Empirical Legal Studies

Does personality motivate job choice among lawyers and law students?

My thanks to Sara Benesh for her kind introduction and for allowing me to guest edit this post.

The government has been preparing itself for the retirement of baby boomers (the “quiet crisis”)--including legions of lawyers.  In 2007, Congress passed the College Cost Reduction and Access Act that, among other things, facilitates loan forgiveness to attract employees who have made 120 monthly payments on student loans while employed in public service.  Is the financial incentive enough to lure lawyers and law students to public service?

Beyond financial incentives, a coauthor and I have been interested in the impact of public service motivation--an intrinsic, measurable personality characteristic--on job choice.  Our articles are based on quantitative analysis of multiple data sets: (Article 1) primary data we collected from first year law students and (Article 2) analysis of secondary data “National Survey of Career Satisfaction” from the American Bar Association.  ELS readers might be particularly interested in the policy capturing design used in the first article.

Very briefly, we find that, among lawyers, public service motivation positively predicts whether one's second job is in the public sector (school debt is probably the guiding factor right out of law school). Among law students, we find that public service motivation is actually a better predictor of job-fit than sector-fit. In other words, regardless of which sector a student plans to enter, students with stronger public service motivation are more likely to accept jobs that emphasize service to others.

For government recruiters, the task ahead seems to be one of attracting applicants using service-oriented work, rather than financial perks like loan forgiveness. 

 

Identifying and Measuring Ideology in Judging

In a recent article, The Context of Ideology: Law, Politics, and Empirical Legal Scholarship, 75 Missouri L. Rev. 79 (2010), I argue for a new approach to identifying the ideological nature of Supreme Court cases.  The abstract follows:

In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model of judicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices‟ votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.

Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even as empirical legal scholarship has grown in significance and influence in the legal academy. Recently, however, empirical scholars and traditional legal academics have begun to engage in serious discussions with each other about how to think about and evaluate the balance between law and ideology and about how to harness the powerful tools of quantitative analysis to study such questions. In this Article, I offer several contributions to this discussion.

First, the Article evaluates current efforts by empirical scholars to identify the ideological character of cases. These efforts generally assume that the ideological character of a case can be determined by reference to a single liberal-conservative spectrum, and they generally presume that all or most cases present only a single issue. Through a recoding and quantitative analysis of a random sample of recent Rehnquist Court cases, as well as through a qualitative analysis of many of the cases, I establish concretely some of the limitations of these efforts. Specifically, I demonstrate that these approaches are indeterminate and oversimplified, and often prevent scholars from identifying cases in which the Justices face issues that pull them in different ideological directions. At the same time, however, I identify their strengths, particularly the strengths of approaches that leverage information derived from the Justices‟ actual voting patterns.

Finally, I propose a new approach for empirical scholars interested in studying the role of ideology in Supreme Court cases. Rather than starting with the assumption that ideology is the most important factor in Supreme Court decisionmaking, my approach focuses on just how important ideology was to the Justices in a particular case. Measuring ideological salience, I argue, would allow empirical scholars to study the empirical question of when and how ideology – and other factors – affects decisionmaking. Doing so would also open the door to a wide variety of important and interesting research questions. Most importantly, this approach would allow empirical scholars to engage with more traditional legal academics in the important normative debates about when and how ideology should play a role in the work of the Supreme Court.

A Pre-1940 Bibliography of Empirical Legal Studies

Herb Kritzer (Minnesotal Law), a seminal figure in the Law & Society movement, has recently posted a paper that provides a very exhaustive survey of emprical legal studies in the pre-1940 era.  His paper, "Empirical Legal Studies Before 1940: A Bibliographic Essay", includes a full bibliography of the articles he located.  The introduction of paper is worth posting in full:

“Empirical Legal Studies” is a term that began to come into vogue around 2000. ELS built on and extended the law and society (socio-legal studies) approach and the law and economics approach, both of which have strong empirical elements. Of course empirical research on law and legal processes predate law and society and law and economics, with a number of well known studies that were conducted in the 1950s and early 1960s. These mid-century projects include the American jury project (Kalven and Zeisel 1971), the commercial arbitration study (Mentschikoff 1952; Mentschikoff 1961), the court delay study (Zeisel and Callahan 1963; Zeisel, Jr., and Buchholz 1959), the pretrial settlement conference study (Rosenberg 1964), studies of Supreme Court decision making (Kort 1957; Kort 1966; Pritchett 1948; Schubert 1959; Schubert 1963; Schubert 1965; Snyder 1958), studies of the legal profession (Carlin 1962; Carlin 1966; Johnstone and Hopson 1967; Smigel 1964; Zander 1968), studies of compensation for injuries suffered in auto accidents (Connard, Morgan, Pratt, Voltz, and Bombaugh 1964; Hunting and Neuwirth 1962; Linden 1965; Morris and Paul 1962), and studies of the lower courts (Dolbeare 1967; Green 1961; Jacob 1969). Many of these studies of the 1950s and 1960s have framed research agendas that continue to this day. While the mid-century studies are reasonably well-known, much more obscure is the body of research conducted before World War II. In the 1920s and 1930s, and in a few cases even earlier, one can find a wide range of empirically-oriented research on law. The specific topics of this early research include:

• Appellate courts and appellate decision making
• Automobile accident compensation and litigation
• Banking
• Bankruptcy
• Criminal courts
• Debt
• Divorce
• Judicial staffing and judicial selection
• Juries (both petit and grand)
• Jurisdiction
• Legal education
• Legal needs and legal aid
• Legal profession
• Litigation
• Procedure
• Small claims

A significant portion of the early work was linked one way or another to the legal realist movement, and one can find some description of the research in historical treatments of legal realism (Kalman 1986; Schlegel 1980). In significant part because legal realism was essentially an American movement, almost all of the empirical legal research of the period was done by Americans focusing on the United States. The purpose of the discussion that follows is to highlight the range of empirical research on law from the pre-World War II period. To locate that research, I examined the tables of content of all law reviews published prior to 1940, reviewed a large number of English government reports (command papers), and followed up on any citations I could find within those works to other sources. While I do not discuss every study I found, I have provided as complete a bibliography of that research as possible. My discussion of the research is organized around a series of topics. While most studies easily fall within a single topic, a few stretch across multiple topics, and appear more than once.

What Role Does Legal Academia Play in the Development of the Law?

A recent article posted on SSRN, Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate, asks the intriguing question of to what extent do law professors influence the development of the law.  To begin to answer the question, the authors apply social network theory to the social structure of legal academia, drawing on information on each tenure-track professor employed at an ABA-accredited law school.  The authors tracked where each professor received his or her American law degree (they excluded faculty without such degrees) and where the professor now teaches and then used this data to generate a network analysis.  This analysis produces visual representations of the resulting networks, like the one diagram below, which illustrates the centrality of a small number of schools – and especially Harvard and Yale –  in this academic network.
The authors caution, however, that such visualizations are not sufficient to understand underlying structural relationships.  They therefore apply several statistical measures: outdegree (the number of arcs emanating from each node, or more concretely here, the number of faculty members produced by each law school), hubs (measuring the relative prestige of the origin and endpoint of each arc, that is, the relative prestige of each institution – “Hubs are the schools with a high degree of influence on other influential schools...”), and closeness (measuring the tightness of connections between different institutions).  Like the visualization, these measures demonstrate an extreme skew towards the influence of a small number of schools.
Finally, the authors use the network analysis to model the rate at which ideas spread from one institution to another – the institutions’ intellectual infectiousness.  Although they acknowledge that this model involves a number of simplifying assumptions that themselves need to be examined, they argue that they provide a first cut at demonstrating how quickly and effectively new legal or intellectual paradigms can spread from one school to another where they are then incorporated into the education and socialization of future lawyers.  This is one possible mechanism by which changes in the law become widely accepted.
The piece has five authors all from the University of Michigan:  Daniel Katz, Josh Gubler, and Jon Zelner, Eric Provins, and Eitan Ingall.

Exxon Shipping, Footnote 17

Today's New York Times includes,  "From One Footnote, a Debate Over the Tangles of Law, Science and Money,"  by Adam Liptak. 

While failing to give CELS it's full due as THE annual conference on empirical legal studies, it does mention Lee Epstein's keynote speech.  And the article includes pointed quotes from Jeff Rachlinski and Ted Eisenberg on the court's understanding of research on punitive damages. 

