Empirical Legal Studies

19th Asian Law and Economics Association (AsLEA) Annual Meeting -- Call for Papers

The conference's central theme is "Rationality, Norms, and the Law." The in-person conference, scheduled for 8-9 August 2023, at the Academia Sinica, Taipei, Taiwan, invites papers regarding the economic analysis of laws and institutions or the relationship between rationality and norms in the legal system.

Professor Kaushik Basu (Department of Economics and SC Johnson Graduate School of Management, Cornell University) and Professor Todd Zywicki (Antonin Scalia School of Law, George Mason University) are the keynote speakers of the 2023 AsLEA Conference.

Please submit the manuscripts or abstracts of your article or a session proposal, with a short bio in PDF or Word to [email protected] by May 31, 2023. We will make early decisions on a rolling basis and inform applicants of the results as soon as possible. There are no submission or registration fees for the 2023 AsLEA Conference. For hotel information click here.

Please visit the Asian Law and Economics Association website (click here) for updated information. If you have any questions, please send an e-mail to [email protected] or contact the local organizer. Note that Participants should take care of booking hotels and arranging travels by themselves. Neither AsLEA nor the local organizer is able to provide stipends or reimburse expenses of participants.

Local Organizer: Tze-Shiou Chien (Deputy Director & Research Professor, Institutum Iurisprudentiae, Academia Sinica; Vice President, AsLEA. [email protected]).

Criminal Records & Accuracy

Given the outsized implications for individuals, to note that criminal record keeping requires accuracy is to note merely the obvious. This is especially true in the employment context where "94% of employers conduct background checks" on job applicants. Growing employer demand for background checks has, in turn, fueled a dramatic increase in private sector service providers in this space. While access to and uses of criminal records have expanded, concerns persist about "serious data quality problems" in various criminal justice databases.

To explore this issue, in a recent paper, The Problem With Criminal Records, Sarah Lageson (Rutgers--crim. just.) & Robert Stewart (Maryland--crim. just.) compare criminal record reports for 101 New Jersey participants, all of whom had at least one criminal change in their history, across three sources: (1) the official state record; (2) a consumer reporting agency; and (3) an open source, public records data aggregator. The researchers then asked each of the 101 participants to review and audit the information retrieved from the three sources.

As the figure above visually implies, what the researchers found includes errors, and lots of them. Among the 2,406 individual charges reported by the three separate sources, only 8.3% of the participants' criminal charges (200/2,406) were accurately reported by all three sources. Moreover, 60% and 50% of participants had at least one false positive error on their regulated and unregulated background checks, and nearly all (90% and 92% of participants, respectively) had at least one false negative error. As this study is limited to individuals with criminal histories, it remains unclear whether errors also implicate those with no criminal history. The paper's abstract follows.

"Criminal records are routinely used by employers and other institutional decision-makers, who rely on their presumed fidelity, to evaluate applicants. We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private sector background checks (one regulated and one unregulated), and qualitative interviews. Based on our analysis, private sector background checks are laden with false positive and false negative errors: 60% and 50% of participants had at least one false positive error on their regulated and unregulated background checks, and nearly all (90% and 92% of participants, respectively) had at least one false negative error. We define specific problems with private sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives. The prevalence of error in private sector background checks limits access to social opportunities ranging from employment, education, and housing."

Call for Papers: 7th Annual Penn-NYU Empirical Contracts Workshop

As hints of our "pre-COVID" lives begin to emerge, including in-person conferences, I am delighted to pass along the following call for papers from a long-time ELS-blog reader:

The 7th Annual Penn-NYU Empirical Contracts Workshop is scheduled to place in-person at the New York University School of Law on 23 May 2023.

The Workshop is a forum for the presentation and discussion of early and mid-stage projects analyzing contract law and practice from a variety of empirical perspectives. Papers are selected through a peer review process.  Attendees of the conference are expected to cover their own travel and lodging costs, but there are no conference fees.

Submitted papers must be unpublished (and expected to be unpublished at the time of the conference). If accepted, authors will have an opportunity to submit a revised draft prior to the conference for presentation and discussion. Please note that accepted papers will be made available to all conference participants.

Please note that the Workshop paper submission deadline is 1 March 2023.

Organizing committee:  Dave Hoffman (Penn); Florencia Marotta-Wurgler (NYU) and Tess Wilkinson-Ryan (Penn).  Please email submissions to: [email protected]   

Modeling Rare Events--SCOTUS Clerkships

Of the approximate 36,000 law school students who graduate each year, only 36 or so end up securing a SCOTUS clerkship. While a handful of biographical and anecdotal accounts exist, very few systematic data exist on the "1-in-1,000" clerkship lottery.

A recent paper by Tracey George (Vanderbilt), Albert Yoon (Toronto), and Mitu Gulati (Virginia), Some Are More Equal Than Others: U.S. Supreme Court Clerkship, digs into 40 years worth of data and provides rich granularity about this statistical rare event. In the main, while some unexpected twists emerge, what the authors find generally comports with perceived wisdoms. For example, a disproportionate number of clerks emerge from five elite law schools. One interesting change, however, is that while a SCOTUS clerkship once led "primarily to government and universities [law faculties]," former clerks now increasingly land at "law firms and corporations." An excerpted abstract follows.

"... Yet, we lack a clear story about who wins this clerkship lottery. This Essay seeks to provide that story. Our analysis relies on new datasets of all Court clerks who served between 1980 and 2020, including the details of their path to the Court and their road after. We amend and expand on theories of success in this important labor market. All clerks are highly qualified, yet the same is true for many not chosen. We find that educational pedigree, as opposed to academic performance or any other qualification, often distinguishes the winners from the also-rans. The Court clerkship selection process, like other elite labor markets, proves to be a blend of status and merit where status often prevails. Our analysis does not end there, however. We go on to look at where this forty-year cohort is currently working and confirm that once attained, a Court clerkship does lead to a bounty of opportunities including a return to the Court as a justice. Thus, the Court clerkship lottery is an important labor market not only to lawyers but also to society writ large. In the elite legal labor market, some people are, in fact, more equal than others."

More Evidence of a Racialized Death Penalty

Notably, race does not emerge as a central concern in the Court’s Furman decision, now more than fifty years old. In the decades since Furman, however, empirical evidence continues to mount documenting that "racial discrimination infects the administration of the death penalty." A recent paper by Jeffrey Fagan et al. (Columbia), Getting to Death: Race and the Paths of Capital Cases after Furman, represents a recent and important contribution to this literature. Researchers visited each judicial circuit in Georgia to record the details of every murder case that entered the courts from 1994–2005. Analyses of the 1,317 death-eligible murders suggest that “race continues to matter, and that the statutory aggravators that distinguish death cases from other killings are themselves racialized.” A more detailed description of the paper's core findings appears in the Abstract (below).

“Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman. Analyzing a dataset of 2,328 first- degree murder convictions in Georgia from 1995–2004 that produced 1,317 death eligible cases, we show that two features of these cases combine to produce a small group of persons facing execution: victim race and gender, and a set of case-specific features that are often correlated with race. We also show that these features explain which cases progress from the initial stages of charging to a death sentence, and which are removed from death eligibility at each stage through plea negotiations. Consistent with decades of death penalty research, we also show the special focus of prosecution on cases where Black defendants murder white victims. The evidence in the Georgia records suggests a regime marred less by overbreadth in its statute than capriciousness and randomness in the decision to seek death and to seek it in a racially disparate manner. These two dimensions of capital case adjudication combine to sustain the twin failures that produce the fatal lottery that is the death penalty.”