Empirical Legal Studies

Generating Lagged Variable Values

The need for lagged variables is not uncommon, particularly in the finance and statutory intervention areas or whenever the effective timing of any exogenous event of interest is unclear. How to manipulate an existing variable to generate lagged variants--as well as some common pitfalls--are discussed in a recent StataList discussion (here).

"Too-Big-To-Fail" Banks, Bailouts, and Fairness

While such questions as "are regulators across countries 'in the pockets' of large banks?" and "do supervisors provide favorable treatment when bailing out large, global systemically important banks?" persist, conventional wisdom strongly implies that "regulators around the world give [Too-Big-To-Fail] TBTF banks preferential treatment in bailouts relative to other banks, often viewed as an unfair advantage for these banks."

While an unfair regulatory advantage tilting in favor of TBTF banks has "been engrained in the minds of banking researchers, policy makers, and the public around the world for decades," to date little empirical work has subject this belief to data. In a recent paper, Do “Too-Big-To-Fail” Banks Receive Preferential Treatment in Bailouts? Surprising Results from a Cross-Country Analysis, Allen Berger (Univ. S. Car.—Business) et al. do just that and find evidence that "soundly reject(s) implications of unfair preferential treatment concept."

The authors lever hand-collected bank bailout data in the EU from 2008-2014. Their sample includes 100 banks whose "cumulated total assets represent about 50 percent of the total assets of EU banks at the end of 2014" and "35 bailout events for capital injections and 61 bailout events for debt guarantees. Among these, 10 capital injections and 24 debt guarantee bailouts are provided to large, systemically important banks.”

The paper's findings largely contradict prevailing conventional wisdom. "We find statistically and economically significant evidence that regulators treat [Globally-Systemically Important Banks] G-SIBs more harshly than other banks. Regulators make G-SIBs wait longer for bailouts until their capital ratios have more significantly deteriorated, apply more severe restrictions to them, and withdraw government bailout support sooner at lower capital ratios than for other banks in their countries.” The abstract follows.

"Regulators more often bail out “Too-Big-To-Fail” banks than others, but this may not imply preferential treatment as commonly believed. Bailouts are complex dynamic processes involving more than one-time aid, so harsh treatments elsewhere in the process may counter the benefits of the higher likelihood of bailouts for these banks. Using bailout data from 22 European countries we find relatively harsh treatment for Globally-Systemically Important Banks. Regulators bail out G-SIBs at later stages of financial deterioration, impose stronger restrictions, and withdraw aid after less significant recoveries. We explain these findings using cross-country data on supervisory powers, political connections, and national culture."

Northwestern University Law Review—7th Annual Empirical Legal Scholarship Issue: Call for Papers

If evidence of empirical legal studies’ growth was not already obvious enough in the peer-reviewed journal world, traditional student-edited law reviews also evidence a turn toward ELS as well. And no more so than perhaps the Northwestern University Law Review which is pleased to announce its 7th annual issue dedicated to empirical legal scholarship, to be published in March 2025. According to the student editors, they seek "to bring cutting-edge, interdisciplinary, empirical work to our legal audience, and enrich our understanding of the law, legal actors, and legal doctrine through robust and reliable examination of qualitative, quantitative, and mixed-method data." To access to past NULR empirical issues click here.

The exclusive submission window for the Volume 119 Empirical Issue of the Northwestern University Law Review will open on March 18, 2024, and run until April 30, 2024. A subset of submissions will be selected to move forward to peer review. The Law Review will make every effort to notify authors of rejection or of advancement to peer review by mid-July 2024. Final publication decisions will be issued by mid-August 2024, with the publication date set in March 2025.

Submissions must be between 15,000 and 30,000, and conform generally to the style and formatting expectations that are common to law reviews. For more information, please visit our website: Empirical Issue - Northwestern University Law Review (northwesternlawreview.org) or reach out to Alisher Juzgenbayev, Senior Empirical Editor for the Northwestern University Law Review at [email protected].

Circuit Panel Effects Over Time

Most empirical judicial decisionmaking scholarship on federal circuit courts tries to exploit something close to quasi-random assignments to three-judge appellate panels. While attention typically focuses on judge votes, in a recent paper, Partisan Panel Composition and Reliance on Earlier Opinions in the Circuit Courts, Stuart Minor Benjamin (Duke) et al. instead focus on whether panel composition (partisanship) influences how judges rely on prior case law.

Drawing on a data set that includes "all published and unpublished federal appellate opinions in the Lexis database that were issued between 1974 and 2017," the authors find that circuit panel composition does influence which cases are relied upon and followed and that the influence is asymmetric. Specifically, they find that evidence of a partisan influence in this context is: 1) relatively recent; 2) most salient for circuit opinions written by 3-Democrat panels; and 3) more likely in relatively "high-profile" cases. An excerpted abstract follows.

"Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard’s treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. … We find that partisanship does, in fact, structure whether earlier opinions are followed and that these partisan effects have grown over time—particularly within the subset of cases that we believe are most likely to be ideologically salient. Since legal doctrine is developed by building upon or diminishing past opinions, these results have important implications for our understanding of the development of the law."

2024 Northwestern Main and Advanced Causal Inference Workshops

Co-organized by Bernie Black (Northwestern) and Scott Cunningham (Baylor—econ), the 13th annual workshop on Research Design for Causal Inference will be held at Northwestern Law School in Chicago, IL.

Main Workshop: Monday – Friday, July 29--August 2, 2024; Advanced Workshop: Sunday -- Wednesday, August 4-7, 2024.

Main Workshop Topics/Faculty: Introduction to Modern Methods for Causal Inference:  Donald B. Rubin (Harvard Univ.); Matching and Reweighting Designs for “Pure” Observational Studies (Brigham Frandsen, BYU); Panel Data and Difference-in-Differences (Yiqing Xu, Stanford); Instrumental variable methods (Eric French, Cambridge); and Regression Discontinuity (Gonzalo Vazquez-Bare, UC Santa Barbara).

Advanced Workshop Topics/Faculty: Primer on machine learning approaches to prediction and Applications of machine learning to causal inference (Christian Hansen, Chicago); Advanced Difference-in Differences (Andrew Goodman-Bacon, Federal Reserve Board); and Advanced Instrumental Variables (Peter Hull, Brown).

For further information and registration: (click here).

"Red States," "Blue States," and State Criminal Codes

The political science literature increasingly paints a picture of distinctive "red" and "blue" states that separate from each other on a growing number of issues. If accurate, one may plausibly assume that this separation would increasingly be reflected in differences among "red" and "blue" state criminal codes, especially because, as Paul Robinson (Penn.) et al. argue, "a jurisdiction’s criminal law rules commonly reflect that community’s most basic shared values, probably more than many if not most other areas of legislation."

In a recent paper, Red Codes, Blue Codes? Factors Influencing the Formation of Criminal Law Rules, Robinson et al., test this assumption by comparing state criminal codes from "the six largest deep blue (Democratic) states – California, Colorado, New York, Illinois, New Jersey, and Washington – and the six largest deep red (Republican) states – Texas, Florida, Ohio, Georgia, Tennessee, and Missouri – in which the same party has controlled the governorship and both houses of the legislature for at least the last three elections, and often much longer." The paper's set-up itself is important as the authors self-consciously "stack the deck" toward  finding state criminal code differences.

Despite an ex ante assumption that deeply red and deeply blue criminal law rules would differ and a comparison that tilts toward finding differences, the authors find "that the red-blue effect seems to appear only in those few instances in which a criminal law rule becomes a public political issue. For the wide variety of issues for which one might expect a strong red-blue difference, our research shows no such clear difference. An excerpted (heavily) abstract follows.

"In other words, not only is the red-blue divide of little effect for the vast bulk of criminal law, but the factors that do have effect are numerous and varied. The U.S. does not in fact have red codes and blue codes. More importantly, the dynamics of criminal law formulation suggest that distinctive red codes and blue codes are never likely to exist because the formulation of most criminal law rules are the product of a complex collection of influences apart from red-blue."

2024 AsLEA Annual Confernece -- Call For Papers

Guide by the conference's theme: "The Era of AI and Sustainability: Opportunity and Challenge for Law and Economics," the AsLEA invites article manuscripts or abstracts or session proposals by March 31, 2024, for consideration. The conference, hosted at the National Cheng Kung University (Taiwan), will include keynote addresses by Adam Chilton (Chicago) and Scott Baker (Wash U). For more (and updated) information click here; email inquiries to: [email protected].

Various Tests for Fixed- v. Random-Effects Model Decision

When assessing whether a model warrants fixed- or random-effects, threats posed by, among other factors, autocorrelation and heteroscedasticity typically loom large. A recent discussion of this topic emerged on the StataList (click here) and considers various approaches.

SELS Global: Brazil 2024 -- Call for Papers Deadline Reminder

SELS Global Conference, Brazil 2024

São Paulo - June 5-7, 2024

Call for Papers -- Regular Paper Deadline: 31 January 2024

The 2024 SELS Global Conference on Empirical Legal Studies [Brazil] is now accepting submissions. Organizers will consider empirical papers spanning all areas of empirical legal studies. Authors are encouraged to submit works-in-progress; however, submissions should be completed drafts that include principal results. Submitted papers must be unpublished (and expected to be unpublished at the time of the conference).