The Limitations of the Spaeth Supreme Court Database

I have posted on SSRN my article, forthcoming in Hastings Law Journal, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court.  This article examines the well-known and widely-used U.S. Supreme Court Database (created by Harold Spaeth) – and most recently mentioned here –  and addresses the Database’s limitations particularly for those interested in law and legal doctrine.
The key point of the Article is that the Database does not contain complete or accurate information about law and legal doctrine as they appear in Supreme Court opinions.  Given Harold Spaeth’s own purposes in creating the Database, these limitations may not be surprising -- although they do raise at least some challenges to his attitudinal model.  Unfortunately, however, they are frequently misunderstood.  Scholars all too frequently use the Database in ways that it simply cannot support, leading to the possibility of invalid or unreliable results.  This post summarizes the Article’s main arguments. 
The primary challenges presented by the Database involve the coding for the “issue,” “issue area,” and “legal provision” variables.  As the names of these variables suggest, they are frequently used by researchers interested in studying law and legal doctrine.  Yet, the coding protocols for these variables (as set forth in the Codebook are not conducive to such research.  Some of the limitations of these variables include:
(A) The “issue” variable is not, despite its name, designed to identify any legal issues in a case.  Rather, it is designed to identify the “public policy context” of a case.  A case like Schenck v. Pro-Choice Network of Western N.Y. is one example.  In Schenck, a group of abortion protesters challenged an injunction limiting their activities as violating the First Amendment.  The only legal issue in the case involves the First Amendment and the limits it places on judicial power.  But the Database codes the case as having an issue of “abortion” because that is the factual, or “public policy” context in which the case arises.
(B) The coding contains a strong presumption of assigning each case only a single issue.  So the Database does not add a First Amendment issue code to the coding of Schenck.
(C) The issue codes are quite underinclusive and somewhat dated.  For example, there are no codes for immunities, for sexual harassment, or for the dormant commerce clause.
(D) Each of the approximately 260 issue codes is classified into one, and only one, of 13 “issue areas.”  In some cases, the classification makes no sense.  For example, in Markman v. Westview Instruments, Inc., the Court addressed the question of whether patent claims construction is a question for the judge or the jury; that is, whether there is a 7th Amendment jury right.  The Database classifies Markman as a case about the right to a jury trial, but that code, which does not distinguish between civil and criminal jury rights, is located in the Criminal Procedure issue area.
(E) The legal provision code does not identify cases or judge-made legal doctrines.  It is limited to identifying statutes, constitutional provisions, and court rules.
(F) The coding protocols provide that only legal provisions mentioned in a case’s syllabus should be identified.  But the syllabus – a short summary of the case – is akin to headnotes.  It is not officially part of the case, it is not written by the justices or their law clerks, and it cannot be cited by lawyers or judges.
To some extent, misuses of the Database are likely due to differences in the ways that different disciplines (political science and law) use the same words.  To some extent, misuses stem from scholars failing to evaluate their research design in light of the Database’s coding protocols, which are described in the Database’s Codebook.  In my Article, I provide a series of examples of research project that fail to adequately take account of the Database’s limitations and that therefore produce results that may be inaccurate.
To further explore the limitations of the Database and to experiment with more legally nuanced types of coding, I undertook a Recoding Project of a random sample of 10% of the cases from the last Rehnquist natural court.  The details of the coding project are, of course, explained in the Article.  Among other things, I redefined “issue” to mean legal issue, I expanded and rearranged the lists of issues and issue areas, I put no limit on the number of issues that could be coded per case, I redefined legal provision to include seminal cases and legal doctrines, and I identified legal provisions by looking at the opinions themselves, not just the syllabi.
Some of the key findings of the Recoding Project include:
(1) I identified an average of 3.7 issues and 2.4 issue areas per case, rather than the single issue and issue area per case identified in the Database.
(2) I identified an average of 2.2 as many legal provisions per case as did the original Database.
(3) A surprising number of legal provisions that I identified should have been identified in the Database because they were mentioned in the syllabi.
(4) In both issue and legal provision coding, the “missing” codes – those that I identified but that the Database did not – disproportionately related to structural and jurisprudential issues, including procedure, the powers and operations of the federal and state governments, and the relationship between different branches of government.
These and other findings have a variety of implications for researchers working with the Database.  Chief among these is the importance of not drawing conclusions about the Supreme Court’s cases by looking at the numbers and types of issues, issue areas, and legal provisions coded.  Researchers all too often rely on such information to draw conclusions about case complexity or about the number of issue “dimensions” in the cases.  In other words, researchers sometimes point to the Database to justify their assumptions that most Supreme Court cases involve only a single issue.  But as the Article demonstrates, this single-issue coding is -- or at least may well be -- an artifact of a coding protocol that presumes that each case should be assigned only a single issue, so such conclusions are circular.  A second important implication is that the Database’s issues and issue areas do not accurately identify all cases involving particular legal issues and that not all cases with a particular issue or issue area code in fact involve the legal issues that a researcher might presume from the names of those codes.

More on CELS: Cognitive Illiberalism

Dave Hoffman over at Concurring Opinions wasn't the only blogger at CELS in Ithaca.  Although he and I apparently went to different panels, like him, I thought the conference was excellent and the quality of the papers and discussion extremely high.  Congratulations and thanks to all of the conference organizers.

One particularly interesting paper was, coincidentally (or not) co-authored by Dave Hoffman, and was previously blogged about here.  The paper, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism by Dan Kahan, David Hoffman, and Donald Braman (forthcoming in Harvard Law Review), takes advantage of a unique experiment made possible by modern technology.  In Scott v. Harris, the Supreme Court addressed whether summary judgment was appropriate in a claim of excessive force where a police officer rammed his car into the car of the fleeing suspect, who was rendred quadriplegic.  The Court held that the use of deadly force was reasonable under the circumstances, given the risk that the car chase posed to the public.  The Court rested its conclusion on the contents of a videotape, shot from the police car itself, that was entered into evidence and that the Court posted on its website.   Interestingly, however, despite the fact that the Court said that no reasonable juror could find the use of force excessive, one Supreme Court justice -- Justice Stevens -- concluded otherwise.

Taking advantage of the now publicly available videotape, the paper's authors showed the video to 1350 Americans.  As they explain, "a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines.  We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities."  So individuals who tend to see the world hierarchically (demographically more likely to be white, male, and from the South or West), were more likely to agree with the Court majority than were individuals who take a more egalitarian perspective (demographically more likely to be nonwhite, female, and from the Northeast).

Normatively, these observations suggest that judges should, at a minimum, be cautious about the claims they make about what a "reasonable juror" could conclude.  (Indeed, as the discussant, Neal Feigenson, pointed out, even if all members of the jury were completely average across all of the dimensions identified by the authors, there would still be a significant probability that at least one juror would believe that the police used excessive force. )  Assuming that one's own views are the only reasonable views, which is essentially what the majority did, "invested [the Court's] decision with culturally partisan overtones that detracted from the decision's legitimacy."  As the authors point out, when different sorts of people have predictably different perspectives, deliberation is particularly appropriate.

This project suggests an interesting take on whether the standard for judgment as a matter of law -- which is, the Court has emphasized, the same is the standard for summary judgment -- should be different.  Perhaps once a jury has in fact heard all the evidence, it should be allowed to render a verdict, and the fact of that verdict should help to inform the judge's ruling on the JML motion.  This comes up often in employment cases, where JML is often sought -- and apparently disproportionately granted -- by employer-defendants.  (See here and here for more of my thoughts on courts' overzealousness in granting summary judgment and judgment as a matter of law in employment cases.)

Law Professor Free Agency and "School-Specific" Capital

[Update: Paul Caron (Cincinnati), Michael Madison (Pittsburgh Law), Jeff Lipshaw (Suffolk), Jim Chen (Louisville) have picked up on the analysis in the below post.  There seems to be some misunderstanding on my point of "long-term contracts."  In retrospect, I should have said "long-term commitments" (i.e., extra-legal and perhaps not committed to writing) to avoid what I think is an unproductive analysis of run-of-the-mill employment and commercial contracts. 

I am talking about this:  Academic X says, "I will stay here X number of years and ignore outside offers if you provide me with the resources to execute the following institutional plan [e.g., labor-intensive but high-yield teaching, public service, useful scholarship that will be noticed and solve a real world problem, etc.]."  Law School Y says, "I love this idea.  If you are right, it will grow our institution.  Because you have committed to building it here, School Y will fund it."  Because both Academic X and Law School Y have aligned personal and institutional agendas, their cooperation and commitment grows the institutional pie; both are made better off. Moreover, it becomes magnetic for other scholars and funders who share the substantive vision. 

So we are talking about communitarian norms here.  This type of approach is easy in small groups, which is what law faculty are.  Firm-specific capital in law firms is harder to grow/maintain because (a) they have gotten larger, (b) covenants not to compete are prohibited, and (c) there are liquidity constraints imposed by the ban on non-lawyer ownership.  On the other hand, law firms work harder at it because they increasingly operate in a competitive national marketplace--firm-specific capital can be huge competitive advantage.  Law schools, in contrast, are not subject to the same market pressures--the most elite have huge endowments and donors who want to give more to be associated with the elite brands.  Thus, in the legal academy, the free agent ethos is damn near ubiquitous.

No need to be abstract about all this.  I lay out a highly plausible counteractive approach in this comment.]

Several bloggers have noted Clayton Gillette's recent article, Law School Faculty as Free Agents, 17 J. Contemp. Leg. Issues 213 (2008).  See, e.g., Paul Caron, Larry Ribstein, Al Brophy, and Paul Secunda.  Gillette's essay provides the type of straight thinking needed to move the Moneyball-Moneylaw debate into a mode of institutional analysis that can produce actual results.   I will briefly lay out Gillette's analysis and then extend it to a concept I call "school-specific" capital--an analog to firm-specific capital.

Law Professor Free Agency

In a nutshell, here is Gillette's argument.  The lateral market for law professors is primarily based upon scholarship, which is an observable, coveted good.  Teaching and service, to be sure, are relevant goods, but they are hard to measure.   Further, faculty make hiring decisions; when they land a high profile scholar, they share equally in the school's reputational gain (albeit these gains are largely limited to opinions of other professors).  Yet, if new colleagues shirk committee work or are disengaged and uninspiring teachers, the costs borne by individual faculty members are negligible or non-existent. Hence scholarship becomes the focus of lateral hiring.  Clayton observes,

In 30 years of teaching, service as vice dean, and membership on appointments committees, I don’t believe I have ever heard a discussion of a candidate’s qualifications that included serious consideration of institutional service, except insofar as it related to scholarship. ... 

[H]iring schools tend to invest little in discovering teaching quality. The hiring decision is typically made after one or two faculty members at the hiring school attend one or two of the visitor’s classes, and that is done through a process (e.g., informing the visitor when faculty members will attend, and allowing the visitor to choose that time) that diminishes the likelihood that those classes will be representative. ... The result is that, as opposed to the meticulous, highly tailored criticism to which a candidate’s scholarship will be subjected, a candidate’s teaching will be evaluated largely to determine whether it is “good enough.” (pp. 228-29)

Gillette's key insight is that the lateral market in legal academia, unlike baseball (a crucial point), does not force the decision-makers [faculty] to internalize the benefits and costs of free agent activity:  Some costs potentially get externalized onto the students, alumni and law school administrators.   When  scholarship opens so many doors, Gillette suggests, it is easy to see how a more robust lateral market can skew institutional incentives and detract from overall educational quality.

To my mind, Gillette sets forth a very coherent and plausible analysis. [I suspect a lot of people will quibble with it, however, believing that their own lateral experience (or aspiration) reflects a more optimal outcome at the institutional level.  Listeners interested in the merits of this debate should weigh the critic's potential bias.]   It is an open question whether lateral mobility is really on the rise. At Indiana Law, we are building a law faculty universe database that covers 80 years of AALS schools.  See "Is Lateral Movement on the Rise? A Precise Answer is on the Way," ELS Blog (Dec. 21, 2006).  We see a lot of lateral movement in the 30s, 40s, 50s, 60s, and 70s. Eventually we will answer to the nagging empirical question of whether lateral movement is truly on the rise.

But one thing I can say with confidence--information published on the Internet (Leiter Faculty News and Concurring Opinions) has increased the perception of heightened movement.  And perception is all that is necessary to change behavior and institutional norms--possibly in the wrong direction.

