Empirical Legal Studies

Law School Curriculum: Reform, Assessment, and Research Design

While age-old complaints persist about the basic structure of the first-year law school curriculum, few law schools have dared to experiment with meaningful reforms. Fewer still study these reforms coherently. The "Curriculum B" experiment at Georgetown Law School, as well as a recent paper by David Hyman et al. (Georgetown), Does the 1L Curriculum Make a Difference?, are important and interesting exceptions.

Since 1991, Georgetown Law School has offered an "alternative" Curriculum B along side a standard, more traditional first-year curriculum. Curriculum B was designed to provide “critical” perspectives on the law and respond to important changes in legal practice and theory in the years since the standard 1L curriculum was first developed decades earlier. At Georgetown, students elect into Curriculum B and, when demand exceeds supply, student assignment to Curriculum B is determined by lottery.

For assessment purposes, the quasi-randomized control trial aspect of student assignment to Curriculum B provides a way to overcome selection bias. That is, Hyman et al. compare student outcomes for those who opted into Curriculum B (the treatment group) with student outcomes from those students who wanted to receive the "treatment" (Curriculum B) but, due to excess demand and random selection (lottery), were instead assigned the "placebo" (that is, to the standard, traditional first-year curriculum).

Aside from careful attention to research design, a few of the paper's warrant note. When it comes to students' overall law school academic performances, for example, the authors find that "Curriculum B leads to a mean preserving contraction in students’ overall grades. At the same time, we find that it leads to diminished performance in two key business law electives (Corporations and Securities Regulation)."

Business Litigants and the Roberts Court

Assessing “How pro business is the Roberts Court?” is both straightforward and complicated. Based on how business litigants fare in the Roberts Court versus non-business litigants over time, business does quite well. The win rate for business in the Roberts Court, 63.4 percent, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3 percent). While it may be tempting for many to conclude that the current pro business tilt is purely a function of a Republican majority of justices on the Roberts Court, as Lee Epstein (USC) and Mitu Gulati (Virginia) argue in a recent paper, A Century of Business in the Supreme Court, 1920-2020, “this is only the beginning of the story.”

Epstein and Gulati bring data from the Supreme Court Database to the question. Starting with the 11,121 orally argued cases resulting in a signed opinion or judgment between the 1920-2020 terms, their paper focuses only on those 4,070 cases (35,173 votes) in which business was the petitioner (appellant) or respondent (appellee). That is, they excluded cases in which business was on both sides of a legal dispute.

Their core findings defy conventional wisdom and inject important complicating wrinkles. What they find includes: "(a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; and (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court."

Empirical Contours of the Political Question Doctrine

Amid the enduring and varied debates about the political question doctrine, motivated by the Supreme Court's 1962 Baker v. Carr decision, the scholarly commentary shares one key attribute. Specifically, it dwells on the Supreme Court. Such a focus is ironic as while the Court has only rarely applied the political question doctrine, lower federal courts, by contrast, have invoked the doctrine "as a basis for dismissal in hundreds of cases." Drawing on both qualitative and quantitative (descriptive) methods, in a recent paper, The Real Political Question Doctrine, Curtis Bradley (Chicago) and Eric Posner (Chicago) explore how the political question doctrine has operated in the lower courts since the Supreme Court's Baker decision.

The authors find that lower courts use the doctrine to "evaluate their own institutional capacity to resolve politically sensitive disputes. It is the lower courts’ more limited capacity compared to the Supreme Court that explains the lower courts’ heavier reliance on the doctrine." More specifically, "the political question doctrine is a screening mechanism that the lower courts use to take account of limits on their institutional capacity. The Supreme Court has less need for this mechanism, so most of the doctrine’s life must be found in the foothills rather than at the summit of Mount Olympus. From this standpoint, the doctrine is not moribund but full of life. It is not limited in the ways suggested by the 'classical' or 'functional' theories. The lower court practice is best captured by Bickel’s prudential theory." An excerpted abstract follows.

"... We provide the first empirical account of how the doctrine has operated in the lower courts since Baker. Our account is based on both a quantitative analysis of a sample of these decisions and on a qualitative review of these and other decisions. This account reveals a political question doctrine that is substantially different from the one described in most scholarship: it is more vibrant, heavily focused on foreign affairs, often applied in non-constitutional cases, more prudential, and not a permanent disallowance of judicial review...."

The Impact of Increased "Sunlight" on Police Traffic Stops

Complicated legal and policy issues incident to policing--and conflicts with citizens the police serve--persist and continue to motivate empirical work. One under-studied aspect, however, involves the degree to which, if any, adverse (digital) media coverage of instances of police brutality informs police conduct going forward. Policing the Police: Examining the Role of News
Reports on Racially-Biased Policing reflects a recent effort at this difficult research question.

In their paper, Uttara Ananthakrishnan (Wash.--Business) et al., set out to assess the impact of public media accounts of police misconduct/violence from January 2013 to May 2018 (N=6,026) on police-initiated traffic stop data drawn from 227 counties across 18 states. The authors execute a DiD model that, because police traffic stop outcomes are "naturally tied to counties," compares "the change in the number of police stops in counties exposed to news reports with the same change in control counties that did not have news reports about their policing incidents during the same period.” Among the paper's findings is that news reports on fatal uses of police force on minorities have a "negative impact on police stops of minorities but not on Whites, on average.” An excerpted abstract follows.

"... However, it is theoretically unclear whether the reporting of excessive use of police force on minorities can have a tangible impact on subsequent policing outcomes. In this paper, we aim to answer the question of whether and how digital news on police brutality is effective in shaping subsequent police actions. To address this question, we construct a cross-sectional dataset of news reports of police violence and police traffic stop records. Under a difference-indifference framework, we find that news reports on police brutality reduces police stops of minorities. Additionally, we find that news with sad frames are more effective in effectuating change in policing behaviors. Finally, we learn that the impact of news reports are less effective in minority-dominated areas and high-crime areas."