Empirical Legal Studies

What IS the Federalist Society?

Over the course of the last decade or so, commentators both in the press and in academic settings have noted the prominent role the Federalist Society seems to play in various arenas, including judicial selection, the placement of law students in clerkships, and as a meeting and training ground for a large group of public interest and corporate lawyers. Yet, political scientists (and I think sociologists as well) have had a difficult time “getting their fingers around” the Federalist Society.   How do we understand its influence?  How should we, as social scientists, account for it in our research?

 At the 2006 Law and Society meeting, we had quite a lively discussion about this. Some in the audience believed that the Federalist Society is best understood as a coalition-building organization. Indeed, I see the argument here – there is much coalition-building occurring through its meetings and various events. And yet I’m not really certain that this answers the initial question adequately… Others in the audience suggested that it was best understood as an agenda-setter. Again, yes, there’s a point here – but… As John Heinz, Alan Paik and Ann Southworth have demonstrated in a paper that is currently posted at the SSRC website, there are many different kinds of conservatives who are active with the organization. And, not all conservative views seem to be fully represented at the meetings – it seems, at least as one sits in the audience or reads through the various programs over the years, that the Christian Right lawyers, while attending and speaking, are a smaller cohort in the meetings than, say, some of the libertarian lawyers.

 In other words, it seems a fairly loose coalition. And, as for agenda-setting… Certainly there are ways in which the ideas that are presented and discussed at the meetings make their way out into the world and even become policy. But – and I think it may be a big BUT – this seems to break down when you recognize that there are diverse views (and not all conservative and libertarian) presented, discussed and advocated in Federalist Society programs. These other ideas that seem very alive when you’re at the meetings, mini-conferences, or reading the documents the organization produces that aren’t adopted as public policy… So what IS the Federalist Society? What does it actually DO politically?

 It seems to me that the principle problem is a conceptual one – at the moment, our current concepts (interest group, social network, association, coalition) do not adequately describe the Federalist Society. The question I raise, then, is a social science one: what IS the Federalist Society? Is it an interest group, as some want to treat it? Is it a coalition builder? Is it setting political and judicial agendas? Is it a social network (or, more likely I think, a place where a group of social networks coalesce)? Or, as its webpage states, a debating society (in which case, how do we operationalize THAT)?

 In other words: what IS this influential coalition-building agenda-setting conservative and libertarian debating society? And how can we understand it as social scientists so that we can account for its influence on our institutions and society or its impact on law, legal practice and the judiciary?

 When Bill Henderson first suggested I blog on this topic, I was a bit nervous – after all, this project is still new and still needing a great deal of work. But then (as he persuasively argued), this would provide me with an opportunity to discuss the conceptual problem I think exists here and gain some input from interested colleagues as I put together grant proposals. So I welcome this discussion as the week progresses and am very excited to discuss it at length with all of you.

 

Guest Blogger: Laura Hatcher

The ELS Blog is pleased to welcome Laura Hatcher as this week's guest blogger.  Laura is Assistant Professor of Political Science at Southern Illinois University.  She received her Ph.D. in 2002 from University of Massachusetts--Amherst and thereafter served as a postgraduate fellow in Law and Public Policy at Brown University and as Visiting Professor at Wisconsin.   Laura's dissertation was entitled, "Conservative Cause Advocacy: The Multiple Sites of Conservative Legal Ideology."  Her subsequent research and publications continue to explore the relationship between ideology and conservative cause lawyering. 

Laura got my attention at the 2006 Law & Society Annual Meeting when she presented her provocative work-in-progress, "What IS the Federalist Society? Legal Expertise and Ideological Production in the Legal Profession."  Apparently, existing typologies for interest groups do not adequately explain the rapid growth and activities of the Federalist Society.  And as many law students and law professor know, the Federalist Society plays an important, but often opaque, role in allocating many prestigious federal clerkship.  In turn, these clerkships open doors into coveted positions in government, law firms, academia, think tanks and business.  To unravel this definitional problem, Laura has set up a research design that includes interviews and observational fieldwork.   I look forward to reading about this project and others during the coming week. 

Street Signs and Two-Way Streets

Continuing in my role as curmudgeon (self-appointed), I’m not persuaded that Frank’s citation counts are good evidence that social science work has become part of legal scholarship.  Frank assumes that when legal academics cite a work, they have read it.  In my experience this is not always the case.  I have seen numerous draft papers by legal academics in which a claim is made in the text with a footnote appended which says something like, “find a source.”  Often, that command is to a research assistant.  I don’t know Political Scientists who cite material they haven’t read.  I fear it happens all too often with legal academics.  Perhaps this is nothing more than a style difference, although it was not the way I was trained to do social science research.  But like the honorary street signs that one finds on certain city blocks (“Frank Cross Optimist’s Way”),  I’m not sure citation counts signify very much.

Lawrence Solum’s linked post points out that “Interdisciplinary ignorance is a two way street.”  He notes that social scientists are often woefully inadequate at analyzing cases or statutes.  I agree but I don’t think both lanes of Solum’s street are of equal size.  That is, more inadequate legal work dealing with social science is published than inadequate social science dealing with law.  This is largely because so much legal scholarship is published in the numerous law reviews which are edited by law students and lack peer review.  This is a prominent example of the insulated nature of the legal academy that I noted in my earlier post.  And it is unlikely to change until the structure of law reviews changes.

Solum’s next argument is to require interdisciplinary legal scholars to do 6 impossible things before breakfast.  He says that in addition to, 1) legal training, the "complete legal academic" will, 2) understand the structure and assumptions of normative legal arguments, 3) understand the basic concepts of contemporary law and economics (including basic microeconomics), 4) master empirical legal methods, 5) have a solid grounding in quantitative and formal methods, and 6) master important ideas from sociology, psychology, anthropology, and history.  Unsurprisingly, he then notes that no disciplinary Ph.D. program trains students in this combination of skills.  Since Solum notes that no SJD program is “even heading in this direction,” he concludes that the legal academy continues to "reinforce interdisciplinary ignorance.  As a profession, we are failing badly in the training of future legal academics.”

I’m not sure I’ve ever met Solum’s "complete legal academic."  Indeed I’m not sure such a person exists.  I have met legal academics who are quite sure they meet the criteria.  My impression is that their knowledge is a mile wide and an inch deep.  That kind of foundation is incapable of supporting much academic weight.  I think a more plausible goal is to train competent legal scholars who have mastered some methodological tools and a social science discipline.  Another possible approach is a Ph.D. in law and society.  The long-running program in Jurisprudence and Social Policy at Berkeley has been joined by a program at NYU.  Perhaps programs along these lines can address some of the inadequacies Solum, Cross and I find.

Finally, I think this discussion raises the issue of what exactly law schools teach.  It’s not clear to me at all that the standard three-year law school curriculum either prepares students to do the kind of legal work most lawyers do in the U.S., or provides them with a solid post-graduate liberal education.  Law school curriculums strike me as equipping students with 19th century common-law tools in a twenty-first century administrative state.  And while this is perhaps a topic for another forum, if this is right it should be no surprise that legal scholarship has yet to be fully infused with modern social science. 

The Divide Still Divides

In contrast to rush-hour traffic in Chicago, the intersection of empirical research in law and political science remains pretty empty.  Deep, institutional, problems remain that provide major obstacle to change.  Let me explain.

Writing six years ago, I noted that legal academics were blissfully ignorant of social science literature on courts.  I argued that this was a function of their training, their professional culture, and the insulation of intellectual life in the legal academy. 

I agree with Frank Cross that the situation has improved .  That is, there are now small numbers of legal academics who are trained in the social sciences and who are competent users of social scientific methods.  As a caveat, economics needs to be put to the side.  For several decades there has been a cadre of J.D./Ph.D.’s in economics who have brought the tools of their training to the study of the law.  But the number of legal academics with training in other social science disciplines remains tiny.  I find it telling that I personally know most of the contributors to this Empirical Legal Studies blog and had the pleasure of teaching most of its founders and some of its most prolific contributors.  That may be touching but it doesn’t say much for the depth of social science research in the legal academy.  The Marines may be looking for a “few good men” but to mesh the two fields requires substantially more than that.

Frank suggests that legal academics are “much better attuned to political science research than they were...”  While something is better than nothing, and it would be very hard for legal academics not to be better attuned, my impression is that little has changed.  Hiring a single faculty member won’t do the trick.  The culture of scholarly inquiry needs to be changed.  It would be interesting to think of ways this could be measured.  Simply asking legal academics if they read social science literature on courts doesn’t probe deeply enough.  Perhaps students of culture who read this blog have some ideas.

Interdisciplinary ignorance?

Greetings, dear gentle readers.

This begins a blog colloquy on the intersection of empirical research in law and political science. The title derives from my 1997 article in the Northwestern Law Review on the “unfortunate interdisciplinary ignorance” that existed when researchers in the two areas addressed overlapping issues. This article, by the way, is brilliant and seminal and should be universally read and cited. I primarily criticized law school researchers for their unawareness of highly relevant political science research but also noted that political scientists also took an unrealistically cramped view of the workings of the legal system.

In 2000, Gerry Rosenberg wrote an article in the Green Bag that took legal academics to task for ignoring the research of political science. This article was fine, I suppose, though not nearly so interesting as mine. He characterized law schools as insular, untrained in other fields, such that legal academics “routinely make absurd claims that would be rejected out of hand by any political scientist familiar with the literature in the field.” Nor did he think much of legal publication outlets. I think he went a little easy on political scientists and was a bit harsh on law professors, but he cited me, so I cut him some slack.

The topic is well-suited for this blog, and our discussion could take several paths. I might suggest the following questions.

1. Has the situation improved? I believe it is much improved (and Jeff Segal gives me credit here, but I am too modest to accept it). I think legal academics are much better attuned to political science research than they were (though imperfection remains) and political scientists are more involved with legal academics. Law schools’ academic standards are moving in the direction of those of social science.

2. How can we facilitate enhanced interaction? There will be a good showing from political scientists at the initial Conference on Empirical Legal Studies this month. But they will be addressing a very small, self selected group of law professors who have already established their interest. This should be broadened.

3. Should the disciplines differ? There are some in law who argue that legal scholars focus appropriately on the internal workings of the system, while political scientists focus on its external meaning. I think there is some merit in this distinction – professional schools must address the internal operations of the system – but it is far too confining for legal research.