"School-Specific" Capital

Gillette actually understates his argument.  Specifically, the proliferation of a free agency ethos not only undercut educational quality, it inhibits the cooperative, highly committed, selfless environments need to create truly exceptional institutions.   One of the major implications of more professor mobility is the diminution of "school-specific" capital--i.e., desirable law school attributes, such as innovative curriculum, public service reputation, alumni good will, that remains largely intact when a professor leaves.   So more free agency suggests fewer law schools that transform good human capital into great human capital.  On this score, the "best" law schools can, in fact, be pretty mediocre.   (I believe there is a way out of this box, which I will address below.)

More after the jump. ...

"Deal or No Deal": NYT Story on Forthcoming JELS Article re: Case Settlement Decisions

Last Friday's NYT (8.8.08) included a lead story in the Business section (at C1) on a forthcoming JELS article. The subject of the NYT piece--a forthcoming article in 5:3 JELS (Sept. 2008)--reports results from a study of the financial consequences of case settlement decisions. To better assess the financial cost of going to trial, the study analyzes cases in which a settlement offer was considered, but rejected in favor of proceeding to either arbitration or trial. The findings reveal the influence of contingency fee arrangements and the availability of insurance coverage on plaintiff and defendant settlement decisions, respectively.

Advantage Employers: Reversal Rates in Employment Disputes

An article recently posted on SSRN provides some interesting data about how employers and employees fare when arbitrators’ decisions are reviewed in court.  In Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitration: An Empirical Analysis, Michael Leroy argues that the possibility of such review – especially when the arbitration clause provides for de novo review, as many do – creates a systematic advantage for employers.  Leroy documents a growing number of bases on which courts (particularly state courts) vacate arbitration awards, providing more opportunities for successful challenges to arbitrators’ decisions.  Perhaps most importantly, however, Leroy measures the rate of reversal of arbitrators’ decisions.  Out of a dataset of 267 separate arbitration decisions, Leroy found that federal courts are routinely extremely deferential to arbitrators’ decisions, upholding decisions for both employers and employees at similar and extremely high rates.  As a general matter federal courts upheld awards for employees at a rate of 85% and for employers at about 92%.  In state courts, however, the picture is more complex.  There were larger differences between trial courts and appellate courts, for one thing, but more striking is the difference in upholding the awards for employers as opposed to awards for employees, particularly at the appellate level.  State trial courts and appellate courts both upheld awards in favor of employers at a rate of about 87%.  But for awards for employees, trial courts upheld them 77.6% of the time, while appellate courts upheld only 56.4% of such awards.  The significantly higher rates of vacatur of employee awards in state courts, Leroy argues, creates a moral hazard for employers.  Their incentives are to require employees to sign arbitration agreements that allow for expansive review in state court.  If the employer wins in the arbitration, its chances of prevailing under court review remain quite high.  On the other hand, if the employer loses in the arbitration, the generous review offered by state courts essentially gives it a second bite at the apple.  As a result, Leroy argues, employers may have less incentive to curtail legally risky behavior because they are less likely to have to pay for the consequences if sued.
This article, while quite different in its focus, is reminiscent of the findings of two articles examining differential appellate court treatment of plaintiffs versus defendants.  In Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments,  a 2oo2 article in the University of Illinois Law Review, Theodore Eisenberg and Kevin Clermont found that in federal civil rights employment cases that terminated between 1988 and 1997, defendants who appealed trial losses prevailed on appeal 44% of the time. In other words, where a defendant appealed a verdict, generally entitled to enormous deference, there was an almost even chance that the appellate court would reverse. In contrast, an employment plaintiff who appealed from a pro-defendant verdict had only a 6% chance of prevailing. As a point of comparison, the overall reversal rate from all civil trials was 18%.
In a more recent follow-up (blogged about here), Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal by Theodore Eisenberg and Michael Heise, examined the outcomes of more than 8000 trials and about 550 appeals from 46 large counties.  They found that in general, plaintiffs fare worse on appeal than defendants and that the appellate courts are more deferential to bench verdicts than jury verdicts.  Consistent with the first Plaintiphobia article and with Leroy’s findings, the plaintiff/defendant disparity was very stark in the context of employment cases – with 61.5% of verdicts for plaintiffs reversed and 38.5% of the verdicts for defendants reversed.  (Both of these reversal rates are higher than the overall numbers across all case types – 41.5% of verdicts for plaintiffs reversed and 21.5% of verdicts for defendants.)
All three articles discuss possible reasons for the observed disparities between plaintiffs and defendants.  The Plaintiphobia articles do not find strong evidence to support selection effects, and conclude that their findings are consistent with attitudinal effects – specifically that appellate judges believe (possibly erroneously) that juries are biased towards plaintiffs.  Leroy attributes the disparities at least in part to the expansion of bases for reversal of an arbitration award – a doctrinal development.  Moreover, there is the possibility of a snowballing effect on doctrine – the more pro-employer cases that are decided, the more pro-employer the law becomes.  At minimum, however, these articles collectively raise questions about whether the appellate playing field is level for employers and employees.

Update: It's worth noting that the two Plaintiphobia papers analyze appeals in all different kinds of cases, not limited to employment cases.

How the "Cravath System" Created the Bi-Modal Distribution

The bi-modal distribution (graphic to the right) continues to generate interest in the blogosphere.  See, e.g., Greg Mankiw, Right Coast, Broken Symmetry.   The  chart summarizes the starting salaries for lawyers who graduated from law school in 2006.  One reason the bi-modal structure is so jarring is that it demonstrates that measures of central tendency, such as average or median, are not necessarily reliable guides for law students' future earning power.  In conventional labor markets, that disconnect is rare.

NALP recently dug into its archives to determine whether this stratification is a persistent feature of the entry level law market.  See NALP Bulletin (Jan. 2008).  It turns out that 15 years ago, the market followed a much more traditional distribution.   The chart below summarizes the salaries for the class of 1991.

The 1991 graph is right skewed but bears some resemblance to a normal curve.  Below is the graph for 1996:

The rightward skew is a bit more pronounced and the area under the $75K to $85K range is becoming more substantial.  A more seismic shift is seen in 2000 (below) with the emergence of a second mode at the $125K price point. 

At the height of the Internet boom, a remarkable 14% of all entry level lawyers took jobs at the $125K level.  According to NALP, "never before had a single salary so dominated the landscape."  Under the 2006 bimodal distribution (see chart above), 44% of graduates received entry-level salaries in the $40K to $60K range; yet, the second mode moved further to the right ($135K to $145K) and grew to 17% of all graduates.

What are the market forces that have created this peculiar salary structure?  In my working paper, "Are We Selling Results or Résumés?: The Underexplored Linkage Between Human Resource Systems and Firm-Specific Capital," I posit that the runaway $160K mode is a confluence of two factors:  (1) the continued growth in the corporate legal services market, primarily due to the growing scale and scope of transnational corporate activity; and (2) law firms' nearly universal adherence to the "Cravath system," which purports to hire the best graduates from the best law schools and provide them with the best training.  More after the jump. ...

Network Analysis of Law Clerks and Judges

Over the next couple of weeks I plan to blog about some new research, with a particular focus on unusual techniques or interesting research questions.  Several of the research projects I will discuss came to my attention through the Law and Society Conference in Montreal at the end of May.

One interesting presentation was a paper entitled Hustle and Flow: A Social Network Analysis of the American Federal Judiciary by Daniel M. Katz and Derek K. Stafford, both political science graduate students at the University of Michigan.   Katz and Stafford are interested in the social structure of the judiciary and, more controversially, whether that structure has an effect on doctrine or case outcomes.  Different from the prevailing models of judicial behavior (attituindalism, legalism, or the strategic model), their hypothesis is that judges -- at least sometimes -- are influenced by "peer effects," not just by their own political views or by legal sources.  (Such social pressures could be a partial explanation for the panel and circuit effects documented on appellate courts.  See, for example, Kastellec, Jonathan P., "Panel Composition and Voting on the U.S. Courts of Appeals Over Time" (May 14, 2008). Available at SSRN: http://ssrn.com/abstract=1012111) and Kim, Pauline T., "Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects" (March 31, 2008). Available at SSRN: http://ssrn.com/abstract=1115357 ).

In order to study these social or peer effects, they must find a way to describe the social networks of the judiciary.  As an initial attempt to do so, Katz and Stafford employ new network analysis techniques to measure the paths that law clerks take between judges.  In other words, they chart the likelihood that a law clerk for, say, Judge Kozinski, will later clerk for Justice Kennedy, or that a law clerk for a particular district court judge will go on to clerk for a particular appellate court judge.  Their study "visualizes law clerk traffic" during the last Rehnquist natural court and produces some interesting representations of the relationships between judges.  (They identified about 900 clerks who moved from one judge to another during this period.)

The graphic depiction of these law clerk moves is one of the more interesting aspects of the study.  In one depiction, Supreme Court justices are, not surprisingly, clustered in the middle, but -- more surprisingly -- district court judges are "suffused throughout the network," not relegated to the periphery.  This is one representation, Katz and Stafford suggest, of the fact that judges with equivalent institutional authority in fact have different levels of influence.  Below is one such figure from the paper -- the Kamada Kawai Energized Network.  (Yellow nodes are Supreme Court justices; green are appellate court; and blue are district court judges.)

 

 

It will be interesting to hear more from these authors as they apply their methods to other aspects of the judiciary.

The Geography of Stock Prices

There is an interesting story in the Sunday New York Times about a recent study by George Korniotis (Fed Bd of Governors) and Alok Kumar (Texas Business), entitled "Long Georgia, Short Colorado: The Geography of Return Predictability" (on SSRN here). 

In a nutshell, the article documents that individual investors are overinvested in businesses that are located closer to them. Thus, when state or regional economic conditions deteriorate relative to the country as a whole, the sale of stocks--to maintain one's standard of living--has a predictable, disproportionate effect on the stock prices of companies headquartered nearby. There is also some interesting methodology in this paper, at least for those of us interested in testing the effects of geography on business or law.  Here is article abstract:

This paper shows that returns of U.S. state portfolios are predictable. In the presence of local bias and incomplete risk sharing, consumption smoothing motives of local investors generate predictable patterns in the returns of local stocks. Specifically, local investors require higher average future returns to hold risky local stocks when local economic conditions worsen and they face stronger borrowing constraints. The state portfolio returns are predictable both in the short-run (one quarter ahead) and the long-run (up to 24 quarters ahead). The predictability is stronger among less visible firms and in regions where investors exhibit stronger local bias and hold more concentrated portfolios. Trading strategies that exploit the state-level predictability earn annual risk adjusted returns of around 6-8%. Overall, these results indicate that the stock return generating process contains a predictable local component.

