follows.

“This report describes a study of pardon petition evaluations that were performed by the Office of the Pardon Attorney (OPA), a unit in the U.S. Department of Justice that processes thousands of requests for executive clemency each year. A statistical examination was conducted on how OPA screens incoming petitions for technical compliance, investigates the facts underlying each petitioner’s request for clemency, and applies substantive standards for evaluating the merits of such petitions when crafting recommendations to the U.S. President to grant or deny relief. Data were analyzed for any patterns in OPA decisions that indicated statistically significant evidence of racial or ethnic bias.”

Testing the Difference Between Two Regression Coefficients Within Same Model

Over on the StataList, a very helpful discussion was launched by the following question that may interest folks here:

"I have one single regression model estimating the coefficients (b) of two independent variables (both are binary dummy variables). After the regression, I would like to do a t-test which calculates the difference between the two variables' coefficients (bIV1 - bIV2) and then gives a p-value for that (i.e. p-value: bIV1 = bIV2)."

To generate a Wald test (and associated p-value), all that is needed is the test command. If, however, one wants to see magnitude (and confidence interval) of the difference between two coefficients within a model, lincom is the appropriate command. For an helpful illustration of how this command works (with output), click here.

CELS "2020" -- Call For Papers Extension [New Deadline: 31 October 2021]

As previously mentioned (here and here), CELS "2020," re-scheduled for March 18-19, 2022, still plans on an in-person conference at the University of Toronto (Canada). At the same time, however, conference organizers note that: "We are of course monitoring the progress of the COVID-19 pandemic and the Delta variant. At this point we are hopeful the conference will proceed as planned. But if the Society For Empirical Legal Studies (SELS) deems it necessary to change plans, we will let you know as soon as possible."

To better accommodate the various disruptions incident to the pandemic, the conference organizers have extended the Call for Papers deadline to October 31, 2021.

Click here for additional conference information.

To submit a paper, please click here.

How Lower Courts Digest Supreme Court Decisions: Data on the Fourth Amendment After Carpenter (2018)

Technical advances and their implications for civil liberties collided anew in the Supreme Court's 2018 Carpenter v. U.S. decision. In that case, the Court made clear that "individuals can retain Fourth Amendment rights in information they disclose to a third party." The Court specifically ruled that the government needed a warrant before collecting cell phone location data that revealed a suspect's location over a seven-day period. In today's Internet age, Carpenter has the potential to expand privacy protections over a wide and deep swath of sensitive digital information. Insofar as the decision's practical contours and boundaries are, unsurprisingly, vague, "scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward." Equally unsurprising, these guesses about Carpenter's meaning diverge.

In a recent paper, The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021, Matthew Tokson (Utah) subjects various predictions and claims about Carpenter's implications to data. In particular, the paper analyzes "all 857 federal and state judgments citing Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, the Article illuminates both the present and future of Fourth Amendment law.” Among the paper's findings include that: "factors that drive lower court decisions clearly include the revealing nature of the data at issue, the amount of data collected, and the automatic nature of data disclosure, and clearly do not include the number of persons affected." An excerpted abstract follows.

"[The paper] identifies the factors that drive modern Fourth Amendment search decisions—and those that fail to drive them. It examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It assesses how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the 'good faith exception' to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article explores alternative directions that courts may take as they continue to refine Fourth Amendment law and address novel surveillance technologies. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive empirical study to date of the jurisprudential impact of a Supreme Court case in the years following its publication."

US News Law School Rankings and "Scholarly Impact" Metrics: An Update

A loyal Els Blog reader passed along the following and asked that I share it. I am delighted to do so.

A while back the US News and World Report reported that it was contemplating a new metric designed to measure “scholarly impact” incident to its infamous annual law school rankings. Needless to say, given law schools’ focus on annual rankings US News’ contemplated change to its ranking formula generated considerable blow-back (from many different directions). The Law & Society Association, for example, worried that a scholarly impact measure drawing from the Hein database would have deleterious impacts on interdisciplinary scholars.

In the end (and for now, at least), the US News and World Report elected not to proceed with its proposed new scholarly impact metric. A statement from the Law & Society Association (here) nicely describes its concerns and expresses relief at US News’ recent decision.