This is probably the biggest change that’s affected the gaming business over the last few years. It’s not just that we have digital distribution to our customers. It’s that we have this incredible two-way connection that we’ve never had before with our customers. We’ve gone from a situation where we dream up a game, we spend three years making it, we [...]]]> Back in October, Valve co-founder Gabe Newell explained the economics of video games as his company sees it. The Geekwire article is worth the read. For now, I’ll point out that he admits “We don’t understand what’s going on” and uses the language of co-creation of value, which I happen to believe is the current future as it were, to describe what the company is doing:

This is probably the biggest change that’s affected the gaming business over the last few years. It’s not just that we have digital distribution to our customers. It’s that we have this incredible two-way connection that we’ve never had before with our customers.
We’ve gone from a situation where we dream up a game, we spend three years making it, we put it in a box, we put it out in stores, we hope it sells, to a situation that’s incredibly more fluid and dynamic, where we’re constantly modifying the game with the participation of the customers themselves

The comments on piracy comport with insights from other industries:

One thing that we have learned is that piracy is not a pricing issue. It’s a service issue. The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates. For example, Russia. You say, oh, we’re going to enter Russia, people say, you’re doomed, they’ll pirate everything in Russia. Russia now outside of Germany is our largest continental European market. … the people who are telling you that Russians pirate everything are the people who wait six months to localize their product into Russia. … So that, as far as we’re concerned, is asked and answered. It doesn’t take much in terms of providing a better service to make pirates a non-issue.

The information on pricing is really cool. “[W]e varied the price of one of our products. We have Steam so we can watch user behavior in real time. That gives us a useful tool for making experiments which you can’t really do through a lot of other distribution mechanisms. What we saw was that pricing was perfectly elastic. In other words, our gross revenue would remain constant. We thought, hooray, we understand this really well. There’s no way to use price to increase or decrease the size of your business.”

Yet he goes on to describe how sales such as a 75% price reduction lead to a “gross revenue increased by a factor of 40.” They tested against a product they did not own and saw similar results. Then they tested free. It turns out free to play and and free work differently. His thought is that the user base matters because they value the products differently including “what the statement that something is free to play implies about the future value of the experience that they’re going to have.”

Furthermore, conversion rates shift too. Free to play often “see[s] about a 2 to 3 percent conversion rate of the people in their audience who actually buy something, and then with Team Fortress 2, which looks more like Arkham Asylum in terms of the user profile and the content, we see about a 20 to 30 percent conversion rate of people who are playing those games who buy something.”

What do all these tests mean? As Newell said, it’s unclear. That is why I could see some rather cool studies being done for this emerging area.

Untold tons of carbon were being pumped into the air, with people losing billions of dollars in energy costs, all because there was no easy, automatic way to control the temperature. But what if you could apply all the skills and brilliance of Silicon Valley to produce a thermostat that was smart, thrifty and so delightful that saving energy was as much fun as shuffling an iTunes playlist?

So far, you may be thinking that programmable thermostats are old [...]]]> As Deano and others might say Baby, It’s Cold Outside. And, heating costs are no joke. Neither is about $250 for a thermostat. Nonetheless, data and networks are changing the way we manage heating. As Wired reports, Tony Faddell, founder of Nest Labs makes this compelling point:

Untold tons of carbon were being pumped into the air, with people losing billions of dollars in energy costs, all because there was no easy, automatic way to control the temperature. But what if you could apply all the skills and brilliance of Silicon Valley to produce a thermostat that was smart, thrifty and so delightful that saving energy was as much fun as shuffling an iTunes playlist?

So far, you may be thinking that programmable thermostats are old hat. They are and may not have worked as well as hoped given that the Times reports “Two years ago, the federal government eliminated the entire programmable thermostat category from its Energy Star program.” Yet, there is something different here. Improved, networked climate control is not your father’s Oldsmobile. It sounds crazy, but the pre-orders sold out and demand is high. Others are in the game as well. Some require more tech savvy to install. Regardless the idea is that data and networks will allow one to manage energy costs well.

The Nest seems to be the leader for easy use and install. The Times explains that the design is great but then the iPod designer would have to do that, right? The best part for me is that the Nest uses Wi-Fi which means software updates, programming from the Web or an App, and it learns.

Learns? Yes, learns. The system tells users how much time it will take to raise a house’s temperature (which stops the habit of cranking heat to get to a lower temperature), notes manual adjustments for home, midday, away, etc. to start to offer an automatic cycle attuned to habits. Motion sensors help set basic overrides for heating and cooling to take care times when no one is home. In a nod to behaviorial economics and some things that I think Ryan Calo has been considering, the Times explains that “Nest says that turning down your thermostat by even a single degree can save you 5 percent in energy. To that end, it offers a little motivational logo: a green leaf. It glows brighter as you turn the ring beyond your standard comfort zone. As a positive-reinforcement technique, it’s a lot more effective than an exhortation from Jimmy Carter to put on a sweater.”

I always feel a little sad when reminded of President Carter’s attempt to address the energy crisis of the 1970s. It seems to flow from a view of WWII America when people buckled down for the greater good, but that had perhaps faded years before his plea. Still, if we have learned that other approaches can aid better judgment and action, maybe we will turn those thermostats to 68 and wear that sweater as the then President asked us to do.

“James E. Katz, director of the Center for Mobile Communication Studies at Rutgers, said people who use their voices to control their phones are creating an inconvenience for others — noise — rather than coping with an inconvenience for themselves — the discomfort of having to type slowly on a cramped cellphone keyboard. Mr. Katz compared the behavior with that of someone who leaves a car’s engine running while parked, creating noise and fumes for people surrounding [...]]]> The NYT isn’t entirely worthless.  There’s a cute technology piece up on how irritated the reporter and his friends-on-the-street are by people who talk to their iPhone’s Siri when they could just as easily text.  As the Times puts it, this is a problem of unfelt externalities:

“James E. Katz, director of the Center for Mobile Communication Studies at Rutgers, said people who use their voices to control their phones are creating an inconvenience for others — noise — rather than coping with an inconvenience for themselves — the discomfort of having to type slowly on a cramped cellphone keyboard. Mr. Katz compared the behavior with that of someone who leaves a car’s engine running while parked, creating noise and fumes for people surrounding them.”

The piece goes onto claim that eventually, we’re get used to this noise pollution.  Perhaps we will!  But if we don’t, there are options other than anti-nuisance regulation.  After all, there are competing rights here: the right to speak so you don’t have to confront your inability to text without typos and the right not to hear what the person next to you on the subway wants for dinner.  Now, we could ban Siri-like Apps in public places.  But, as all good Coasians know, there’s another option.  We could decide that the Siri-ans should have the right to speak wherever they are: irritated hearers can simply pay the offending speaker not to talk into their iPhone in public.  In fact, I wonder if Apple could perhaps make an App for that.  Call it the “Shut Down Nearby Siris For Five Minutes Auction App.”  People could list the price at which they’d agree to be paid to be silenced; irritated listeners could either pay that price or bid at a lower rate.  If hearers and speakers matched, we’d achieve (in the Article’s words) the socially efficient outcome: back to the “old days when people just texted in public.”

As promised, I’m filing a report from the Sixth Annual Empirical Studies Conference, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from CELS V, IV, and III. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the natural law figure in effigy.  Next year’s conference is at Stanford.  I’ll make a similar offer to the one I’ve made in the past: if the organizing committee pays my way, I promise not only to blog [...]]]>

Northwestern's Stained Glass Windows Made Me Wonder Whether Some Kind of Regression Was Being Proposed

As promised, I’m filing a report from the Sixth Annual Empirical Studies Conference, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from CELS V, IV, and III. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the natural law figure in effigy.  Next year’s conference is at Stanford.  I’ll make a similar offer to the one I’ve made in the past: if the organizing committee pays my way, I promise not only to blog the whole thing, but to praise you unstintingly.  Here’s an example: I didn’t observe a single technical or organization snafu at Northwestern this year.  Kudos to the organizing committee: Bernie Black, Shari Diamond, and Emerson Tiller.

What I saw

I arrived Friday night in time for the poster session.  A few impressions.  Yun-chien Chang’s Tenancy in ‘Anticommons’? A Theoretical and Empirical Analysis of Co-Ownership won “best poster,” but I was drawn to David Lovis-McMahon & N.J. Schweitzer’s Substantive Justice: How the Substantive Law Shapes Perceived Fairness.  Overall, the trend toward professionalization in poster display continues unabated.  Even Ted Eisenberg’s poster was glossy & evidenced some post-production work — Ted’s posters at past sessions were, famously, not as civilized. Gone are the days where you could throw some powerpoint slides onto a board and talk about them over a glass of wine!  That said, I’m skeptical about poster sessions generally.  I would love to hear differently from folks who were there.