Transfer Students -- The Data

Brian Leiter has just posted rankings of the Top 10 law schools by percentage of transfer students.  See Schools that Take the Largest Number of Transfers (Relative to the Size of Their 1L Class).  It is generating a lot of traffic, see, e.g, Paul Caron and Larry Ribstein, in part because Brian names names. 

Last fall I posted charts that showed the same data ordered by 2007 U.S. News rankings.  I took a lot of heat in the comments from readers who wanted to defend these liberal transfers--many by people who benefited from the ability to trade up.   This system of liberal transfers has other defenders as well.  For example, professors at higher ranked schools often justify these policies by arguing that they are opening doors for hardworking students who have proven themselves.  My critique, however, was based on a macro-level social wealth perspective--i.e.,  do the benefits of liberal transfers policies outweigh the costs?   Here are some facts:

More transfers.  Between 1997 and 2004, non-academic 1L attrition, which is the ABA-LSAC Official Guide category that would include transfers, has increased at statistically significant levels.  See Morriss & Henderson, Measuring Outcomes, Fig. 2 and accompanying text.  I would posit that this coincides with a rankings payoff of higher entering credentials, not a rethinking of admissions policies driven by principles of equity and opportunity.  We should not confuse colorable justifications, which lawyers are expert at, with underlying motivations of self-interest.

Rankings gains.  By the way, these gaming strategies actually produce higher LSAT scores relative to non-gaming schools.    See Henderson & Morriss, Student Quality as Measured by LSAT Scores, at 191. 

Effects within schools.  According to the 2005 LSSSE Annual Report, transfer students were less likely to:

• Perceive their relationships with other students to be as positive as students who did not transfer.
• Work with other students outside of class to complete an assignment.
• Have serious conversations with students who are different from themselves.
• Discuss ideas from reading or assignments with others outside of class.
• Work on a paper or project that required integrating ideas.
• Participate in cocurricular activities.

P. 14-15.  The report continues, "These findings underscore that many of the strongest student relationships are formed during the first year of law school before transfer students join the campus community."  (p. 15). Note these findings describe group results.  Please spare me anecdotes in the comments about well-adjusted transfer students.  We cannot generalize, and thus make policy, from individual data points.  We need a representative sample, which LSSSE provides.

Harms to Curricular Innovation.  If the best students from Tier 3 and 4 are siphoned by Tiers 1 and 2, lower ranked schools have one hell of a time demonstrating the value of their curricular innovations.  And these innovations often require immense commitments of time and money.  The substantive value may be there, but the school will not get an adequate return on the investment.   So incentives to innovate are diluted.

So my point is very simple:  Instead of shrinking the 1L class and taking more transfer students, a better system would admit more 1L students using whole person review (the policy that all of the legal academy allegedly embraced in the Grutter litigation) rather than a cynical numbers-driven approach designed to maximize entering credentials for U.S. News purposes.   I realize that some people would be made worse off under this system (and these people tend to know who they are, so they are noisy).  In contrast, the people who would benefit are largely nameless and invisible.  But this approach eliminates the educational costs of excessive transfers and preserves incentives for healthy institutional competition based on curriculum and teaching.  From a social wealth perspective, which is better?

At the end of the day, the increase in transfers represents a giant collective action problem.  But it could be solved if U.S. News reworked its methodology.   The putative regulator here is the ABA Section on Legal Education and Admission to the Bar.  Are they even paying attention?  I often wonder.  After the jump are the charts that show net transfers by U.S. News rank.  It is very ugly.

Behavioral Economics Primer

I recently ran across this audio file of a talk given at Harvard Law School in 1995 by Charles Munger, entitled "Causes of Human Misjudgment."   Munger is a Harvard Law alum and a founding partner of the L.A. law firm of Munger, Tolles & Olsen.  He later left the firm to run an investment fund.  In the mid-1970s, he joined Berkshire Hathaway to serve as Vice-Chairman with Warren Buffett.

Make no mistake:  Munger is explicitly talking about the intersection of economics and psychology, acknowledging that the nascent (at the time) field of behavioral economics was on the right path and citing insights of Daniel Kahneman and Amos Tversky (note seven years before Kahneman won the Nobel Prize).

I am particularly interested in applied behavioral economics.  And here I don't mean writing papers on the topic;  rather, I mean honing my own decisionmaking processes to eliminate bias and susceptibility to manipulation.  For this purpose, I doubt I will ever find a better resource.  A written version of this talk, including an interesting preface, is online here.   It has quite a few things to say about academia and the pervasive problem of the "truffle hound."  (You will have to read/listen to the links to figure out the truffle hound reference.) 

Finally, Munger's remarks inspired Paul Brest (Hewlett Foundation, former dean at Stanford) and Laura Hamilton Krieger (UC Berkeley) to create a law school  course on professional judgment and decisionmaking at Stanford Law.  The course began in the early 1990s and continues to this day (materials are online at www.professionaljudgment.org).   Several prominent behavioral law & econ scholars took this course while students at Stanford, including Russell Korobkin (UCLA), Jeff Rachlinski (Cornell), and Chris Gurthie (Vanderbilt).    In case there was any doubt, cornerstones of the course appear to be empiricism, applied probability theory, and due attention to disconfirmatory evidence in the face of cognitive biases.  Great stuff.

Science and the Law

For those interested in the continued (and sometimes difficult) relationship between science and the law, I encourage you to check out my Vermont Law School colleague Craig Pease's regular "Science and the Law" column in The Environmental Forum.  Check out the latest edition entitled The Absurdity of Individual Harm.

BJS Report on Felony Defendants

Another recent BJS report, Felony Defendants in Large Urban Counties, 2004, analyzes data collected from a representative sample of felony cases filed in the nation's 75 largest counties during May 2004. Murder cases were tracked for up to 2 years and all other cases for 1 year to provide an overview of the processing of felony defendants from case filing to disposition and sentencing. Data highlight the demographic characteristics of felony defendants and types of arrest charges. The report also includes in-depth information on the criminal record of felony defendants, including criminal justice status at the time of arrest and the number and type of prior arrests and convictions. It describes conditions of pretrial release (bail amounts, type of release bonds, and pretrial misconduct), adjudication outcomes (dismissal, diversion, guilty plea, trial conviction rates), and sentencing data for convicted felony defendants. Notable findings include:

• Two-thirds of felony defendants were charged with a drug or property offense.
• More than three-fourths of felony defendants had a prior arrest history, with 53% having at least five prior arrest charges.
• Fifty-seven percent of felony defendants received a pretrial release prior to adjudication.

Warren Buffett and Efficient Market Theory

I like Warren Buffett--or at least his public persona and mythology--for a lot of reasons.  He makes a lot of money without much use for computers or technology, he claims to invest only in what he understands (e.g., insurance, candy, etc.), he treats people with respect (including his shareholders), and he says that his taxes are too low.  Buffett also agreed to give away 85% of this wealth to the Bill & Melinda Gates Foundation upon his death.  He could have built a monument to himself, but instead he concluded that his money would go further by giving it to Gates. 

But my favor reason might be in the below abstract from a top-ranked paper on SSRN: that  Warren Buffett et al.'s 31 year track record is not consistent with Efficient Market Theory.    See Gerald S. Martin (American/Texas A&M) & John Puthenpurackal (UNLV), Imitation is the Sincerest Form of Flattery: Warren Buffett and Berkshire Hathaway:

We analyze Berkshire Hathaway's equity portfolio over the 1976 to 2006 period and explore potential explanations for its superior performance. Contrary to popular belief, we find Berkshire Hathaway invests primarily in large-cap growth rather than "value" stocks. Over the period the portfolio beat the benchmarks in 27 out of 31 years, on average exceeding the S&P 500 Index by 11.14%, the value-weighted index of all stocks by 10.92%, and a Fama and French characteristic-based portfolio by 8.56% per year. Although beating the market in all but four years can statistically happen due to chance, incorporating the magnitude by which the portfolio beats the market makes a luck explanation extremely unlikely even after taking into account ex-post selection bias. We find that Berkshire Hathaway's portfolio is concentrated in relatively few stocks with the top five holdings averaging 73% of the portfolio value. While increased volatility is normally associated with higher concentration we show the volatility of the portfolio is driven by large positive returns and not downside risk. The market appears to under-react to the news of a Berkshire Hathaway stock investment since a hypothetical portfolio that mimics the investments at the beginning of the following month after they are publicly disclosed also earns significantly positive abnormal returns of 10.75% over the S&P 500 Index. Our evidence suggests the Berkshire Hathaway triumvirates of Warren Buffett, Charles Munger, and Lou Simpson possess investment skill unlikely to be explained by Efficient Market Theory.

So here is my question:  If you know how to make money like Buffett et al., what would you do:  apply the strategy in the market and make supra normal returns, or publish it all in a finance journal to settle an academic debate (and ruining the strategy prospectively)?

BJS Report on Domestic Violence

The Bureau of Justice Statistics (BJS) recently released State Court Processing of Domestic Violence Cases, a report (along with links to underlying data) that examines the processing of domestic violence (DV) and non-domestic violence (non-DV) cases filed in May 2002 in 15 large urban counties. In particular, the study compares the domestic and non-domestic offenses of sexual and aggravated assault on 11 prosecution, conviction, and sentencing outcome measures. Data are also presented regarding court issued protection orders, guilty plea versus trial convictions, and the demographic characteristics of domestic violence defendants. Major findings include:

• A third of violent felony defendants were charged with domestic violence.
• Prosecuted domestic sexual assault defendants had a higher overall conviction rate (98%) than prosecuted non-domestic sexual assault defendants (87%).
• Domestic aggravated assault defendants (54%) were less likely to be granted pretrial release than non-domestic aggravated assault defendants (62%).

An Empirical (and Normative) Assessment of Scott v. Harris

This paper, which just appeared in the SSRN Empirical & Experimental Journal, sheds some light on the cultural components of reasonableness in Supreme Court jurisprudence: Dan Kahan (Yale), Dave Hoffman (Temple), and Donald Braman (GWU Law), "Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris".  Here is the abstract:

This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk to the public. Instead, the Court uploaded to its website a video of the chase, filmed from inside the pursuing police cruisers, and invited members of the public to make up their own minds after viewing it. We showed the video to a diverse sample of 1,350 Americans. Overall a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities. The paper also addresses the normative significance of these findings. The result in the case, we argue, might be defensible, but the Court's reasoning was not. By insisting there was only one reasonable view of facts, the Court needlessly invested its decision with culturally partisan overtones that detracted from the decision's legitimacy.

