Empirical Legal Studies

Civilian Complaints Against Police & Prosecutor "Upcharging"

Citizens’ engagement with police serves as a valuable resource. One particular form of citizen engagement—civil complaints—can impose a serious cost to the targeted police officer as well as the police department. To try to reduce the potential negative effects of a citizen complaint against law enforcement agents, other criminal justice actors could act to re-frame the encounter such that the optics look unfavorably on the complaining citizen. Since a defendant cannot seek monetary damages in civil court unless his/her conviction or sentence was declared invalid, prosecutors may increase the number or the severity of charges that the defendant faces to propel the defendant toward accepting a plea deal, which would prevent the defendant from seeking further financial reparations. In a new paper, Do Civilian Complaints Against Police Get Punished?, DeAngelo (Claremont Colleges) et al. pursue this question empirically.

To do so, the authors examine arrest, complaint and charging data from Cook County (Illinois). The results indicate that a positive, causal link between citizen complaints and an increased number of total charges filed against a defendant exists. The paper also notes that a civilian complaint yields a larger plea discount, likely to induce a plea agreement. Notably, the main findings are entirely driven by charges filed directly by the prosecutor’s office rather than directly by the police. Given that prosecutors are likely filing charges after civilian complaints have been filed against law enforcement, it appears that prosecutor behavior is leading to upcharging in response to civilian complaints and not police decisions. An excerpted abstract follows.

“… This paper empirically investigates one way in which criminal justice institutions respond to civilian complaints. Namely, criminal prosecutors can upcharge a defendant who files a civil complaint against law enforcement. By upcharging, the prosecutor can increase the likelihood that a defendant will accept a plea deal, thus preventing the defendant from seeking monetary damages in civil court (Heck vs. Humphrey, 1994). Using data on citizen complaints and criminal charge outcomes from Cook County (Illinois), we find a strong causal link between a citizen filing a complaint and the total number of charges filed.”

The Empirics of Sobriety Checkpoint Stops

Motor vehicle crashes remain the leading cause of death for Americans under age 25, and many of these crashes involve substance use. To help reduce the volume of impaired drivers, many--but not all--states allow for sobriety checkpoints (SC). While historically checkpoint stops were used to enforce drunk driving laws, they are increasingly being used to deter and prosecute drugged drivers, especially in states where marijuana is legal.

Although “no-cause” traffic stops remain controversial, comparatively little data exist that helps inform related debates. While the SCOTUS permits such stops as a general matter, courts in eleven states have ruled that state constitutional provisions preclude sobriety checkpoints. And those states that discontinued sobriety checkpoints provide a critical source of data that a recent paper, Sobriety Checkpoint Law, Fatal Car Crashes and Arrests, exploits. In their paper, Lauren Jones (OSU—public affairs) and C. Blain Moran (OSU—public affairs) compare trends in event frequencies “across states that did and did not turn off their SC laws, net of confounding factors.” The paper finds, at bottom, that when states make sobriety checkpoints illegal, annual fatal crashes and DUI arrests increase. The paper also notes a racial effect relating to DUI and cannabis arrests. The abstract follows.

“Sobriety checkpoints have been used since the early 1980s to enforce laws prohibiting driving while intoxicated (DWI), and to deter DWI. However, their constitutionality has been questioned, as they allow police to stop drivers without cause. As a result, eleven states have banned their use. Using a two-way fixed effects event study analysis, we estimate the effect of rendering sobriety checkpoints illegal on state-level counts of fatal car crashes, and arrests for driving under the influence of drugs or alcohol (DUI), and drug possession. We find evidence that when states make sobriety checkpoints illegal, the number of annual fatal crashes increases by 17 percent. We also find evidence that rendering sobriety checkpoints illegal leads to a 25 percent increase in the number of annual DUI arrests in a state, suggesting that the deterrent effect of checkpoints is much stronger than their enforcement impacts. We also find suggestive evidence that eliminating sobriety checkpoints increases racial disparities in DUI and cannabis possession arrests, with larger impacts on arrests among Black residents.”

Theory's Role in ELS

A not infrequent, though diminishing, canard is that "too many" empirical legal studies papers are "atheoretical." While the claim itself is an empirical one (and one that I side-step), a larger, broader point endures. Specifically, the best of ELS is certainly informed by well-developed theory. In a recent paper, The Role of Theory in Empirical Legal Studies, Tonja Jacobi (Emory) makes this case in a brief and widely accessible paper. While perhaps targeted to "early career" ELS scholars and non-technical consumers of empirical research, the paper helpfully reminds all of theory's essential role in empirical legal studies. The paper's abstract follows.

"The growing field of empirical legal studies is not an alternative to theory: within every empirical inquiry is an implicit formal theoretical model. Further, good empirical tests should be inspired by substantive theories of the phenomena being analyzed. This essay explains how theory is built into all empirical testing and illustrates why empirical tests are best informed by well-developed theories. It uses examples of empirical studies of both US Supreme Court and Australian High Court oral argument to illustrate how these issues apply to the central issues at the intersection of empirical legal studies and constitutional law: the role of judicial ideology and strategy, and predicting judicial behavior. The essay explores common errors in both conducting and consuming empirical work, and presents some solutions, including both methodological fixes and how to draw on substantive expertise. It aims to help the non-technical reader understand when counterintuitive results should be queried and when, in contrast, resistance is more reflective of priors of the reader rather than potential weaknesses of the work. And it acts as a reminder to technical readers and empirical practitioners that theory is built into every empirical test, and so must be taken seriously."

Case Outcomes & Judge Financial Conflicts

To assist with insuring that "justice is blind," a presiding judge is expected to recuse from any case where he/she is financially conflicted with any of the litigating parties. Evidence that this expectation is not being consistently met was widely reported in 2020-2021. Indeed, the public controversy elicited a response from Chief Justice John Roberts. In his 2021 annual report on the federal judiciary, and in direct response to the controversy surrounding numerous federal judges, Chief Justice Roberts downplayed the controversy’s significance, characterizing the incidents as "isolated violations" and "unintentional oversights."

Notwithstanding Justice Roberts' characterizations, given the widespread implications posed by judges' failures to recuse when proper it is important to understand whether these recent episodes are one-time incidents or point to a larger, systemic problem. To address this question, in a recent paper, Judge Financial Holdings and Case Outcomes: Evidence from Judge Financial Disclosures, Tuhin Harit (Univ. Dallas--Mgmt.) et al. examine whether there is a relation between judges' disclosed financial holdings and the outcomes of the trials over which they presided.

Drawing from a sample that includes cases from 2000–2021, the paper finds that “stock ownership by judges significantly improves the chances of a litigant's winning a case.” In cases where the presiding judge is financially conflicted with either the defendant or plaintiff, “their chance of a favorable decision improves by 3.3% and 4.3%, respectively, after controlling for judge, industry, district, case file year, and firm characteristics.” An excerpted abstract follows.

"... Using novel data on financial disclosures of judges and the civil case information of public firms across district courts in the United States between 2000 and 2021, we document multiple instances in which judges fail to recuse themselves in cases where they hold common stock. We find robust evidence that judges rule more favorably and take longer when deciding over conflicted cases as compared to unconflicted ones. We also find that investors are positively surprised by these outcomes, as reflected by stock returns to trial outcomes. Collectively, our results provide the first large-scale evidence of the relation between judges' financial holdings and case outcomes.”

Dodd-Frank, Accounting Fraud, and Whistleblowing

Owing to several notable financial frauds involving whistleblowers, regulators took steps to strengthen whistleblowing provisions. One prominent example is the Dodd-Frank whistleblower program which provides financial rewards to whistleblowers who report financial fraud to the SEC. While regulators may believe that the Dodd-Frank whistleblower law helps deter accounting fraud, whistleblower tips can be frivolous and processessing such tips is not cost-less. Similar to all too many public policies, little empirically is known about the the Dodd-Frank whistleblower provision's efficacy.

In a recent paper, Did the Dodd-Frank Whistleblower Provision Deter Accounting Fraud?, Philip Berger (Chicago--Booth Business) & Heemin Lee (Baruch College) examine whether the Dodd-Frank whistleblower law has a causal effect on the deterrence of fraud and quantify the size of the deterrence effect. Exploiting a control group of firms previously exposed to state-level false claims statutes, the paper sets out to assess the "underlying (or ex ante) likelihood of accounting fraud decreases for firms subject to Dodd-Frank and not previously exposed to the risk of whistleblowing" via analogous state laws. At least as it relates to Dodd-Frank's whistleblowing component, the paper a finds a decrease in the probability of fraud attributable to whistleblower provisions. The abstract follows.

