Empirical Legal Studies

Where "vce(cluster var)" and "vce(robust)" Differ and Where They Do Not

A recent discussion on the StataList (here) identifies something of an anomaly when it comes to how "vce()" operates for the xtreg,fe command versus other commands.

As the unfolding discussion notes, when using the xtreg,fe command, vce(cluster var) and vce(robust) operate similarly. With other commands, by contrast, they generally operate differently. The difference emerges because where vce(robust) requires that observations are independent in order for it to be valid, vce(cluster var), by contrast, accommodates and adjusts for correlation of observations within values of groupvar (or "cluster var").

CELS 2024--Save the Date (8-9 Nov. 2024)

Co-organizers Tonja Jacobi, Jonathan Nash & Joanna Shepherd are delighted to announce that CELS 2024, hosted by Emory University School of Law, will take place on Fri.-Sat., November 8-9, 2024. A call for papers will follow later this spring.

Data on U.S. Solicitor General's "Flips"

While many criticize the Supreme Court for "unsettling" Court precedent, exceptionally few focus on instances where the Solicitor General's Office ("SG") "advances legal arguments that differ from those advanced by government lawyers in previous cases." Notably, '“[e]ven those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court." A recent paper by Margaret Lemos (Duke) & Deborah Widiss (Indiana), The Solicitor General, Consistency, and Credibility, sets out to empirically better understand the circumstances that lead the SG to "change its position on the meaning of the law, and to unpack the connections between consistency and credibility.”

To do so, the paper leverages an original dataset that includes 131 cases drawn from 1892 to the Court's 2022 term. The authors make clear that the sample is under-inclusive in that it contains only those SG "flips" that are "evident": that is, where "the government itself, other parties or amici, or the justices flagged that the government had changed its legal position." In about 80% of the cases, the SG itself acknowledged the change in its briefing. Of course, that also means that in 20% of the cases the government "either did not discuss, or denied, the changed position."

While the paper's analyses are strictly descriptive, main findings include that changes in the SG's litigating positions have increased over time. The authors also emphasize that SG reversals (or "flips") happen for an array of (often overlapping) reasons, "many of which stem from the SG’s unique role in coordinating litigation across a vast and constantly changing federal government." An excerpted abstract follows.

“This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility.

… Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government’s understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive.”

COVID-19 Relief Funding: Following the Money Across States

In response to the global COVID-19 pandemic, the U.S. federal government, through the CARES Act, FFCRA, RRA, and ARPA, provided as much as "$6 trillion in income support to households, a combination of loans, grants, and tax relief to firms and non-profits, funding for (public) health efforts, and intragovernmental grants to sub-national governments." These federal funds included "roughly $900 billion in aid to state and local government entities." And a recent paper, What Do State Do With Fiscal Windfalls? Evidence from the Pandemic, by Jeffrey Clemens (UCSD--econ.) et al., focuses on how state governments deployed this federal aid.

To do so, the paper benefits from a unique dataset constructed from a rich array of sources and an estimation strategy that levers variations across states with "low vs. high levels of per resident representation in the U.S. Congress." More specifically, owing to the possibility that federal aid to states may be endogenous along many dimensions, the paper deploys "an instrumental-variable approach to estimate the effect of federal relief to state and local governments on the revenue and expenditure decisions of state governments."

Among the findings include that "for every $1000 of committed federal aid per capita, $645 appears as increased intergovernmental grant revenue in states over the years 2020-2022." When it came to deploying the federal funds, state governments emphasized "General Government Expenditures ($379 per $1000 of federal aid) and state and local pension contributions ($72 per $1000 of federal aid)." An excerpted abstract follows.

“Using variation in federal pandemic-era fiscal aid to states driven by the strength of political representation, we find that incremental pandemic-era fiscal aid to states was most likely to end up in the categories of general administrative service spending and employee pension benefit funding. Spending on categories that motivated the aid in the first place, such as healthcare, education, and infrastructure, may also have responded but does not show robust patterns. Total state government revenues and expenditures had increased by around 70 cents per incremental windfall dollar of committed federal funds by 2022. Of this, the statistically significant categorical spending effects are 38 cents to general government expenditures (the residual that in principle excludes healthcare, education, infrastructure, and other functional categories) and 7 cents to pension funding, even though the latter use was inconsistent with the objectives of the legislation.”