 

4. Why are political scientists so whiny?

Well, the next move is Gerry’s. He may choose one of these paths or strike out on his own, and I shall follow his lead.

2006 ELS Ranking

The 2006 ELS Ranking is complete.  A quick review of the variables that were discussed in greater detail over the last three days:

• relative number of research faculty with social science doctorates
• relative number of research faculty with a secondary social science appointment
• per capita articles citing “statistic! /1 significan!” in Westlaw JLR since 1996

The results:

Rank	School	Rank	School
1	Northwestern	26-tie	BYU
2	George Mason	26-tie	Indiana-Bloomington
3-tie	Cornell	26-tie	Virginia
3-tie	Vanderbilt	26-tie	Wake Forest
3-tie	Yale	30-tie	Connecticut
6-tie	Chicago	30-tie	William & Mary
6-tie	Illinois	32-tie	Boston University
8-tie	Pennsylvania	32-tie	UC-Hastings
8-tie	UC-Berkeley	34-tie	George Washington
10-tie	Stanford	34-tie	UC-Davis
10-tie	USC	36	Iowa
12-tie	Duke	37-tie	Notre Dame
12-tie	UCLA	37-tie	SMU
14-tie	Michigan	39	Washington & Lee
14-tie	Wisconsin	40	Georgetown
16	NYU	41-tie	Arizona
17	Columbia	41-tie	Tulane
18	Harvard	43-tie	Boston College
19	Texas	43-tie	Maryland
20-tie	Emory	45-tie	Alabama
20-tie	WashU (St. Louis)	45-tie	Fordham
22	Ohio State	47-tie	American
23-tie	Florida	47-tie	Georgia
23-tie	Minnesota	49-tie	Colorado
23-tie	North Carolina	49-tie	Washington (Seattle)

How does the 2006 ELS Ranking compare to 2005 ELS Ranking (which looked at 2003-2004 faculty)?  The methodology and data have changed. The empirical research output measure is based on a search of Westlaw rather than a selected set of journals and covers more years.  The 2006 ELS Ranking is based on faculty as of August 1, 2006 whereas the 2005 Ranking was based on the 2003-2004 faculty. And the 2006 ranking includes all US News tier-1 schools. 

The 2006 Ranking is highly correlated with the 2005 Ranking (.82), but there is substantial movement.  Noteworthy moves up the ranking: Vanderbilt up 15 spots, BYU up 11 spots, and Duke and Wake Forest each up 9 spots.  Substantial losses:  Iowa falls 23 spots, Fordham falls 20  spots, and Georgia falls 16 spots.  Nine additional schools are in the 2006 Ranking.  Of those, Ohio State at 22nd and Florida at 23rd make the strongest showing.

How can I account for the dramatic rise of my home institution?  Well, all three schools in this study that have employed me did very well:  Northwestern (2001-2004), George Mason (visitor in 2000) and Vanderbilt (2004 to present).  The only reasonable inference to draw is that my presence reflects and/or encourages ELS.  Or, perhaps, I’m just very clever at constructing a measure that recognizes those places with which I’ve been affiliated.  Either way, it’s all about me!

But, in truth, Vanderbilt’s rise owes more to the Viscusi Effect.  Kip Viscusi, who was recently hired away from Harvard Law, alone published as many or more articles citing statistical significance than 17 schools (some with as many as 65 professors).  If Kip and his wife Joni Hirsch had not moved to Vanderbilt, then Vanderbilt would have been ranked 10th rather than 3rd.

I welcome your feedback, either as posted comments or emails to me ([email protected]).  Thanks to Jason and the other ELS Blog organizers.  Guestblogging has been fun.

A New Measure of ELS Output

My ELS Ranking includes a proxy for empirical research output.  The original ranking counted the number of articles by a law school’s faculty in 13 peer-reviewed, interdisciplinary journals associated with ELS (for years 2000-2004).  This measure drew by far the most criticism.  The complaints generally were: 1) the proxy favors economics-related work because a disproportionate number of the journals are in that field, 2) it ignored the primary outlet for ELS – and other law scholarship – general law reviews, and 3) it included articles that lacked quantitative empirical work.  I agreed that the measure was flawed, but the time required to create a new measure and collect relevant data was too great in light of the publication deadline that I faced.  The 2005 ELS Ranking couldn’t be changed.

An updated ELS Ranking gave me the chance to fix flaws, or at least to fix the one most glaring one: the empirical research output measure.  Mark Lemley suggested computing the number of works referring to “statistical significance.” Building on work by Robert Ellickson, I had used that search term in 2005 to look at the ELS trend as reflected in Westlaw’s JLR database.  That phrase (and its variants) may be the best proxy for ELS work because the expression is most likely to appear in articles that include quantitative analysis.  It still has shortcomings: ELS work may refer instead to the particular test statistic used.  Or the article may describe the concept in more meaningful terms for a lay audience and to avoid confusion with practical significance.  But, on the whole, it is a good measure, decreasing false positives.  And, it also should decrease false negatives by looking at all journals in JLR (see Frank Cross’s 9/25 comment).

The 2006 ELS Ranking measures empirical scholarship based on references to “statistic! /1 significan!” in Westlaw JLR articles published since 1996.  Each law school’s score is the sum of all articles by its research faculty divided by the total number of research faculty, giving a per capita ELS publication rate (reflected in parentheses). 

1. Cornell (2.34)

2. Chicago (2.15)

3. Vanderbilt (1.67)

4. Northwestern (1.57)

5. UCLA (1.23)

6. Illinois and Stanford (1.20)

8. Yale (1.16)

9. Texas (.98)

10. George Mason (.97)

11. Harvard and Pennsylvania (.93)

13. Duke (.87)

14. Ohio State (.81)

15. NYU (.78)

16. Columbia and Wake Forest (.70)

18. USC (.67)

19. BYU (.64)

20. UC-Berkeley (.62)

What do you think of this new measure?  It will impact the overall rankings as we’ll see tomorrow.  As a final note, I again want to thank my research assistant Geoff Turvey.

ELS Ranking Continued: Law Schools as part of the University

The ELS ranking evaluates the intellectual environment and output of an institution by  focusing on education, institutional roles, and publications of faculty.  Yesterday, I posted the results for my proxy for education:  professors with social science doctorates.  Today, I present my findings on institutional role:  professors with secondary appointments.

Law professors with social science secondary appointments would seem more likely to be engaged in ELS research.  Likewise, a law school with close ties to social science departments is more likely to support social science research.  Such joint appointments are a signal of interdisciplinary spirit at the school as well as increased prospects for cross-fertilization.  Of course, an appointment does not equate to activity in another department, nor does it require engagement in empirical scholarship.  But, as a proxy, this measure tells us something about a school.

Law professors are unlikely to hold secondary appointments in social science, as apparent from the list below of the top 10.  Of the remaining 40 schools, 15 have positive percentages below 5% and the remaining 25 have no secondary appointments in social science.

1.  USC (16.7%)

2.  Northwestern (14.3%)

3.  George Mason (9.7%)

4.  UC-Berkeley (9.5%)

5.  Vanderbilt (7.7%)

6.  Wisconsin (7.5%)

7.  Illinois (7.5%)

8.  Yale (7.3%)

9.  Duke (6.4%)

10. Cornell (5.3%)

This proxy is the weakest of the three, in my estimation.  How else can we measure a law school’s connections with social science departments? Law schools that extend secondary or courtesy appointments to social science professors also are more likely to be receptive to interdisciplinary work that includes empirical research and quantitative methods.  It is a far weaker one than primary appointments because it doesn't reflect the same commitment of resources.  Plus, as a practical matter, consistent identification is quite difficult.  Other ideas?

Doctor(s) in the House

The ability of law professors to produce ELS depends in large part on educational background and training.  I opted to include social science doctorates, as a percentage of faculty, as one measure of an institution’s likely role in and commitment to ELS. Social science Ph.D. programs typically require course work in methodology, statistical analysis, and research design. The presence of social scientists also should increase the opportunities for non-social science colleagues to engage in empirical work through informal or formal collaboration.

This proxy required three decisions: First, which professors to include? I wanted to focus on research faculty; therefore, the database includes any tenure-track, non-emeritus, full-time professor whose primary appointment is at the law school. Second, what constitutes a social science for this measure? Beyond the obvious, I added degrees that include the methods training associated with the social sciences. Third, where to locate the information? My research assistants and I looked at the AALS directory as well as each law school’s webpage.

The top 20 schools (with percentage in parentheses) are listed below:

1. Northwestern (36.7%)

2. George Mason (29.0%)

3. UC-Berkeley (28.6%)

4.  Pennsylvania (27.9%)

5. Stanford (23.5%)

6. Yale (21.8%)

7.  Chicago (18.5%)

8. Wisconsin and Michigan (17.5%)

10. USC (16.7%)

11. Cornell (15.8%)

12. Vanderbilt (15.4%)

13.  Illinois (15.0%)

14. UCLA (12.8%)

15. NYU (11.5%)

16. Columbia and Emory (11.1%)

18. North Carolina (10.3 %)

19. UC-Hastings (8.2%)

20.  Florida (8.1%)

Are these results what you expected? Which school did you expect to be higher given its interdisciplinary reputation?  Are you surprised that Harvard is missing from the top 20? Does its absence possibly indicate that a percentage is not the right measure here? (Harvard is 13th overall in the number of social scientists.) How will these numbers shift in the next few years? 

(If you believe a number is in error, please let me know which number and why.)

Give the People What They Want...

Do you want to increase your SSRN downloads? If so, you should consider publishing a law school ranking. (If not, congratulations, you are far healthier than most of your colleagues. Of course, it does prompt one to wonder why you’re reading this post.)

In April 2005, I participated in the Indiana Law Journal Symposium on “The Next Generation of Law School Rankings” organized by Paul Caron and Rafael Gely of Cincinnati and ELS blog’s own Bill Henderson and Jeff Stake of Indiana. Invited to discuss ranking methodologies, I opted to create my own ranking. For me, the choice of focus was obvious: Empirical Legal Scholarship (ELS). Why? An ELS Ranking identifies schools leading in this burgeoning field and perhaps incentivizes others to invest in it.

The paper ranked each of the top 41 schools in US News based on an ELS-score that I constructed. The score included three variables: professors with social science doctorates, professors holding secondary appointments in social science departments, and articles in ELS-oriented publications. First posted on SSRN on August 9, 2005, the paper has been viewed more than 4,000 times and downloaded more than 860 times. (By contrast, my paper with Jeff Berger on judicial entrepreneurs posted at the same time has been downloaded only a fraction of that number – help here!) UC-Berkeley and George Mason each boasted on its webpage that it tied for first. Legal Affairs and various law blogs all provided short discussions of the piece. Obviously, law professors and their groupies love law school rankings.

I have revised, updated, and expanded the ranking and will post the new results over each of the next four days. The ranking now includes the top-50 schools in US News and looks at faculty as of 2006-2007 (as opposed to 2003-2004 in the original). This week, I will describe each measure and the new results, focusing on educational background and training on Tuesday, secondary appointments on Wednesday, and empirical research output (the only measure that has been completely changed) on Thursday. And, the 2006 ELS Ranking will be available on Friday.

My purpose here is not simply to navel gaze but also to seek input on the measures. Operationalization is hard. And the power of any empirical results necessarily turns on the soundness of those measures. I invite comments on the value of rankings (particularly given the substantial research costs including time away from other work) as well as thoughts on the components of the ELS ranking. Thanks to Jason Czarnezki for inviting me to be a guest blogger and to Geoff Turvey for exceptional research assistance.

Guest Blogger: Tracey George

This week's guest blogger is Tracey George, Professor of Law at Vanderbilt University Law School.  Tracey studies judicial behavior, judicial politics and judicial selection.  She previously served as professor of law at Northwestern University Law School , where she was also Faculty Associate at the Institute for Policy Research.  After graduating from Stanford Law School, Professor George clerked for Judge Francis D. Murnaghan, Jr., on the U.S. Court of Appeals for the Fourth Circuit and practiced law in Washington, D.C..  From 1996 through 2001, she served as an Associate Professor of Law and Adjunct Professor of Political Science at the University of Missouri School of Law. 

Can the market fix the mismatch? - Sander 7

Previously: Part 1, 2, 3, 4, 5, 6

Conservatives tend to dislike affirmative action and have therefore been more receptive to the empirical findings of Systemic Analysis. But I regularly hear one “free market” critique: No one is forcing black students to accept preferences. If they are worse off accepting preferences, why do they do so? Don’t their actions prove that, for them, preferences are on balance a good thing?

It’s an important point, but there are some pretty good answers. First, law schools and the legal education system don’t provide applicants or students with the information they need to make rational decisions. Schools don’t disclose the size of the preferences they use; they don’t identify (or provide data that would enable students to measure) grade gaps, graduation gaps, or bar passage gaps along racial lines. Indeed, many schools – perhaps most schools – actively misrepresent to their students the relationships between race, credentials, and outcomes. (Often they do this with the arguably benign motive of making everyone feel welcome.)

Of course, some information does get out. Blacks starting law school are often aware that blacks, in the aggregate, have lower bar passage rates. According to the Bar Passage Study (BPS), 39% of blacks starting law school in 1991 said they were “very concerned” about passing the bar, compared to 17% of whites. But blacks who expressed this concern were more likely to say that strong “academic reputation” was a key factor in their choice of law school.

Given the available information, these black responses are perfectly rational. These applicants are aware that black bar passage rates are lower; they are aware that elite schools have higher bar passage rates than non-elite schools. The logical strategy, then, is to maximize eliteness, which in their case means maximizing preferences and (I argue) maximizing the mismatch problem.

Grades and the mismatch effect - Sander 6

Previously: Part 1, 2, 3, 4, 5

In my third post, I summarized the “grades” argument: preferences cause black students to have much lower grades; low grades lead ineluctably to a variety of bad outcomes; and grades matter more than school prestige in predicting outcomes. See that post for more detail and the theoretical context of the argument. Here I’d like to give a few empirical examples and discuss the critics.

The two tables below provide a nice intuitive illustration of how low grades produce the mismatch. The first breaks out, for each law school tier, the relationship between law school grades and the odds of graduating and passing the bar on the first attempt. For example, 27% of the students in the bottom 5% of Tier 3 (Duodecile 20) graduated and passed the bar on their first attempt. It’s pretty obvious from this table that the bottom of one’s class is a lousy place to be.

Do elite schools avoid the mismatch effect (1) - Sander 5

Previously: Part 1, Part 2, Part 3, Part 4

Some critics of “Systemic Analysis” have suggested that even if the mismatch effect exists, it doesn’t affect elite schools. Exhibit A is Richard Lempert’s claim that 97% of black Michigan graduates pass the bar. Exhibit B is Rothstein & Yoon’s contention that while there is evidence of mismatch among the lowest four quintiles of black students (measured by incoming credentials), the differences vanish at the top quintile. I think both claims are flawed; in this entry I’ll walk through Lempert’s claim carefully.

Let’s start by looking at the Bar Passage Study (BPS) data to get an idea what outcomes are like for students at a Michigan-caliber law school. We don't know whether Michigan actually participated in the BPS study. What the BPS calls Cluster 5 (and I will call Tier 1) is the most elite, but it generally includes smaller, private schools. Cluster 4 (aka Tier 2) is generally less elite and includes larger, public schools. A school like Michigan -- large, public, but very elite -- could plausibly fit into either tier. Because the two tiers together represent roughly the top 30 law schools, it's reasonable to use them together as a benchmark.

Here are some summary BPS statistics on the combined total for these two tiers:

	Blacks	Whites	Everyone
Total students	426	5559	7041
Graduating	91.1%	95.6%	94.9%
Grads taking the bar	91.8%	92.5%	93.0%
First-time pass rate	70.2%	94.2%	91.2%
Ultimate pass rate	84.5%	97.7%	96.3%
Cohort graduating and passing bar on first attempt	58.7%	83.3%	80.4%
Cohort becoming attorneys	70.7%	86.4%	84.8%
Grads becoming attorneys	77.6%	90.4%	89.4%

Here are the results for the other tiers (131 schools) in the BPS:

	Blacks	Whites	Everyone
Total students	1396	16,675	19,933
Graduating	78.7%	91.1%	89.8%
Grads taking the bar	90.7%	93.6%	93.2%
First-time pass rate	58.5%	91.2%	87.8%
Ultimate pass rate	75.5%	96.4%	94.4%
Cohort graduating and passing bar on first attempt	41.8%	77.8%	73.5%
Cohort becoming attorneys	53.9%	82.2%	79.0%
Grads becoming attorneys	68.5%	90.2%	88.0%

The outcomes for blacks at the elite schools are certainly better than for blacks at lower tier schools, but still very troubling. For all blacks in the BPS, the first-time bar passage rate for blacks is 61%, against 91% for whites. The 70.2% figure for blacks at elite schools is far closer to the overall black number than the white number.

First-Choice / Second-Choice Analysis - Sander 4

Previously: Part 1, Part 2, Part 3

In my last entry I summarized the three sets of evidence that support the law school mismatch hypothesis, and promised to examine each in more detail. I’ll start here with the third set – the first-choice/second-choice analysis – because it helps set up the others.

The BPS dataset includes some 1840 black law students who started law school in 1991. All completed a detailed survey shortly after matriculation, and somewhat more than half reported that they had been admitted to their “first choice” law school. Of these nearly 1100 students, about one-sixth reported that they had passed over their first choice school to go somewhere else. These 181 blacks are those I call the “second-choice” students. Although the study did not inquire in depth into students’ decision-making processes, most of these students indicated they had passed over their first-choice school for either financial or geographic reasons.

A black who passes up his first-choice school is still probably attending a school that used preferences in admitting him. But it’s plausible that, usually, such a student is passing up a more elite school to go to one somewhat less elite, and therefore he will be less “mismatched” than his peer who goes to his first-choice school. According to the BPS data, the average “second-choice” student has an academic index that’s 92 points lower than the average for students in his tier. The other eight hundred “first-choice” students have index scores that average 130 points lower than their tier mean. The BPS tiers are wide, of course, but this seems like a reasonable and unbiased estimate of how much “less” mismatched the second-choice students should be.

I noted yesterday that when we compare outcomes for black and white students with similar pre-law school credentials, black outcomes are substantially worse, and I attribute this gap to the mismatch effect. If we reduce the “mismatch” (i.e., the credentials gap), we should reduce the gap in outcomes. The simplest assumption is that the outcome gap will decline in proportion to the credentials gap. In other words, the second-choice blacks should shrink the outcome gap by (130-92) / 130 = 29% relative to the first-choice blacks.

Okay. Let’s look at some results. In each of the tables below I compare the first-choice blacks with a weighted sample of whites with matched entering credentials, and I compare the second-choice blacks with a similar weighted sample of matched whites. That illustrates the gap caused by the mismatch effect, and controls for any differences in entering credentials between the two groups. For example, consider first-year grades:

	First-choice blacks (n=819)	Comparable whites	Second-choice blacks (n=161)	Comparable whites
Mean first-year GPA (standardized by school)	-1.00	-0.30	-0.71	-0.20
Outcome gap (difference in black / white GPAs)	0.70		0.51
Proportionate reduction in outcome gap	(0.70 - 0.51) ÷ 0.70 = 27%
Predicted reduction in outcome gap	29%
Statistically significant?	Yes, p < .001

Are Black/White Disparities in Graduation and the Bar Getting Better, or Worse? - Sander 2

Previously: Introduction - Sander 1

Before delving into the debate on the mismatch effect, it is worth considering a prior question – have the terrible racial disparities documented by the Bar Passage Study improved since the mid-1990s?

The dismal statistics documented by the BPS and explored in Systemic Analysis are fairly familiar now: only 45% of blacks starting law school graduated and passed the bar on the first attempt; only 57% became lawyers after multiple bar attempts (compared to 79% and 83% for whites). 61% of blacks actually taking the bar in the BPS passed on their first attempt, compared to 91% of whites.

These are by far the best hard numbers we have on black outcomes – the only ones based on a large national sample of bar results – but they have a couple of weaknesses. They are ten years old now; and they are tainted to a degree by some creaming of the BPS sample. The overall pass rate of all participants in the BPS was 88%; the actual national average bar passage rate at the time was 82.3%.