On Saturday, bright eyed and caffeinated, I went to a Juries panel, where I got to see three pretty cool papers.  The first, by Mercer/Kadous, was about how juries are likely to react to precise/imprecise legal standards.  (For a previous version, see here.) Though the work was nominally about auditing standards, it seemed generalizable to other kinds of legal rules.  The basic conclusion was that imprecise standards increase the likelihood of plaintiff verdicts, but only when the underlying conduct is conservative but deviates from industry norms.  By contrast, if the underlying conduct is aggressive, jurors return fewer pro-plaintiff verdicts.  Unlike most such projects, the authors permitted a large number of mock juries to deliberate, which added a degree of external validity.  Similarly worth reading was Lee/Waters’ work on jury verdict reporters (bottom line: reporters aren’t systematically pro-plaintiff, as the CW suggests, but they are awfully noise measures of what juries are actually doing).  Finally, Hans/Reyna presented some very interesting work on the “gist” model of jury decisionmaking.

At 11:00, I had to skip a great paper by Daniel Klerman whose title was worth the price of admission alone – the Selection of Thirteenth-Century Disputes for Litigation.  Instead, I went to Law and Psychology III.  There, Kenworthey Bilz presented Crime, Tort, Anger, and Insult, a paper which studies how attribution & perceptions of dignitary loss mark a psychological boundary between crime and tort cases.  Bilz presented several neat experiments in service of her thesis, among them a priming survey- – people primed to think about crimes complete the word “ins-” as “insult,” while people primed to think about torts complete it as “insurance.”  (I think I’ve got that right – - the paper isn’t available online, and I’m drawing on two week old memories.)

At noon, Andrew Gelman gave a fantastic presentation on the visualization of empirical data.  The bottom line: wordles are silly and convey no important information.  Actually, Andrew didn’t say that.  I just thought that coming in.  What Andrew said was something more like “can’t people who produce visually interesting graphs and people who produce graphs that convey information get along?”

Finally, I was the discussant at an Experimental Panel, responding to Brooks/Stremitzer/Tontrup’s Framing Contracts:Why Loss Framing Increases Effort.  Attendees witnessed my ill-fated attempt to reverse the order of my presentation on the fly, leading me to neglect the bread in the praise sandwich.  This was a good teaching moment about academic norms. My substantive reaction to Framing Contracts is that it was hard to know how much the paper connected to real-world contracting behavior, since the kinds of decision tasks that the experimental subjects were asked to perform were stripped of the relational & reciprocal norms that characterize actual deals.

CELS: What I missed

The entire first day!  One of my papers with the cultural cognition project, They Saw a Protest, apparently came off well.  Of course, there was also tons of great stuff not written from within the expanding cultural cognition empire.  Here’s a selection: on lawyer optimism; on public housing, enforcement and race; on probable cause and hindsight judging; and several papers on Iqbal, none of which appear to be online.

What did you see & like?

Ben’s question suggests that ostensibly rational human beings often act in irrational ways.  To prove his point, I’m actually going to address his enormous question within a blog post.  I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality.  The first view is that [...]]]> By unanimous reader demand – all one out of one readers voting, as of last week – this post will explore the small topic of the biological basis of “irrationality,” and its implications for law.  Specifically, Ben Daniels of Collective Conscious asked the fascinating question: “What neuro-mechanisms enforce irrational behavior in a rational animal?”

Ben’s question suggests that ostensibly rational human beings often act in irrational ways.  To prove his point, I’m actually going to address his enormous question within a blog post.  I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality.  The first view is that greater rationality might be possible – but might not confer greater benefits.  I call this the “anti-Vulcan hypothesis”:  While our affective capacities might suppress some of our computational power, they are precisely what make us both less than perfectly rational and gloriously human – Captain Kirk, rather than Mr. Spock.  A second, related perspective offered by the field of cultural cognition suggests that developmentally-acquired, neurally-ingrained cultural schemas cause people to evaluate new information not abstractly on its merits but in ways that conform to the norms of their social group.  In what I call the “sheep hypothesis,” cultural cognition theory suggests that our rational faculties often serve merely to rationalize facts in ways that fit our group-typical biases.  Yet, whether we are Kirk or Flossie, the implication for law may be the same:  Understanding how affect and rationality interact can allow legal decision-makers to modify legal institutions to favor the relevant ability, modify legal regimes to account for predictable limitations on rationality, and communicate in ways that privilege social affiliations and affective cues as much as factual information.

First, a slight cavil with the question:  The question suggests that people are “rational animal[s]” but that certain neurological mechanisms suppress rationality – as if our powerful rational engines were somehow constrained by neural cruise-control.  Latent in that question are a factual assumption about how the brain works (more on that later) and a normative inclination to see irrationality as a problem to which rationality is the solution.  Yet, much recent work on the central role of affect in decision-making suggests that, often, the converse may be true.  (Among many others, see Jonathan Haidt and Josh Greene; these links will open PDF articles in a new window.)  Rationality divorced from affect arguably may not even be possible for humans, much less desirable.  Indeed, the whole idea of “pure reason” as either a fact or a goal is taking a beating at the hands of researchers in behavioral economics, cognitive neuroscience, and experimental philosophy – and perhaps other fields as well.

Also, since “rational” can mean a lot of things, I’m going to define it as the ability to calculate which behavior under particular circumstances will yield the greatest short-term utility to the actor.  By this measure, people do irrational things all the time: we discount the future unduly, preferring a dollar today to ten dollars next month; we comically misjudge risk, shying away from the safest form of transportation (flying) in favor of the most dangerous (driving); we punish excessively; and the list goes on.

Despite these persistent and universal defects in rationality, experimental data indicates that our brains have the capacity to be more rational than our behaviors would suggest.  Apparently, certain strong affective responses interfere with activity in particular regions of the prefrontal cortex (pfc); these areas of the pfc are associated with rationality tasks like sequencing, comparing, and computing.  Experiments in which researchers use powerful magnets to temporarily “knock out” activity in limbic (affective) brain regions, the otherwise typical subjects displayed savant-like abilities in spatial, visual, and computational skills.  This experimental result mimics what anecdotally has been reported in people who display savant abilities following brain injury or disease, and in people with autism spectrum disorders, who may have severe social and affective impairments yet also be savants.

So: Some evidence suggests the human brain may have massively more computing power than we can to put to use because of general (and sometimes acute) affective interference.  It may be that social and emotional processing suck up all the bandwidth; or, prosocial faculties may suppress activity in computational regions.  Further, the rational cognition we can access can be totally swamped out by sudden and strong affect.  With a nod to Martha Nussbaum, we might call this the “fragility of rationality.”

This fragility may be more boon than bane:  Rationality may be fragile because, in many situations, leading with affect might confer a survival advantage.  Simple heuristics and “gut” feelings, which are “fast and cheap,” let us respond quickly to complex and potentially dangerous situations.  Another evolutionary argument is that all-important social relationships can be disrupted by rational utility-maximizing behaviors – whether you call them free-riders or defectors.  To prevent humans from mucking up the enormous survival-enhancing benefits of community, selection would favor prosocial neuroendocrine mechanisms that suppress or an individual’s desire to maximize short-term utility.  What’s appealing about this argument is that – if true – it means that that which enables us to be human is precisely that which makes us not purely rational.  This “anti-Vulcan” hypothesis is very much the thrust of the work by Antonio Damasio (and here), Dan Ariely, and Paul Zak, among many other notable scholars.

An arguably darker view of the relationship between prosociality and rationality comes from cultural cognition theory.  While evolutionary psychology and behavioral economics suggest that people have cognitive quirks as to certain kinds of mental tasks, cultural cognition suggests that people’s major beliefs about the state of the world – the issues that self-governance and democracy depend upon – are largely impervious to rationality.  In place of rationality, people quite unconsciously “conform their beliefs about disputed matters of fact … to values that define their cultural identities.”

On this view, people aren’t just bad at understanding risk and temporal discounting, among other things, because our prosocial adaptations suppress it.  Rather, from global warming to gun control, people unconsciously align their assessments of issues to conform to the beliefs and values of their social group.  Rationality operates, if at all, post hoc:  It allows people to construct rationalizations for relatively fact-independent but socially conforming conclusions.  (Note that different cultural groups assign different values to rational forms of thought and inquiry.  In a group that highly prizes those activities, pursuing rationally-informed questioning might itself be culturally conforming.  Children of academics and knowledge-workers: I’m looking at you.)

This reflexive conformity is not a deliberate choice; it’s quite automatic, feels wholly natural, and is resilient against narrowly rational challenges based in facts and data.  And that this cognitive mode inheres in us makes a certain kind of sense:  Most people face far greater immediate danger from defying their social group than from global warming or gun control policy.  The person who strongly or regularly conflicts with their group becomes a sort of socially stateless person, the exiled persona non grata.

To descend from Olympus to the village:  What could this mean for law?  Whether we take the heuristics and biases approach emerging from behavioral economics and evolutionary psychology or the cultural cognition approach emerging from that field, the social and emotional nature of situated cognition cannot be ignored.  I’ll briefly highlight two strategies for “rationalizing” aspects of the legal system to account for our affectively-influenced rationality – one addressing the design of legal institutions and the other addressing how legal and political decisions are communicated to the public.

Oliver Goodenough suggests that research on rational-affective mutual interference should inform how legal institutions are  designed.  Legal institutions may be anywhere on a continuum from physical to metaphorical, from court buildings to court systems, to the structure and concept of the jury, to professional norms and conventions.  The structures of legal institutions influence how people within them engage in decision-making; certain institutional features may prompt people bring to bear their more emotive (empathic), social-cognitive (“sheep”), or purely rational (“Vulcan”) capacities.