The Early Paper Submission Deadline is Thursday, December 28, 2023 (11:59 PM UTC-3:00), with decisions on January 3, 2024. The Regular Paper Submission will be opened from 29 December, 2023 until 31 January, 2024 (11:59 PM UTC-3:00), with decisions on February 23, 2024. There is no charge for submissions. Papers not chosen in the early review will be automatically directed for further evaluation in the Regular Submission round.

Papers are selected through a peer review process. If accepted, authors will have an opportunity to submit a revised draft prior to the conference for presentation and discussion. Discussion at the conference includes assigned commentators and audience questions. Accepted papers will be made available to all conference participants.

To submit a paper, please click here. Questions for conference organizers should be directed to: [email protected].

About: The Centro de Estudos da Ordem Econômica (CEOE) and the Society for Empirical Legal Studies (SELS) are pleased to host the Conference on Empirical Legal Studies (CELS) Global Brazil on June 5-7, 2024, in person at the CEOE building (Federal University of São Paulo, Quitaúna Campus, São Paulo). CELS is an interdisciplinary gathering that draws researchers from across the United States and the world, bringing together scholars in law, economics, political science, psychology, and other fields who are interested in the empirical analysis of law and legal institutions.

ADDENDUM: Please note that SELS Global Brazil - Brazil 2024 is part of the growing SELS international conference program and not a replacement for the annual CELS conference series. The 18th annual CELS conference will be held at Emory University School of Law in the fall of 2024. More information on the 2024 Emory CELS will be sent in the new year.

A Perspective on an "Empirical Turn" in Comparative Constitutional Law

In a recent (and mercifully brief) review essay, Empirical Constitutional Studies (reviewing Adam Chilton & Mila Versteeg's How Constitutional Rights Matter (OUP, 2020)), Arthur Dyevre (KU Leuven Centre for Legal Theory and Empirical Jurisprudence) takes the occasion to opine more generally on ELS' recent (and growing) "intrusion" into the comparative constitutional law field.

When it comes to empirically assessing constitutions and constitutional rights, Dyevre is mindful of the obvious methodological challenges for empiricists. After all, "comparing countries, even when observed over many years, is difficult because each country is the abstraction of complex, intricate and often idiosyncratic social dynamics that, even in the best of circumstances, are only imperfectly tracked by available data." Moreover, even where high quality data do exist, other complications lurk. "Countries may differ in unobserved ways, which in turn may correlate with both institutional choices (adding or not a particular right to the constitution) and de facto observance of rights." Finally, empirical findings in comparative constitutional law studies are invariably based on observational data drawn from non-randomized research designs which limits opportunities for causal inference.

Despite these (and other) challenges, Dyevre's review of Chilton & Versteeg's work implies a level of optimism (if cautious) for empirical methodologies' ability to contribute to such fields as comparative constitutional law (particularly so for "mixed-methods" projects).

Nesting v. Clustering: Hospital Data

Both an interesting--and instructive (that is, the response)--brief discussion incident to a question about whether to nest or cluster health care data in a hospital setting emerged recently in the StataList. That a single patient may have been admitted into multiple hospitals over time is yet another complicating wrinkle that warrants attention. One take-away from the discussion is that every detail involving how to structure an analysis requires careful consideration.

SELS Global: CELS Brazil 2024 -- Call for Papers

CELS Global Conference, Brazil 2024

São Paulo - June 5-7, 2024

Call for Papers

The 2024 Conference on Empirical Legal Studies (CELS) [Brazil] is now accepting submissions. CELS will consider empirical papers spanning all areas of empirical legal studies. Authors are encouraged to submit works-in-progress; however, submissions should be completed drafts that include principal results. Submitted papers must be unpublished (and expected to be unpublished at the time of the conference).

The Early Paper Submission Deadline is Thursday, December 28, 2023 (11:59 PM UTC-3:00), with decisions on January 3, 2024. The Regular Paper Submission will be opened from 29 December, 2023 until 31 January, 2024 (11:59 PM UTC-3:00), with decisions on February 23, 2024. There is no charge for submissions. Papers not chosen in the early review will be automatically directed for further evaluation in the Regular Submission round.

Papers are selected through a peer review process. If accepted, authors will have an opportunity to submit a revised draft prior to the conference for presentation and discussion. Discussion at the conference includes assigned commentators and audience questions. Accepted papers will be made available to all conference participants.

To submit a paper, please click here. Questions for conference organizers should be directed to: [email protected].

About: The Centro de Estudos da Ordem Econômica (CEOE) and the Society for Empirical Legal Studies (SELS) are pleased to host the Conference on Empirical Legal Studies (CELS) Global Brazil on June 5-7, 2024, in person at the CEOE building (Federal University of São Paulo, Quitaúna Campus, São Paulo). CELS is an interdisciplinary gathering that draws researchers from across the United States and the world, bringing together scholars in law, economics, political science, psychology, and other fields who are interested in the empirical analysis of law and legal institutions.