There have been some encouraging developments for blacks since the BPS. As I noted in Systemic Analysis, the credentials gap between white and black students narrowed a little between the time of the BPS study and recent years. Fewer blacks thus entered law school with LSATs under 140.

On the other hand, following an argument laid out by Jeff Stake, it may be that law schools have widened their intra-school gaps between the races by focusing more on numbers (especially the LSAT) in admissions (Stake 2006, pp. 309-313). If intra-school race gaps expand and professors teach to the median student, then the "mismatch effect" I hypothesize would be worsened.

So what has actually happened? In the BPS sample, the black graduation rate was about 80.7% (19.3% of blacks did not graduate). The only source I know of for national figures on graduation rates is the ABA. The ABA maintains enrollment and graduation statistics on its website. The ABA data does not track individuals to determine graduation rates; it simply reports enrollment by race in each year of law school, and the number of J.D.s awarded by race. 

If we assume that black students entering in Year 0 will mostly graduate in Year 3, but some will graduate in Year 4 and a few in Year 5, we can estimate graduation rates for particular cohorts. Using that method, I estimated that 80% of the black students entering law school in 1991 earned J.D. degrees – a figure very close to the BPS number. 

Using similar methods for more recent cohorts, I estimate current black graduation rates are 78-79%.  This slight drop – which is paralleled by a slight drop in white graduation rates – may simply reflect the addition of several new schools and a ten percent overall increase in enrollment over the past ten years; the new schools probably tend to be low-prestige and have higher flunk-out rates.

Determining what has happened to black bar passage rates is much harder; the states generally don’t even keep bar passage data by race, much less disclose it. We do know that the national first-time bar passage rate was 75% in 2004. We also have very good bar passage data by race for California, and more fragmentary data from Texas and Colorado. What do these tell us?

Pass rate for first-time bar takers

	California, 2003-05 (ABA schools only)	Texas, 2004	Colorado, 1990-2004
All races	67.3%	81%	81.5%
Blacks	39.9%	53%	52.8%

In all three of these states, the first-time bar passage rate for blacks is about 28 points below the overall rate. Simple interpolation would suggest that if the national first-time bar passage rate is 75%, the national black first-time bar passage rate is close to 47% – unless these three states are somehow unrepresentative of national patterns.

(Recall, BTW, that in Systemic Analysis I argue that about half the black-white gap in bar passage is due to preferences and concomitant mismatch effects. Many studies show that, controlling for credentials and law school grades, blacks do not underperform on the bar.)

If the black first-time bar passage rate is only 47%, that is a large decline from the 61% rate observed in the BPS study. (But recall that the BPS figures were probably somewhat higher than the true 1994 numbers, and partly reflect a real decline over the past decade) Again, a substantial decline in black bar passage rates over the past decade is consistent with the available data.  In Colorado, for example, the overall bar passage rate fell from 76% in 1990-94 to 70% in 2000-04; for blacks, it fell from 42.8% to 34.5% – a larger absolute and relative decline.

Let’s assemble the data so far.  If 78% of black law students in the Class of 2004 successfully graduated from law school, 93% of black graduates took the bar (estimated from BPS data), and only 47% of those who do take the bar pass on the first attempt, then only 34% of the overall cohort graduated and passed the bar on the first attempt. The corresponding numbers for whites, using the same estimation procedures, are 90% graduation, 94% take the bar, and 78% pass on the first attempt – that is, 66% of whites starting law school graduate and pass the bar on their first attempt.

Using the BPS, we can estimate how a particular success rate for a cohort of first-time bar takers translates into ultimate bar passage. Again, the method is crude, but the point of this exercise is to gain some initial insight into where things stand now. A first-time bar pass rate of 47% (my guess of the 2004 black rate) translates into an ultimate pass rate of around 65%. (That is, cohorts in the BPS that had first-time bar passage rates in the 45-50% had ultimate bar passage rates about 18 points higher.) A first-time bar pass rate of 78% (my guess of the 2004 white rate) translates, by the same method, into an ultimate pass rate of around 90%.  This yields the following totals:

	BPS (1994 era)		2004 Era (my estimates)
	Whites	Blacks	Whites	Blacks
% of entering law students who graduate	92%	81%	90%	78%
% of graduates who take the bar	94%	93%	94%	93%
% of bar takers who pass on first attempt	91%	61%	78%	47%
% of bar takers who ultimately pass	96.5%	78%	90%	65%
% of entering law students who graduate and pass bar on first attempt	78.7%	45.1%	66%	34%
% of entering law students who ultimately become lawyers	82.7%	57.1%	76%	47%

Clearly, both whites and blacks are having worse outcomes today than in the BPS – mostly because of the decline in bar passage rates. But what about relative outcomes? In one sense, blacks are doing relatively better; the absolute declines for blacks and whites on first-time bar passage are similar, so the ratio of black-to-white failure rates has fallen from around four to around three.

On the other hand, relative chances of success for blacks have fallen much more sharply than for whites. The proportion of blacks graduating and passing the bar on the first attempt has fallen something like one-fourth ((45.1-34)/45.1) and the proportion of the black cohort becoming lawyers has fallen something more than one-sixth ((57.1-47)/57.1); the comparable declines for whites are one-sixth and one-twelfth.

These are seat-of-the-pants estimates, based on limited available data. But they leave no doubt that the mere passage of time has not cured the problem of racial disparities in legal education. The need to understand the causes of those disparities is more urgent than ever.

Guest Blogger: Richard Sander

This week's guest blogger is Richard Sander, who is an economist and law professor at UCLA School of Law.    As I noted in an earlier post, Sander is best known for his empirical work on racial preferences in legal education (Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan L. Rev. 367 (2004)) and corporate law firms (The Racial Paradox of Corporate Law Firms, 84 N.C. L. Rev. 1755 (2006)). These articles raise the possibility that racial preferences in legal education may have significant, unintended consequences that may work to the detriment of many aspiring minority lawyers.  Obviously, this is a very troubling prospect for those of us who work within the legal academy, especially since most law schools and law professors strongly supported the Supreme Court's decision in Grutter. 

Not surprisingly, over the last two years, Sander has garnered no shortage of critics.  Yet, Richard Sander's earlier scholarship and professional activities belie the perception that his work is motivated by politics or ideology.  During the last 20 years, Sander has been a ardent advocate of fair housing laws and worked on the successful campaign and transition team of Harold Washington, the first black mayor of Chicago.  Since joining the UCLA faculty in 1989, Rick has served as President of the Fair Housing Congress of Southern California, founded the Fair Housing Institute, and helped the City of Los Angeles design and implement what was, at the time, the nation's most ambitious living wage law. He also participated in the effort to develop outreach programs that sharply increased the local use of the Earned Income Tax Credit, generating tens of millions of dollars annually for LA's poorest working families.  In addition to scholarship on housing integration and living wage laws, Sander has done important empirical work on legal education, including effective strategies in academic support programs and how law students perceive the law school experience.

At UCLA, Sander teaches courses in Property, Quantitative Methods, Urban Housing, and Policy Analysis.  I look forward to his postings over the coming week. 

Guest Blogger: Kevin McGuire

This week's guest blogger is Kevin McGuire, an Associate Professor in Political Science at North Carolina at Chapel Hill.  Kevin teaches courses on the U.S. Supreme  Court and American constitutional law.  His current research interests include the influence of public opinion on the justices’ decisions, the content analysis of the Court’s written opinions, measuring the ideology of the Court’s case outcomes over time, and compliance with judicial policy.

Guest Blogger: Andrew Martin

This week's guest blogger is Andrew Martin, Professor of Law and Professor of Political Science at Washington University in St. Louis.  Andrew is the founding Director of the Center for Empirical Research in the Law, and also directs the interdisciplinary Applied Statistics and Computation program.  Andrew specializes in political methodology, Bayesian statistics, and American political institutions. Much of his substantive research focuses on law and courts, particularly the Supreme Court and the Courts of Appeals.

A View from the Ground. Part 2: Correcting Lawyer-Centricity

In order to understand what civil justice is and does, we need some information about what it doesn’t do and isn’t. My contention, a recurrent one in the literature, is that we rely too heavily on studies of formal institutions and their staffs as means of understanding how civil justice actually operates. I am not criticizing research on courts and lawyers per se -- indeed, I do work in this area myself -- which continues to be a valuable and important enterprise. But this research provides only part of the picture; an over-emphasis on lawyers and what they do results in a myopic, lawyer-centric view of what civil justice effectively is and actually does.

Qualitative research into disputing behavior and legal consciousness has offered us a broader view for many years. Survey research is beginning to catch up. A new generation of survey-based work returns to studying civil justice from the ground up, inquiring into normal people’s everyday experiences of potentially legal problems.

The new research improves on the old in a number of ways. I’ll pick just one:   

A View from the Ground. Part 1: Studying Justiciable Events

Justiciable events -- happenings and circumstances that “raise [civil] legal issues,” whether or not people “recogniz[e] them as being ‘legal’” and whether or not they respond to the event by using some part of the civil justice system (Genn 1999:12) -- provide a powerful analytic tool for understanding the workings of civil justice. Over the next week, I want to take the opportunity of this blog to introduce the study of justiciable events, to discuss some excellent, fascinating research from other countries, and to make a plea for American scholars to get involved.

Given the most recent available data, we can estimate that about half of the low- and moderate-income households in the United States are in the midst of experiencing at least one “justiciable event” (American Bar Association 1994: Table 3-1; Curran 1977). In a country with nearly 300 million people residing in more than 100 million households (Simmons and O’Neill 2001), that’s a sizable number of people and families exposed to problems with civil legal aspects. The most commonly experienced events involve money -- credit, bills, livelihood, benefit payments -- and housing-- landlord/tenant problems, mortgages and rent, repairs and property tax assessments -- but households also report family matters, personal injuries, civil liberties and civil rights violations and problems with children’s schooling, health care and municipal services.

 Justiciable events thus constitute a set of substantively diverse, frequently experienced, widespread events that provide researchers opportunities to observe people’s understanding of potentially “legal” problems, their interactions with staff from the civil legal system and with other third parties, and the consequences of different courses of action, as well as inaction. Older research understood these events as problems that constituted legal needs – i.e., as legal problems benefiting from a lawyer’s assistance. Following the life histories of justiciable events provides a view of civil justice “from the ground.” By conceptualizing such happenings as “justiciable,” the new generation of access to justice research [see the next blog posting] opens up the analytic space to explore the many ways in which people may think about and handle such events. This analytic space allows not only greater social scientific understanding, but also greater creativity in social policy.

The last large-scale, nationally representative social scientific surveys of Americans’ experience of justiciable events were the Civil Litigation Research Project (Trubek et al. 1983, archived at ICPSR) and Barbara Curran’s American Bar Foundation-affiliated national survey of household legal needs (Curran 1977). These were fine studies, but they are, at this point, going on 30 years old. The American Bar Association sponsored a more recent national survey, but even this is more than a dozen years old, represents only those households with annual incomes less than $60,000 in 1992, and was reported in highly aggregated tabulations meant to describe the volume and distribution of “unmet legal need” (American Bar Association 1994). If one wants more detail from this most recent survey, he or she is out of luck, because these data are not publicly released.

Stellar work is being conducted in other countries, including Australia, Canada, China, England,
Scotland and Wales -- about which more next time.

 

REFERENCES

American Bar Association. 1994. Report on the Legal Needs of the Low- and Moderate-Income Public. Chicago, IL:  American Bar Association.

Curran, Barbara A. 1977. The Legal Needs of the Public: Final Report of a National Survey.
Chicago, IL:  American Bar Foundation.

Genn, Hazel, with the National Centre for Social Research. 1999. Paths to Justice: What People Do and Think about Going to Law. Portland, OR: Hart Publishing.

Simmons, Tavia and Grace O’Neill. 2001. Households and Families: 2000. Census 2000 Brief. September 2001. http://www.census.gov/prod/2001pubs/c2kbr01-8.pdf.

Trubek, David M., Joel B. Grossman, William L.F. Felstiner, Herbert M. Kritzer, and Austin Sarat. 1983. Civil Litigation Research Project: Final Report. Madison, WI: University of Wisconsin Law
School.

 

Guest Blogger: Rebecca Sandefur

This week's guest blogger is Rebecca Sandefur, Assistant Professor of Sociology at Stanford University.  Becky received her B.A. form the University of Wisconsin and her Ph.D from the University of Chicago.  Her research focuses on the intersection between the sociology of law and the study of inequality.  She co-authored Urban Lawyers: The New Social Structure of the Bar, and will be presenting a paper titled Lawyer, Nonlawyer and Pro Se Representation and Trial and Hearing Outcomes.

Guest Blogger: Christopher Zorn

This week's guest blogger is Professor Christopher Zorn.  Chris' research interests are in the areas of law and judicial politics, quantitative methodology, and international politics.  His current research examines a range of topics in American and international political institutions, including federal government litigation, U.S. Supreme Court decision-making, and international relations, as well as research on event count, survival, and panel data models for quantitative research.   He is formerly a Visiting Scientist and Program Director for the Law and Social Science Program at the National Science Foundation.

Thanks!

I thought I might have time for one more post focusing on some of my ongoing empirical projects, but alas, the duties of the fall semester are upon us and my time here at ELS Blog must come to an end.   I want to thank Jason, Bill and the rest of the ELS bloggers for having me as a guest, as well as those who took the time to comment on my posts or send me e-mail responses.   ELS Blog has quickly become one of my favorite places on the web and I look forward to reading your continued efforts to bring "methods to our madness."  Of course,  Truth on the Market is my most favorite place on the web, and the place to which I shall now return for regularly scheduled blogging activity.  I invite ELS Blog readers to stop by and check us out anytime.

Guest Blogger: Josh Wright

Josh Wright, an Assistant Professor of Law at George Mason, is a graduate of the UCLA School of Law, where he was a managing editor of the UCLA Law Review. He also holds M.A. and Ph.D. degrees in Economics from UCLA.

Josh's research focuses on the law and economics of the competitive process for product distribution, including slotting allowances, category management, payola, and other marketing relationships.  Josh is also a regular contributor to Truth on the Market, a weblog dedicated to academic commentary on law, business, and economics.

ELS Past, Present and Future

In the 1930s, Yale Law Professor Underhill Moore, enlisting the young Lloyd Cutler as a research assistant (along with all of Cutler’s classmates – they had no choice), did a massive empirical study of how New Haven’s citizens responded to the presence of parking meters and sanctions for not feeding them. The resulting article, whose length was exceeded only by its tedium, may have doomed empirical legal studies for the next 20 years. Yet in many ways the project was well conceived. Parking behavior is a nice way of studying how ordinary citizens respond to mild sanctions. Parking behavior is easily observable, as are the costs of parking and the cost and likelihood of sanctions. Various independent variables, such as the value of a car (as an index of wealth) and the gender, race and approximate age of the driver may also be captured with considerable reliability, and enough cases may be generated to allow detailed analysis. But Moore lacked the technology to adequately analyze the data and to present his findings in ways that could be easily understood. This was more or less true of quantitative research on law, and most other areas, until the 1960s.

Outside of economics and psychology, the classic empirical social science offerings before that decade were mainly qualitative studies, books like William Foote Whyte’s Street Corner Society and Philip Selznick’s TVA and the Grass Roots, though a decade earlier, with the leadership of people like Paul Lazardsfeld at Columbia and the survey researcher Angus Campbell at Michigan and their students, modern quantitative social science was being born. By 1970, in all the social sciences except anthropology, quantitative research and formal modeling had replaced qualitative studies and informal theorizing as the hottest, and in some departments the only respectable, way to do social science. Yet except for a few celebrated works, like Kalven and Zeisel’s The American Jury and Wayne LaFave’s massive study of arrest processes, works that used numbers crudely if at all, legal scholarship was barely affected.  Underhill Moore’s ghost had not risen.

I think there were many reasons for this, including a law school culture that reserved its highest accolades for those most adept at analyzing legal doctrine, particularly the pronouncements of the Supreme Court; the view that those who had excelled academically at top law schools and clerked for the right judges needed no further training beyond, perhaps, a bit of practice experience before joining the nation’s leading law faculties, and, in many of the nation’s law schools, a two-and-a-half year, one grand article, path to tenure that did not provide the time needed for empirical data collection and analysis and did not recognize that good quantitative social science more often consists of the production of a series of fine bricks than the construction of one imposing wall.

Some Simple Cautions - Day 4

 Central to most empirical research is the control of plausible rival hypotheses. If we are trying to show empirically that the world is or operates in one way, we need to convince the reader that our results are not likely to be attributable to explanations that undercut or are inconsistent with the description or explanation we provide. The key concept here is plausible. We need not dispose of all possible explanations for our results. If we had to do this, we never could publish. But some law professors, many lawyers, and too often courts, are adept at ignoring the plausibility constraint when they want to reject an empirically-based argument. Instead they treat, and get away with treating, possible alternative explanations as if their mere possibility seriously undercuts reliable data and well done analysis.

 David Baldus and his coauthors, if I recall correctly, included more than 600 independent variables in a model aimed at investigating whether death sentences in Georgia were tainted by race effects. The goal, I assume, was to fend off this kind of uninformed (or bad faith) prosecutorial and judicial nit picking. From a scientific standpoint, the far more parsimonious model they included, with 32 variables as I recall, was a better way of examining the data. But their tactic worked – in a way. When the McCleskey case, in which the Baldus study was the key evidence, reached the Supreme Court, the conservative majority chose not to contend with the analysis, but instead held that in order to show the racial discrimination needed to reverse a death sentence a defendant had to show that in his particular case discrimination played a role in his sentence.  This meant the Court never had to confront  the Baldus finding of substantial race of victim discrimination when cases were of intermediate seriousness.  It had become irrelevant.

Theory, Context and Common Sense

Day – 3

 I would like to talk to today about three aids to assessing empirical work: theory, common sense and knowledge of context. They are equally valuable for those doing the work.

 In 1975 the economist Isaac Ehrlich published a time series study of the deterrent effects of capital punishment running from the late 1930s to the mid 1960s, using what were at the time advanced techniques of statistical modeling. His results, which indicated that one execution deterred 7 or 8 homicides, were attention grabbing to say the least, particularly since they were set against a background of numbers of earlier studies, using apparently simpler methods, almost all of which found no evidence that capital punishment deterred homicides, and some of which suggested a possible brutalization effect. Ehrlich’s findings gained credibility by the apparent statistical sophistication of his methods (with tongue only slightly in cheek, I would define statistically sophisticated methods as methods with lots of equations and numbers that many readers cannot or do not have the time to follow).

 Because the topic was so controversial, other social scientists reexamined Ehrlich’s data using equally sophisticated, and often similar, statistical approaches. These reanalyses revealed that Ehrlich’s model and his results were acutely sensitive to the years analyzed. If the last years of the time series – the 1960s – were removed from the analysis, evidence for a deterrent effect disappeared, and in some studies a brutalization effect seemed possible. The 1960s were, of course, a period when executions for murder dropped to almost zero and all sorts of crimes were rapidly increasing. This replication research pretty much destroyed the credibility of Ehrlich’s results in the academic community, though their influence on the popular debate, like the Cheshire cat’s grin, long lingered.

Day 2 _ What's in a Name?

     I might as well say it at the outset; I don't like the nomenclature adopted by the ELS movement.  I don't like "Empirical Legal Studies" as a name for a type (dare I say "school") of scholarship, and I positively bristle when people are called by their colleagues or describe themselves as "empiricists" or "legal empiricists."  One reason for this, I am sure, is that where I (in part) come from - Sociology - to call someone an empiricist - or, even worse, a "dust-bowl empiricist" was not flattering.   It implied a person who crunched numbers with no concern for theory and often without an inkling of what the numbers represented.  Relationships are often easy to spot in data, but understanding what they mean and, in particular, the mechanisms that underlie and produce them is unlikely to result from number crunching alone.   I wish I could say that legal empiricists have gotten beyond this, but too often I feel that the power of the number crunching that one now sees in law reviews is not matched by an equally sophisticated sense of how plausible theories are built and tested and how causal arguments are structured. 

    This is not to say that there is not considerable value in organizing complex data sets and laying our legally-relevant relationships.  There is, and people who do this in an unbiased methodologically sophisticated manner make a genuine contribution.  But if the goal is not simply to see what is out there, but to understand processes and institutions, too often empirical scholarship  in law (though not only in law) not only falls short of the mark but overstates what analysis reveals.

     But there is another more fundamental reason why I don't like the idea of defining some portion of the legal scholarly establishment - namely those doing quantitative data analysis - as empiricists.  It seems to me that this ignores or denies the way in which legal scholarship, as traditionally done, is the most empirical of professions.  The most traditional lawyers work with empirical data all the time - case texts.  Texts are out there as part of the real world, and from the point of view of empirical scholarship have some substantial virtues.  In particular they are transparent (even when opaque), equally accessible to all scholars and open to various methods of interpretation, some of which are better than others.  They also often matter.  Would that the data "legal empiricists" examined always had these virtues.

      There is also the question of qualitative data.   I am distant enough from the ELS movement that I do not know how its core advocates regard qualitative research, but taking down 5 volumes of the Journal of Empirical Legal Studies that happen to be close at hand I could not help but note that every article in every volume had a quantitative dimension.  Each had at least a graph, table, equation or regression and most analyzed and presented results using more than one of these analytic modality.  Yet qualitative research is as empirically-based as quantitative research and it can be as unbiased and as rigorous.  Moreover, it is often more revealing of relationships legal scholars seek to understand, not to mention more accessible and interesting.    Lawyers have done many quantitative studies I find useful and admire, but I would not elevate any of them above, for example, Bob Ellickson's study of Shasta county when it comes to developing and sharing an understanding of the real world or, in this case, illuminating the limitations of the Coase Theorem. 

   New tools allow for the more systematic analysis of qualitative data and for sharing qualitative data in ways never before possible.  A cutting edge in social science research, including such heavily quantitative specialties as survey research, is the integration of qualitative and quantitative methodologies.   Should the law school world fission into communities that exacerbate divisions between qualitative and quantitative researchers and between those interested in numbers and those analyzing doctrine, I think we will be falling behind the times in social science, and our understanding of the law and legal systems will be the worse for it.

     I am not saying this is happening or that the movement to create "empirical legal scholarship" is pushing us in this direction.  Indeed, the best people doing such scholarship are often the most interested in what non-quantitative research has to offer.  But I do wish the law school world would find a different term than "empiricist" to describe people who work more with quantitative than with qualitative or doctrinal data.  In the law school world, we are, almost all, empiricists.   

   Rick

Tomorrow:  Common Sense and Theory

Reflections on Empirical Legal Studies

    I would like to thank Jason Czarnezki for inviting me to be this week's guest blogger on the Empirical Legal Studies web site.  Readers will find also an extended comment I made in response to a comment by Bill Henderson on Richard Sander's research, but this is not the intended topic of my blogging (Though I may return to it at the end of the week.)  Rather I want to use my space to simply to reflect on the Empirical Legal Studies movement and to suggest some cautions for those doing empirical research on legal topics. 

       I have been doing empirical work on legal issues as a law professor for almost 40 years, long before anyone spoke of empirical legal scholarship and legal empiricists.  I have been making the case for the virtues of empirical scholarship on law for almost that long.  Thus I am delighted to see the expansion of empirical legal studies (within and) beyond economics, and to know that there is a sufficiently large community of scholars who identify with the area as to justify a journal and a web forum, not to mention an AALS Meeting theme.  At the same time I have concerns about the quality of some of the empirical work being done and how empirical work, even good scholarship, is used.  To put it bluntly too much empirical scholarship is being deployed normatively, downplaying caveats that should be attached to findings, and some research, including work by outstanding scholars, seems strongly agenda driven (sometimes to the point of being financed by parties building records for litigation).  I also see in some work a divorce of empirical analysis from theory and context which not only can diminish the utility of empirical studies in building more general understandings, but can also lead to poor research designs and misunderstandings of data.  Moreover, even when research is of high quality and done with great care, its results can be hijacked by groups that oversimplify what was found in order to  "sell" positions they hold and would hold even if the empirical work had come out differently.   

     Too often researchers encourage misuses of their results in conclusions that push the practical implications of their research, even when the more detailed analysis emphasizes proper cautions.  While this occurs with empirical students of the law in liberal arts schools by political scientists, sociologists, economists and psychologists among others, the problem tends to be more severe in the empirical work of law professors, perhaps because most see their business not as building social or behavioral theory but as criticizing laws and legal institutions and recommending reform.

Lempert Comment on Affirmative Action Post

A couple of weeks ago I posted a lengthy essay on the debate surrounding Richard Sander's affirmative action research.   Richard Lempert, our guest blogger for the coming week and one of the most prominent Sander critics, posted a detailed comment to my post, which I encourage all our regulars to read.   The comment is here.

Richard, we look forward to your posts.  Welcome.  bh.

Guest Blogger: Richard Lempert

This week's guest blogger is Richard Lempert of the Michigan Law School.  Professor Lempert is particularly concerned with the problem of applying social science research to legal issues. This is reflected in much of his work, particularly his work on juries, on capital punishment and on the use of statistical and social science evidence by courts, as well as in his service as an original panelist in the National Science Foundation's Law and Social Science Program and with the National Research Council's Committee on Law Enforcement and the Administration of Justice, which he chaired from 1987-89. He is the author (with Joseph Sanders) of An Invitation to Law and Social Science and co-editor (with Jacques Normand and Charles O'Brien) of Under the Influence? Drugs and the American Work Force. From 1982-85, he edited the Law & Society Review. He is a recipient of the Law & Society Association's Harry Kalven Jr. Prize prize for outstanding socio-legal scholarship and has held visiting fellowships at the Center for Advanced Study in the Behavioral Sciences and at the Russell Sage Foundation. In 1993 he was elected a fellow of the American Academy of Arts and Sciences. He currently serves as the secretary of Section K of the American Association for the Advancement of Science.

Can We Measure the Relationship Between Teaching and Scholarship in Law Schools

Today, the ELS Blog is pleased to host a one-day forum on the relationship (or lack of relationship) between teaching and scholarship in law schools.  The forum is prompted by a recent empirical study by Benjamin Barton of University of Tennessee Law, which has received a lot of play in the blogosphere (see, e.g., Comglomerate, Prawfsblawg, Legal Theory Blog, Leiter, and Stuart Buck).   The buzz, of course, is focused on Ben's primary finding that there is no correlation between effective teaching and scholarship.

This topic reflects a long-running debate within the legal academy, most of which occurred without data.  In 1998, Jim Lindgren and Allison Nagelberg began to fill this void with a small scale study based of faculty from three relatively elite law schools which documented a modest positive correlation (.20) between scholarly productivity (as measured by citation counts) and teaching (as measured by student evaluations).  See Are Scholars Better Teachers? 73 Chi. Kent L. Rev. 823 (1998).   Barton's study is much broader in scope.  It includes four years of teaching evaluations for 623 faculty members at 19 ABA-approved law schools.  In addition, it includes five discrete measures of scholarly output:  academic-oriented books and articles; practice-oriented books and articles; total publications; citations per year; and total citations.

As Ben notes in his conclusion, the lack of a empirical relationship between teaching and scholarship creates quite a quandary for legal education, especially as law school competition increasingly takes the form of attracting and retaining more productive scholars.   

To probe this issue further, the ELS blog is pleased to welcome Ben Barton, who will open the forum with some additional remarks on this research.  To provide commentary on Ben's study, we also welcome Jeffrey Evans Stake (Indiana Law), who is particularly well-suited for this forum.  In addition to his innovative work on law school rankings (see, e.g.,  81 Ind. L. J. 229 (2006); 80 St. John's L. Rev. 301 (2006)) and the Rankings Game website, Jeff is an award-winning teacher who has done extensive service work to improve the teaching evaluation process. 

Guest Blogger: Anne Joseph

This week's guest blogger is Anne Joseph, an Assistant Professor of Law at Boalt Hall.  Ann received her law degree from Yale and her Ph.D in Political Economy and Government from Harvard.  Before joining the Boalt faculty, she clerked for Justice Ginsburg of the U.S. Supreme Court, was a trial attorney for the Federal Programs Branch of the U.S. Department of Justice’s Civil Division, and clerked for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit.

Anne's primary areas of research are administrative law; agency design and reorganization; tenure of agency officials; shifts in regulatory activities; agency oversight (including congressional hearings and U.S. Government Accountability Office auditing of policy programs); and science and the law. In 2006, she received an award from the Hellman Family Faculty Fund, which is given annually to "promising assistant professors who show capacity for great distinction in their research," for her empirical project, Called to Account by Separated Powers: Regulatory Activity, Oversight, and Turnover of Federal Agency Leaders.

Taking Law Seriously

Different scholars mean different things when they discuss the role of law in judicial decision making. For post-positive theorists, all that matters is that judges sincerely attempt to find the best answer to legal questions. Jason Whitehead of USC just presented a fine paper presenting this view at the Law and Society meetings.

Jason’s paper aside, one problem with this approach is that it does not fully recognize the innate and largely subconscious human ability to convince ourselves of what we prefer to believe. If all that is asked by judges is that they sincerely believe in (i.e., have convinced themselves of) the appropriateness of their decisions, then short of Bush v. Gore, it’s hard to know when judges would fail this test.

I think we are better off conceiving of law as a potential and potentially measurable influence on judges’ behavior. To determine the impact of law is not much different than determining the impact of other social phenomena. Simply put, judges’ decisions should change -- not deterministically, but at the margins -- as law or legal arguments change, holding alternative phenomena constant. A recent example of this is a paper by Rachel Barkow of NYU Law school, who combines quantitative and qualitative methods to argue that a commitment to originalist methods leads Scalia and Thomas to support criminal defendants in non-capital jury cases far more often than we would expect given their ideology.

Where Attitudes Come From

I think that at this point most ELS scholars are comfortable with the notion that attitudes play a crucial role in judicial decision making, even if that role varies by judge, by court, and even by case. The well-established importance of attitudes in judicial decision making leads to the question of where attitudes come from.

Social background theory argues that attitudes come from shared environmental influences, such as one’s father’s occupation, the region where one went to college, and other such factors. This model, though, almost certainly overstates the case of shared environmental influences. Psychologists and behavioral geneticists have been amassing evidence for decades now showing that the extent to which personality factors are influenced by one’s environment, they are largely determined by the idiosyncrasies experienced by the individual, and less so by the environmental factors that one shares, say, with a sibling. Evidence for this includes the findings that the correlation between unrelated siblings (i.e., adopted children raised as siblings in the same household) is fairly small. Alternatively, the correlation in personality among identical twins reared apart is fairly substantial. These and other twin-based studies suggest a substantial heritable component to personality.

Recent work by John Alford, Carolyn Funk, and John Hibbing reports similar findings for political attitudes (Hibbing and Alford, December 2004 Perspectives on Politics; Alford, Funk and Hibbing, May 2005, American Political Science Review). They report heritability effects on political attitudes ranging from .41 (school prayer) to .18 (support for federal housing assistance) with an average heritability coefficient across 28 political items of .32. The average effect for the unshared environment is a robust .53, but the effect for the shared environment (e.g., fraternal twins reared together) is only .16.

I provide here the heritability coefficients for other political attitudes likely to be of interest to judicial scholars:

Socialism .36

Death Penalty .31

Censorship .30

Gay Rights .28

Abortion .25

None of this means that there are specific genes for these policies, but more likely, that there are combinations of genes that influence egalitarianism, openness to outgroups, a desire for order, etc., that in turn influence these attitudes.

Hibbing and Alford suggest implications of these findings for the criminal justice system, war, and the creation of political institutions.  For those unfamiliar with their work, it's well worth reading.

Guest Blogger: Jeffrey Segal

Our guest blogger this week is Jeffrey Segal, someone who requires very little introduction.  Jeff is professor of political science at SUNY, Stony Brook.  He received a Ph.D. from Michigan State University.  He is the author or coauthor of several books, including The Supreme Court and the Attitudinal Model (2002); Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (1999); and Senate Elections (1992).

Developments 2

When I was chair of the political science department at Washington U., I spent many days fretting over entry-level hiring. The discipline was experiencing so many changes that the best way to build and maintain a cutting-edge faculty, I reasoned, was to hire those with cutting-edge skills: typically newly minted Ph.D.s.

A few of those changes—developments, really—and their implications for work on judging are as follows.

1. What we analyze. Whether produced by law professors or social scientists, the vast majority of quantitative work on judicial decisions focuses on the (typically dichotomous) bottom line: reverse (affirm), liberal (conservative), winner (loser), uphold (strike down), and so on.  And now several social scientists (most prominently, Andrew Martin & Kevin Quinn) have deployed dichotomous votes to develop estimates of judicial ideal points—thereby ensuring that the "bottom line" will make an appearance on both sides of the equation.

Guest Blogger: Lee Epstein

This week's guest blogger is Lee Epstein.  Lee is the Edward Mallinckrodt Distinguished University Professor of Political Science and Professor of Law at Washington University, and a Fellow of the American Academy of Political and Social Science.  She will permanently join the Northwestern Law faculty as the Beatrice Kuhn Professor of Law in September 2006.

A recipient of ten grants from the National Science Foundation for her work on judicial politics, Epstein has also authored, co-authored, or edited over seventy articles and essays, as well as thirteen books, including the Constitutional Law for a Changing America series (in its 5th edition; winner of the Teaching and Mentoring Award from the Law and Courts Section of the American Political Science Association), The Supreme Court Compendium (now in its 3rd edition; winner of a Special Recognition Honor from the Law and Courts Section of the American Political Science Association and an Outstanding Academic Book Award from Choice), and The Choices Justices Make (recipient of the Pritchett award for the Best Book on Law and Courts). Current projects include Strategic Defiance of the U.S. Supreme Court, which examines the circumstances leading lower courts to comply with/defy higher courts; Do We Still Need an ERA?, which analyzes constitutional sex discrimination litigation in the 50 states to make an inference about the need for a federal Equal Rights Amendment; and Importing Law, which considers how courts here and abroad make use of foreign legal materials. She also is working with the papers of Justice Harry Blackmun for  a book on agenda setting on the U.S. Supreme Court.

Professor Epstein is a former chair of the Law and Courts Section of the American Political Science Association and a past President of the Midwest Political Science Association. She also serves (or has served) on the Board of Directors of the American Judicature Society, the Executive Council of the Southern Political Science Association, the Board of Trustees of the Law & Society Association, and on the Editorial Boards or Advisory Panels of the American Journal of Political Science, the American Political Science Review, American Politics Research, I•CON: The International Journal of Constitutional Law, Law and Social Inquiry, Law & Society Review, Political Research Quarterly, and Social Science Quarterly.

Epstein teaches courses on Constitutional Courts, Constitutional Law, Defendants' Rights, Law and Social Change, Research Design and Methods, and the U.S. Supreme Court. She received a Faculty of the Year Award from Washington University's Student Union and was named Professor of the Year by the Undergraduate Political Science Association. Other university awards include the Alumni Board of Governors Distinguished Faculty Award (2002) and the  Arthur Holly Compton Faculty Achievement Award (2003).

Combining Quantitative and Qualitative Methods in Socio-legal Research

In their opening comments and responses to other posts, Beth Mertz and Stewart Macaulay ably made the connection between the New Legal Realism (NLR) and established traditions of empirical inquiry among law and society scholars.  Stewart reasserted a theme of his own classic work, that legal scholars should seek "a more accurate picture of law in action" before they offer proposals for changing law.  Beth called attention to the need for socio-legal scholars to more self-consciously translate their research findings to have a broader effect within the legal academy, among policy audiences, and among the public.   Both  advocated  a multiplicity of  empirical methods,  a self-critical humility for the nature of the claims that can be supported by different modes of empirical research, and at least an implicit recognition of the need to connect empirical inquiry to broader theoretical propositions about law and society.  As empirical legal studies expands and matures in the legal academy, these principles are important for the intellectual significance of the enterprise. 

In this essay I want to briefly argue that theoretically driven research that uses multiple methods can produce stronger validity claims, can better illuminate the social mechanisms through which law operates, and may lead to research findings that more readily translate to broader publics.  In other words, research that advances the goals of NLR.  I will try to carry the argument with the examples of three research projects, one by a colleague and two in which I have been personally involved.

Laura Beth Nielsen's License to Harass (Princeton University Press 2004) studied offensive public speech through observation and in-depth interviews with some 100 respondents, including white men, white women, and men and women of color.  She found that the experience of these groups with sexist and racist speech on the street varied dramatically by social group, with women and people of color encountering harassment at shocking levels.   While all social groups  saw  offensive speech as a serious social problem,  a large majority of respondents in all social groups opposed legal intervention to deal with it.  But the groups based their positions on different rationales.  White men articulated a classic first amendment view, women invoked a discourse of autonomy (they would take care of it themselves), and people of color (especially men)  spoke of a distrust of authority (they thought the law would be used against them).   Without an in-depth investigation of the discourses employed by these different groups, we would know much less about their legal consciousness concerning offensive public speech.  Nielsen is thus able to offer some profound insights into the experiences of different social groups on the street, their attitudes about the law, and about the role of law in shaping those attitudes and providing a license for offensive speech to continue to operate.

In Legalizing Gender Inequality  (Cambridge University Press 1999), William Bridges and I examined four case studies of litigation concerning gender-based pay discrimination.  Because the cases involved comparisons of wages across different predominantly male and predominantly female jobs, the cases were characterized as comparable worth cases.  The defendant employers in these cases invoked a market defense, arguing that the wage differentials reflected market processes rather than gender discrimination.  The courts in 3 of the 4 cases accepted that defense.  Our book subjects those legal holdings to empirical scrutiny through a variety of labor market, employment payroll data, organization process data, and in-depth interviews.   The different forms of data converge to reject the market defense.  For example, in AFSCME v. State of Washington,   we found that a state pay survey that was treated as a neutral scientific instrument for determining job-level pay was in fact riddled with arbitrariness and bureaucratic politics.  As a state labor union representative commented, they were not "going to rob Peter to pay Pauline."   The book concludes that the courts in these cases  interpreted antidiscrimination law as  potentially providing a remedy for between-job pay discrimination,  while at the same time refusing to critically analyze actual wage-setting practices in these organizations.  The result was  that the courts legitimated between-job gender inequality in pay.

The final example concerns a project currently underway by Laura Beth Nielsen, John Donohue, Peter Siegelman, and myself.  The project examines the changing dynamics of employment discrimination litigation from 1987 to 2002.  We possess a full set of EEOC complaints from that period, in addition to a large random sample of federal court filings from 7 jurisdictions, which we have coded and begun to analyze quantitatively.  The statistical data will allow us to comprehensively  examine  the system  of discrimination disputing and to test whether it is operating differently than  during the 1972-1987  period analyzed by Donohue and Siegelman in their earlier work.    Employment discrimination litigation has become an intensely contested arena.  Many commentators assert that the dramatic rise in discrimination lawsuits, which roughly tripled between 1991 and 1998,  is a result of growing numbers of frivolous lawsuits.   

We are  also interviewing in depth parties and their lawyers  in a selected subset of  cases.   After conducting some 50 in-depth interviews thus far, we already have gained important insights into how the system operates.  The interviews have literally brought these cases to life.   One African-American plaintiff described how he had been asked by his immediate supervisor whether he had ever had sex with his daughters, as he had heard that slaves used to do.  When internal complaints did not remedy his work environment, he filed suit.  In our dataset he is coded as an early settlement on the outcome variable.  But what the coded file does not indicate is the gravity of the insult he received, the fact that as a result of the lawsuit he became divorced, went bankrupt, felt enormous physical stress.  Although he won his job back as part of the settlement, he was laid off in a reduction in force a year later.  When asked whether he would file the lawsuit again, he said no, that he "would have took it."   In this case, as with almost all the plaintiffs we have interviewed, we find serious injuries, even though the proof of illegal discrimination sometimes is shaky.  Indeed, the defense attorneys largely concede that most of the cases they encounter involve individuals who have been "wounded" at work. 

While we have more data to collect and analyze, the combination of systematic statistics and in-depth interviews is likely to produce a better understanding of antidiscrimination law in action than presently exists.   This combination should allow us to disseminate our results more effectively to legal, academic, policy, and public audiences than might be the case with only qualitative or quantitative data.   

Risk Regulation and Cultural Identity Affirmation

This is my second post on the normative and prescriptive implications of cultural cognition for risk regulation. In the first I argued that cultural cognition undermines proposals to rely on politically insulated experts, on markets, or on simple majoritarianism for dealing with societal risks. I now want to identify a regulatory strategy that cultural cognition does support. I’ll call it “cultural identity affirmation.”

The psychological mechanisms that construct cultural cognition imply that individuals’ perceptions of risk are motivated by a type of cultural-identity self-defense mechanism. Because guns are integral to valued social roles within their way of life, for example, relatively hierarchical and individualistic persons (particularly hierarchical and individualistic males) are likely to react skeptically to any evidence that weak gun control laws promote crime and result in gun accidents. By the same token, egalitarian and solidaristic persons are drawn to the idea that commerce and industry threatens the environment in part because that conclusion justifies regulating activities their values condemn as entrenching inequality and valorizing unconstrained self-interest.

None of this is to deny that there is a truth of the matter about the risks posed (or not posed) by guns, by industrial pollution, and by myriad other activities the dangerousness of which is a point of cultural contention. But the phenomenon of cultural cognition does imply that the simple discovery and dissemination of truth cannot be expected to generate consensus on what societal risks are real and how they should be ameliorated. In order for the truth to be commonly accepted, it must be presented in a form, or under circumstances, that dissipates the threat it poses to certain groups’ cultural identities.

Guest Blogger: Dan Kahan

This week's guest blogger is Dan Kahan who, among other things, will blog about The Cultural Cognition Project at Yale Law School.  Dan Kahan is the Elizabeth K. Dollard Professor of Law and Deputy Dean at Yale Law School. In addition to risk perception, his areas of research include criminal law and evidence. Prior to coming to Yale in 1999, Professor Kahan was on the faculty of the University of Chicago Law School. He also served as a law clerk to Justice Thurgood Marshall of the U.S. Supreme Court (1990-91) and to Judge Harry Edwards of the United States Court of Appeals for the D.C. Circuit (1989-90). He received his B.A. from Middlebury College and his J.D. from Harvard University.

The Cultural Cognition Project is a group of scholars from Yale and other universities interested in studying how cultural values shape the public's risk perceptions and related policy beliefs.   Cultural cognition  refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. Project members are using the methods of various disciplines -- including social psychology, anthropology, communications, and political science -- to chart the impact of this phenomenon and to identify the mechanisms through which it operates. The Project also has an explicit normative objective: to identify processes of democratic decisionmaking by which society can resolve culturally grounded differences in belief in a manner that is both congenial to persons of diverse cultural outlooks and consistent with sound public policymaking.

Thanks

Given all the action going on the comments to Bill's last post, I think it's safe for me to say that I've had more than my fair share of time on the ELS blog this week.  Thanks to the ELS gang for inviting me to the party.  Two of the scholars I most admire (Lee Epstein and Jeff Segal) are going to be sitting in the comfortable and luxurious Guest Blogger Seat over the next few weeks, and like all of you I'm looking forward to their contributions.

Graber on Where the Action Is

Yes, I know that I am approaching parody by including my buddy Mark Graber in every post that I have offered this week; but when he writes things like this it is just obvious to me that empirical legal scholars should know about it.

I'm more optimistic than Mark about the state of scholarship in departments of political science.  In my judgment, one of the great accomplishments in the field of "Law and Courts" over the past 15-20 years has been an expansion in the range of questions and methods that are taken seriously.  When I was in graduate school in the 1980s it was hard to imagine doing any work other than behavioral analysis of judicial decision making.  Today, this sort of work is still alive and well, but the field has also become more sophisticated in its treatment of courts -- in part by applying rational choice models and in party by embracing more historical approaches.  To put it another way, I think that those  in the 1980s and early 1990s who advocated the advantages of "the new institutionalism" had a lasting effect.  (I think a "regime politics" or "governing coalitions" framework is also very promising, but that remains to be seen.)  I know that there are some (of the sort that Mark alluded to in his post) who are very disappointed that the flagship journals of the American Political Science Association are now publishing more historical pieces by scholars such as Keith Whittington, Paul Frymer, Cornell Clayton, and Mitch Pickerill, and they are grateful that a journal such as the AJPS has the courage and vision to resist the corrupting pressures of Perestroika.  But I would hope that most scholars think that the field of Law and Courts has never been more interesting (or more relevant to the discipline as a whole), and that the path to greater progress lies in the direction of even greater diversity rather than enforced conformity to unjustifiably narrow conceptions of social science.  I would just urge the ELS movement to learn this lesson more quickly than it was learned in political science.  No point repeating our mistakes.

Empirical Constitutional Studies

For many areas of traditional legal studies, a more robust empiricism must be viewed as a natural, or at least uncontroversial, contribution to the field.  Law and Psychology creates opportunities to think deeper about issues such as consent, the reliability of eyewitness testimony, or the factors that influence jury decision making.  Law and Economics provides tools to explore a wide range of institutional dynamics and investigate the implications of various legal regimes for market practices.  But I wonder whether there is something about certain areas of legal studies that makes them resistant to certain kinds of empirical analysis.

In particular:  Is there something about the nature of constitutional studies in contemporary law schools that creates barriers to incorporating empirical political analysis of our constitutional practices?

Courts Serving Party Coalitions

It is not uncommon for legal scholars to conceptualize courts as acting in opposition to politics -- as restraining or checking the exercise of power.  On this view, it is reasonable to assume that, in most cases, the exercise of judicial power comes at the expense of other power holders.   

Over the last few years a number of scholars, working under the rubric of a "regime politics" approach to the study of courts, have flipped this assumption in order to explore how much of the behavior of judges -- and (for that matter) how much of the development of law -- can be explained if we assume that courts often serve what Robert Dahl once called the "dominant governing coalition" of a polity (see "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," Journal of Public Law 6 (1957): 279–295).  It is a starting point that is also consistent with Martin Shapiro's argument (developed in his book Courts:  A Comparative and Political Analysis, among other places) that we should think of courts as inevitably constructed to advance the interests of the regime with which they are affiliated.   (All of this is premised on the assumption that the staffing and jurisdiction of courts is typically controlled by other power holders who are not exclusively motivated by concerns about competence and integrity.)

What roles might courts play in promoting the political agenda of dominant governing coalitions? 

Law and Strategy

Arriving in the mail this weekend -- the brand new co-edited volume by Ronald Kahn and Ken I. Kersch, The Supreme Court and American Political Development (Kansas).  Congrats to Ron and Ken.  (Full Disclosure:  I have a contribution in the volume; despite that, they still deserve the kudos.)  It's highly recommended to anyone interested in exploring so-called "APD" approaches to the study of the Court. 

One brief shout-out that might be especially relevant to readers of this blog:  those of you with an interest in debates about "attitudinal v. strategic v. legal" approaches to Supreme Court decision making will want to read Mark Graber's chapter, entitled "Legal, Strategic, or Legal Strategy:  Deciding to Decide during the Civil War and Reconstruction."  Among other things the chapter calls into question the view that Ex parte McCardle is best understood as a strategic retreat.  More generally (to quote his last sentence), Graber tries to show that "the most fruitful investigations will explore the ways in which legal, strategic, and attitudinal factors interact when justices make decisions...."

Empirical

Michael Klarman is a legal historian who likes to explore the kinds of questions that political scientists ask about the Supreme Court.  In his extraordinary book From Jim Crow to Civil Rights he addresses a topic that has been dear to the hearts of many judicial behaviorists:   are Supreme Court decisions motivated by legal considerations or by non-legal considerations, such as the justices' personal attitudes or other political calculations?  When behaviorists take on this question they begin by developing measures of law and judicial attitudes (e.g., see here and here).  Klarman opted for an in-depth case study (see also his draft essay here).

Specifically, he identified the justices who participated in Brown v. Board of Education and collected evidence regarding their personal, political, and legal views on segregation.  Not surprisingly, Klarman found that many of the justices who personally considered segregation to be immoral also adopted legal positions that treated segregation as unconstitutional.  In some cases the data were ambiguous, and the best Klarman could do was offer informed speculation -- for example, as to whether Cold Warriors Burton and Minton (who had not previously exhibited support for the active judicial protection of civil rights and liberties) sincerely believed that segregation violated equal protection or were instead swayed primarily by the Cold War imperatives of the case.  Klarman also made a very persuasive case that, for Justices Frankfurter and Jackson, Brown represented a clear clash between legal considerations (which, in their judgment, argued in favor of upholding Plessy) and personal/political considerations (which they believed argued in favor of overruling Plessy).  The overall result was a richly textured discussion of how personal, political, and legal factors influenced the outcome in Brown.

Guest Blogger: Howard Gillman

Our guest blogger this week is Howard Gillman. Howard is a Professor of Political Science, History, and Law, and Associate Vice Provost for Research Advancement at the University of Southern California.  He specializes in constitutionalism, the U.S. Supreme Court, and judicial politics. 

His most recent book is The Votes that Counted: How the Court Decided the 2000 Presidential Election (University of Chicago Press, 2001). His first book, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Duke University Press, 1993), received the C. Herman Pritchett Award for "best book in public law" from the Law and Courts section of the American Political Science Association. He is also co-editor and contributor to two other books on the Supreme Court: Supreme Court Decision-Making: New Institutionalist Approaches (University of Chicago Press, 1999) and The Supreme Court in American Politics: New Institutionalist Interpretations (University Press of Kansas, 1999).

Guest Blogger: Stefanie Lindquist

Our guest blogger this week is Stefanie Lindquist (Vanderbilt).  (Her CV is available here.)  Her publications include:

Judging on a Collegial Court: Influences on Appellate Court Decision Making. With Virginia Hettinger, Wendy Martinek. University of Virginia   Press, forthcoming 2006.  Click here for publisher's abstract.

“The Influence of Jurisprudential Considerations on Supreme Court Decision Making: A Study of Conflict Cases,” Law and Society Review, 40(1):135-162 (with David Klein).  

 "Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the United States Courts of Appeals." 2004. American Journal of Political Science 48(1):123-137 (with Virginia Hettinger and Wendy Martinek).

"Separate Opinion Writing on the United   States Courts of Appeals," 2003. American Politics Research, 31(3):215-250 (with Virginia Hettinger and Wendy Martinek).