Goodenough does not claim that more rationality is always better; in some legal contexts, we might collectively value affect – empathy, mercy.  In another, we might value cultural cognition – as when, for example, a jury in a criminal case must determine whether a defendant’s response to alleged provocation falls within the norms of the community.  And in still other contexts, we might value narrow rationality above all.  Understanding the triggers for our various cognitive modes could help address long-standing legal dilemmas.  Jon Hanson’s work on the highly situated and situational nature of decision-making suggests that the physical and social contexts in which deliberation takes place may be crucial to the answers at which we arrive.

Cultural cognition may offer strategies for communicating with the public about important issues.  The core insight of cultural cognition is that people react to new information not primarily by assessing it in the abstract, on its merits, but by intuiting their community’s likely reaction and conforming to it.  If the primary question a person asks herself is, “What would my community think of this thing?” instead of “What is this thing?”, then very different communication strategies follow:  Facts and information about the thing itself only become meaningful when embedded in information about the thing’s relevance to peoples’ communities.  The cultural cognition project has developed specific recommendations for communication around lawmaking involving gun rights, the death penalty, climate change, and other ostensibly fact-bound but intensely polarizing topics.

To wrap this up by going back to the question: Ben, short of putting every person into a TMS machine that makes us faux-savants by knocking out affective and social functions, we are not going to unleash our latent (narrowly) rational powers.  But it’s worth recalling that the historical, and now unpalatable term, for natural savants used to be “idiot-savant”: This phrase itself suggests that, without robust affective and social intelligence – which may make us “irrational” – we’re not very smart at all.

But inefficient social movements presumably [...]]]> The Economist has a fun blurb on email disclaimers — the ones that boldly state that the email you’ve just received creates no legal relationship, offers no advice, and generally isn’t worth the paper it isn’t printed on.  The blurb argues that such disclaimers are “are mostly, legally speaking, pointless. Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic e-mail footer in America, the most litigious of rich countries.”  Why, then, do they exist?  Because lawyers are lemmings, and “once something has become a legal habit it has a tendency to stick.”  Also, of course, the marginal cost to each sender of adding a pointless disclaimer is basically zero.

But inefficient social movements presumably need some kind of push to get off the ground, even if they fly off a cliff.  I hypothesize that Judge Harmon’s highly publicized secondary actors decision in the Enron litigation from 2002 provided the launching pad.  In that decision, as you may recall, Judge Harmon said that law firms (and accountants, and consultants) could be exposed to securities liability as a primary violator of 10b-5 if they, with requisite scienter, created a document that (when routed to the public) turned to be misleading.  I remember being in practice after that decision came out, and the firm was quite concerned to create disclaimers for all documents that went out the door to try to react to the decision’s potential scope.  Indeed, we know that one result of the decision (and others like it) was to push firms to move from general to limited partnership models.  So perhaps it also influenced email practices.

How about it?  For those of you in practice in the mid-1990s, can you reach into your archives and check for email disclaimers? If not, we’ll call my theory a winner. If so, we need to find some new explanation. [AJ Sutter, I'm talking to you.]

Kudos to Ezra Klein for explaining some kinks in the voucher concept:

Let’s run through the cash-grant world: At age 65, grandma [...]]]> The “sensible liberaltarian” blogosphere is debating the wisdom of turning Medicare into direct cash payments to seniors. I guess everyone’s forgotten about the bargaining power of a public option like Medicare vis a vis increasingly concentrated providers. And hey, why bother with the boring big picture of health industry trends when you can spin out thought experiments about brave individuals risking cancer nontreatment by buying cheap insurance? Somehow the hypotheticals never specify whether those who “prefer” cheap insurance do so to buy a few more rounds of golf at the country club, or to find a dinner more satisfying than catfood.

Kudos to Ezra Klein for explaining some kinks in the voucher concept:

Let’s run through the cash-grant world: At age 65, grandma decides to purchase no health-care plan, as she figures she’ll just get one when she gets sick, or maybe just get one next year, or perhaps she just doesn’t want to spend money extending decrepitude. But then she has a stroke and gets rushed to the hospital. Someone is paying for that emergency care. It might be the hospital. It might be the taxpayers. But it’s someone: The paramedics aren’t going to refuse to lift her onto the gurney. And then she needs rehabilitation. Someone is going to end up paying for that, too. Or perhaps she gets leukemia and, in a display of consistency, doesn’t want heroic efforts made to fight it. But are we really prepared to deny her pain meds? Or hospice?

A Limbaughvian social Darwinist might deny the meds, but that position doesn’t have much political (let alone moral) appeal. As Ryan Avent notes, the “plan is a good one right up to the point at which society is unable to tolerate preventable deaths on the sidewalk outside of the hospital for those who took it.”

For a more serious consideration of the cost-control issue, check out Gregg Bloche’s work. In his new book The Hippocratic Myth, he explores the rationing issue in some depth. He also looks at the promises and limits of more macro-level approaches to cost control:

The 2010 health reform law created a “Patient-Centered Outcomes Research Institute,” funded by levies on Medicare and private insurers, to sponsor such research. But the funding level, less than a tenth of a percent of what Americans spend on health care each year, will do little to increase the fraction of medical decisions that rest on science. And the Institute’s governing body — composed mostly of representatives from the hospital, insurance, and drug and device industries, as well as physicians — seems almost designed to enable stakeholders to block studies that threaten their interests. Moreover, multiple provisions in the law (sought by providers and drug and device makers) hobble Medicare’s ability to base coverage decisions on research the Institute sponsors.

Perhaps high health care costs are less a problem of “greedy geezers” than they are a function of a profit motive gone wild throughout the industry.

I’m really proud that Concurring Opinions is hosting a symposium today and tomorrow on What Difference Representation.  I think the piece offers a timely and provocative thesis, and we’ve assembled a near-ideal group of folks to engage with the topic.  I look forward to seeing what the group comes up with.  A big thank you to Jaya for organizing with me, and of course to Jim and Cassandra for agreeing to hold up their work to public scrutiny.

I’ve been thinking over the last several weeks about what I could say that would be distinctive. Here’s what I came up with.  That selection makes hay of our ability to study lawyering in the wild is obvious – and Representation’s focus on [...]]]>

Clinics Should Take Their Chances

I’m really proud that Concurring Opinions is hosting a symposium today and tomorrow on What Difference Representation.  I think the piece offers a timely and provocative thesis, and we’ve assembled a near-ideal group of folks to engage with the topic.  I look forward to seeing what the group comes up with.  A big thank you to Jaya for organizing with me, and of course to Jim and Cassandra for agreeing to hold up their work to public scrutiny.

I’ve been thinking over the last several weeks about what I could say that would be distinctive. Here’s what I came up with.  That selection makes hay of our ability to study lawyering in the wild is obvious – and Representation’s focus on the hazards of previous work in the field an important contribution.  Generally, selection–  in various guises — produce one of empirical legal studies’ true wicked problems. It shocks me how many quantitative and qualitative papers proceed as if it it were a molehill to dismiss, instead of a mountain to climb. Randomized trials promise a solution — really, the only way we can know if legal policies are having the effects that we hypothesize.

Law school clinics offer one of the few fora where randomized trials would be ethically & practically feasible.  It is true that no law school clinic experiment can fill the offer/representation gap that bedevils the paper.  But comparison across clinics might shed light on the effect of resources, client characteristics, clinic structure, and legal regime on the offer-making outcomes that the paper discusses.  (Whether you a comparison of like-clinics would enable a better estimate of the representation effect than the methods employed on pps. 39-42 is an open question.)

Given that more data would permit better resourcing decisions, should law school clinics be expected to engage in randomized trials when offering representation? My tentative answer to this question is yes. Law school clinics are subsidized by student tuition dollars (and sometimes the public too).  This doesn’t and shouldn’t mean that pedagogical clinics should refrain from zealous advocacy.  But it does suggest, I think, that their mission should be informed and guided by the values of the University: openness to criticism, the expectation that participants will produce generalizable and socially useful knowledge, and measured transparency. Those values would be served if clinics participated in randomized testing to see if, and how, they are helping the recipients of their services.  Like Abramowicz, Ayres and Listokin, I endorse randomization before determining the effect of legal policy.  To my knowledge, not one law school clinic in the country engaged in  a randomized trial before engaging in lawyering services.  Doctors no longer practice this way – lawyers shouldn’t either.

It would be much better if this participation in research occur voluntarily, without resort to our accrediting agency, or, worse, the politicized and meddling hands of various state-related funding bodies.  I think moral suasion is the best route – hence, this blog post.  We’re anticipating that many clinicians will read this symposium.  To them I pose the following challenge: why not randomize and see what effects your offers are having on client outcomes?  Maybe, in the aggregate, we’ll learn something about representation.

While you are mulling that over that modest proposal, I hope you will enjoy the rest of the symposium.

I am delighted to announce that Concurring Opinions will be hosting a symposium next Monday and Tuesday on What Difference Representation? Offers, Actual Use, and the Need for Randomization, the forthcoming Yale Law Journal article by Jim Greiner and Cassandra Wolos Pattanayak.  [Update: You can read all posts in the symposium by clicking on this link.]  As you may recall, What Difference has already caused quite a stir in the clinical and legal aid communities. Given our shared interest in questions of empirical methodology, and Jaya’s background in clinical legal services, we decided that bringing that debate to CoOp would be an excellent use of our time and energy. Here’s the (revised) abstract) – though you should download the [...]]]>

Should Law School Clinics Select Clients by Roulette?

I am delighted to announce that Concurring Opinions will be hosting a symposium next Monday and Tuesday on What Difference Representation? Offers, Actual Use, and the Need for Randomization, the forthcoming Yale Law Journal article by Jim Greiner and Cassandra Wolos Pattanayak.  [Update: You can read all posts in the symposium by clicking on this link.]  As you may recall, What Difference has already caused quite a stir in the clinical and legal aid communities. Given our shared interest in questions of empirical methodology, and Jaya’s background in clinical legal services, we decided that bringing that debate to CoOp would be an excellent use of our time and energy. Here’s the (revised) abstract) – though you should download the article if you haven’t already:

“We report the results of the first in a series of randomized control trials designed to measure the effect of an offer of, and the actual use of, legal representation. The results are unexpected. In the context of administrative litigation to determine eligibility for unemployment benefits, a service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory, but the offer caused a delay in the proceeding. Because a substantial percentage of the provider’s client base consisted of claimants who were initially denied benefits but who would later have that initial denial reversed as a result of the litigation, the offer of representation inflicted a harm upon such claimants in the form of an additional waiting time for benefits to begin, this with no discernible increase in the probability of a favorable outcome. In other words, within the limits of statistical uncertainty, these claimants would have been better off without the offer of representation. The size of the delay (around two weeks, depending on how measured) was not large in absolute terms, and would have been negligible in many other legal settings, but was relevant in the context of this particular administrative and legal framework, one in which speed has remained a special concern for decades. Moreover, in a small number of cases with a certain profile, the delay caused the unemployment system to continue paying benefits erroneously for a longer period of time, potentially imposing costs on the financing of the unemployment system. We were also able to verify a delay effect due to the actual use of (as opposed to an offer of) representation; we could come to no firm conclusion on the effect of actual use of representation on win/loss.

We hypothesize three potential explanations for our findings (and acknowledge that others are possible). First, it is possible that the client base that reached out to the service provider (and thus was subject to randomization) was a specialized subset of unemployment claimants, a subset that did not actually need legal assistance. This theory suggests special attention to provider intake systems. Second, it is possible that the administrative adjudicatory system at issue, with its semi-inquisitorial style of judging, is pro se friendly. Third, it is possible that the subject matter in dispute in these cases is less legally, factually, or procedurally complex than in other settings.

We caution against both over- and under-generalization of these study results. We use these results as a springboard for a comprehensive review of the quantitative literature on the effect of representation in civil proceedings. We find that this literature provides virtually no credible information, excepting the results of two randomized evaluations occurring in different legal contexts and separated by over three decades. We conclude by advocating for, and describing challenges associated with, a large program of randomized evaluation of the provision of representation, particularly by legal services providers.”

We have assembled a terrific group of symposiasts, mixing clinicians, academic empiricists and practitioners. Besides Jim, Cassandra, Jaya and me,  the group includes twelve contributors, lauded in detail after the jump:

Jeanne Charn is Director of the Bellow Sacks Access to Civil Legal Services Project and Senior Lecturer in Law at Harvard Law School, teaching clinical courses on civil advocacy, delivery of legal services, professional responsibility and housing law and policy.  In 2006, she stepped down after 27 years as Director of the WilmerHale Legal Services Center at Harvard Law School.  During law school, Jeanne was a student practitioner at Community Legal Assistance Office (CLAO), one of the first O.E.O funded legal service projects. Upon graduation from law school in 1970, Jeanne was a staff attorney at Massachusetts Law Reform Institute representing statewide and local public housing tenant groups and providing training and support for legal services in the state.  In 1973, Jeanne was appointed Assistant Dean for Clinical Programs at Harvard Law School. She arranged for and monitored the educational quality of all course related student placements and worked with Professor Gary Bellow to develop Harvard’s clinical program. In 1978, Gary and Jeanne conceived of a Harvard Law School supported “teaching law office” similar to the teaching hospital in medicine. The predecessor of the WimerHale Legal Services Center opened in 1979.  Jeanne received her B.A. from the University of Michigan in 1967, and her J.D. from Harvard Law School in 1970.

Ted Eisenberg is a Professor of Law at Cornell Law School,  where he has emerged in recent years as one of the foremost authorities on the use of empirical analysis in legal scholarship. After his graduation from University of Pennsylvania Law School, Eisenberg clerked for both the District of Columbia Circuit of the U.S. Court of Appeals, and Chief Justice Earl Warren of the U.S. Supreme Court. After three years in private practice, Professor Eisenberg began teaching at UCLA. A groundbreaking scholar in the areas of bankruptcy, civil rights, and the death penalty, Eisenberg has used innovative statistical methodology to shed light on such diverse subjects as punitive damages, victim impact evidence, capital juries, bias for and against litigants, and chances of success on appeal. He is the founder of the Journal of Empirical Legal Studies and a Fellow of the American Academy of Arts and Sciences. He currently teaches bankruptcy and debtor-creditor law, constitutional law, and federal income taxation.

Steve Eppler-Epstein is the Executive Director of Connecticut Legal Services (CLS), whose core mission is to provide comprehensive civil legal help to low-income people throughout most of Connecticut, partnering with other members of the legal aid network to cover the state.  Steve has worked with CLS since 1984, when he joined them as a staff attorney.  His work has included individual and class-action client service on domestic violence and public benefit issues; legislative advocacy; and community legal education and writing.  In 1995 Mr. Eppler-Epstein was hired to be the Deputy Director of Connecticut Legal Services, and in 2007 he was selected to be the Executive Director.  As a leader in legal services, Mr. Eppler-Epstein’s priorities are keeping program priorities fresh and relevant in light of changes in the client population; empowering staff to explore change and to pursue client service through the most effective means available; and enhancing the public understanding of CLS’ mission of justice so as to maximize the funding resources available to serve low-income people in crisis.  In addition to his work at CLS, Mr. Eppler-Epstein is the Chair of the Board of the Boston-based Center for Legal Aid Education, where he has been very active in the development and deployment of CLAE’s Leadership Institute.  He has served on the Board of Directors of the Connecticut Coalition Against Domestic Violence, and is co-Chair of the Advisory Council to the Judicial Branch Office of Victim Services.  His recognitions include the Governor’s Victim Services Award, the Connecticut Bar Foundation’s Legal Services Leadership Award, and the Connecticut Bar Association’s Charles J. Parker Legal Services award.

Michael Heise is a Professor of Law at Cornell Law School, where he specializes in empirical legal scholarship and bridging empirical methodologies, legal theory, and policy analysis.  His empirical work focuses on a wide array of public and private law topics.  He is the author of numerous articles and has co-edited the Journal of Empirical Legal Studies since 2005.  Michael is also a Founding Director of the Society for Empirical Legal Studies and a contributing editor of the ELS Blog.  Prior to joining the Cornell Law School faculty Michael taught at Case Western and Indiana University.  He is a graduate of Stanford (A.B.), Chicago (J.D.), and Northwestern (Ph.D.).

Andrew D. Martin is Professor of Political Science and Professor of Law at Washington University in St. Louis. He is the Chair of the Political Science Department in Arts & Sciences, and serves as the founding Director of the Center for Empirical Research in the Law in the School of Law. Professor Martin is a Resident Fellow of the Center in Political Economy, and is a core faculty member of the Center for Applied Statistics.  Professor Martin’s expertise is in the study of judicial decisionmaking, with special emphasis on the Supreme Court and the lower federal courts. He also works extensively in the field of political methodology and applied statistics. He has published in a number of prominent law reviews and leading social science and applied statistics journals, and is a frequent presenter at conferences and workshops throughout the country. His research has been supported by the National Science Foundation, the MacArthur Foundation, and the National Institutes of Health.  Professor Martin is the principal investigator of the The Judicial Elections Data Initiative, a study of litigation processes in employment discrimination suits initiated by the EEOC, and a cross-national study that examines decisionmaking in constitutional courts around the globe. He is also a collaborator on The Supreme Court Database project, and a contributor to The Discography. With his collaborator Kevin M. Quinn (UC Berkeley), Professor Martin developed the Martin-Quinn Scores that are widely used to measure ideology on the U.S. Supreme Court.  Professor Martin teaches courses in the law school on judicial decisionmaking and on social science and statistics for lawyers, in addition to graduate and undergraduate courses in political methodology in Arts & Sciences. He also regularly offers workshops on social science research methods for judges, prosecutors, and legal academics.

Margaret Monsell joined the Massachusetts Law Reform Institute in January 1999.  She practices employment law in areas including unemployment insurance, the earned income tax credit program and low-wage worker protections, and she is a co-author of the Unemployment Advocacy Guide. Prior to joining MLRI, she worked as a law clerk at the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court, as an Assistant Attorney General in the state Attorney General’s office, and as General Counsel for the Senate Committee on Ways and Means in the Massachusetts Legislature. She received a Ph.D. in Theological and Religious Studies from Boston University in 1988, and she graduated with honors from Boston College Law School in 1990.

Kevin Quinn is a Professor of Law at the UC Berkeley School of Law. Prior to  joining the Boalt faculty in 2009 he was associate professor of Government at Harvard University. Professor Quinn holds a Ph.D in Political Science from Washington University in St. Louis. He has written extensively on judicial decision making and statistical methodology. His research has been supported by the National Science Foundation and has appeared in, among other outlets, the Columbia Law Review, the Stanford Law Review, the University of Pennsylvania Law Review, the American Journal of Political Science, the Quarterly Journal of Political Science, the Journal of the American Statistical Association, and the Journal of the Royal Statistical Society Series A. Professor Quinn is a three time winner of the Gosnell Prize for excellence in political methodology. He is currently an Associate Editor for the Journal of the American Statistical Association.

Bob Sable has served as the Executive Director of Greater Boston Legal Service since 1991, and he has spent more than 40 years as a legal services lawyer.  He has won many awards for his service, including the Massachusetts Bar Association’s Legal Services Award and the Boston Bar Association’s John G. Brooks Legal Services Award.  Some would say that Bob Sable’s proudest moment occurred in 1994, when with the help of the Boston Bar Association and the Volunteer Lawyers Project, he gave up more than $2.1 million in federal funding for GBLS funding rather than accept new Legal Services Corporation rules that would have restricted the types of representation and people who could be represented by GBLS.  After giving up the LSC funding, GBLS grew from a budget of $6 million to $14 million expanding its base of support to include everyone from individuals, corporations, law firms foundations, state and federal government to the United Nations enabling GBLS to serve more than 15,000 individuals and families as well as continuing to bring major cases.  A graduate of Harvard College, Bob Sable served as a Peace Corps Volunteer in Liberia before going on to Yale Law School, where he was Chair of the Student Legal Services Corporation.

Rebecca L. Sandefur is a senior research fellow at the American Bar Foundation, which she joined in September 2010 to lead the Foundation’s new access to justice research initiative. Her research has two strands: one focuses on inequality and civil justice and the other focuses on lawyers’ work and careers. A nationally and internationally recognized expert on legal professions, access to justice and public experience with civil justice problems, she is a frequent speaker at scholarly conferences and meetings of practitioners. Her scholarship has appeared in numerous edited volumes and law reviews as well as outlets such as American Sociological Review, Annual Review of Sociology, and Law and Society Review. She is the editor of the multidisciplinary volume Access to Justice (Emerald/JAI Press, 2009) and an author of Urban Lawyers: The New Social Structure of the Bar (with John P. Heinz, Robert L. Nelson and Edward O. Laumann, University of Chicago Press, 2005). She has served in elected governance positions with the American Sociological Association, the Law and Society Association, and the Pacific Sociological Association, as well as on the editorial boards of the American Journal of Sociology, Law and Social Inquiry and Law and Society Review. Her public service includes work on the Right to Counsel Committee of the California Access to Justice Commission and on the Research Advisory Board of the Civil Right to Counsel Leadership and Support Initiative. Before joining the American Bar Foundation, Sandefur served on the faculty of Stanford University for nine years after receiving her PhD in sociology from the University of Chicago. In addition to being Senior Research Social Scientist at the ABF, she is Consulting Assistant Professor of Sociology at Stanford University.

Jeffrey Selbin is a Clinical Visiting Professor of Law at Yale Law School and a Clinical Professor of Law at the University of California, Berkeley, School of Law (Boalt Hall). He is also Faculty Director of the East Bay Community Law Center, Boalt Hall’s community-based poverty law clinic. He founded EBCLC’s HIV/AIDS Law Project in 1990 and served as the organization’s Executive Director from 2002 through 2006. His research interests include clinical education, anti-poverty lawyering, and community lawyering, with an emphasis on evidence-based approaches. He is a graduate of the University of Michigan, L’Institut d’Etudes Politiques, and Harvard Law School.

David Udell is Executive Director of the National Center for Access to Justice, is also a Visiting Professor from Practice at Cardozo Law School. He was founding director of the Justice Program of the Brennan Center for Justice from September 1997 through August 2010, and earlier served as a Senior Attorney at Legal Services for the Elderly and as a managing attorney at MFY Legal Services. He has served in leadership roles in the national civil right to counsel movement and the national indigent defense reform movement, and has coordinated national advocacy initiatives to help strengthen the Legal Services Corporation. Mr. Udell has taught as an adjunct professor at New York University School of Law and at Fordham Law School, and has served on the Pro Bono and Legal Services Committee of the Association of the Bar of the City of New York. He is currently a member of the Advisory Board to the Justice Center of the New York County Lawyers’ Association. He is a 1982 graduate of New York University School of Law.

Richard Zorza is an attorney and independent consultant who has worked for the past fifteen years on issues of access to justice.  He is the coordinator of the national Self Represented Litigation Network, see www.selfhelpsupport.org, and has acted as a consultant to the Harvard Law School Bellow-Sacks Project on the Future of Access to Civil Justice, www.bellowsacks.org, and works in support of the national LawHelp network of access to justice websites, www.lawhelp.org.His book, The Self-Help Friendly Court: Designed from the Ground Up to Work for People Without Lawyers, was published by the National Center for State Courts in 2002.   His article The Disconnect Between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality when Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications, 17 Georgetown Journal of Legal Ethics, 423 (2004) is widely used to define the structure of thought on the topic.  He coordinated the National Judicial Conference on Self-Represented Litigation held at Harvard Law School in November of 2007, the launching conference of the Court Leadership Package on Self Represented Litigation, in the fall of 2008, and a national confernce on Public Libraries and Access to Justice in January of 2010.  He is the recipient of the 2008 American Judicature Society Kate Sampson Access to Justice Award. He lives in Washington DC, and is in partnership with his wife Joan.  Additional information and publications are available on his website, www.zorza.net. He blogs at www.accesstojustice.net.

My contribution addresses the influence of law and economics on the sub-field of law and accounting, which I suggest takes the form of “two steps forward one step back.”  You can read a draft of my chapter (comments welcome!), available free here, accompanied by the following abstract:

Theory can have profound effects on practice, [...]]]> The hottest book of the century, on corporate law, is in production, thanks to editors Brett McDonnell and Claire Hill, both of Minnesota. As part of a series investigating the economics of particular legal subjects, overseen by Richard Posner and Francesco Perisi, this Research Handbook on the Economics of Corporate Law, promises a comprehensive canvass of the broadest definition of this field of law as it has been structured by economic theories over the past forty years.

My contribution addresses the influence of law and economics on the sub-field of law and accounting, which I suggest takes the form of “two steps forward one step back.”  You can read a draft of my chapter (comments welcome!), available free here, accompanied by the following abstract:

Theory can have profound effects on practice, some intended and desirable, others unintended and undesirable. That’s the story of the influence the field of law and economics has had on the domain of law and accounting. That influence comes primarily from agency theory and modern finance theory, specifically through the efficient capital market hypothesis and capital asset pricing model. Those theories have forged considerable change in federal securities regulation, accounting standard setting, state corporation law, and financial auditing. Affected areas include the nature of disclosure, the measure of financial concepts, the limits of shareholder protection, and the scope of auditor duty.

Analysis reveals how agency theory and finance theory often but not always point to the same policy implications; it reveals how finance theory’s assumptions and limitations are often but not always respected in policy development. As a result, while these theories sometimes produced policy changes that were both intended and desirable, some policy changes were both unintended and undesirable while others were intended but undesirable.  Examination stresses the power of ideas and how they are used and cautions creators and users of ideas to take care to appreciate the limits of theory when shaping practice. That’s vital since the effects of law and economics on law and accounting remain debated in many contexts.

Other contributions to the book similarly available in draft form are by Matt Bodie (St. Louis), David Walker (BU) and Charles Whitehead (Cornell).  The following scholars are also contributing chapters: Bobby Ahdieh (Emory), Steve Bainbridge (UCLA), Margaret Blair (Vandy), Rob Daines (Stanford), Steve Davidoff (Ohio State), Jill Fisch (Penn), Tamar Frankel (BU), Ron Gilson (Stanford/Columbia), Jeff Gordon (Columbia), Sean Griffith (Fordham), Don Langevoort (GT), Ian Lee (Toronto), Richard Painter (Minnesota), Frank Partnoy (SD), Gordon Smith (BYU), Randall Thomas (Vandy), and Bob Thompson (GT).

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers [...]]]> The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game.  Indeed, almost every decision you read about these days comes accompanied by a reference  to the political party of the appointing President – as if you needed the help!  As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern.  We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities.  Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski.  The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings.  (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)

Setup:

Protest’s experimental strategy was simple.  We first collected information about the cultural worldviews of a nationally representative sample of subjects, organized through Polimetrix.  We then described for these subjects the background of a lawsuit by political protestors against individual police officers and the police department.  We showed the subjects a video that we described as the major piece of evidence in the case, and which both parties advanced in support of their point of view.  In one condition of the experiment, the protestors in the video were described  as “members of a group that opposes permitting doctors and nurses to perform abortions at the request of pregnant women” [the abortion condition]; in another, as “members of a group that opposes the ban on allowing openly gay and lesbian citizens to join the military” [the recruitment condition].  The protestors’ complaint, the vignette stated, alleged that the police had “violated their rights by ordering them to end their protest at” either “an abortion clinic” or “a college campus recruitment center the day the Army was scheduled to interview students who were considering enlisting.”  Subjects were told that the defendants claimed halting the protest was justified by a law entitled the “Freedom to Exercise Reproductive Rights Law,” in the abortion condition, or the “Freedom to Serve with Honor Law,” in recruitment condition. That law made it illegal for  “any person to intentionally (1) interfere with, (2) obstruct, (3) intimidate, or (4) threaten any person who is seeking to enter, exit, or remain lawfully on premises of” either “any hospital or medical clinic that is licensed to perform abortions” or “any facility in which the U.S. military is engaged in recruitment activity.” We told the subjects (acting as jurors) that they were to decide a series of factual queries about this standard, and then tell us whether they thought the police were liable.  [If you like, check out the abortion and recruitment videos.  You will observe, if you are a HLS graduate, some familiar sites.  But come back!]

We had several hypotheses, which essentially predicted that subjects’ worldviews would be various threatened and affirmed by the underlying activity (recruitment, abortion) and behavior antagonistic to it.  As per usual with our work, we employed scales that characterized the worldviews along two dimensions. The first, Hierarchy-Egalitarianism, measures the subjects’ orientations toward social orderings that either feature or eschew stratified roles and forms of authority. The second, Individualism-Communitarianism, measures their orientations toward orderings that emphasize individual autonomy and self-sufficiency, on the one hand, and those that emphasize collective responsibilities and prerogatives, on the other. Combining the two scales generates four sets of worldviews—“hierarchy individualism,” “hierarchy communitarianism,” “egalitarian individualism” and “egalitarian communitarianism,” to which individuals’ affinities can be measured with continuous worldview scores.  Two major hypotheses were that (1) egalitarian individualist subjects would form anti-demonstrator fact perceptions in the abortion condition but pro-demonstrator perceptions in the recruitment center condition; and (2) hierarchical and communitarian subjects, by contrast, would form pro-demonstrator fact perceptions in the abortion condition but anti-demonstrator perceptions in the recruitment center condition.

Results:

Main Effects

Subjects were closely divided in both conditions.  Considered apart from the experimental manipulation, moreover, cultural worldviews likewise appear to have no meaningful effect on reactions to the video.  There was no evidence, then, that being inclined either toward hierarchy or egalitarianism, toward individualism or communitarianism, or toward any combination of the two disposes individuals toward pro- or anti-demonstrator reactions irrespective of what subjects believed about the political cause of the demonstrators.

For purposes of these estimates, the values for the cultural worldview predictors were both set one standard deviation from their means in the directions necessary to form the specified worldview combinations.

However, when we control for condition, we find dramatic differences.  In the abortion-clinic condition, 70% of the Hierarchical Communitarians found that the police had violated the demonstrators’ rights. Yet in the recruitment-center condition, only 16% did. Matters were the other way around for Egalitarian Individualists: 76% of them concluded that the police had violated the rights of the protestors in the military-recruitment condition, yet only 28% of them took that position in the abortion-clinic condition.  We can generalize to create scales reflecting our subjects’ responses to multiple fact and outcome items into a single “pro demonstrator” or “pro police” orientation.  The figure to the left plots the relationship between cultural orientations and judgments.

As you can see (perhaps more clearly if you click on the figure), the estimated scores for Egalitarian Individualists and for Hierarchical Communitarians scales flip.It is also evident from the estimates that Egalitarian Communitarians became significantly more pro-demonstrator,and  Hierarchical Individualists significantly more anti-demonstrator, in the recruitment-center condition as opposed to the abortion-center condition. Whereas the difference between Egalitarian Individualists and Hierarchical Communitarians is significant in both conditions, the difference between Egalitarian Communitarians and Hierarchical Individualists is significant only in the recruitment center condition.

As one would expect, these differences in case-disposition judgments are mirrored in the subjects’ responses to the fact-perception items. Whereas only 39% of the Hierarchical Communitarians perceived that the protestors were blocking the pedestrians in the abortion-clinic condition, for example, 74% of them saw blocking in the recruitment-center condition. Only 45% of Egalitarian Individualists, in contrast, saw blocking in the recruitment-center condition, whereas in the recruitment-center condition 76% of them did. Fully 83% of Hierarchical Individualists saw blocking in the military recruitment-center condition, up from 62% in the abortion-clinic condition; a 56% majority of Egalitarian Communitarians saw blocking in that condition, yet only 35% saw such conduct in the recruitment-center condition. Responses on other items—such as whether the protestors “screamed in the face” of pedestrians and whether the protestors intended only to persuade or instead to threaten—displayed similar patterns.

In summary, motivated cognition not only polarized individuals of diverse cultural outlooks but also generated contradictions in what subjects of a shared orientation reported seeing. Relatively hierarchical and communitarian subjects rejected the proposition, credited by relatively egalitarian and individualistic ones, that demonstrators were blocking access to a facility represented to be an abortion clinic; yet when hierarchical communitarians understood the demonstrators to be objecting to the exclusion of openly gay and lesbian citizens from the military, they agreed the protestors were blocking access to the same building—a claim that egalitarian individualists now overwhelmingly dismissed. Subjects subscribing to a hierarchical individualistic outlook as well as those adhering to an egalitarian communitarian one exhibited similar shifts in perception.

If you want to know how we think these experimental findings influence constitutional fact-finding, and judicial rhetoric, you’ll have to either read the paper, read Kahan on Balkinization, or come back for more here later in the week.

“We recently became aware that HLAB President Rachel Lauter and HLAB Faculty Director David Grossman had written an email to the clinical listserve addressing our paper “What Difference Representation?”.  The email has been posted to various locations in the blogosphere.  Because the email expresses criticisms of the paper that we also have received from one or [...]]]> Jim Greiner and Cassandra Wolos Pattanayak have emailed me a reply to the Harvard Legal Aid Bureau’s comment on What Difference Representation. Since the topic has been the subject of several posts here, as well as some off-line communication from interested readers, I figured that I owed Greiner/Pattanayak a public space for reply.  It consists of a bit of introductory text, and a longer (9-page) paper.

“We recently became aware that HLAB President Rachel Lauter and HLAB Faculty Director David Grossman had written an email to the clinical listserve addressing our paper “What Difference Representation?”.  The email has been posted to various locations in the blogosphere.  Because the email expresses criticisms of the paper that we also have received from one or two other sources, we thought we would take the opportunity the email presented to clarify certain issues.  For example, President Lautner and Professor Grossman echo reactions we have received from another legal aid provider when they say that our study produced “only limited information,” and that more (and more useful) information would be available if we would just analyze the data properly.  We explain here that the analysis the email (and one or two other legal services providers) have advocated is statistically invalid, and that in any event the data required for it do not presently exist and cannot at this time be ethically collected.  As ought to be clear by now, we have the greatest respect for the students of HLAB, including President Lautner, and HLAB’s clinical faculty, including Professor Grossman.  We are using President Lautner and Professor Grossman’s email as a convenient foil representative of a few other comments we have received.

The substance of our response can be captured in the answers to two questions.

1.  Why study the effect of offers of HLAB representation?  All agree that the effect of actual use of representation is interesting, although as we will explain, perhaps less so than one might think at first.  But why study the effect of HLAB offers?

2.  Why not compare those who got offers from any source, not just HLAB, to those who did not get any such offers?}  This is what President Lauter, Professor Grossman, and a few others have suggested.  Why not make this comparison?

We also answer one final question:

3.  So how can we find out about the effect of offers from other service providers?”

To read the full response, click here.

Perhaps this is attributable to analytical factors, such as observed user growth rates, potential market and revenue sources, perceived capacity to convert the revenue into earnings, competitive threats—or negotiating skill in trading of privately-held shares. But given the wildly varying pricing traders give enterprises like this in recent years, it could be a sign of a bubble.

Financial bubbles recur as a natural, inherent product of human behavior in capitalist economies—from the recent real estate bubble, [...]]]> The mysterious ways of financial valuation manifest daily. One mystery: Facebook, the social network business, and Groupon, the buying network company, both generate annual revenues of about $1 billion. Yet reported private stock trading indicates that traders are pricing Facebook at about 50 times that while pricing Groupon at about 5 times that.

Perhaps this is attributable to analytical factors, such as observed user growth rates, potential market and revenue sources, perceived capacity to convert the revenue into earnings, competitive threats—or negotiating skill in trading of privately-held shares. But given the wildly varying pricing traders give enterprises like this in recent years, it could be a sign of a bubble.

Financial bubbles recur as a natural, inherent product of human behavior in capitalist economies—from the recent real estate bubble, to the dot-com bubble a decade earlier, and stretching back to the tronics bubble of the 70s and back to Amsterdam tulip bulbs centuries ago.  (I wrote a trade book about this after last decade’s bubble burst.)  By definition, a critical mass cannot recognize the bubble as it is in inflating, though invariably some pessimists detect something.