ADDENDUM: Please note that SELS Global Brazil - CELS Brazil 2024 is part of the growing SELS international conference program and not a replacement for the annual CELS conference series. The 18th annual CELS conference will be held at Emory University School of Law in the fall of 2024. More information on the 2024 Emory CELS will be sent in the new year.

Patents, the Mayo Decision (2012) & Innovation

Our patent system seeks to promote innovation. When it comes to levering incentives in the service of innovation, property rights flowing from patent grants do much of the expected work.

The Supreme Court's 2012 Mayo v. Prometheus decision disrupted the existing status quo and articulated a new legal test for patent-eligible subject matter. Assessing Mayo's impact in general and on molecular diagnostics innovation in particular confronts considerable data and research design challenges.

Arti Rai (Duke) et al. take up this challenge in a recent paper, Molecular Diagnostics Patenting after Mayo v. Prometheus: An Empirical Analysis. As the authors make clear, "in an ideal world, we would be able to examine rigorously differences in molecular diagnostics innovation before and after Mayo. Unfortunately, the rigorous measurement of innovation raises well-known challenges.” Despite these (and other) challenges, the paper uses data on molecular diagnostic patenting from 2009 through 2019. The paper's DID specifications exploit comparisons with non-bioinformatics and non-molecular diagnostic biochemistry inventions. The paper reports mixed results summarized in the excerpted abstract that follows.

"This Article contributes to the presently thin evidence base on the impact of Mayo by using data on patent applications, examinations, and grants from 2010-2019 to comprehensively trace the effects of the test and subsequent related developments. Using descriptive data as well as a difference-in-difference (DID) design, we evaluate the extent to which the decision was followed by one of three expected outcomes: a decline in patent quantity and quality (“retrenchment”); increase in patent prosecution “toughness”; and applicant “adaptation.” We find substantial support for our toughness and adaptation hypotheses, but not our retrenchment hypothesis: molecular diagnostic patenting did not decline in aggregate, though there is some evidence of a relative decline among small, U.S. based firms as well as a potential decline in the share of patents covering new (non-continuation) inventions. These results suggest that molecular diagnostic patents are harder to get but they are still being applied for and granted, with their narrowed scope making them less likely to block follow on innovation.”

The Bruen Decision After One Year: An Empirical Look

In its 2022 Bruen decision, the Court ruled (6-3) that a New York law requiring that applicants “show cause” in their conceal carry firearm license applications unconstitutionally infringed on Second Amendment protections.

Since the Bruen decision, a stream of additional lawsuits challenging various other state and federal firearm regulations has been decided. Assessing these post- Bruen court decisions may hold some clues about the Bruen decision’s impact on the Second Amendment landscape.

To this end, in One Year Post-Bruen: An Empirical Assessment, Eric Ruben (SMU) et al., analyze more than 450 claims, flowing from 326 cases, decided after Bruen. The authors note that the pace (and volume) of litigation dramatically increased after Bruen as well as the lawsuits’ efficacy. The authors also observe that Bruen’s analytic framework “has not meaningfully constrained judges.” The paper’s abstract follows.

"In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions. Courts declared unconstitutional policies ranging from assault weapon bans to domestic abuser prohibitions to various limits on publicly carrying handguns. Those opinions can frequently be paired with others reaching the opposite conclusion. The extent to which Bruen shook up the Second Amendment landscape and has caused widespread confusion in the courts is starting to come into focus.

This Article measures Bruen’s after effects by statistically analyzing a year’s worth of Second Amendment opinions. We coded more than 450 challenges for dozens of variables including both case and judge characteristics, resulting in a comprehensive post-Bruen Second Amendment dataset. The findings of our analysis provide an objective basis for assessing the upheaval wrought by Bruen and highlight both unanswered questions and immense challenges for Second Amendment doctrine in the coming years."

New Thinking About an Old Problem: Selection Effects

Keith Hylton (Boston Univ.) and Sanghoon Kim (Buffalo--econ.) distill their recent paper's challenge nicely. When it comes to much of empirical work on legal (and court) outcomes, the full potential of multiple regression "has not been realized, largely because of one reason: the information contained in court opinions comes from a selected sample."

For all the obvious reasons, much of empirical legal research exploits court outcomes as data. One challenge, however, is that the comparatively smaller subset of formal legal disputes that persist to a judicial outcome almost assuredly systematically differs from the much larger subset of legal disputes that privately settle. My former mentor and colleague, Ted Eisenberg, frequently reminded me that "one cannot over-state the importance of selection effects in empirical legal research."

While the challenge endures, solutions are not entirely obvious. In Trial Selection and Estimating Damages Equations, Hylton and Kim develop an interesting suggestion. Specifically, they articulate a structural econometric model that, they argue, better accounts for litigant selections in the appellate context. The paper's abstract follows.

"Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions."