Empirical Legal Studies

Algos and Parole Decisions

Many--if not most--parole decisions remain fraught with peril. As parole boards are tasked with, to some degree, "guessing into the future," some form of risk assessment has been used to inform parole decisions since the 1920s. Despite this legacy, a recent and growing "decarceration" push has heightened public and scholarly attention to criminal risk prediction instruments. Recently, New York state amended its parole law to "center [parole board] decisions on individual’s rehabilitation in prison and future risk if released." Despite this shift in law, critics continue to argue that parole boards, such as New York's, "continue to incarcerate individuals well beyond their minimum sentence, not out of concern for public safety, but because of the nature and severity of the offense that had sent them to prison."

While concerns grow, few empirical estimates of the issue exist. In a recent paper, An Algorithmic Assessment of Parole Decisions, the authors, Hannah Laqueur (UC Davis--medicine) and Ryan Copus (Univ. Mizzou--KC), endeavor to do just that and test a risk-prediction algorithm. To do so, the paper paper exploits New York parole hearings’ data from 2012-2018. The data include individual sex, race/ethnicity, commitment crime, housing facility, parole board interview type, and the interview decision. The authors also obtained criminal history records for all individuals who had a recorded parole hearing from 2012 through 2018. The authors' risk prediction algorithm trained on the 4,168 individuals who were released on parole between 2012 and 2015 (a total of 19,713 individuals had parole hearings during this period). The primary outcome variables include "any recorded arrest within three years post-release and any violent felony arrest within three years post-release."

The authors find that the New York parole board "could have granted parole more than twice as often without increasing either the overall or violent arrest rate, or it could have released the same number of people while approximately halving both overall and violent arrest rates. Further, we find that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.” The authors take care to note that they "cannot determine whether the Board is simply not as good at determining risk as our risk prediction algorithm, or is simply prioritizing non-risk related factors such as the commitment offense." The paper's abstract follows.

"Objectives: Parole is an important mechanism for alleviating the extraordinary social and financial costs of mass incarceration. Yet parole boards can also present a major obstacle, denying parole to low-risk inmates who could safely be released from prison. We evaluate a major parole institution, the New York State Parole Board, quantifying the costs of suboptimal decision-making.

Methods: Using ensemble Machine Learning, we predict any arrest and any violent felony arrest within three years to generate criminal risk predictions for individuals released on parole in New York from 2012–2015. We quantify the social welfare loss of the Board’s sub-optimal decisions by rank ordering inmates by their predicted risk and estimating the crime rates that could be observed with counterfactual risk-based release decisions. We also estimate the release rates that could be achieved holding arrest rates constant. We attend to the “selective labels” problem in several ways, including by testing the validity of the algorithm for individuals who were denied parole but later released after the expiration of their sentence.

Results: We conservatively estimate that the Board could have more than doubled the release rate without increasing the total or violent felony arrest rate, and that they could have achieved these gains while simultaneously eliminating racial disparities in release rates.

Conclusions: This study demonstrates the use of algorithms for evaluating criminal justice decision-making. Our analyses suggest that many low risk individuals are being unnecessarily incarcerated, highlighting the need for major parole reform."

Judges Without J.D.s: One First Step

In an intriguing paper, Judging Without a J.D., the authors, Sara Greene (Duke) and Kristen Renberg (Duke), emphasize an underappreciated point: In a surprising number of states lower-level state court judges do not possess the J.D. degree. Now, to be sure, even at the federal level, the J.D. degree is not required for an Art. III commission. That said, insofar as virtually every (if not every) Art.III judge today possesses a J.D. the necessary variation does not exist to support useful comparative studies.

Research not possible in the federal judicial space, however, is possible in the state judicial space. And this paper does a good job at identifying a potentially rich vein of future research possibilities. Implications from this paper's brief case study of North Carolina magistrates (where more than 80 percent do not possess the J.D. degree) hint at possible distributional concerns. And these concerns may be especially acute where non-JD magistrates intersect with pro se litigants (itself a growing trend). The paper's abstract follows.