Internet and other tech companies are notoriously difficult to value, especially in early years before earnings, and the best value clues are calculated as a multiple of recent revenue. With standard value measures and recognized business types, reliable rules of thumb apply, putting limits on a fair price to pay expressed in ratios of price to basics like earnings or tangible assets.

But with businesses in unchartered territory, the tendency is to measure price in relation to annual revenue—and there is essentially no standard yardstick. Of late, the range has extended from 6x revenue to nearly 400x revenue.

At the extremes in recent years: Microsoft bid 6x revenue for Yahoo, which declined the offer as insulting; eBay bought Skype for 370x revenue, which it later acknowledged as a massive overpayment that it had to write down.  More moderately but not much more succesffully, News Corp bought MySpace for 12x revenue, also later written down.  More wildly, Google bought YouTube at 113x revenue and Microsoft’s initial small investment in Facebook was bought at 100x revenue—neither yet seen to be profitable.  This month, Google bid 6x revenue for Groupon, which declined the offer as too low.

At todays’s ratios (Facebook 50x revenue, Gropuon 5x revenue), Facebook looks overpriced and Groupon on sale.  On the other hand, laying down cash for shares in either is akin to gambling in Atlantic City or Las Vegas. You can make a bundle or lose all you commit, with odds favoring losing.  But if you work for an institution, playing with other people’s money, you can hedge your bets—brag if returns turn out big and simply not speak about the deal otherwise.   That may explain some of the wild valuations, driven by institutional buyers, the “smart money.”

There are many policy interventions that legislators can impose to reduce harms caused by one party to another. Two that are very often compared are safety regulations (mandated standards) and liability. They lend themselves well to comparison because they’re generally employed on either side of some harmful event (e.g. data breach or toxic spill): ex ante regulations are applied before the harm, and ex post liability is applied after the harm.

A third approach, one that we might consider ‘sitting between’ regulation and liability, is information disclosure (e.g. data breach disclosure (security [...]]]> Thanks so much to Danielle and Concurring Opinions for inviting me to blog. This is an exciting opportunity and I look forward to sharing my thoughts with you. Hopefully you will find these posts interesting.

There are many policy interventions that legislators can impose to reduce harms caused by one party to another. Two that are very often compared are safety regulations (mandated standards) and liability. They lend themselves well to comparison because they’re generally employed on either side of some harmful event (e.g. data breach or toxic spill): ex ante regulations are applied before the harm, and ex post liability is applied after the harm.

A third approach, one that we might consider ‘sitting between’ regulation and liability, is information disclosure (e.g. data breach disclosure (security breach notification) laws). I’d like to take a few paragraphs to compare these alternatives in regards to data breaches and privacy harms.

Ex Ante Safety Regulation
First, safety regulations are minimum operating requirements or licensing restrictions, and are ideally enforced before some company (or product) comes to market and before any harm has occurred. They are also generally enforced by public entities like state or federal agencies, though, a good example in data security is the industry self-regulated Payment Card Industry Data Security Standard (PCI DSS). PCI imposes minimum security protections for IT systems that process payment card transactions. Other examples include drivers (or any other kind of operating) licenses, building safety codes, etc. A relevant characteristic is that sanctions can be imposed from simply violating the regulation, even though no harm has yet occurred. Think of how speeding tickets are issued.

Mandated standards are clearly desirable (even necessary) in order to prevent catastrophic accidents and injuries, such as nuclear disasters, or cyber-incidents affecting critical infrastructure. More specifically, ex ante safety regulations are useful when only the average level of harm is observable, when the true source of the harm is unknown, or when alleged victims can only estimate (not prove) an increased probability of harm. These conditions seem to describe data breaches identity theft fairly well, don’t they?

However, mandated standards face serious criticism because they may only be loosely correlated with the actual harm. For example, some suggest that mandating data encryption will reduce breaches, thereby reducing identity theft. Is the correlation between more encryption and less identity theft strong? Empirical evidence suggests that mandated encryption of consumer health data has resulted in more, not less, privacy breaches (Miller and Tucker, 2010).

Mandated standards may also create perverse consequences. For example, consider a manufacturing company that receives a safety violation. Rather than investing in a safety training program and hiring a formal safety manager, the company simply hires a lawyer to defeat the allegations. Safety regulations, like any compliance regime, also risk driving adherence to the compliance check lists, rather than actually improving a company’s security posture. This can also contribute to the ‘false sense of security’ that many security professionals describe.

In sum, ex ante safety regulations appear, at best, to be necessary in preventing catastrophic accidents, and at worst, only loosely correlated to the actual harmful events: they drive companies to compliance, rather than reduce the harm. Despite these criticisms, however, there is a very strong argument supporting this approach: it’s easier to monitor compliance before an accident (ex ante), than to measure the total harm afterwards (ex post).

 
Ex Post Liability
Ex post liability, of course, holds the injurer accountable for any damage suffered by the victim. As many readers likely know, a liability regime is very useful (or at least, imposes less social cost) when the number of injured parties is low and when the injurer is identifiable and within a court’s jurisdiction. Liability is also preferred when the harm is better known by the victim rather than the State, and when it is clearly quantifiable and legally recognized.

Do any of these sound like they describe data breaches and identity theft very well?

Moreover, as with safety standards, ex post liability serves to optimize the level of care taken (i.e. security precautions) by an injurer, not minimize the harm caused.

The difficulties in recovering losses are clear in data breach lawsuits, as has been discussed on this site before. Indeed, to my knowledge, there has been no judicial ruling favoring a plaintiff. Instead, most often these suits are resolved through motions to dismiss for lack of standing or summary judgment, mainly because plaintiffs can’t demonstrate actual harm. Only sometimes are suits settled out of court, in which cases plaintiffs may only receive 1-2 years of credit monitoring.

What I am keeping an eye on, however, are these set of new state laws that hold merchants strictly liable to banks for data breaches resulting in the replacement of payment cards (HB 1149 in Washintgon state and HF 1758 in Minnesota). Privacy and data security litigators reading this Blog would certainly be more informed (and please comment if you are), but it strikes me that a liability regime would be much more successful in this case because: the injurer is known, there is physical loss (cost of reissuing the payment card), and causation is clear.

Information Disclosure
If ex ante regulation is a prevention device, and ex post liability is a recovery device, information disclosure could be described as a correction device. That is, an event has occurred (a data breach or toxic spill) which may — but has not yet – created actual harm (identity theft, illness). This is a wonderful type of intervention because it doesn’t force companies to do anything more than notify potential victims. For this reason, it’s considered a light-handed paternalistic approach.

The idea, of course, is that by notifying people, you empower them to take action and reduce their potential losses. The problem, however, is that rather than empowering people, notification could instead burden them. Perhaps some of you experienced this after reading a breach notification letter: compare your risk of suffering identity theft without taking any action to your risk of suffering identity theft by taking some action. Then consider the incremental effort required to take action. What should you do? Right, I don’t know either. It’s hard. Introduce other behavioral issues like optimism bias (consumers perceiving their chances of suffering identity theft to be very low), rational ignorance (consumers believing the cost of taking precautions outweighing any benefits they may receive), and status quo bias (consumers’ own inertia inhibiting them from anticipating the consequences of identity theft and responding) and things become very complicated.

Disclosure, it seems, becomes most useful for people who: lack information (or are misinformed), will understand the information being provided, who understand the consequences of both acting and not acting, and are willing (and able) to respond to the new information.

I’m curious: what kinds of disclosure notices can you think of, and were they helpful to you? (e.g. cigarette labels, web or flash cookie messages, nutrition labels posted in fast food restaurants).

 
(Alessandro Acquisti and I present a full analysis of these three interventions in the context of data breaches and privacy harms in this paper: http://ssrn.com/abstract=1522605.)

Sayeth Kaplan:

1,383 aspiring lawyers who took the October LSAT . . . [were] asked “What is most important to you when picking a law school to apply to?” According to the results, 30% say that a law school’s ranking is the most critical factor, followed by geographic location at 24%; academic programming at 19%; and affordability at 12%. Only 8% of respondents consider a law school’s job placement statistics to be the most important factor. In a related question [...]]]> For those of you who had any doubts, our friends at Kaplan have just confirmed it:  Aspiring law students care more about law school rankings than anything else, including the prospects of getting a job, quality of program, or geography.

Sayeth Kaplan:

1,383 aspiring lawyers who took the October LSAT . . . [were] asked “What is most important to you when picking a law school to apply to?” According to the results, 30% say that a law school’s ranking is the most critical factor, followed by geographic location at 24%; academic programming at 19%; and affordability at 12%. Only 8% of respondents consider a law school’s job placement statistics to be the most important factor. In a related question asking, “How important a factor is a law school’s ranking in determining where you will apply?” 86% say ranking is “very important” or “somewhat important” in their application decision-making.

Mystal at ATL expresses shock–shock!–that potential law students could be so naive. Surely, he fairly observes, they should care most about job prospects.

Yes, that would be true if they were rational.  Yet, we all know from the behavioral literature that we apply a heavy discount rate to long-distance prospects.  How much can I or  should I care today about what may happen 3 (or 4) years from today?