Really interesting stuff.  If we want to better understand the dynamics of race and class in this country, this seems like a worthwhile place to start.

An Empirical Analysis of Street-Level Prostitution

Hat tip to this ABA Journal Daily News story, which reports Steve Levitt's (Chicago Econ / American Bar Foundation) and Sudhir Alladi Venkatesh's (Columbia Sociology) recent draft empirical analysis of street-level prostitution in Chicago.  The following abstract provides some specific (and bleak) details on the economics of this profession:

Combining transaction-level data on street prostitutes with ethnographic observation and official police force data, we analyze the economics of prostitution in Chicago. Prostitution, because it is a market, is much more geographically concentrated than other criminal activity. Street prostitutes earn roughly $25-$30 per hour, roughly four times their hourly wage in other activities, but this higher wage represents relatively meager compensation for the significant risk they bear. Prostitution activities are organized very differently across neighborhoods. Where pimps are active, prostitutes appear to do better, with pimps both providing protection and paying efficiency wages. Condoms are used only one-fourth of the time and the price premium for unprotected sex is small. The supply of prostitutes is relatively elastic, as evidenced by the supply response to a 4th of July demand shock. Although technically illegal, punishments are minimal for prostitutes and johns. A prostitute is more likely to have sex with a police officer than to get officially arrested by one. We estimate that there are 4,400 street prostitutes active in Chicago in an average week. 

Levitt is the author of Freakanomics and a real connoisseur a salient but quirky  economics projects.  The ABA Journal story contains this comment by Levitt on his support from the ABF:  “A lot of what I do makes the bar foundation very nervous ... [B]ut I have a lot of respect for the foundation because with every project I bring forward—usually loaded with tricky issues about race and class—the bar foundation has been willing to swallow hard and support me, knowing that my results weren’t necessarily going to be very popular.”

If we follow the data, we have a shot at formulating policies that actually work.  Kudos to the ABF for supporting this research.

Methodological Fit

The most recent issue of the Academy of Management Review contains a must-read for the legal empiricists who lack formal social science training (e.g., me):  "Methodological Fit in Management Field Research." The article, by Amy Edmondson (Harvard Business School) and Stacey McManus (Monitor Executive Development), provides a remarkably accessible and constructive framework for research design, including the respective roles of qualitative and quantitative methods.  Here is the abstract:

Methodological fit, an implicitly valued attribute of high-quality field research inorganizations, has received little attention in the management literature. Fit refers to internal consistency among elements of a research project—research question, prior work, research design, and theoretical contribution. We introduce a contingency framework that relates prior work to the design of a research project, paying particular attention to the question of when to mix qualitative and quantitative data in a single research paper. We discuss implications of the framework for educating new field researchers.

This article is chock full of useful reference charts that can be relied upon to develop a coherent and effective research plan.  For example, this chart [click on to enlarge] summarizes the four key elements of a field research project:

This graphic [click on to enlarge] depicts the iterative nature of good field research:

Two more graphics after the jump:

Testing the Conventional Wisdom of College Football

Empiricism can also used to test hypotheses that matter to actual people.  See, for example, this recent NBER working paper by Trevon Logan (Ohio State Economics):  "Whoa, Nellie! Empirical Tests of College Football's Conventional Wisdom."  Here is the abstract:

College football fans, coaches, and observers have adopted a set of beliefs about how college football poll voters behave. I document three pieces of conventional wisdom in college football regarding the timing of wins and losses, the value of playing strong opponents, and the value of winning by wide margins. Using a unique data set with 25 years of AP poll results, I test college football's conventional wisdom. In particular, I test (1) whether it is better to lose early or late in the season, (2) whether teams benefit from playing stronger opponents, and (3) whether teams are rewarded for winning by large margins. Contrary to conventional wisdom, I find that (1) it is better to lose later in the season than earlier, (2) AP voters do not pay attention to the strength of a defeated opponent, and (3) the benefit of winning by a large margin is negligible. I conclude by noting how these results inform debates about a potential playoff in college football.

Hat tip to Danny Sokol (Missouri Law).

Science for the Masses(?)

Via Slashdot: an interesting post asks, "Is scientific journalism doomed?":

"(H)ow can you effectively present primary scientific literature to the general public?  Is this even possible?"

...There are a number of assumptions I have been forced to make while analyzing my data, many of which are critical for both my methodology and the development of few of my arguments...How do you explain to someone the relative magnitude of these assumptions?...How, then, do you effectively cover a story laden with valid assumptions, some likely to be correct, many likely to be incorrect?"

As they say, read the whole thing.  For anyone who has ever tried to present empirical work to a non-empirical audience, it's a familiar problem.

When Do Justices Use Legislative History

James Brudney of the Ohio State University Moritz College of Law and Corey Ditslear of the University  of North Texas political science department, have posted a new piece on SSRN.  Entitled Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, it addresses the question of whether legislative history is used ideologically, in particular by the liberal justices.  The abstract follows:

This article conducts an in-depth examination of Supreme Court Justices' reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.
First, the article presents a powerful case against the conventional wisdom that legislative history is a "politicized" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions - if true - should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in "minor" cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion.
The article's second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices' use of legislative history since 1986. In the face of Justice Scalia's fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals' strategic restraint is to make their use of legislative history in remaining (mostly pro-employee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia's strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

(Hat tip to Rick Hasen's legislation listserv.)

The authors' discussion of the "Scalia effect" reminds me of a moment in Cass Sunstein's Elements class in my first year of law school.  Beware of what conclusions you draw from observations, he said.  Back in the 1960s, for example, many country clubs issued new rules requiring men to wear coats and ties.  But this was not because there was a move towards more formality.  Rather it was the opposite.  Social norms were moving away from formality and the clubs that wanted to preserve the old norms found it necessary, for the first time, to explicitly state them.  Not quite analogous to the Scalia effect discussion, but both are an important reminder of the hazards of inferring causation.

Ranking of Law Journals by "Drawing Power"

On the heels of our recently concluded Nance-Steinberg Article Selection Forum (Paul Caron aggregated all the posts here), I ran across this article by Robert Jarvis and Phyllis Coleman (Nova Southeastern Law), "Ranking Law Reviews by Author Prominence--Ten Years Later."  It just appeared in the Law Library Review.

The authors published a similar study ten years ago, which ranked general interest student-edited law journals based on the prominence of its contributors (i.e., "drawing power") during the 1991 to 1995 time period.  The new study is a replication based on 2001 to 2005 data (7573 discrete authors).   

The methodology includes an unusual--and, no doubt some will argue, arbitrary--scale of author prominence.  For example, if the President of the United States publishes remarks in your law review, it is worth 1,000 points.  Here are other examples: 

• 850, U.S. Senator
• 750, State Governor
• 725, U.S. Circuit Court Judge
• 625, Law professor at USN Top 25
• 525, Partner NLJ 250 firm or GC at Fortune 500 company
• 475, Law professor at USN Top 50
• 275, Law professor at USN Tier 3
• 250, Mayor or equivalent
• 225, Law professor at USN Tier 4
• 125, Community college professor
• 75, JD Student
• 50, Paralegal

Boy, am I glad I did not have to draw those lines!  No surprise that journals at the top are Yale Law Journal (score = 553, which is remarkable since it includes student notes), Harvard Law Review (551), Columbia Law Review (543), etc.

What is surprising--at least to me--is the severe dropoff as one moves down the hierarchy.  For example, Houston Law Review is a ranked #50 with a score of 337; #100 Penn State Law Review = 239;  #150 Gonzaga Law Review = 196;  #171 (dead last) Western State Univ. Law Review = 141.  I hope deans of all the new law schools consider this data before agreeing to subside yet another law journal. 

Economics is "often a triumph of theory over fact"

So says Alan Blinder, professor of economics at Princeton and former vice-chairman of the Federal Reserve Board, in this article from today's New York Times.  Here is an excerpt.

“There is much too much ideology [among professional economists],” said Alan S. Blinder ... .  Mr. Blinder helped kindle the discussion by publicly warning in speeches and articles this year that as many as 30 million to 40 million Americans could lose their jobs to lower-paid workers abroad. Just by raising doubts about the unmitigated benefits of free trade, he made headlines and had colleagues rubbing their eyes in astonishment.

“What I’ve learned is anyone who says anything even obliquely that sounds hostile to free trade is treated as an apostate,” Mr. Blinder said.

And free trade is not the only sacred subject, Mr. Blinder and other like-minded economists say. Most efforts to intervene in the markets — like setting a minimum wage, instituting industrial policy or regulating prices — are viewed askance by mainstream economists, as are analyses that do not rely on mathematical modeling.

That attitude, the critics argue, has seriously harmed the discipline, suppressing original, creative thinking and distorting policy debates. “You lose your ticket as a certified economist if you don’t say any kind of price regulation is bad and free trade is good,” said David Card, an economist at the University of California, Berkeley, who has done groundbreaking research on the effect of the minimum wage.

Obviously, we here at the ELS Blog are supportive of any efforts to use empirical research to check our fundamental assumptions.  Because of the huge influence of economics on public policy, this internal debate is a very healthy development for all of us.

Violent Crime: It's the Lead?

In an article questioning how much credit Rudolph Giuliani deserves for reducing crime in New York City, today's Washington Post discusses the research of economist Rick Nevin. Nevin argues that variations in violent crime are significantly related to childhood exposure to lead. He has studied crime rates and lead exposure in nine countries and concluded that "[s]ixty-five to ninety percent or more of the substantial variation in violent crime in all these countries was explained by lead."

The Post article is here. A more detailed discussion of Nevin's research is here.

Drifting on the Supreme Court

Fresh from my mailbox, the July issue of the ABA Journal has an article on the ideological drift of Supreme Court justices. Author Richard Brust spoke with Lee Epstein of Northwestern University. Along with co-authors Andrew Martin, Kevin Quinn, and Jeff Segal, she has an article on this topic scheduled for an upcoming issue of the Northwestern Law Review.

“[S]ays Epstein, ideological drift is the rule rather than the exception. Of the justices appointed since 1937 -- the rise of the New Deal court -- almost all have grown either more liberal or more conservative during their tenures. Some have shifted several times. ‘Very few have not drifted,’ says Epstein. Of the 26 justices over the last 70 years who served for at least 10 terms, only four can be seen to have stuck to their original ideologies.”