"One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-three states allow at least some low-level state court judges to adjudicate without a law degree, and in seventeen states, judges who adjudicate eviction cases are not required to have law degrees. Since most poor litigants are unrepresented in civil legal cases, this sets up an almost Kafkaesque scene in courtrooms across the country: Legal cases that have a profound effect on poor families, such as whether they will lose their home to eviction, are argued either in courtrooms where no one knows the law or only one party---the lawyer for the more powerful party---knows the law.

Considering data collected from a case study of North Carolina, where over 80% of magistrates do not have J.D.s, this Essay argues that allowing a system of nonlawyer judges perpetuates long-standing inequalities in our courts. It further argues that the phenomenon of lay judges is a symptom of a much larger problem in our justice system: the devaluation of the legal problems of the poor, who are disproportionately Black and Latine. This devaluation stems in part from an enduring cultural history in the United States of blaming the poor for their poverty and the associated problems of poverty. A change is in order, one that intentionally considers the expertise of judges and adopts creative solutions to incentivize specially qualified adjudicators to serve as low-level state court judges."

Federal Courts and "Certification" of State Law Questions

When federal courts need to apply state law and no clear articular of state law exists, federal judges have few options. While generating an Erie "guess" remains one option, another involves certifying the legal question to the state's highest court. Proponents suggest that state certification promotes federal-state cooperation, reduces forum shopping incentives, and, on net, reduces costs and increases efficiencies. Critics, by contrast, emphasize the unidirectional federal-state cooperation, the persistence of forum shopping, and the associated costs and delay.

While the SCOTUS and Judicial Conference have expressed growing interest in the state certification alternative of late, helpful data are scant. A recent paper by Jason Cantone (George Mason--criminology) and Carly Griffin (Univ. Ill.--ag.), Certified Questions of State Law: An Empirical Examination of Use in Three U.S. Courts of Appeals, seeks to contribute by presenting results drawn from three federal courts of appeals. While the analyses are purely descriptive, temporally bound (from 2010 through 2018), and limited to three federal circuits, they nonetheless cast some helpful initial empirical light on some of the basic contours of the certification process.

Drawing on a sample (N=218) of certified question events across three federal circuits from 2010-2018, the paper explores: "how often the certified question procedure is utilized in three U.S. Courts of Appeals, how often the circuits certify a question, how often states grant the certified question, and how long the process takes." Notably, the paper finds important variation across the three circuits when it came to state certification rates and duration. The paper's abstract follows.

"Federal courts routinely need to apply state law, but this task becomes complicated when no definitive state law exists. In these instances, federal judges have a few options, including making an Erie guess, or certifying the question of state law to the highest state court. During the U.S. Supreme Court’s October 2020 term, two opinions endorsed the certification of questions of state law procedure. However, despite recent interest by the U.S. Supreme Court and the U.S. Judicial Conference Committee on Federal-State Jurisdiction, little empirical research has examined the perceived benefits and burdens of the procedure. This Article provides new empirical data to help fill that gap.

Using a sample of 218 certified-question events across the U.S. Courts of Appeals for the Ninth, Third, and Sixth Circuits from 2010 to 2018, we examine how certified questions originate, in what types of cases, how often U.S. courts of appeal certify the questions of state law, and whether the corresponding state supreme courts grant or deny the question. Further, to address the perceived time burden associated with certification, we examine how long each part of the process takes in the appellate court, from filing to certification to termination. We found significant variation between the three U.S. courts of appeals in certification rates and timing. While we encourage future studies regarding certification of state law questions, our data can be readily used to inform courts and academic debates regarding the benefits and burdens of the procedure."