“We examine the deterrence effect of the Dodd-Frank whistleblower provision on accounting fraud. To facilitate causal inference, we use state False Claims Acts (FCAs), under which whistleblowing about accounting fraud at a firm invested in by a state's pension fund can result in monetary rewards from that state’s government. We divide our sample into firms exposed and not exposed to whistleblowing risk from a state FCA during the 2008 – 2010 period that preceded the 2011 SEC implementation of the Dodd-Frank whistleblowing provision. We hypothesize that firms already exposed to a state FCA whistleblower law are less affected by the Dodd-Frank whistleblower provision. Using the companies exposed to a state FCA as control firms in our Dodd-Frank tests, the remaining firms constitute the treatment sample. We find that exposure to Dodd-Frank reduces the likelihood of accounting fraud of treatment firms by 12% to 22% relative to control firms, but do not find that it affects audit fees.”

Med Mal Insurance Premia & Economic Theory

The medical malpractice insurance market is inherently complex and made even more so by the growing number of state efforts to regulate it. Complexities aside, however, standard economic theory should, in the main, explain, to some degree, med mal premia trends. Findings from a recent paper, How Do Insurers Price Medical Malpractice Insurance?, by Bernie Black et al. (Northwestern), however, "are not easily explained by standard economic theory."

Prof. Black et al.'s paper analyzes almost three decades worth of med mal premia data (gathered by the Medical Liability Monitor). Core findings include:

• Med mal premia are only loosely connected to insurer costs, even over long periods;
• Premia are much higher in states with damage caps, even after controlling for costs; and
• The Premium/Cost Ratio varies widely both across states at a given time and within states across time.

Taken together, the paper's findings imply that med mal insurance companies do not fully adjust premia to changes in direct costs even over long time periods as standard economic theory might predict.

Firearms' Preferences and an Empirical Analysis of Secondary and Tertiary Regulatory Consequences

Civilian (household) gun ownership levels continue rise along with efforts to regulate gun ownership and possession. Scholarly efforts in this space, while increasing, confront complex data, modeling, and research design challenges.

In Preferences for Firearms and Their Implications for Regulation, the authors, Sarah Moshary (UC Berkeley—Business) et al., steer clear of trying to identify causal links between gun ownership and crime or gun deaths. Instead, the paper "estimates the effects of policy on both the number and types of guns sold in the primary market, as well as the consumer surplus that accrues to gun owners from their purchases.”

Among the various policy counterfactual simulations that the paper explores include a policy that bans assault weapons. What the paper's findings imply is a consumer shift from assault weapon ownership to firearm ownership. This is so, the paper argues, because even though consumers who are in the market for handguns do not consider long guns at all, many consumers that consider purchasing a long gun, by contrast, "are also interested in buying a handgun." As the "vast majority" of gun violence involves handguns, however, this substitution effect, fueled by a regulatory ban, introduces complicating policy wrinkles. The paper's abstract follows.

“This paper estimates consumer demand for firearms with the aim of evaluating the likely impacts of firearm regulations. We first conduct a stated-choice-based conjoint analysis and estimate an individual-level demand model for firearms. We validate our estimates using aggregate moments from observational data. Next, we use our estimates to simulate changes in the number and types of guns in circulation under alternative regulations. Importantly, we find that bans or restrictions that specifically target ‘assault weapons’ increase demand for handguns, which are associated with the vast majority of firearm-related violence. We provide distributions of consumer surplus under counterfactuals and discuss how those distributions could be useful for crafting policy."

Checks on Prosecutorial Power

In light of the significant authority that prosecutors wield, we want them to be, at once, both accountable and independent. Obviously, these twin goals are structurally at odds with each other. "Electing prosecutors ensures that they are accountable, but it limits their independence. In contrast, appointing prosecutors increases independence, but it does so at the expense of accountability." In the U.S., 45/50 states elect local prosecutors "who bear the primary responsibility for bringing felony prosecutions in their jurisdictions." However, as Carissa Hessick (UNC) et al. note in a recent paper, Understanding Uncontested Prosecutor Elections: "[prosecutor] elections in the United States generally fail to capture the accountability benefits of elections because so many prosecutor elections are largely uncontested and uncompetitive."

Drawing partly on data gathered by the Prosecutors and Politics Project, the paper models "contested" prosecutor elections. In a slight break from prior findings from related literatures, this paper's core findings emphasize the salience of whether an incumbent is running and the jurisdiction's population. The paper's (excerpted) abstract follows.

"... Using a logistic regression analysis, this Article estimates the individual effects of a number of variables on prosecutor elections. It finds that several factors that have been previously identified as contributing to uncontested election are not, in fact, what drives uncontested elections for prosecutors. Instead, the factors with the largest effect are whether an incumbent runs and the population of the district. It also identifies two features of state election law that contribute to the dearth of contested elections. The Article concludes by noting that these factors suggest specific policy changes that could help to increase the number of contested and competitive elections—thus ensuring that voters can help guide important criminal justice decisions in their communities."

The Empirics of Choice of Law

In an effort to peer into judicial decisionmaking more generally, a recent paper by Dan Klerman (USC), Bias in Choice of Law: New Empirical and Experimental Evidence, levers both observational and experimental data drawn from the vehicle accident context to examine choice of law disputes. The paper considers three leading sources of choice of law bias: pro-resident, pro-plaintiff, and forum law. The findings intrigue and complicate prevailing conventional wisdoms.

Specifically, core findings include that while judges seem to favor the plaintiff, judge decisions do not tilt in favor of application of the law they are most familiar with (the law of the forum). While state court judges favor local residents, federal court judges do not. Although the traditional “place of the injury” choice-of-law rule was more constraining than modern American choice-of-law standards (such as the Restatement Second), even judges under the traditional rule favored the plaintiff more often than seemed warranted. The abstract follows.

"Scholars have argued that modern American choice-of-law is subject to three biases: (1) a bias in favor of residents of the forum state (pro-resident bias), (2) a bias in favor of plaintiffs (pro-plaintiff bias), and (3) a bias in favor of the law of the forum (forum law bias). This article brings new evidence about these biases from a comprehensive database of vehicular accident cases and from the first experiment related to choice of law. Overall, there is some evidence of a pro-resident bias in state (but not federal) court, some evidence of pro-plaintiff bias in both federal and state court, and no evidence of a pro-forum bias."

Assessing Primary and Secondary Effects of Sobriety Checkpoints

While police use of sobriety checkpoints has become increasingly common since the 1980s, legal discomfort, particularly Fourth Amendment concerns, persist. While the SCOTUS concluded in its Sitz decision (1990) that sobriety checkpoints' social benefits outweighed costs on individual liberties, states remain free to preclude their use. Indeed, 11 states have ruled sobriety checkpoints illegal.

Aside from their legal status, empirical questions about sobriety checkpoints' efficacy lurk. In an intriguing new contribution to the emerging empirical literature, Sobriety Checkpoint Laws, Fatal Cars Crashes and Arrests, Lauren Jones (OSU--Public Policy) and C. Blain Morin (OSU--Public Policy) explore the effects of a state removing sobriety checkpoints on fatal car crashes and arrests.

Leveraging data from the Fatality Analysis and Reporting System and Uniform Crime Reports, the authors execute a twoway fixed effects (TWFE), event study analysis. As the paper notes, the twoway fixed effects analysis extends a difference-in-difference specification, where changes in outcomes across pre-treatment and post-treatment time periods are compared, across a treated unit and a control unit. As the abstract (below) makes clear, the paper's key findings include an annual 17 percent increase in fatal crashes and a 25 percent increase in the number of DUI arrests in states that cease using sobriety checkpoints.

“Sobriety checkpoints have been used since the early 1980s to enforce laws prohibiting driving while intoxicated (DWI), and to deter DWI. However, their constitutionality has been questioned, as they allow police to stop drivers without cause. As a result, eleven states have banned their use. Using a two-way fixed effects event study analysis, we estimate the effect of rendering sobriety checkpoints illegal on state-level counts of fatal car crashes, and arrests for driving under the influence of drugs or alcohol (DUI), and drug possession. We find evidence that when states make sobriety checkpoints illegal, the number of annual fatal crashes increases by 17 percent. We also find evidence that rendering sobriety checkpoints illegal leads to a 25 percent increase in the number of annual DUI arrests in a state, suggesting that the deterrent effect of checkpoints is much stronger than their enforcement impacts. We also find suggestive evidence that eliminating sobriety checkpoints increases racial disparities in DUI and cannabis possession arrests, with larger impacts on arrests among Black residents.”