Which four justices remained anchored to their original ideological dispositions? The answers are (after the break):

An Argument for Bayesian Approaches

In a recent paper, Should Legal Empiricists Go Bayesian?, Jeff Strnad (Stanford) makes a case for Bayesian (rather than frequentist) approaches that should interest Bayesians as well as non-Bayesians.  Jeff makes the particular point that Bayesian models can "enable a much more natural connection between the normative or positive issues that typically motivate such studies and the empirical results." He concludes that Bayesian methods "have much to offer legal empiricists." Despite the paper's "heft" (108 manu pp.--you've been forewarned), it is well worth a read.

Empirical Work on Property Issues (Blumenthal Guest)

The variety of topics to which ELS can profitably be applied--as shown, for instance, by the recent AALS conference and by the successful ELS conferences--is, of course, both encouraging and daunting.  As one perhaps atypical example, a month or so ago there was an interesting exchange on the PropertyProfs listserv, looking for examples of empirical legal articles examining property issues.  I am certain there are more than the ones identified, as this request focused on real property--and I hope readers might identify more, please!--but the ones that were mentioned are excellent examples of the sort of useful ELS work that can be done.  Thus, in no particular order, here are the ones mentioned:

• Joyce Palomar, The War Between Attorneys and Lay Conveyancers--Empirical Evidence Says "Cease Fire!", 31 Conn. L. Rev. 423 (1999)
• N. William Hines, Real Property Joint Tenancies: Law, Fact, and Fancy, 51 Iowa L. Rev. 582 (1966)
• N. William Hines, Personal Property Joint Tenancies: More Law, Fact, and Fancy, 54 Minn. L. Rev. 509 (1970)
• Michael H. Schill et al., The Condominium v. Cooperative Puzzle: An Empirical Analysis of Housing in New York City, available at SSRN: http://ssrn.com/abstract=502362
• Vicki Been & Ioan Voicu, The Effect of Community Gardens on Neighboring Property Values, available at SSRN: http:ssrn.com/abstract=889113
• Dean Lueck & Jeffrey A. Michael, Preemptive Habitat Destruction Under the Endangered Species Act, 46 J. L. & Econ. 27 (2003)
• Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 Mich. L. Rev. 101 (2006)
• Ann E. Carlson & Daniel Pollak, Takings on the Ground: How the Supreme Court's Takings Jurisprudence Affects Local Land Use Decisions, 35 U.C. Davis L. Rev. (2001)
• Leigh L. Linden & Jonah E. Rockoff, There Goes the Neighborhood? Estimates of the Impact of Crime Risk on Property Values from Megan's Laws, NBER Working Paper No.W12253 (2006)
• Robert Ellickson, Order Without Law (1991)
• Ward Farnsworth, Do Parties to Nuisance Cases Bargain After Judgment?: A Glimpse Inside the Cathedral, 66 Chi. L. Rev. 373 (1999)
• Mark D. West, Losers: Recovering Lost Property in Japan and the United States, 37 Law & Soc. Rev. 369 (2003)
• Robert H. Sitkoff & Max M. Schanzenbach, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, 115 Yale L.J. 356 (2005)
• Max M. Schanzenbach & Robert H. Sitkoff, Perpetuities or Taxes? Explaining the Rise of the Perpetual Trust, 27 Cardozo L. Rev. (2006)
• Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes, 75 Ind. L.J. 1231 (2000)
• Lior Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437 (2006).

Four Cheers for Meta-Analysis (Blumenthal)

One wonderful thing about this blog is the opportunity to learn about various different methodological approaches available for data analysis.  The workshops on methodologies and statistics (e.g. Northwestern's) are enormously helpful, and references for teaching and catching up on statistics have been as well.  Experimental work is very important, and relatively uncommon approaches such as MDS, network analysis, propensity score analysis, and others can give good insight into what is going on with both conventional and unconventional data.

But I'd like to highlight one approach that cuts across many of these, and in my view is one of the most important contributions ELS can make.  I'm a big fan of meta-analysis--of the quantitative synthesis of existing research studies--and advocate its use by ELS scholars, courts, agencies, practitioners, ice cream truck vendors, etc.

I've made some of my case for meta-analysis in a piece coming out in Temple Law Review, so I will be brief here.  First, descriptively, meta-analysis is just that--analysis one level up.  That is, primary research uses individual units (person, cases, courts, etc.) as the unit of analysis.  The individual units that meta-analysis involves, though, are the empirical studies themselves from a particular body of research.  Synthesizing the results of each study, the goals of meta-analysis are (1)  to identify the presence or absence of an effect in an existing empirical literature; (2) to evaluate the strength of that effect, for instance by summarizing the average effect across a set or subset of studies; and (3) to identify moderator variables, elements of the various studies that might have reliably affected their outcomes.  Thus, a good meta-analysis will identify and synthesize every study in a research area; find the average effect across all those studies in order to summarize the most current state of knowledge; and then systematically compare and contrast across studies, in order to identify methodological and substantive aspects of the various studies in a discipline that might be associated with the effect sizes they report.

Meta-analysis has a number of benefits, especially relative to the traditional narrative lit review: it is more comprehensive; it better avoids subjective judgments about what to include in a review; it is better at identifying "small" effects; it avoids over-emphasis on misleading statistical significance and p-values (focusing on effect sizes instead); emphasizes moderator variables; and, in my view, gives a better grounding for policy inferences.

Meta-analyses, unfortunately, are still rare in law reviews (Chris Guthrie and Dan Orr had one recently, but few others appear; they are cited sometimes, though).  They are used in court, usually in mass tort cases, but are often misunderstood by courts and experts.  My hope is that use of meta-analyses in ELS will increase--they serve well to summarize a body of research; they allow (or force) researchers and policy-makers to speak a "common language"--by making cherry-picking from existing studies more difficult--and, identifying moderator variables, they can prompt further research questions.

Written Opinions and Judicial Decisionmaking

In a very interesting new article forthcoming in Georgetown Law Review, Chad M. Oldfather of Marquette University Law School discusses whether writing really or necessarily makes judicial decisionmaking better, in light of psychology research and experimentation suggesting that under certain conditions a phenomenon of verbal overshadowing makes decisionmaking worse.  This article is an interesting companion to David Hoffman, et al.'s recent scholarship, discussed here , on when and why judges write opinions.

The abstract of Professor Oldfather's article follows:

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive - that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of generating an opinion uncontestably outweigh the benefits - such as in the case of evidentiary rulings made during the course of trial. Still, the understanding remains that writing will result in some positive contribution to the process.

This article calls that assumption into question. Drawing upon an emergent body of psychological research into the effects of both oral and written verbalization on decisionmaking effectiveness, it argues that certain types of decisions are likely to be worse if made via a process that incorporates writing. Decisions involving complex, context-intensive judgments that are best resolved via the weighing of largely inarticulable considerations are susceptible to a phenomenon called verbal overshadowing. In these situations attempts to justify a decision can lead the decisionmaker to focus on more readily verbalizable features of  the problem to the exclusion of those inputs that are more important to proper analysis.

The article also investigates the significance of writing to the fulfillment of the other two (aside from accuracy-enhancement)primary functions of judicial opinions, namely the creation and memorialization of precedent and the enhancement of legitimacy, and to consider the differing ways in which these functions are implicated at the trial and appellate levels. The goal is not so much to generate definitive answers as to better identify the costs and benefits provided by written opinions so as to more completely ground ongoing debates concerning when opinions should be issued, what form they should take, and who should author them.

What Determines Traffic Citations?

It's all about safety, right? Er, maybe not. Michael Makowky and Thomas Stratmann of George Mason offer this analysis in a recent paper:

In this paper we study the political economy determinants of traffic fines. Speeding tickets are not only determined by the speed of the offender, but by incentives faced by police officers and their vote maximizing principals. Our model predicts that police officers issue higher fines when drivers have a higher opportunity cost of contesting a ticket, and when drivers do not reside in the community where they are stopped. The model also predicts that local officers are more likely to issue a ticket when legal limits prevent the local government from increasing revenues though other instruments such as property taxes. We find support for the hypotheses. The farther the residence of a driver from the municipality where the ticket could be contested, the higher is the likelihood of a speeding fine, and the larger the amount of the fine. The probability of a fine issued by a local officer is higher in towns when constraints on increasing property taxes are binding, the property tax base is lower, and the town is less dependent on revenues from tourism. For state troopers, who are not employed by the local, but the state government, we do not find evidence that the likelihood traffic fines varies with town characteristics. Finally, personal characteristics, such as gender and race are among the determinants of traffic fines.

The paper is available on SSRN here and discussed in the Chicago Tribune here. Various accounts of the importance of considering monetary incentives when evaluating traffic enforcement patterns can be found here, here, here, here, here, here, here, here, etc. (H/T to theNewspaper.com for the links in the last sentence.)

Order of Names in Co-Authored Scholarship

According to this recently posted paper, the order of your name in a co-authored article may have an effect on your career.  Here is the abstract for Mirjam Van Praag & B.M.S. Van Praag, "The Benefits of Being Economics Professor A (and Not Z)":

Alphabetic name ordering on multi-authored academic papers, which is the convention in the economics discipline and various other disciplines, is to the advantage of people whose last name initials are placed early in the alphabet. As it turns out, Professor A, who has been a first author more often than Professor Z, will have published more articles and experienced a faster growth rate over the course of her career as a result of reputation and visibility. Moreover, authors know that name ordering matters and indeed take ordering seriously: Several characteristics of an author group composition determine the decision to deviate from the default alphabetic name order to a significant extent.

(Many thanks to Danny Sokol for the tip.)  Perhaps Mirjam and B.M.S. are married; because of the ordering of the names, I would presume that Mirjam did more work on the article.

Study of N.B.A. Sees Racial Bias in Calling Fouls

While Michael linked to the paper below, it is also the subject of a NY Times article entitled Study of N.B.A. Sees Racial Bias in Calling Fouls.  Two highlights from the article:  First, the caption under the headlining photo--"Minnesota Timberwolves guard Mike James, left, said he did not think he was treated differently by white and black officials"--says a lot about the need for systematic empirical inquiry.  Second, the NY Times engaged in peer-review--"Three independent experts asked by The Times to examine the Wolfers-Price paper and materials released by the N.B.A. said they considered the Wolfers-Price argument far more sound."  The article also discusses multivariate regression and  Dallas Mavericks owner Mark Cuban's viewpoint on statistics.  It's a must read!!!

Vault Top 25 Underrated Schools: What Does It Mean?

Vault, Inc, which is a publisher that collects industry information on various professions, recently released its listing of the Top 25 Most Underrated Law Schools.   (Hat tip: Paul Caron & Volokh.)  The findings are derived from a survey of  512 law firm recruiting managers, hiring partners, and corporate counsel, who were asked "to name law schools that, based on their experience as hiring managers, are underrated."

As I read the list, I wondered, what is the practical implication of a law school being underrated by the people who make hiring decisions for entry level lawyers?  Presumably, it means that graduates of certain law schools tend to perform better than their school's U.S. News ranking would suggest; thus, legal employers are more likely to hire them. 

If this is true, what is the source of superior performance? Here are two possibilities:

1. Stronger Students.   Some schools may enroll a stronger student body than their rank might suggest.
2. Better Education.  Some law schools may equip graduates with more or better skills than other schools of comparable rank

Based on some preliminary statistical analysis, there is fairly clear quantitative evidence for the first hypothesis.  There is also some qualitative evidence for the second--enough to warrant some additional research. 

These research questions are really important to the ranking debate because their answers could reveal a mechanism by which some students will discount USN.  If an "underrated" school offers a better entree to coveted legal employers, why go to the higher ranked school, especially if the underrated school costs significantly less?  Law schools that understand these dynamics are in a better overall competitive position.

After the jump, I elaborate on these findings, including methodology.

A Serious Debate on Empiricism and Theory in Bankruptcy

Last April, we posted the abstract of Robert Rasmussen's (Vanderbilt) working paper, "Empirically Bankrupt," which critiques three empirical papers in the bankruptcy area.  The abstract concluded that "[f]or empirical work to be credited, at a minimum, it has to look in the right place, ask the right question and draw the right inferences. When empirical work fails to cross this threshold, it conclusions must be rejected."

One of the articles being critiqued was Elizabeth Warren's (Harvard) & Jay Lawrence Westbrook's (Texas) recent study, Contracting Out of Bankruptcy: An Empirical Intervention, 118 Harv. L. Rev. 1197 (2005).  A few months ago, Warren & Westbrook posted a rejoinder, "The Dialogue Between Theoretical and Empirical Scholarship," that not only addresses Rasmussen's criticism, but also tries to articulate an optimal relationship between theory and empiricism.   The entire exchange between Rasmussen and Warren & Westbrook is worth reading. Here is the abstract of the rejoinder essay:

In this essay we offer brief reflections on the best process for critiquing empirical work in law and sustaining an engagement between theoretical and empirical approaches. We emphasize the importance of theoretical work in helping to shape the scholarly agenda, but we urge that theory should be more closely tied to fact. We illustrate our argument by responding to a recent critique of our own empirical work by Professor Rasmussen. His principal claim is that our work should be discounted because we reported on all business bankruptcies, both those of entrepreneurs and those in corporate form. In response, we reanalyze our data, separating the individuals from the corporations; in every case the re-analyzed data support the conclusions of our original paper to the same extent or more strongly.  Similarly, his other claims about our work are shown to be incorrect.

Judges Use Law Reviews "Like Drunkards Use Lampposts: More For Support Than for Illumination"

Paul Caron  links to a devastating (and devastatingly funny) article in the New York Lawyer, entitled "Federal Judges Discuss Law Reviews Usefulness."   Paul excerpted some the sharpest lines:

Kicking off a recent friendly-but-frank discussion about the relevance of contemporary law review articles, Dean David Rudenstine of the Benjamin N. Cardozo School of Law offered one description: "useless blather puffed up with self-indulgence" ...

Judge Sack returned to the not-so-funny problem under consideration: today's highly theoretical articles are largely ignored and seldom cited by judges, a dramatic turnabout from a generation ago when the mostly practical content of law reviews was a significant element of judicial decision-making. Judge Sack was sorry to say that the bench now uses law reviews "like drunkards use lampposts, more for support than for illumination." ...

"If the academy wants to change the world, it must decide if it wants to be a part of the world." ...

Although Judge Sotomayor agreed that brainy law professors should not trouble themselves by contemplating reactions from the bench to their writings, she leveled a sharp gaze at the Cardozo Law faculty and declared, "If you think that judges are not as capable of creative thought as you are, I beg to differ." She added, "My question to academics: do you really think you're serving some function to someone?"

Wow, that is some really straight talk.  For the record, law reviews had a sketchy record 40 years ago, see Lowell J. Noteboom & Timothy B. Walker, The Law Review–Is it meeting the needs of the Legal Community?, 44 Denver L. J. 426 (1967).

Co-Authorship

One article I have been meaning to blog about is this profile of economist Kevin Murphy in the Nov/Dec 2006 issue of University of Chicago Magazine.  Murphy has an impressive list of accomplishments, including the John Bates Clark Medal of the American Economic Association, which is given once every two years  for the most outstanding American economist under age 40 (1997), and a MacArthur Foundation "genius grant" (2005).

Murphy is quite a character, and the article provides some fascinating details on his career history.  But this passage on co-authorship really caught my eye:

"[Regarding co-authorship,] I think most people get a better product that way,” he explains. “You pool insights and eliminate oversights. First-rate coauthors make working on projects more fun and rewarding. Plus, writing is a pain.” Since earning his PhD and joining the faculty in 1986, he has written every one of his 60-plus published papers with a former teacher, a close colleague, or students. ...

As a shy but affable 25-year-old grad student, Murphy confessed to [his advisor] Topel that his goal at that stage in life was “to become the world’s best coauthor.” By the time he was 35, he was there.

Wow, that is quite a testament to collaboration.  To the right is a picture of Murphy, who is an avid woodworker, in his workshop at home.   Apparently, it is impossible to locate a picture of Murphy without his signature baseball cap. 

Relationship between Journal Prestige and Citations

Paul Caron has a post an interesting forthcoming study by Andrew Oswald (Warwick Economics) in Econometrica on the relationship between journal prestige and citations.  See Andrew Oswald, An Examination of the Reliability of Prestigious Scholarly Journals: Evidence and Implications for Decision-Makers.  Since a single body in the UK makes funding decisions for university research, there is significant pressure to rely upon measures of productivity that take into consideration the relative prestige of  faculty members' placements.  Because these journals are peer-reviewed, and the hierarchy of journal prestige in each discipline is fairly established, placement -- so the argument runs -- should be construed as a strong signal of quality.

Oswald's study is important, though the abstract is -- in my opinion -- quite misleading.  This claim caused me to the read the whole study: 

The paper finds that it is far better to publish the best article in an issue of a medium-quality journal like the Oxford Bulletin of Economics and Statistics [a middle-of-the-pack journal] than to publish the worst article (or often the worst 4 articles) in an issue of a top journal like the American Economic Review.

Oswald used citation counts from articles in six economics journals over a twenty-five year period to evaluate the reliability of placement as a quality signal.  But there is no implicit suggestion in the article that a scholar would be better off trading down.

Basically, it boils down to this: Placement is correlated with citation, but as a proxy for quality, there are large Type I and Type II errors.  Articles in AER and Econometrica (#1 and #2 in prestige) did indeed get more citations. Yet, roughly 16% of the articles in the less prestigious journals garnered more citations than the median AER or Econometrica articles.  The most cited articles in the less prestigious journals garnered 10 times or more the citations than the four least cited articles in each issue of AER or Econometrica.

In my opinion, here is the good news: 

Empirical Analysis of the Biglaw Tournament

Lately there has been a lot of buzz in the blogosphere on the associate-partner "pay gap" (Jeff Lipshaw, titled "The Days of Whine and Roses"), the application of Marxist economic theory to corporate law firms (David Luban), and what all the huge salaries and profits augur for the future of legal profession and legal education (Brian Tamanaha). 

All of it is worth reading, especially Tamanaha's insights on the growing fissure between elite and nonelite law schools.  (For a scholarly treatment of this topic, see Randolph Jonakait, The Two Hemispheres of Legal Education and the Rise and Fall of Local Law Schools, NYLS L Rev (forthcoming 2007)).

David Zaring and I recently posted our "Young Associates in Trouble" essay, which provides some new empirical evidence on the BigLaw tournament.   The essay reviews two recent novels that portray elite law firms (one in DC, the other in London) as an unending marathon of boring and substantively unfulfilling work.  In turn, we compare these fictitious accounts with findings from a unique dataset based on the AmLaw Midlevel Survey, which includes questionnaire responses from several thousand 3rd, 4th, and 5th year associates. 

So what is the key takeaway?  As shown in the table below, virtually every principle of enlightened management and social responsibility is either (a) associated with lower firm profits, or (b) irrelevant to the bottomline.

The essay also includes some multivariate regression models that reveal that firms actually make more money when associates work on less interesting work or report a greater likelihood of leaving the firm within the next two years.  In contrast, family friendliness, training and guidance, and feedback appear to have no effect on profits.

More empirics and another graph after the jump.

Empirical Study on Effects of Buckhannon

The economics of class action litigation is a fascinating topic.  This terrain shifted substantially in 2001 when the Supreme Court's decision in Buckhannon made it harder for lawyers to collect attorneys' fees under the civil rights fee-shifting statutes.   In essence, this decision limited fee-shifting to cases that result in a judicial judgment or consent decree.  Prior to Buckhannon, virtually every circuit had adopted the "catalyst theory", which permitted recovery when the lawsuit in question had produced some or all of the relief requested by the plaintiff class.

Without this potential pool of money available to pay for legal services, we might expect the number of civil rights class actions to taper off.  At the time, the Supreme Court rejected this line of reasoning as entirely speculative. Fortunately, Catherine Albiston (UC Berkeley Law) and Laura Beth Nielsen (ABF / Northwestern Sociology)  have recently posted "The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General," which is forthcoming in the UCLA Law Review.

Here is the abstract:

In 2001, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court rejected the catalyst theory for recovery of attorneys' fees in civil rights enforcement actions. In doing so, the Court dismissed concerns that plaintiffs with meritorious but expensive claims would be discouraged from bringing suit, finding these concerns “entirely speculative and unsupported by any empirical evidence.” This article presents original data from a national survey of more than 200 public interest organizations that call into question the Court's empirical assumptions. These data indicate that organizations that take on paradigmatic public interest cases, such as class actions seeking injunctive relief against government actors, are the most likely to be negatively affected by Buckhannon. In addition, our respondents report that Buckhannon encourages “strategic capitulation,” makes settlement more difficult, and discourages attorneys from representing civil rights plaintiffs. We argue that these far reaching effects herald a shift away from private rights enforcement and toward more government power, both to resist rights claims and to control the meaning of civil rights.

Criminal Pro Se Defense

In a forthcoming article Erica Hashimoto (Georgia) explores an interesting corner of criminal law from an empirical perspective.  Although principally descriptive in its treatment of the data, Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant finds:

"The data clearly refute both the assumption that most felony pro se defendants are ill-served by the decision to self-represent and the theory that most pro se defendants suffer from mental illness. Somewhat surprisingly, the evidence establishes that pro se felony defendants in state court do just as well as represented felony defendants, and the vast majority of pro se felony defendants - nearly 80% - displayed no signs of mental illness. The results of the study also provide an alternative explanation for the pro se phenomenon, suggesting that at least some defendants choose self-representation because of legitimate concerns about counsel. In short, the data in this Article expose the fallacy of the prevailing view of pro se felony defendants and demonstrate that the right to self-representation in fact serves a vital role in protecting the rights of criminal defendants."

USNWR Gaming and the Failure of Self-Regulation

I recently picked up the latest issue of National Jurist, which is a publication for current and prospective law students.  The cover story this month is "The Rankings Race: How Far Will Law Schools Go?"   

The article provides plenty of examples of how law schools attempt to game their U.S. News input variables, especially with regard to employment.  Michael Sauder, a sociologist at Iowa who has written extensively on rankings, offered instances in which law schools count alumni taxi drivers as "employed" graduates.  David Bernstein (GMU Law) cited a practice in which law schools have rounded up unemployed graduates and employed them for purpose of getting over the nine month USNWR hurdle.

The former President of the Associations of American Law Schools (AALS), William Hines, is quoted that "too many otherwise sensible law schools are engaged in questionable academic practices and may in some cases be borderline dishonest."  Two years ago, a similar damning story appeared in the New York Times.  See Alex Wellen, The $8.76 Million Maneuver.   

I don't think the legal academy appreciates the implications of all this well-documented gaming.  Not only are we cutting corners writ large in order to get ahead--and hence have zero credibility to emphasize the importance of honest, integrity, and ethical behavior to our students--but we are providing overwhelming evidence that we are incapable of effective self-regulation.  Right now, gaming pays.  Further, if you are a dean, and you refuse to aggressively manage your USNWR ranking, your job is in serious jeopardy.  But calling U.S. News a collective action problem is a cop-out.  Where is the ABA, our accrediting agency, to police this behavior?   

The table below, from the Measuring Outcomes paper by Andy Morriss and I, documents changes in graduate placement since U.S. News moved to the current employed at graduation/9 months methodology.  If these numbers are to be believed--and we would advise against it--these are bullish times for newly minted lawyers.  And the rising tide has raised all tiers.

Some of these remarkable gains may be the result of competition among schools to more effectively place, or at least track, their graduates.  If that is the primary explanation, then U.S. News has actually been a force for good, at least in terms of employment.  But a more likely explanation is that any employment--law firm associate, judicial clerk, public interest lawyer, taxi driver, waiter, insurance salesman, temporary law school RA, whatever--counts for the purposes of U.S. News. 

The biggest red flag is that while total employment at 9 months for all law school graduates surged from 83.9% to 91.6% between 1997 and 2006, first-time bar passage for this same cohort dropped from 83.0% to 78.6%, presumably due to the trend toward higher bar cut scores.  See pp. 13-14.

Note that the results from a February bar will rarely be available within 9 months of graduation. So, as we note in the paper,

it is likely that much of the increased post-graduation employment is in jobs that do not require a valid license to practice law and hence are unlikely to pay a premium for three years of legal education. At a minimum, this practice has the potential to seriously mislead prospective law students attempting to evaluate the relative costs and benefits of a legal education. It is also hard to believe that this type of reporting should be considered sufficient to satisfy ABA Accreditation Standard 509, which requires a law school to provide "basic consumer information" in a "fair and accurate manner reflective of actual practice."

As a self-regulating profession, it is time to get our own house in order.

Cross-Monitoring and Corporate Governance

I just finished reading a really terrific empirical study by Joanna Shepherd (Emory Law), Fred Tung (Emory Law), and AlbertYoon (Northwestern Law), entitled Cross-Monitoring and Corporate Governance.  In a nutshell, the authors show, after controlling for a wide variety of relevant control variables (most importantly corporate governance), that companies that rely on bank loans, as opposed to equity or public debt, post higher market returns.  Presumably, these results flow from the heightened monitoring and positive market signaling supplied by loan agreements.  Their multiple specifications do a nice job of ruling out alternative hypotheses.

This is quite an important paper for thinking about manager and director agency costs, especially in a world where portfolio diversification has reduced the incentives for shareholders to pay attention to annual elections for directors.  (It also is a excellent example of methodology for large panel data.)  Here is the article abstract:

We take the view that corporate governance must involve more than corporate law. Despite corporate scholars' nearly exclusive focus on corporate law mechanisms for controlling managerial agency costs, shareholders are not the only constituency concerned with such costs. Given the thick web of firms' contractual commitments, it should not be a surprise that other financial claimants may also attempt to control agency costs in their contracts with the firm. We hypothesize that this cross-monitoring by other claimants has value for shareholders. 

We examine bank loans for empirical evidence of the value of cross-monitoring. Our approach builds on prior empirical work on the value of good corporate governance, to which we add data on the presence of bank loans and their interactions with free cash flow, governance indices, and individual corporate governance provisions. We find strong evidence that bank monitoring adds value. In effect, bank monitoring can counteract somewhat the value-decreasing effects of managerial entrenchment. Bank monitoring may substitute for good corporate governance.

Abstract - Traffic Tickets & Local Government Budgets

Thomas Garrett (Federal Reserve Bank of St. Louis) and Gary Wagner (University of Arkansas) ask, "Are Traffic Tickets Countercyclical?" Here is the abstract:

There is anecdotal evidence that local governments use traffic tickets to generate revenue. Using panel data for North Carolina counties, we examine whether changes in local government revenue influence the number of traffic tickets issued. We find strong evidence of an asymmetric response by local governments. Specifically, positive changes in revenue have no effect on traffic tickets, but negative revenue changes increase the number of traffic tickets issued. A one percentage point decrease in revenue yields a 0.38 percentage point increase in traffic tickets. We calculate that traffic ticket revenue supplements a low percentage of local revenue losses.

The full paper is available here on SSRN. (H/T theNewspaper.com).

The Gender Wage Gap: Spouses with "Intense Jobs"

Here at Indiana Law, I teach a course called The Law Firm as a Business Organization. In a nutshell, the course provides students with an overview of the historical, economic, and sociological factors that have shaped—and continue to shape—the modern legal marketplace.   

This year, thanks to the dedication and hardwork of my colleagues, Ken Dau-Schmidt and Jeff Stake, my course includes extensive data on Indiana Law graduates; in other words, current IU students get to study the career trajectories of IU alumni.  This has been an interesting experience as both a teacher and a researcher.  The first study, which was explicitly designed to facilitate comparisons with the famous Michigan alumni dataset, is now available on SSRN: "The Pride of Indiana": An Empirical Study of the Law School Experience and Careers of Indiana University Law Alumni. (Ken and Jeff will also be presenting these results at the CELS conference in Oct.)

As we moved through some of the data last week, I noted some interesting breakdowns associated with the variable "% Spouse has intense job."   This item reflects the percentage of respondents who are married to professionals with demanding jobs (e.g., other lawyers, doctors, business executives).  Here is a summary of the "intense job" data along with some relevant additional variables:

As shown in the table above [click to enlarge], male and female Indiana Law graduates in both the five- and fifteen-year cohorts are fairly comparable on some dimensions (shown in blue): % married, size of families, % of spouses who are homemakers, and total household income.  But there are consistent statistically significant differences along three dimensions (shown in green):

Empirical Work on Transaction Costs

The Coase theorem holds that in the absence of transaction costs, all allocations of property are equally efficient because affected parties will privately bargain to correct any externality.  The familiar rejoinder by people who don't like law and economics is that transaction costs are never zero--but that was exactly Coase's point.  Since transaction costs distort or shape virtually all outcomes, effective social policy depends upon our understanding of real world contexts.  In short, the natural upshot of the Coase theorem is a comprehensive empirical research agenda on a wide range of legal and nonlegal disputes--enough work to keep several generations of researchers busy.  (Granted, those of us without a Nobel Prize under our belt have been somewhat slow to catch on.)

With this understanding of Coase in mind, this paper by Barak Richman (Duke Law) and Jeffrey Macher (Georgetown Business) caught my eye:  Transaction Costs Economics: An Assessment of Empirical Research in the Social Sciences.  Here is the SSRN abstract:

This paper provides a comprehensive review of the empirical literature in transaction cost economics (TCE) across multiple social science disciplines and business fields. We show how TCE has branched out from its economic roots to examine empirical phenomena in several other areas. We find TCE is increasingly being applied not only to business-related fields such as accounting, finance, marketing, and organizational theory, but also to areas outside of business including political science, law, public policy, and agriculture and health. With few exceptions, however, the use of TCE reasoning to inform empirical research in these areas is piecemeal. We find that there is considerable support of many of the central tenets of TCE, but we also observe a number of lingering theoretical and empirical issues that need to be addressed. We conclude by discussing the implications of these issues and outlining directions for future theoretical and empirical work.

Berman on Blogs ... and an Interesting Data Point

This post by Peter Lattman at the WSJ Law Blog caught my eye.  It is a short review of  Doug Berman's (OSU Law) "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs,"  which was originally presented  as part of the symposium on legal blogging sponsored by the Berkman Center for Internet & Society at Harvard Law School.   

Berman, who edits the Sentencing Law & Policy Blog, does not need to be remotely defensive on the relevance of blogging to scholarship.   His blog, which has garnered over 20 citations in judicial decisions (as of April 2006), has been endorsed by the President of the Federal Judges Associations and cited in testimony before the Senate Judiciary Committee (see this WSJ online story).  Berman's essay is a thoughtful reflection on the purposes of legal scholarship--which, Berman observes,  has become remarkably undertheorized due to a process of institutional drift over the last few decades.    Berman believes that blogging is a medium that provides large synergies between the three traditional dimensions of a law professor's job: teaching, scholarship, and service.  Thus, Berman concludes that blogging is destine to have an impact and may someday be "seen--along with 'serious legal scholarship'--as a preferred form of law professor activity."  I agree.

The reason that the Berman post caught my eye (and why I downloaded the paper) was a reference to statistics on the average length and number of footnotes in the Harvard Law Review in 1950, 1975, and 2000.  The following chart, from page 3 of Berman's paper, speaks for itself [click on chart to enlarge].