Judicial Outcomes, "Industry Peer" Stock Ownership, and Recusal

While research on "outside" influences on judicial decisions is relatively well-developed, much of that research dwells on various political influences (judge political ideology, etc.). Comparatively less well-developed is the possibility that judges' stock holdings influence their decisions in cases that involve corporate parties from "industry-peer" firms. While recusal doctrine (and practices and norms) are designed to guard against direct judicial financial conflicts of interests, indirect financial conflicts, by contrast, fall outside of formal recusal boundaries. And one example of an "indirect" financial conflict includes when a presiding judge has a financial stake in a litigant's "industry peer."

Barriers to data access are among the reasons that account for a deficit in research on this topic. In Stock Ownership of Federal Judges and its Impact on Corporations, April Knill (Fl. St.--Business) et al., explore this question after cobbling together data from an array of sources. The key move on the data front involved matching, at the individual case-level, presiding judges and their financial holdings. The authors "manually download 21,044 individual financial disclosures from JudicialWatch.org file by file... . This process results in a sample comprising 11,447 unique reports for federal judges in the years 2007 – 2012.” And within their sample, the authors report that the sample contains "observations from 69,060 federal district court cases.… Judges own industry peer stock in 8.6% of the cases in our sample.”

It is worth underscoring that in these instances the presiding judges did not violate any formal recusal obligations as the possible conflicts of interests flowing from their "industry peer" stock holdings are indirect. That said, the paper's core results imply that judges are "being influenced by their stock ownership in industry peer firms of litigants – a practice that is completely legitimate – in cases over which they preside." The paper's abstract follows.

“This paper investigates whether and how litigant peer stock ownership by federal district judges affects characteristics of case outcomes for large corporate litigants. We find that industry-peer stock ownership by district judges is associated with the following outcomes for corporate litigants named in their assigned cases: 1) an increased likelihood of judgments for the corporate litigants, 2) a decrease in the amount received by the parties suing these corporate litigants, and 3) a decrease in the length of the litigation proceedings. The random assignment of district judges to cases provides exogenous variation in the judge stock ownership. We further identify the association outlined in our base results by examining appellate court reversals of district judgments, a triple difference analysis isolating large-stake investments, and outcomes in case types that should impact industries either cooperatively or competitively. Our results survive a falsification test as well as a battery of robustness tests. Our findings underscore the importance of mandates governing judge stock ownership, and more broadly, judge conflicts of interest.”

An Empirical Assessment of What "Substantial Similiarity" Means to Courts in Copyright Litigation

Judicial assessments of copyright infringement claims remain dominated by the two-prong "substantial similarity" test. Despite this test's centrality to copyright doctrine, very little is known about how courts operationalize and apply it. In a recent paper, An Empirical Study of Copyright's Substantial Similarity Test, Clark Asay (BYU) seeks to sketch some of the test's general empirical contours. To do so, the paper, drawing from the universe of substantial similarity opinions (found on WestLaw), exploits a random sample of 1,005 opinions (district and appellate) between 1978 and 2020.

The study's key findings intrigue. First, and unsurprising to most practitioners in this space, the Second and Ninth Circuits dominate this litigation. Second, judicial analyses on the substantial similarity test tend to dwell on the second prong with comparably less judicial attention to the first. Third, judicial analyses focusing on prong two--assessing whether the defendant’s copying amounts to improper appropriation--evidence a wide diversity of approaches. As Asay notes, "[n]o dominant means exists for resolving this question, and, in any given opinion, a court typically uses multiple subtests and copyright limitations to decide this inquiry."

The paper concludes by recommending: "First, courts should maintain the two traditional prongs of the substantial similarity test as distinct and reinvigorate their assessments of similarity under the first prong of the substantial similarity test. Second, courts should make discussing and applying any relevant copyright limitations the heart of their prong two analyses to ensure that copyright law serves its constitutional purposes."

Defendant-Prosecutor Gender "Pairings" and Leniency

While various pockets on criminal law are increasingly subject to empirical analyses, one particular pocket--how prosecutors distribute discretion--is comparatively under-studied. This is so, partly, due to a comparative paucity of relevant data on the prosecutors themselves (and matching them to individual cases and dispositions). A recent paper, Gender Favoritism Among Criminal Prosecutors, by Stephanie Holmes Didwania (Wisc.), tries move the scholarly needle a bit by exploiting data on over 130,000 federal criminal defendants sentenced in 2002 through 2016 to assess possible "gender-based differences in how prosecutors exercise critical discretion."

The paper matches Sentencing Commission data and data from the Executive Office for United States Attorneys (EOUSA) which regularly publishes case data from the 93 USAOs located throughout the United States. Critically, the breadth of the LIONS data "is substantial—the data covers all cases in which a USAO was involved, including those cases that are the primary responsibility of another agency and those the USAO declines to prosecute." Despite its breath, the LIONS data set is not without important limitations including a comparatively non-trivial amount of missing data. After matching, the resultant data set data includes "131,207 federal criminal defendants sentenced between 2001 and 2016 in 63 of the 94 federal district courts."

Data set limitations aside, the paper's core finding intrigues: "That defendants receive more lenient charges when they match with their prosecutor on gender relative to when they are assigned a prosecutor of the opposite gender. Through this charging channel, prosecutor-defendant pairs that match on gender produce lower sentences relative to prosecutor-defendant pairs that mismatch." More specifically, "the leniency associated with gender-matching ultimately translates into significantly lower sentences: a defendant can expect to earn a roughly five-month shorter sentence when their prosecutor is their own gender compared to when their prosecutor is the opposite gender, which represents a roughly eight percent reduction in sentence length at the mean." The paper's abstract follows.

"Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors."

Judge Ideology and Pleadings Decisions in the Circuits

While the Twombly and Iqbal decisions separately and collectively helped galvanize empirical work in civil procedure in terms of access to federal courts, now that we're well into a post-Twombly and Iqbal world sufficient data exist to begin to test various normative claims regarding whether the two procedure decisions amplify the potential impact of judge ideology. And in a new paper, Politics, Identity, and Pleadings Decisions on the U.S. Courts of Appeals, Stephen Burbank (Penn) and Sean Farhang (Berkeley) set out to do just that.

To do so, the authors drew a random sample of 700 cases from the universe of cases post-Iqbal through 2019 that involved a Court of Appeals review of a district court decision on whether to dismiss for failure to state a claim under Rule 12(b)(6). The paper focuses on "the extent to which the party (of appointing president), gender, and racial composition of panels are associated with their disposition of 12(b)(6) appeals." Key findings include "that panels with women and non-white judges are substantially more likely to rule in favor of a plaintiff reaching discovery in other civil rights claims, an important and cross-cutting civil rights category amounting to a quarter of 12(b)(6) appeals in our data, but that race and gender are insignificant outside that substantive area. Party is insignificant across the board in the random sample."

Data on Prosecutorial Discretion By Gender

While a robust judicial outcomes research literature continues to mature and evolve, a critical pre-judicial outcome stage--the exercise of prosecutorial discretion--remains relatively understudied. Understanding the prosecutor's role is crucial as they "exercise unfettered decision-making authority throughout criminal cases by selecting whom to charge, which charges to bring, and what plea bargains to accept." While prosecturial discretion increasingly garners critical public attention, scholarly attention remains hamstrung by a paucity of helpful, systematic data.

In a recent paper, Gender Favoritism Among Criminal Prosecutors, Stephanie Holmes Didwania (Wisconsin) makes some intriguing headway by exploring individualized evidence about prosecutorial decision-making with the benefit of data from more than 130,000 federal criminal defendants sentenced from 2002 through 2016.

The paper's individualized line prosecutor-level data are, of course, key, and the data set is the product of two separate data sources: U.S. Sentencing Commission data (for the defendants) and the Executive Office for United States Attorneys (EOUSA) that regularly publishes case-level data from the 93 USAOs located throughout the United States. These data originate from the Legal Information Office Network System (LIONS), which is the computer program that the EOUSA uses to track and manage case loads. After employing various filters, what emerged includes data on "131,207 defendants sentenced in 63 of the 94 federal district courts in the United States, comprising 172 unique courthouses, 1,498 unique prosecutors, and 1,589 unique courthouse-prosecutor combinations."

Despite the granular data, the paper's empirical execution is not without important limitations. One limiting factor is that line prosecutors are not randomly assigned to cases. Another is that the defendant's underlying criminal conduct is not observable to the researcher. As this paper explores gender-based in-group favoritism, the non-random case assignment is important as "cases in which prosecutors and defendants match on gender are systematically different from those in which prosecutor and defendant mismatch."

Limitations aside, the paper's key findings include some intriguing gender-based differences. While the paper finds that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall, evidence of relative leniency towards defendants of their own gender exists. And for the defendants, such gender-based in-group favoritism is not inconsequential. "The leniency associated with gender-matching ultimately translates into significantly lower sentences: a defendant can expect to earn a roughly five-month shorter sentence when their prosecutor is their own gender compared to when their prosecutor is the opposite gender, which represents a roughly eight percent reduction in sentence length at the mean." The paper's abstract follows.

"Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors."

The Fourth Amendment Post-Carpenter

The long-anticipated collision between Fourth Amendment rights and technology has largely arrived. On the one hand, traditional legal doctrine implies that "information shared with a third party like a bank or telephone company was not protected by the Fourth Amendment." On the other hand, the volume of information now exposed to third parties has "exploded in the internet age, encompassing virtually every kind of digital data generated by internet and cell phone users." In 2018, the Court weighed in and its Carpenter decision was deemed "revolutionary" by holding, in part, that "individuals can retain Fourth Amendment rights in information they disclose to third parties." Specifically, the Court ruled that government agents had to "obtain a warrant before collecting cell phone location data that showed virtually everywhere a suspect had travelled over a seven-day period."

How lower courts understand and have operationalized the Carpenter decision is the focus of The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021, by Matthew Tokson (Utah). The paper examines all 857 federal and state court decisions that cite to Carpenter from the decision's 2018 publication through March 2021. Among the salient factors driving lower court outcomes include: "the revealing nature of the data at issue, the amount of data collected, and the automatic nature of data disclosure, and clearly do not include the number of persons affected." An excerpted abstract follows.

"[The paper] examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It explores how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the “good faith exception” to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article suggests alternative factors and paradigms that courts can adopt to more effectively address Fourth Amendment questions going forward. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive study to date of the jurisprudential impact of a Supreme Court case in the years following its publication."

Pro Se Civil Litigation in Federal Courts

Public and scholarly attention to pro se litigation is growing. In Mapping the Civil Justice Gap in Federal Court, Roger Michalski (Oklahoma) and Andrew Hammond (Oklahoma) provide a helpful empirical perspective.

Careful attention to pro se litigation is warranted. The sheer volume of pro se litigants will surprise many, if not most. According to the authors' calculations, last year 12 percent of the non-prisoner civil cases filed in federal district courts (more than 25,000 cases) were pro se. Aside from the scope of this issue, "pro se litigants raise unique practical, doctrinal, and normative concerns for the legal academy, the bar, and the federal bench.”

Not surprisingly, methodological challenges limit empirical assessments of pro se litigation. While the paper is appropriately mindful of these limitations, it nonetheless does not "let the perfect be the enemy of the good." As such, the paper analytically confines itself to describing "where pro se litigants live and identify the communities they inhabit." To be sure, while a modest contribution it nonetheless  adds to the knowledge base. That said, analytic limitations endure. "None of our claims speak to the characteristics of pro se litigants directly, only indirectly. This is an important limitation of this study and raises bias concerns. Bias might creep in because it is possible that pro se litigants are systematically atypical of the neighborhoods in which they live."