Law School Curriculum: Reform, Assessment, and Research Design

While age-old complaints persist about the basic structure of the first-year law school curriculum, few law schools have dared to experiment with meaningful reforms. Fewer still study these reforms coherently. The "Curriculum B" experiment at Georgetown Law School, as well as a recent paper by David Hyman et al. (Georgetown), Does the 1L Curriculum Make a Difference?, are important and interesting exceptions.

Since 1991, Georgetown Law School has offered an "alternative" Curriculum B along side a standard, more traditional first-year curriculum. Curriculum B was designed to provide “critical” perspectives on the law and respond to important changes in legal practice and theory in the years since the standard 1L curriculum was first developed decades earlier. At Georgetown, students elect into Curriculum B and, when demand exceeds supply, student assignment to Curriculum B is determined by lottery.

For assessment purposes, the quasi-randomized control trial aspect of student assignment to Curriculum B provides a way to overcome selection bias. That is, Hyman et al. compare student outcomes for those who opted into Curriculum B (the treatment group) with student outcomes from those students who wanted to receive the "treatment" (Curriculum B) but, due to excess demand and random selection (lottery), were instead assigned the "placebo" (that is, to the standard, traditional first-year curriculum).

Aside from careful attention to research design, a few of the paper's warrant note. When it comes to students' overall law school academic performances, for example, the authors find that "Curriculum B leads to a mean preserving contraction in students’ overall grades. At the same time, we find that it leads to diminished performance in two key business law electives (Corporations and Securities Regulation)."

Business Litigants and the Roberts Court

Assessing “How pro business is the Roberts Court?” is both straightforward and complicated. Based on how business litigants fare in the Roberts Court versus non-business litigants over time, business does quite well. The win rate for business in the Roberts Court, 63.4 percent, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3 percent). While it may be tempting for many to conclude that the current pro business tilt is purely a function of a Republican majority of justices on the Roberts Court, as Lee Epstein (USC) and Mitu Gulati (Virginia) argue in a recent paper, A Century of Business in the Supreme Court, 1920-2020, “this is only the beginning of the story.”

Epstein and Gulati bring data from the Supreme Court Database to the question. Starting with the 11,121 orally argued cases resulting in a signed opinion or judgment between the 1920-2020 terms, their paper focuses only on those 4,070 cases (35,173 votes) in which business was the petitioner (appellant) or respondent (appellee). That is, they excluded cases in which business was on both sides of a legal dispute.

Their core findings defy conventional wisdom and inject important complicating wrinkles. What they find includes: "(a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; and (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court."

Empirical Contours of the Political Question Doctrine

Amid the enduring and varied debates about the political question doctrine, motivated by the Supreme Court's 1962 Baker v. Carr decision, the scholarly commentary shares one key attribute. Specifically, it dwells on the Supreme Court. Such a focus is ironic as while the Court has only rarely applied the political question doctrine, lower federal courts, by contrast, have invoked the doctrine "as a basis for dismissal in hundreds of cases." Drawing on both qualitative and quantitative (descriptive) methods, in a recent paper, The Real Political Question Doctrine, Curtis Bradley (Chicago) and Eric Posner (Chicago) explore how the political question doctrine has operated in the lower courts since the Supreme Court's Baker decision.

The authors find that lower courts use the doctrine to "evaluate their own institutional capacity to resolve politically sensitive disputes. It is the lower courts’ more limited capacity compared to the Supreme Court that explains the lower courts’ heavier reliance on the doctrine." More specifically, "the political question doctrine is a screening mechanism that the lower courts use to take account of limits on their institutional capacity. The Supreme Court has less need for this mechanism, so most of the doctrine’s life must be found in the foothills rather than at the summit of Mount Olympus. From this standpoint, the doctrine is not moribund but full of life. It is not limited in the ways suggested by the 'classical' or 'functional' theories. The lower court practice is best captured by Bickel’s prudential theory." An excerpted abstract follows.

"... We provide the first empirical account of how the doctrine has operated in the lower courts since Baker. Our account is based on both a quantitative analysis of a sample of these decisions and on a qualitative review of these and other decisions. This account reveals a political question doctrine that is substantially different from the one described in most scholarship: it is more vibrant, heavily focused on foreign affairs, often applied in non-constitutional cases, more prudential, and not a permanent disallowance of judicial review...."

The Impact of Increased "Sunlight" on Police Traffic Stops

Complicated legal and policy issues incident to policing--and conflicts with citizens the police serve--persist and continue to motivate empirical work. One under-studied aspect, however, involves the degree to which, if any, adverse (digital) media coverage of instances of police brutality informs police conduct going forward. Policing the Police: Examining the Role of News
Reports on Racially-Biased Policing reflects a recent effort at this difficult research question.

In their paper, Uttara Ananthakrishnan (Wash.--Business) et al., set out to assess the impact of public media accounts of police misconduct/violence from January 2013 to May 2018 (N=6,026) on police-initiated traffic stop data drawn from 227 counties across 18 states. The authors execute a DiD model that, because police traffic stop outcomes are "naturally tied to counties," compares "the change in the number of police stops in counties exposed to news reports with the same change in control counties that did not have news reports about their policing incidents during the same period.” Among the paper's findings is that news reports on fatal uses of police force on minorities have a "negative impact on police stops of minorities but not on Whites, on average.” An excerpted abstract follows.

"... However, it is theoretically unclear whether the reporting of excessive use of police force on minorities can have a tangible impact on subsequent policing outcomes. In this paper, we aim to answer the question of whether and how digital news on police brutality is effective in shaping subsequent police actions. To address this question, we construct a cross-sectional dataset of news reports of police violence and police traffic stop records. Under a difference-indifference framework, we find that news reports on police brutality reduces police stops of minorities. Additionally, we find that news with sad frames are more effective in effectuating change in policing behaviors. Finally, we learn that the impact of news reports are less effective in minority-dominated areas and high-crime areas."

Data on Naturalization

Naturalization grants immigrants a host of new and important rights, privileges, and opportunities. While a growing empirical literature focuses on such issues as who is willing to naturalize and why, barriers to seeking naturalization, and the impact of obtaining citizenship on the social, economic, and political integration of immigrants, comparatively less is known about government determinations of who is approved or denied once a naturalization application is submitted to the U.S. Citizenship and Immigration Services (USCIS).

Drawing on new administrative data obtained from USCIS (N=2,687,101 non-military applications adjudicated between October 2014 and March 2018), in their paper, The Importance of Race, Gender, and Religion in Naturalization Adjudication in the United States, Emily Ryo (USC) and Reed Humphrey (Wash.—pub. policy) find significant group disparities in naturalization approvals based on applicants’ race/ethnicity, gender, and religion, controlling for individual applicant characteristics, adjudication years, and variation between field offices.

More specifically, the paper finds that “non-White applicants and Hispanic applicants are less likely to be approved than non-Hispanic White applicants, male applicants are less likely to be approved than female applicants, and applicants from Muslim-majority countries are less likely to be approved than applicants from other countries. In addition, race/ethnicity, gender, and religion interact to produce a certain group hierarchy in naturalization approvals. For example, the probability of approval for Black males is 5 percentage points smaller than that of White females. The probability of approval for Blacks from Muslim-majority countries is 9 percentage points smaller than that of Whites from other countries. The probability of approval for females from Muslim majority countries is 6 percentage points smaller than that of females from other countries. This study contributes to our understanding of the nature of inequalities present in agency decisionmaking in the naturalization process.”

Law Firms, M&A Work, Gender, and the Uneven Credentials Burden

It remains well-understood that while women have made up approximately one-half of law school classes over the past decades as well as the ranks of entry-level law firm associates, attrition is uneven across genders throughout the path to law firm partnership. No doubt this uneven attrition is the product of many complex variables and factors, some more troubling than others. What is less well-understood, however, is how attrition distributes post-law firm partnership.

In a recent paper, Gender, Credentials and M&A, Tracey George (Vanderbilt), Albert Yoon (Toronto), and Mitu Gulati (Virginia) explore this topic with data from one specific practice area: M&A. The specific practice area (M&A) is important as "[r]elative to a number of other practice areas, such as the issuance of corporate or municipal bonds or managing trusts and estates, M&A tends to be a “feast or famine” area. Lawyers are either busy working around the clock (if they are trying to close a deal) or are twiddling their thumbs.” And this aspect is salient for gender comparisons as "a high degree of variability in the demands from work tends to hurt more those workers who have bigger fixed outside obligations that cannot easily be moved or postponed (e.g., caring for small children or elderly parents).”

The paper executes a two-stage empirical strategy. It first explores the "universe" of M&A attorneys. The second stage analyzes who becomes a "lead deal lawyer" (representing either the buyer or the seller). One key finding is that while at both stages lawyer credentials matter, they "matter more" for women (emphasis added). The abstract follows.

“For the past several decades, women have made up roughly half of law school classes and the ranks of entering law firm associates. Attrition between entry to law firms and partnership results in women comprising 20 and 25 percent of partners. But is there yet more attrition to the top of the partnership pyramid? Analyzing the past decade of data on publicly-filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10 percent of deal leaders. When we look at the factors that determine who becomes a deal leader, we find that credentials – both educational and professional – matter. But they matter more for women. And one credential – attending a top law school – seems to matter a lot. Using conversations with senior lawyers, we try to get answers for why.”

Moving From "Data to Policy Recommendations"

For many scholars and policymakers, “short-termism” behavior in the stock markets is assumed to be a problem. Unsurprisingly, researchers have empirically assessed this issue to better understand its dynamics, extent, and contours.

In a recent paper, Stock Market Short-Termism: What the Empirical Evidence Tells Policymakers, Mark Roe (Harvard) does not contribute more results. Instead, Roe takes a step back and presents a helpful example for empiricists in terms of how to interpret and contextualize results from multiple studies looking at the same general issue (here, stock market short-termism). That is to say, this paper’s contribution speaks to the discrete task of moving from “data to policy recommendations.”

Specifically, Roe considers “what the evidence directly tells us about stock-market-induced short-termism and how that evidence must be evaluated conceptually to reach an economy-wide assessment for policymakers.” What he finds is that for “stock market short-termism, it is harder to move from the data to policy recommendations than is usually thought.” Roe notes an array of factors contributing to the degree of difficulty, including evenly divided academic evidence and varied (and limited) research designs that invite external validity questions.

While empirical legal scholars appropriately focus on executing a coherent research design and generating stable, robust results, additional moves remain. And one of these, for some empirical legal scholars, involves a move from the “data to policy recommendations.” What Roe’s paper helpfully emphasizes is that these secondary and tertiary moves introduce an additional set of challenges and complications that warrant greater attention. An excerpted abstract follows.

“… The typical research effort seeks to measure whether a local treatment induces more local short-termism, not whether the economy-wide impact is severe. But evaluating short-termism’s economy-wide impact is essential for policymaking; policymakers must consider whether the economy is failing to invest or cutting back on R&D because of a stock market afflicted with a truncated time horizon. Local findings (of the impact on a subset of firms with a particular characteristic, such as short-vesting stock options, rapid stock market trading, or hedge fund activism) need not scale to economy-wide results; some local results will do so only serendipitously; and, finally, there are structural reasons why for stock market short-termism one should expect economy-wide results not to match local results. More than most corporate law issues, the short-termism problem faces a high failure-to scale hurdle.”

Data on K-12 School Suspension Reform Efforts

Incident to the federal Gun Free School Act (1994), all fifty states adopted an array of "zero-tolerance" policies, which include out-of-school suspensions ("OSS"), for various forms of student misconduct. As evidence of adverse consequences mounted, some states, including Rhode Island, limited school districts' use of out-of-school suspensions. In 2012, Rhode Island began prohibiting out-of-school suspensions for "low-level" student infractions and, in 2016, began requiring school district-level reviews of whether out-of-school suspensions raise any long-standing EPC concerns.

In a recent paper, Do School Suspension Reforms Work? Evidence from Rhode Island, Terry-Ann Craigie (Smith College--econ) "exploits student-level administrative data from the Rhode Island Department of Education (AY 2009–2010 to AY 2017–2018), along with a triple-difference (DDD) framework, to measure the impact of each suspension reform on OSS [out-of-school suspension] outcomes for treatment infractions in treatment schools (i.e., schools and within-school grades that used OSS to penalize treatment infractions, ex ante). The study also employs a quadruple-difference (DDDD) model to measure the extent to which racial-ethnic disparities in OSS changed for the treatment groups under each reform."

Results from the study imply that Rhode Island's initial (2012) reform "substantially lowers OSS for attendance-specific infractions in treatment schools." Results on Rhode Island's 2016 reform designed to address distributional concerns, however, are "mixed." The paper's abstract follows.

“In Rhode Island, out-of-school suspensions were excessively and disproportionately used to penalize low-level infractions. To address this problem, the Rhode Island General Assembly passed legislation, effective May 2012, prohibiting out-of-school suspensions for attendance-specific infractions. Four years later, they passed additional legislation to curb out-of-school suspensions for disruption-specific infractions. This study examines the impact of these suspension reforms on out-of-school suspension outcomes for treatment infractions and corresponding racial-ethnic disparities. To execute the analyses, the study uses student-level administrative data (AY 2009–2010 to AY 2017–2018) from the Rhode Island Department of Education, along with quasi-experimental estimation. The study finds that only the first reform lowers out-of-school suspension outcomes for attendance-specific infractions and corresponding racial-ethnic disparities.”

Algos and Parole Decisions

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

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

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

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

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

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

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

The Impact of the Court's Halo Decision on Willful Infringement and Enhanced Damage Claims

While legal formalists may generally defer to clear legal rules, others respond in different ways. For example, as Karen Sandrik (Wilamette) writes, “For decades, companies and attorneys have instructed teams of engineers, researchers, and computer scientists to ignore patents." Such strategic advice is offered, in part, to help defeat a patent holder's subsequent claim for enhanced damages.

In her recent paper, An Empirical Study: Willful Infringement & Enhanced Damages in Patent Law After Halo, Sandrik subjects this convention wisdom to data. Critically, the run of data (from 2010 through 2020) includes the Supreme Court's 2016 Halo decision where the Court wrote that enhanced damages are “designed as a ‘punitive’ or ‘vindictive’ sanction” for an infringer’s conduct that is “willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate.”

The data set includes all district court decisions on willfulness decided between 2010 and 2020. Exclusions from the data set include appeals as well as (interestingly) successful motions to dismiss willful infringement claims. As it relates to the latter exclusion, the author notes that successful motions to dismiss “are inconsistent standards post-Halo on what is needed to successfully plead a claim for willful infringement.” Key findings from the resultant data set (N=260) on pre- and post-Halo outcomes include: "(1) willfulness findings have increased by 27.8%; (2) enhanced damages findings have increased by 8.7%; and (3) judges are significantly more likely to find willfulness (representing an 18.6% increase in willfulness findings)." An excerpted abstract follows.

"... In this empirical study with data spanning 2010 to 2020, I provide a data-driven answer to whether this deliberate ignorance strategy is effective. The answer, in short, is that reading patents, conducting patent clearance searches, and/or responding to cease-and-desist letters does not, in isolation, open the door to enhanced damages. Finally, by employing an original data set to seek this answer and potential solutions to deliberate patent ignorance, this study provides empirical statistics regarding willful infringement and enhanced damages. This includes empirical statistics illustrating the impact of the 2016 Supreme Court decision, Halo Electronics v. Pulse Electronics.”

Judges Without J.D.s: One First Step

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

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

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

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

Data on Life Insurance Markets and Racial Discrimination

A recent paper, Racial Discrimination in Life Insurance, explores the impact of modern anti-racial discrimination statutes on life insurance coverage differences across racial groups. To do so, the paper's authors, William Gale (Brookings Inst.) et al., exploit data from the 2014 panel of the Survey of Income and Program Participation (SIPP) and then merge it with Avraham, Logue and Schwarcz's (2014) ordinal rankings of "how restrictive a political jurisdiction (each of the 50 states and Washington, DC) is in limiting the use of race as a determinant of life insurance premiums and payouts (as of 2012)." The data sample is restricted to "white and Black adults aged 25-64 in order to focus on the working age population most likely to purchase life insurance. We limit our analysis to data for white and Black individuals in the interest of simplicity and in order to focus on the type of racial discrimination that has been most prevalent historically in the life insurance market."

The paper's core findings include: 1) individuals in states with strong anti-discrimination laws tend to have lower life insurance coverage rates than those living in other states; and 2) Black individuals are somewhat more likely than white individuals to hold life insurance, controlling for observable factors.

While hardly the final word, this paper identifies a fruitful path forward for future research. For example, this paper considers only whether a life insurance policy exits at all, and not the amount (or the face value) of such policies. It remains possible that racial discrimination "could conceivably impact the level [amount] of life insurance even if it does not influence the choice of whether to purchase a policy at all." The paper's abstract follows.

“We examine the historical and statistical relationship between race and life insurance. Life insurance can play a central role in households’ financial security. Race has played an important and changing role in the provision of life insurance in the U.S. from slave insurance before the Civil War, to ‘Scientific Racism’ continuing into the 20th century, to policies that do not explicitly mention race in recent decades. In empirical work using new data, we confirm earlier work showing that Black individuals have higher life insurance coverage rates than white individuals, controlling for observable characteristics. We find no difference in the likelihood of purchasing coverage—for Black individuals versus white individuals—in states with strong versus weak anti-discrimination laws. We also find that the presence of strong antidiscrimination laws tends to reduce overall life insurance coverage – by about 3 percentage points. We present some evidence that this finding is due to a generally stronger regulatory stance in the state rather than the specific impact of the anti-discrimination life insurance law. This analysis bears on the presence of discrimination in the current life insurance industry as well as related issues like the financial status of minority households.”

Federal Courts and "Certification" of State Law Questions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant-Prosecutor Gender "Pairings" and Leniency

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

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

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

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

Judge Ideology and Pleadings Decisions in the Circuits

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

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

Data on Prosecutorial Discretion By Gender

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

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

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

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

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

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

The Fourth Amendment Post-Carpenter

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

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

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

Pro Se Civil Litigation in Federal Courts

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

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

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

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

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

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

Data on POTUS Pardons

Discomfort with POTUS pardon activity seems to arise anew as administrations (Dem and Rep) turn over and POTUS power transfers. And this discomfort has likely increased over time. While the Constitution’s language in Article II, section 2 regarding the scope of executive clemency and the limitations upon its exercise is quite brief, it bestows upon the POTUS functionally unchecked pardon authority. Insofar as judicial review of POTUS pardon authority is virtually non-existent, the exact legal contours of POTUS authority in this space remain opaque.

How POTUS pardon activity distributes in this zone of potentially nonrenewable Art. II authority is the subject of a recent (and lengthy) RAND report, Statistical Analysis of Presidential Pardons. Distilling their results to a single point, the authors converge on the following, perhaps unremarkable, finding. “If one had to describe a petitioner in our analysis case files more likely to receive a presidential grant of pardon than others (and to do so without controlling for other petitioner and evaluation process characteristics), Table S.2 suggests it would have been a non-Hispanic white male who was a U.S.-born citizen and was in his late twenties when the underlying offense (a white-collar crime such those involving tax violations, embezzlement, forgeries, or counterfeiting) was committed.” The report's abstract follows.

“This report describes a study of pardon petition evaluations that were performed by the Office of the Pardon Attorney (OPA), a unit in the U.S. Department of Justice that processes thousands of requests for executive clemency each year. A statistical examination was conducted on how OPA screens incoming petitions for technical compliance, investigates the facts underlying each petitioner’s request for clemency, and applies substantive standards for evaluating the merits of such petitions when crafting recommendations to the U.S. President to grant or deny relief. Data were analyzed for any patterns in OPA decisions that indicated statistically significant evidence of racial or ethnic bias.”

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

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

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

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

Copyright Injunctions After eBay and the "Hysteresis Hypothesis"

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

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

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

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

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

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

Technology and Legal Citation "Stickiness"

An interesting citation paper caught my eye, principally for its research design. In Citation Stickiness, Computer-Assisted Legal Research, and the Universe of Thinkable Thoughts, Aaron Kirschenfeld (UNC) and Alexa Chew (UNC), set out to explore how citation “stickiness” has survived the emergence of a “digital era” in legal research.

What the paper means by “stickiness” is that, in theory, the percentage of sticky citations   in   courts’   opinions   would   be   something   approaching 100%. That is, the  parties  would  discuss  the  relevant authorities in their briefs, and the court would rely  on  the  same  authorities  in  its  opinions.

Setting aside from the paper’s substantive contribution on “stickiness,” for me the paper’s main analytic move is to assess “stickiness” across dynamic legal research platforms over time. While the data are limited to a small handful of cases (N=325) from a single Circuit (CA4) and a handful of years (1957, 1987, and 2017), I anticipate that other research will employ a similar move to gain additional insights on how the emergence of the “digital era” informs law-related output. The abstract follows.

“Legal information has been available in widespread digital format for more than forty years. In that time, law librarians have wondered whether this digital switch has changed how law students and lawyers conduct research and, if so, what those changes are. Does legal research differ when conducted in print sources rather than computerized sources? What influence did the systems of organizing law in the print era have on the digital systems that followed?

While we cannot put these questions to rest, we hope to shed some light on those difference by studying the work of lawyers and courts from the print era, the transition-to-digital era, and the digital era. Using a metric called “citation stickiness,” we studied how often parties to an appeal and the judges hearing that appeal agreed on the cases relevant to resolve the issues on appeal. This, we hoped, would also show whether there were perceptible differences in coherence and stability of the legal information landscape

Citation stickiness works like this: a citation is “sticky” if it appears in at least one party’s brief and then again in the court opinion. In an initial study of 325 federal court cases from 2017, 49% of the 7,552 cases that were cited in the courts’ opinions had been cited by at least one party in a brief.

This study considers cases from the United States Court of Appeals for the Fourth Circuit decided in 1957, 1987, and 2017. After examining the citations in the briefs and opinions in our sample of cases, we compare our findings from the pre-digital era and from the digital era. What we learned surprised us.”

Pretrial Detention and Release Experiments

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

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

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

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

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

Bringing Data to Firm Successions

It was perhaps inevitable that the popular success of the HBO series, Succession, might, in turn, help stimulate scholarly attention to related associated questions. As it relates to critical questions germane to "family firms'" stock and accounting performances, the general thrust in the academic literature, while mixed, trends in a negative direction. In Do Family Successions (Really) Reduce Firm Performance? Evidence from Large US Firms, Murali Jagannathan (SUNY Binghamton-, management) et al., take a fresh look with the benefit of a large dataset that includes "48,613 firm-years in 3,745 unique firms. Within our dataset, there are 683 total founder or founder-family successions, including 124 instances where the founder was succeeded by a family member.”

Two research design challenges complicate such "family firm" studies. First, the decision to appoint a founding family member as CEO is not random. To address this selection challenge, the paper adopts "an instrumental variables approach using two instruments: whether someone with the same last name as the founder serves on the board within the three-year period preceding the succession, and whether or not the firm has a long history.” Second, systematic firm differences distinguish "founder, founder family, and non-family firms." To adjust, the authors adopt a propensity match strategy to compare "founder family firms with non-founder firms and examine the change in performance around founder successions relative to the matched firms.”

Notably, the paper finds "no significant decreases in either accounting performance or firm value, and instead find evidence that both are improved.” The authors lean on evidence that "family successions are associated with higher levels of employee trust" to help account for their findings. The paper's abstract follows.

"This paper examines whether founder family successions lower performance in large US firms. We find no significant decreases in either accounting performance or firm value, and instead find evidence that both are improved. Consistent with this, we present evidence that family successions are associated with higher levels of employee trust, and that employee’s human capital is not as easily transferable at family firms. Consistent with the literature, we find that the decision to appoint a founder family member as a successor CEO is not random, and occurs in low-growth, yet profitable firms. To mitigate these endogeneity problems, we first propensity match founder family firms with non-founder firms and examine the change in performance around founder successions relative to the matched firms. We also use two instruments of founder family successions in our analysis."

Potential Research Projects

While The De-licensing of Occupations in the United States: A Shifting Trend?, by Robert Thornton (Lehigh—Business) et al., is a brief and purely descriptive paper, it identifies a timely topic and, in so doing, also identifies possible future empirical projects.

While a traditional focus for economists, “occupational licensing has begun to attract a growing and sometimes vocal stream of critics.” The standard set of criticisms are relatively well-rehearsed. “It has been alleged that too many occupations now require a license to practice and that the requirements for attaining a license in terms of costs and length of training are often excessive. Complaints have also been made that higher prices for the services provided by licensed practitioners are too often the result, and that the benefits to consumers in terms of higher quality are either small or nonexistent. Finally, it has been charged that excessive licensing has resulted in adverse effects on employment opportunities, intergenerational mobility, and worker mobility, especially for those with lower levels of education.”

While the state legislatures have been slow to respond to such critiques, since 2011 state legislative responses have accelerated. “The result has been that 35 occupations have become delicensed in a total of seven states over the past five years.” While this paper only sets out to identify where de-licensing efforts have succeeded, the paper’s sourcing also identifies possible avenues of empirical research down the road assessing, e.g., the costs and benefits incident to occupational licensing requirements and delicensing.

Tobacco Products, Taxes, and Substitution Effects

Variation in e-cigarette taxation supplies potentially rich research opportunities for studies of the on-the-ground effects of tax policy. In this spirit, The Effects of E-Cigarette Taxes on E-Cigarette Prices and Tobacco Product Sales: Evidence from Retail Panel Data, by Chad Cotti (Univ. Wisc-Oshkosh--economics) et al., estimates the effects of "e-cigarette taxes enacted in eight states and two large counties on e-cigarette prices, e-cigarette sales, and sales of other tobacco products." (One critical data limitation is the study's reliance on e-cigarette data that excludes sales through specialty vape shops and online sales.) The intersection of two core findings help frame what the authors define as a "detrimental unintended consequence of e-cigarette taxes."

One key finding is that "e-cigarette taxes are over-shifted to consumer prices, which is most likely in a market with high concentration." A second key finding is that "e-cigarettes are elastic goods and their use substantially reduces cigarette sales." However, "a 1% increase in e-cigarette taxes increases cigarette sales by about 0.14%.” (emphasis added) What these two findings imply is that even well-intentioned efforts to dampen e-cigarette use (especially among teens and young adults) through tax policy may well induce for some a migration from e-cigarettes to even more harmful cigarettes.

A Descriptive Glance at Police Clearance Rates

While I have an admitted affinity for asking simple questions, sometimes it's the "simple" question that can help point the way toward more sophisticated empirical work. A recent paper by Andrew Leipold (Ill.), The Puzzle of Clearance Rates, and What They Can Tell Us About Crime, Police Reform, and Criminal Justice, makes my point.

The paper begins by framing its core research question: "Recent incidents of police violence have led to widespread reform efforts, from modest proposals to change police practices to dramatic attempts to slash funding or abolish the police entirely. But largely ignored in the debate is a simple question – how well is law enforcement currently performing its core functions? In particular, how good are the police at finding the perpetrator, arresting that person, and gathering enough evidence to start the matter through the criminal justice system?"

Exploring police clearance rate data engages the question. And what Leipold finds is that "Clearance rates for violent and property crimes have been both quite low and amazingly steady for the last 40 years. These figures are counterintuitive, because during that same period, crime first rose and then decreased dramatically; law enforcement personnel numbers increased, and then flattened; and the legal enforcement landscape appears to have tilted in the direction of the police and prosecution. Each of these changes should have significantly affected the clearance rates, but even collectively, they did not."

The presentation of basic descriptive trend data amply supports Leipold's point. And what he argues is that "[w]hile there is no single explanation, the diversion of resources from index crimes and a change in focus toward crime prevention seem to have the most explanatory power." While how to interpret--or explain--the counterintuitive trends, of course, remains ripe for future work, part of the power of initial descriptive work is that it helps bring into sharper relief avenues for deeper and more methodologically sophisticated future research.

The Empirics of Rule 23(f)

While civil procedure scholars have spilled a lot of ink on class actions, until quite recently little of it is informed by data. To help remedy this, in a recent paper, Class Certification in the U.S. Courts of Appeals: A Longitudinal Study, Stephen Burbank (Penn) and Sean Farhang (Berkeley) exploit a class certification decision data set that includes USCA precedential panel decisions (1966 through 2017) and nonprecedential panel decisions (2002 through 2017). The data permit the authors to test various "conventional wisdoms," including those related to class certification appeal outcomes and Rule 23(f)'s potential influence. Among their findings includes, e.g., that, "contrary to conventional expectations, in the period since Wal-Mart and Comcast, plaintiffs have been winning certification appeals more frequently than they were formerly, and Rule 23(f) contributed to this recent success." More specifically, the paper notes "significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after." An excerpted abstract follows.

“There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

…

We find significant variation over time in appeal outcomes under Rule 23(f), with defendants far more successful than plaintiffs prior to Wal-Mart and Comcast, and relative parity after. This variation suggests the hazards of generalizing about operation of that rule from experience in any particular period. Our models also show that, for reasons about which we can only speculate, interlocutory appeals since around 2000 have elicited more ideological voting behavior by judges, leading to greater polarization.”

Count data, Logging Zeros, and Poisson

A persistent issue confounding many empirical legal studies using count data involves the "zeros problem," especially when the count data require a log transformation. Contests on how to best deal with this problem persist. Popular approaches include standard OLS regression models that add a "plus one" to each count data so to not lose all cases with a zero count in the log transformation and Poisson regressions models.

While empirical assessments of these two approaches are relatively rare, a recent paper compares these two approaches drawing on replication analyses of five recent corporate patenting papers. In Count Data in Finance, Jonathan Cohn (Texas--Business) et al., find that one OLS regression approach (LOG1PLUS) "using log-transformed outcomes can produce biased and incorrectly signed estimates of economic relationships and provide guidance for future research in finance-related applications involving zero-bounded count data." By comparison, while the Poisson model estimates may "lose efficiency if the model’s conditional mean-variance equality restriction is not satisfied in the data, they remain unbiased and consistent as long as the standard conditional mean independence assumption holds." The paper's abstract follows.

"This paper examines the use of count data-based outcome variables such as corporate patents in empirical corporate finance research. We demonstrate that the common practice of regressing the log of one plus the count on covariates (“LOG1PLUS” regression) produces biased and inconsistent estimates of objects of interest and lacks meaningful interpretation. Poisson regressions have simple interpretations and produce unbiased and consistent estimates under standard exogeneity assumptions, though they lose efficiency if the count data is overdispersed. Replicating several recent papers on corporate patenting, we find that LOG1PLUS and Poisson regressions frequently produce meaningfully different estimates and that bias in LOG1PLUS regressions is likely large."

Life Sentences "With" or "Without"

While significant public and scholarly attention rightly dwells on capital punishment, comparatively under-explored is a steady surge of life sentences without the possibility of parole ("LWOP"). While the Furman Court's "death is different" doctrine retains obvious salience and moral force, it should not obscure LWOPs from much-needed empirical inquiry.

To this end, in a recent paper, Life 'With' or 'Without'?: An Empirical Study of Homicide Sentencing, forthcoming in JELS, Michael O'Hear (Marquette) and Darren Wheelock (Marquette--Dept. Social and Cultural Sciences) do just that. While the paper's data set is limited to Wisconsin homicides, the authors do a deep data dive into 450 individuals convicted of first-degree intentional homicide between the start of 2001 and about mid-2018. The core findings are mixed. On the one hand, "intentional-homicide defendants who have more serious criminal histories are more likely to receive LWOP." On the other hand, "sentencing outcomes are influenced by the identity of the judge and prosecutor." The paper's abstract follows.

"The number of Americans serving sentences of life without the possibility of parole (“LWOP”) has grown rapidly over the past generation and now exceeds 50,000. Yet, little empirical research has been conducted on the determinants of LWOP sentences. The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences—studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes. The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences.

More specifically, we have assessed the relationship between fifty different variables and LWOP decisions in 450 homicide cases in Wisconsin between 2001 and 2018. In our final model, we find seven variables that are correlated with sentencing outcomes. Of particular note, we find that judge and prosecutor personal characteristics are statistically significant correlates of LWOP decisions. We also find a significantly greater likelihood that LWOP sentences will be imposed in counties that are more Republican. We conclude with a proposal for a new LWOP sentencing process that may help to ensure that this very severe sentence is reserved for the most serious crimes committed by the most dangerous defendants."

"Judging" Autonomous Vehicle Liability

Conventional wisdom implies that, on balance, judges, as a group and in their professional capacity, tend to disfavor new technologies. This judicial lurch towards disfavoring can present important policy implications as, especially in common law systems, judges can play a critical role in the regulation of new technologies. One example that will likely play out soon in real-time involves autonomous cars.

Dominating the experimental judicial decisionmmkaing literature are studies that rely on "mock" judges deciding "experimental" case hypotheticals. All too often, however, these "mock" judges involve either undergraduate students or a non-random collection of MTurk respondents. By contrast, findings from a recent paper, Judging Autonomous Vehicles, by Jeff Rachlinski (Cornell) and Judge Andrew Wistrich (Ca Central Dist. Ct), both valued Cornell colleagues, reflect an important advancement insofar as they derive from actual, real-live sitting judges (N=933).

In their studies, the authors presented hypothetical cases in which judges had to assess fault or determine damages for either an accident caused by an autonomous vehicle or by a human driver. What the paper finds is that "judges will treat automated vehicles with skepticism. In the related experiments we conducted, judges treated an autonomous vehicle that had been involved in a car accident more harshly than a human-driven vehicle involved in an essentially identical accident.” As these results comport with others prior research focusing on other technologies, larger policy implications loom. As the authors note, "at least when an innovation is artificial, non-human, and a dramatic departure from existing practices, judges act as a brake, delaying and hindering its adoption." The paper's abstract follows.

“The introduction of any new technology challenges judges to determine how it into existing liability schemes. If judges choose poorly, they can unleash novel injuries on society without redress or stifle progress by overburdening a technological breakthrough. The emergence of self-driving, or autonomous, vehicles will present an enormous challenge of this sort to judges, as this technology will alter the foundation of the largest source of civil liability in the United States. Although regulatory agencies will determine when and how autonomous cars may be placed into service, judges will likely play a central role in defining the standards for liability for them. How will judges treat this new technology? People commonly exhibit biases against innovations such as a naturalness bias, in which people disfavor injuries arising from artificial sources. In this paper we present data from 933 trial judges showing that judges exhibit bias against selfdriving vehicles. They both assigned more liability to a self-driving vehicle than they would to a human-driven vehicle and treated injuries caused by a self-driving vehicle as more serious than injuries caused by a human-driven vehicle.”

Misdemeanor (Non) Prosecution

Hidden in plain sight is a significant amount of criminal misdemeanor activity in state courts. Indeed, "every year approximately 13 million Americans are charged with misdemeanor offenses, and misdemeanor cases make up over 80 percent of the cases processed by the U.S. criminal justice system." Scholars and policymakers increasingly raise concerns with the sheer volume of prosecutions for low-level offenses. As well, "some district attorneys across the country have begun to implement alternatives to misdemeanor prosecution, particularly for nonviolent defendants."

As scholarly attention continues to focus on criminal misdemeanors (see, e.g., here), it is inevitable that larger data sets and more sophisticated analyses emerge. One such example includes a recent paper, Misdemeanor Prosecution. In it, Agan (Rutgers--econ) et al., assess a practice in the Suffolk County (MA) District Attorney's Office that imposes upon prosecutors a "presumption of nonprosecution" for "nonviolent misdemeanor offenses." To do so, the paper exploits "new data [N=67,553] on the prosecution of nonviolent misdemeanor criminal complaints from the Suffolk County District Attorney’s Office (SCDAO) in Massachusetts between 2004 and 2018 to estimate the impact of nonprosecution of nonviolent misdemeanors on future criminal justice system contact." (emphasis added)

Despite some missing ADA-level data concerns, one main result is that: "increasing nonprosecution reduced the likelihood of subsequent criminal complaints within a one-year post-arraignment window. In addition, there does not appear to have been an increase in reported crime due to the policy change." The abstract follows.

"Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses. So far there has been little empirical evidence to inform policy in this area. In this paper we report the first estimates of the causal effects of misdemeanor prosecution on defendants' subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to Assistant District Attorneys (ADAs) who decide whether a case should move forward with prosecution in the Suffolk County District Attorney's Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that, for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to large reductions in the likelihood of a new criminal complaint over the next two years. These local average treatment effects are largest for first-time defendants, suggesting that averting initial entry into the criminal justice system has the greatest benefits. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for a set of nonviolent misdemeanor offenses had similar beneficial effects: the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates."

Data on Insider "Giving"

When corporate insiders learn about material, non-public bad news at their company that devalues stock prices, they can avoid losses by selling their stock before the public finds out. This form of “insider trading,” is, of course, illegal and risky. But selling stock is not the only way for corporate insiders to cash out. One alternative strategy, which is almost as financially effective and benefits from comparatively less onerous reporting requirements and legal restrictions, involves donating the stock to a charity and taking a tax deduction at the stock's inflated price. While a financial "second-best" strategy, "insider giving" nonetheless endures as a plausibly potent substitute for insider trading.

In Insider Giving, Sureyya B. Avci (Sabanci Univ.--Business) et al., submit their "insider giving" hypothesis to data. As the paper describes, the dataset includes "all reported gifts of common stock and contains over 9,000 observations between 1986 and 2020. The total volume of gifts contained in our dataset is approximately 2.1 billion shares, with a dollar value of approximately $50 billion." And what they find is that "large shareholders’ gifts are suspiciously well timed. Stock prices rise abnormally about 6% during the one-year period before the gift date and they fall abnormally by about 4% during the one year after the gift date, meaning that large shareholders tend to find the perfect day on which to give."

Rather than ascribe these finding to insider-donors' incredible good luck, the paper instead develops two possible alternative explanations: "information leakage" and "backdating." Specifically, "executives seem to provide large shareholders with material non-public information, who then use it to time gifts. We also find a second explanation to be supported, though its magnitude is smaller – backdating. The telltale sign of backdating is that the givers’ extraordinary luck tends to grow alongside the delay they take in reporting the gift. A donor who waits a few weeks to report a gift can cherry pick the very best date to retroactively claim their gift was consummated. That is precisely what we find." An excerpted abstract follows.

"Corporate insiders can avoid losses if they dispose of their stock while in possession of material, non-public information. One means of disposal, selling the stock, is illegal and subject to prompt mandatory reporting. A second strategy is almost as effective and it faces lax reporting requirements and legal restrictions. That second method is to donate the stock to a charity and take a charitable tax deduction at the inflated stock price. “Insider giving” is a potent substitute for insider trading. We show that insider giving is far more widespread than previously believed. In particular, we show that it is not limited to officers and directors. Large investors appear to regularly receive material non-public information and use it to avoid losses. Using a vast dataset of essentially all transactions in public company stock since 1986, we find consistent and economically significant evidence that these shareholders’ impeccable timing likely reflects information leakage. We also document substantial evidence of backdating – investors falsifying the date of their gift to capture a larger tax break….”

What Would Happen if Plea Bargaining Was Banned?

For an array of reasons, plea bargaining endures as a concern for many criminal law scholars. Proponents of plea bargaining "point to its efficiency−since trials are costly if both sides form reasonably similar beliefs about the outcome to arise at trial they can just agree to that expected sanction beforehand and save the costs." Opponents, by contrast, fear that excessive plea bargaining rates--combined with various structural differences that distinguish many defendants (especially indigent ones) and prosecutors' offices--may help coerce some factually innocent defendants into pleading guilty rather than defending their innocence at trail.

Amid growing calls to "regulate the plea bargaining process in an attempt to reduce its prevalence," one state--Alaska--acted. Specifically, Alaska Attorney General Michael Geraghty announced a new policy limiting plea bargaining in July 2013. The limitation prohibits prosecutors from "negotiating over the length of the jail/prison sentence for those accused of committing violent crimes."

In a recent paper, Alaska's Plea Bargaining Ban, Bryan McCannon (Univ. West Vir.--Economics) sets out to assess the efficacy of Alaska's experiment. The paper exploits a data set that includes annual (2007-2019) court-year data on how all of Alaska's Superior Courts disposed of their criminal and civil dockets (N=874). That Alaska's plea bargaining ban can affect a variety of margins raises important identification concerns. One thing the ban cannot affect, however, are pretrial plea negotiations in civil cases. Thus, the paper compares changes in the civil and criminal contexts.

The primary variable of interest is the rate at which cases settled pretrial and the author estimates a diff-in-diff specification. The critical take-away from the findings is that Alaska's plea bargaining ban for defendants charged with violent criminal crimes "does not have a meaningful effect" (emphasis added). One explanation for the absence of any detected affect involves the (often-underappreciated) importance of prosecutors' charge-bargaining policies and practices (which fall outside of the Alaska's ban on negotiating jail/prison sentences).

To be sure, important study limitations exist. Alaska may be an anomalous state. As well, as the study draws from an aggregated panel data set it cannot account for various case-specific factors. Finally, aggregating the case outcome data to the court level invites ignoring various heterogeneous treatment effects. Research design limitations aside, however, while this study will certainly not be the final word on this topic it is a helpful first step. The paper's abstract follows.

“Plea bargaining dominates the U.S. criminal justice system and has garnered calls to reduce its prevalence. In 2013 Alaska’s Attorney General acted banning a practice known as sentencing bargaining where the prosecutor negotiates with the defense over the length of the incarceration. I provide the first causal identification of this policy’s impact on the plea bargaining rate. I show that the policy, by leaving open the charging discretion (in effect allowing charge bargaining), was ineffective at changing plea bargaining’s prevalence across the state. Policymakers should look elsewhere for tools if they want to mitigate its rate.”

JELS' Research Notes and Datasets Section

If memory serves, a suggestion in 2016 (or so) from Bernie Black (Northwestern) and Marty Wells (Cornell-Statistics) to the JELS editors set into motion a chain of events that culminated in 2017 with the introduction of the "Research Notes and Datasets" section in JELS. The core motivation behind introducing a new paper "genre" for JELS was a fundamental belief that dataset construction, data sharing, and methods testing are a vital part of ELS' growth. We felt that a new section in JELS would help contribute to the realization of such beliefs. What we did not fully appreciate or anticipate, however, was the response. Since the Research Notes and Datasets section's launch in 2017 JELS has already published a number of important papers, including:

Patent Similarity Data and Innovation Metrics, by Ryan Whalen Alina Lungeanu Leslie DeChurch Noshir Contractor JELS 2020 (September). https://onlinelibrary.wiley.com/doi/10.1111/jels.12261

Developing High‐Quality Data Infrastructure for Legal Analytics: Introducing the Israeli Supreme Court Database, by Keren Weinshall Lee Epstein JELS 2020 (June). https://onlinelibrary.wiley.com/doi/10.1111/jels.12250

The German Federal Courts Dataset 1950–2019: From Paper Archives to Linked Open Data, by Hanjo Hamann Sokol JELS 2019 (September). https://onlinelibrary.wiley.com/doi/10.1111/jels.12230

Competition Law Gone Global: Introducing the Comparative Competition Law and Enforcement Datasets, by Anu Bradford Adam S. Chilton Christopher Megaw Nathaniel Sokol JELS 2019 (June). https://onlinelibrary.wiley.com/doi/10.1111/jels.12215

Accuracy and Fairness for Juvenile Justice Risk Assessments, by Richard Berk JELS 2019 (March). https://onlinelibrary.wiley.com/doi/10.1111/jels.12206

Text of Trade Agreements (ToTA)—A Structured Corpus for the Text‐as‐Data Analysis of Preferential Trade Agreements, by Wolfgang Alschner Julia Seiermann Dmitriy Skougarevskiy  JELS 2018 (September). https://onlinelibrary.wiley.com/doi/10.1111/jels.12189

Medical Liability Insurance Premia: 1990–2016 Dataset, with Literature Review and Summary Information, by Bernard Black Jeanette W. Chung Jeffrey Traczynski Victoria Udalova Sonal Vats, JELS 2017 (March). https://onlinelibrary.wiley.com/doi/10.1111/jels.12146

Empirical Conjectures About the Effects of Raising the Jurisdictional Amount

As my Civ Pro colleagues periodically remind me, we're likely overdue for an increase to jurisdictional thresholds. Even if they're correct, however, what might be the expected (and unexpected) consequences of various increases to jurisdictional thresholds? A recent paper by Steven Gensler (Oklahoma) and Roger Michalski (Oklahoma), The Million Dollar Diversity Docket, puts these counter-factual questions to data. And what they find should interest more than procedeuralists.

The authors hand-coded data from five (non-randomly selected) federal districts (Minnesota, Georgia Northern, New Jersey, Texas Northern, and Utah). From each of these districts they selected a random draw of diversity jurisdiction cases based on Federal Judicial Center (“FJC”) data on cases completed in 2018, resulting in 2,896 usable cases. The paper's methodological move involves substituting the temporal component in survival analysis with a measure of jurisdictional amount. That is, instead of asking on which day a machine fails, we ask at which jurisdictional amount a case fails. To do so, the authors estimated modified KaplanMeier survival functions and Cox Proportional Hazard Regression models.

The paper's main takeaway is that jurisdictional amounts "are not neutral throttles. They do not modulate all cases evenhandedly. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes in the jurisdictional amount than others." The abstract follows.

"What would happen if Congress raised the jurisdictional amount in the diversity jurisdiction statute? Given that it has been almost 25 years since the last increase, we are probably overdue for another one. But to what amount? And with what effect? What would happen if Congress raised the jurisdictional amount from the current $75,000 to $250,000 or, say, $1 million?

Using modified Kaplan-Meier survival functions and Cox Proportional Hazard Regression models to analyze a novel hand-coded data set of pleadings in 2900 cases, we show that the jurisdictional amount is not a neutral throttle. It does not modulate all cases evenhandedly. Instead, different areas of law, different parts of the country, and different litigants are more affected by changes in the jurisdictional amount than others. As such, setting the amount in controversy at any level entails normative choices about which cases to bless and curse with a federal forum.

Our findings implicate not only policy discussions about diversity jurisdiction in general, but also debates currently underway in Congress to utilize modifications of the jurisdictional amount requirement to channel COVID-19 related litigation into federal courts. We hope our empirical work will inform these debates and enable a new wave of scholarship on the basic functions and functioning of the federal diversity docket. We outline some beginnings of this type of work by exploring radically different avenues of thought that develop and re-imagine the diversity docket anew. They range from incremental inflation-adjustments, to carve-outs, experiments with lotteries, and the radical replacement of an amount in controversy minimum with a maximum."

Regression Discontinuity "Agnostics"

One of Andrew Gelman's persistent "rants" (e.g., here and, more recently, here) involves his skepticism about regression discontinuity. Regardless of how one lands on Gelman's critiques, regression discontinuity designs remain a staple in many graduate economics programs and, regardless, increasingly appear in empirical journals that straddle a range of academic fields. As well, as various comments in the conversations that Gelman's posts ignited make clear, reasonable minds continue to differ a bit on regression discontinuity's efficacy (and proper use).

Nested in Gelman's more recent post on this issue, however, is a much more important, far-ranging, and, frankly, less contested point. Gelman notes: "To put it another way: If you want to make a big claim and convince me that you have evidence for it, I need that trail of breadcrumbs connecting data, model, and theory." Say what you will about the enduring contest over regression discontinuity and its potential to fuel overconfidence with a paper's causal identification strategy, Gelman's larger (background) point that researchers should avoid "making a strong claim that doesn’t make sense, is not supported by the data, and is unlikely to replicate" is an obvious one that warrants attention.

COVID-19-Motivated Research

To observe that the COVID-19 pandemic has (frankly, predictably) influenced recent legal scholarship is to merely observe what's in plain sight. And external shocks to doctrinal and theoretical legal scholarship invariably emerge in empirical legal scholarship as well. As efforts to study a pandemic in the middle of said pandemic invite particular complications, scholarly care, prudence, and "humility" are at a premium.

One direct legislative consequence wrought by COVID-19 is the federal Paycheck Protection Program. Anytime professional politicians rush more than a half-trillion dollars "out-the-door" to more than five million businesses problems are inevitable. Exploiting data from the Small Business Administration, in a recent paper, Funding Crises: An Empirical Study of the Paycheck Protection Program, William Birdthistle (Chi-Kent) & Joshua Silver (Chicago--Sociology), set out the initial broad contours of some of the Program's central components with particular attention to the growing number of competing claims about the Program's efficacy. Specifically, the authors test various hypotheses on whether the Program funds' distribution "suffered from politics, corruption, and waste." While certainly far from the final word, a summary of the paper's key findings follows in the excerpted abstract.

"In this Article, we conduct one of the first empirical studies of the central component of the largest financial bailout in U.S. history. We examine quantitative data released by the Small Business Administration to answer various competing claims about the effect of the PPP. Critics have accused the program of being administered as a partisan political tool for the president’s reelection, as a corrupt slush fund for cronies of the Trump administration, and as an incompetent waste of money on undeserving recipients. We test these hypotheses to evaluate the distribution of funds and whether the disbursement materially suffered from politics, corruption, or waste. We find that the lending process not only suffered from high-profile failures, it failed to target the neediest areas, particularly early on. Other studies present mixed findings on whether the PPP successfully protected paychecks. We conclude that critical data does not yet exist, as the PPP’s greatest weakness was in failing to reach businesses unable to survive long enough to apply for or to receive loans."