To accomplish its goals, and limitations aside, the paper exploits "a massive data set of 2.5 million federal dockets from a ten-year period, we obtained addresses of non-prisoner pro se litigants. We then geolocated these addresses and cross-referenced that information with demographic and economic Census data." After various data exclusions (e.g., prisoner suits and cases involving habeas, immigration/deportation cases, naturalization, and bankruptcy claims), what remained included approximately 20,000 federal civil cases per year.

The papers dwells on two core findings. One involves pro se litigants' "profound ordinariness." A second finding involves exceptions to the first. "Even after accounting for population and income, pro se litigants are more likely to reside in communities that are not homogenously white. And numerous rural communities feature fewer pro se litigants than expected.” An excerpted abstract follows.

"Unrepresented litigants make up a sizable and normatively important chunk of civil litigation in the federal courts. Despite their importance, we still know little about who these pro se litigants are. Debates about pro se litigation take place without sufficient empirical information. To help fill some of the gaps in our understanding of pro se litigants, this Article takes a new approach by mapping where pro se litigants live."

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

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

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

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

Copyright Injunctions After eBay and the "Hysteresis Hypothesis"

Interest in a recent paper, The Hysteresis Thesis: An Empirical Study of Copyright Injunctions After eBay, by Matthew Sag (Loyola-Chi) and Pamela Samuelson (Berkeley), should extend beyond traditional IP/copyright borders. Here's why.

First, the IP/copyright implications. Prior to the Supreme Court’s landmark 2006 eBay decision, courts routinely issued injunctions in both patent and copyright cases upon a finding of actual or likely infringement of plaintiffs’ rights. Even though most scholars expected that the eBay decision would have an immediate and transformative effect on the grant of permanent injunctions in patent infringement cases, Jiari Liu's 2012 paper reported that in the first four years after the eBay ruling, courts rarely cited that decision and continued to grant injunctions at a very high rate. Sag and Samuelson's paper, however, concludes that Liu's main finding (and conventional wisdom) were "always somewhat erroneous and are now clearly outdated."

Second, the implications of the "how" and "why" of Sag and Samuelson's paper spill-over into empirical legal studies more broadly. Sag and Samuelson began their study with an eye towards "the hypothesis of hysteresis or delayed effect: the simplest way to think about this theory is that, if it is correct, we should see a greater effect in the third and fourth periods than in the 2007-2010 period immediately following eBay."

To do so, they exploited a data set of "336 reported U.S. federal court copyright injunction cases decided between January 1, 2000 and December 31, 2019. We begin with the pre-eBay era, from 2000 to 2006. Our remaining three eras are 2007-2010 (the immediate aftermath era), 2011-2014 (the Salinger-Flexible era), and 2015-2019 (the consensus era)." What they find, in part, is that: "Our evidence shows that the citation rate for eBay has increased and that the corresponding grant rate for copyright injunctions has decreased."

They attribute their findings of an Hysteresis effect to "the doctrinal conservatism of lower courts and the parochial nature of appellate court precedents, it is unsurprising that there might have been some delay in the adoption of even the most obvious implications of new Supreme Court precedents such as eBay for injunction grants in copyright cases." An excerpted abstract follows.

"... This Article tests these claims and finds statistically significant differences in the grant rate for both preliminary and permanent injunctions in copyright cases after the eBay decision. The impression of eBay lacking effect appears to be a product of hysteresis—a time lag between cause and effect, as lower courts initially delayed but eventually embraced eBay. This study reveals, moreover, that the earlier empirical study was flawed by biased sampling, most notably by including a large number of unreported cases and default judgments. This Article offers a corrective analysis and provides a more accurate understanding of the copyright injunction landscape, both pre- and post-eBay. It shows that eBay was in fact a landmark case for copyright law, both in terms of jurisprudence—it is highly cited—and real-world effect— it has a dramatic impact on case outcomes."

Pretrial Detention and Release Experiments

As I have an admitted soft-spot for (even quasi-) randomized control trials as a research design, a recent paper by Javier Osorio (Arizona-Govt. & Pub Pol’y) et al., Reducing Pretrial Detention: A Randomized Intervention with Public Defenders in El Salvador, caught my eye. In it, the authors exploit a "randomized intervention in El Salvador designed to improve public defenders’ capacities to secure pretrial release for defendants.”

To note that pretrial detention is a problem is to note merely the obvious. And in countries facing acute security challenges, such as El Salvador, there exists enormous pressure on criminal justice authorities to limit pretrial release. The authors contend that the overreliance on pretrial detention is driven in part by lack of information about defendants’ flight risks and the prospect of their committing further crimes while awaiting trial. And this information deficit is “the consequence of deficiencies in the public defender system, upon which economically disadvantaged citizens rely to ensure legal representation.”

To assess their hypothesis, the authors exploit an unusual (by U.S. standards, anyway) experiment involving a randomly assigned treatment to public defenders in four municipalities in El Salvador. “The treatment included specialized legal training, an improved interview protocol, and enhanced communication channels with the defendants, their relatives, and other institutions. These components sought to improve public defenders’ ability to gather evidence that would support pretrial release.”

The authors found that the treatment “increased public defenders’ requests for pretrial release by nearly 10%. The intervention also helped public defenders to secure pretrial release of their clients by 4.4%, although these results are weaker and sensitive to model specification.” The paper's abstract follows.

"Approximately one third of the global prison population is in pretrial detention, waiting for trial. Overreliance on pretrial detention exposes defendants to harsh conditions, exacerbates jail overcrowding, increases recidivism, and favors criminal governance. What policies can resource strapped countries implement to effectively address excessive pretrial detention? Based on a theoretical model focused on institutional-level efforts, we evaluate an experimental intervention implemented in El Salvador intended to increase pretrial release requests and reduce pretrial detention. The intervention randomly assigned public defenders to receive specialized legal training, an improved interview protocol, material resources, and increased communication channels. We find that this inexpensive, scalable program increased pretrial release requests from public defenders by nearly 10% (0.228 standard deviations) and increased the success in securing pretrial release by 4.4% (0.114 standard deviations). Heterogeneous treatment effect analyses suggest that the program increased strategic litigation among the most experienced public defenders and has distinct effects for those accused of minor and severe crimes. We find no evidence that the mechanism explaining our results involves changes in public defenders’ attitudes or perceptions about their work environments. Criminal justice programs focusing on pretrial detention may help reduce prison overcrowding in high crime countries."

Data Resources Courtesy of the APSA Law & Courts Section

Our good friends and political science colleagues over at the APSA's Law & Courts Section recently updated the Section's website (click here). What is especially helpful is a sub-page (here) that provides links to the leading court data sets (SCOTUS, CA, district courts, as well as state supreme courts) along with related data assets (e.g., Martin-Quinn Scores, Judicial Common Space Scores).

Bridge Ideal Points--2021 Update

Michael Bailey (Georgetown--Govt.) has updated the Bridge Ideal Points estimates (click here) to cover years 1950 through 2020. These Ideal point estimates include the Supreme Court, presidential, and congressional ideology estimates and are designed to facilitate inter-institutional and cross-temporal comparisons.

While the Bridge Ideal Points compete somewhat with the Martin-Quinn scores in the literature, the two sets of ideology estimates correlate reasonably highly with one another. Despite the overlap, these two ideology estimates differ in two important ways.First, "Bridge Ideal Points are designed to be intertemporally comparable. Martin and Quinn scores assume the ideological cutpoints of Supreme Court cases are drawn from a common distribution across years, which makes them less comparable across time when the case load changes." Second, while Martin and Quinn scores only cover the Supreme Court justices, Bridge Ideal Points for justices are comparable to Bridge Ideal Points for presidents and members of Congress as well.

Regardless of one's preference, efforts to estimate justice ideology remain a staple in the judicial decisionmaking literature.