If you think about it from the perspective of any law school applicant today, the one concrete thing they can lock onto that has present value is the school’s ranking:  It is simple, quantified, and–perhaps most important–tauntable.  No one’s face burns with shame because their enemy (or friend)  got into a law school with a better job placement rate.  Jealously and envy–the daily diet of anxious first-years–are driven by much simpler signals:  Is mine bigger (higher) than yours?

This is not to defend the students who place so much faith in numbers that have repeatedly been shown to be incredibly stupid.  It just means that Kaplan’s survey (and I have not seen the instrument or data) makes intuitive sense.

Which leads to me to offer two modest (and probably unoriginal) proposals:

1.  Perhaps the  LSAT itself should include some behavioral assessment portion that mirrors the Kaplan survey.  After you’re done solving logic puzzles such as whether Aunt Jean wore a blond wig to dinner based on Wisconsin’s BCS ranking, you should be asked what sorts of things matter to you in a law school.   As the Kaplan survey shows, the answers give insight not only into market preferences (for better or worse) but, imho, the judgment of test takers: Demerits for poor judgment if you answered as most of these students apparently did.  Even if you couldn’t quantify and rank the responses (and, really, how could you?), it would tell schools something about the kind of students they’re getting.

We know that behavioral testing of all sorts is important in a variety of fields.  Having taught at least one student who went postal (not my fault, I was assured), I think law schools would do well to have some insight into the psychological fitness of their students. To my knowledge, that’s not something the analytic grind of the LSAT measures.

2.  Why isn’t there competition among ratings?  We know that in a world of J.D. Powers, Kiplingers, Consumer Reports–to say nothing of at least three credit rating agencies–it is certainly possible to come up with multiple, credible ways to evaluate any given product. I know that valiant (and not-so-valiant) efforts have been made to compete with USNWR, but so far nothing seems to have stuck.  Why hasn’t some media powerhouse come up with its own system?  It’s clearly been lucrative for U.S. News–I suspect it is the only thing keeping the brand alive.

But perhaps I answered my own question, above:  No one really wants more than one ranking  precisely because of the clear signal sent by a single, if flawed, metric.

Still, if they’re smart enough to become lawyers, you’d think they’d be smart enough to assess more than one set of measures.  Isn’t that what judging is all about?

For the last several years, I’ve posted recaps of the Annual Empirical Studies Conference.  (See me, @ Cornell, @ USC).  This year, as promised, will be no different.  Yale hosted CELS V, and the committee did a bang up job: the food was tasty; there were no technical snafus of note; and the panels appeared to have a high degree of internal validity & congruence. Richard Brooks, Alan Gerber, Dan Kahan, Yair Listokin, Tracey Meares, and (especially) Roberta Romano are all due a round of applause, or, better yet, supersized computer monitors so they can see their data better.  In this post, I’m going to provide a running diary of the conference.  It will be like you [...]]]>

Data Collection Makes Everyone Grumpy and Hunched Over

For the last several years, I’ve posted recaps of the Annual Empirical Studies Conference.  (See me, @ Cornell, @ USC).  This year, as promised, will be no different.  Yale hosted CELS V, and the committee did a bang up job: the food was tasty; there were no technical snafus of note; and the panels appeared to have a high degree of internal validity & congruence. Richard Brooks, Alan Gerber, Dan Kahan, Yair Listokin, Tracey Meares, and (especially) Roberta Romano are all due a round of applause, or, better yet, supersized computer monitors so they can see their data better.  In this post, I’m going to provide a running diary of the conference.  It will be like you were there with me, except you don’t have to suffer through my bouts of social anxiety!

Unfortunately, I missed the hottest ticket of the conference, Bruce Ackerman’s commentary on Law/Versteeg’s The Evolution and Ideology of Global Constitutionalism.  From all reports, Ackerman said something like: “wrong questions, wrong data, wrong theory,” and then imploded in frustration.  Instead of watching those fireworks, I was watching Yair Listokin present The Meaning of Contractual Silence: A Field Experiment [Here’s an older version of the paper].  Listokin ran a field experiment selling ipods on ebay, some with a warranty, some as-is, and some silent on the warranty term. He found that individuals paid attention to the contract, and there was some evidence that the UCC default was about what they thought silence meant.  As he admitted, there were problems with the design of the study – particularly, (1) small & skewed samples; and (2) a lack of clarity about how much buyers know about ebay’s unique and self-contained dispute resolution system.  As someone remarked after the presentation, it would have been interesting had Listokin sold all the customers bad ipods (instead of good ones) and studied how the contract terms influenced behavior post-“breach”.  Then again, who needs that IRB hassle?

I then saw three cool experimental papers at a Law and Psychology panel. The stone-cold coolest was by Sah/Loewenstein/Cain, and presented by SOM’s Daylian Cain.  The central claim in The Burden of Disclosure is that there is a “previously unrecognized perverse effect of disclosure: Disclosure of an advisor’s conflict of interest can decrease advisees’ trust in the advice while simultaneously increasing pressure to comply with that advice. This compliance pressure comes from two mechanisms: (1) recipients fear signaling distrust of the advisor, and (2) recipients feel an increased pressure to help their advisor when the advisor’s personal interests have been disclosed.”  Here’s the set-up.  Apparently, the experimenters have truck that they drive around town.  They lure people into the truck.  Once inside, subjects are paired.  One member of the pair is told they can roll one of two dice.  Each dice has a lottery attached to how it lands (i.e., if it lands on one, you get a starbucks card; two a snack; etc.)  One of the dice-lotteries has a higher expected payoff.  Now, they have the non-rolling subject advise the choosing subject on which die to pick.  (The non-picker has no special knowledge.)  Sometimes, the advisor has a conflict – s/he gets the good lottery if the picker picks the bad die.  Not surprisingly, that conflict leads the advisor to suggest picking the bad die, and because people are suggestible, the advice is taken more often than not.  But the wild manipulation happens when the advisor discloses this conflict to the picker. Notwithstanding the obvious truth that the advisor now has told the picker than they are motivated to give bad advice, the picker actually accepts the recommendation more often!  As Daylain explained, the mechanism might be a form of interpersonal conflict-avoidance: we don’t want to look someone else in the face and tell them that we think they are corrupt.  (Dan Simon, commenting, suggested that the mechanism might simply be a dictator game-like fairness norm.)

What’s troubling about this experiment is that disclosure is the law’s preferred solutions to many conflict problems.  This perverse effect has the potential to be at play in many real-world situations – lawyers, doctors, brokers, managers, shareholders – where we expect the disclosure to clean otherwise fouled waters.  And maybe it isn’t limited to the situation where the disclosing party makes a disclosure that is obviously against their self-interest. What about when journalists disclose their political contributions as a way of legitimizing them?  Though this would seem to clarify their ideology & perhaps cause us to think carefully about how they construct stories, maybe it is, instead, making us trust them more.  (Evidence against Olbermann?)  Similarly, political regulation seems to have shifted decisively away from substantive checks toward a sunlight/disinfectant model.  This research agenda suggests a host of pretty deep problems with that approach.

Moving right along, Yale apparently spent something like $500M on the poster session, because the overall production quality has now approached that of a drug-company-funded science convention.  Highlights included (1) Bermant/Barness-Blakeman’s Beyond Ownership: Lessees and Idiosyncratic Valuation, which extends the endowment effect literature to mere tenants; (2) Estreicher/Heise/Nash’s Examining the Instrumental Use of Pro Bono Projects by Law Firms: Preliminary Evidence, which suggests that pro bono hours are in part a function of firm health & that over time, firms  have increasingly used pro bono for training purposes; and (3) Buccafusco/Sprigman’s The Creativity Effect, reporting on an endowment/creation experiment. Yale also spent tons of money on food, but I’d caution future organizers that the make-your-own-bruschetta trend is a bad one, especially when you are in a roomful of socially and physically awkward people.

I chaired a panel Saturday, and failed to keep Dan Simon or Dan Kahan to the time they were allotted.  Simon’s presentation on Simon/Stenstrom/Read’s The Spontaneous Arousal of Hot Cognitions in the Course of Deciding Criminal Cases was still pretty fun, even as I stewed at my lack of power. Unfortunately, chairing the panel meant I had to miss Cohen’s Expeditiousnesses and Delay in State Courts: An Exploration of Case Processing Time in Civil Trials, which I heard was great, and Bilz/Gold’s An Experimental Test of Civil Recourse Theory, which I know is awesome and which sheds some pretty useful light on why recourse theory might (and might not) explain private law doctrine.  (The paper doesn’t appear available online – email Bilz if you are interested in reading it.)  I then saw the Cohen/Lawless paper, Less Forgiven: Race and Chapter 13, which suggests that attorneys are pushing black (but not white) clients into making suboptimal choices in bankruptcy.  The best part of the paper was a survey-experiment (in the nature of a name/resume study) administered to bankruptcy attorneys nationwide.  This is the kind of work that ought to make national news & promote law reform.

I then presented Boyd/Hoffman, Litigating Toward Settlement, with Ted Eisenberg commenting.  As it turns out, you can get through 25 slides in less than 18 minutes. You just need to be nervous enough to talk very, very fast.  I saw a few more excellent papers (e.g., Pardo/Nash’s Ideological Voting in Bankruptcy) and called it a conference.

Presenter: CELS XXI

Some themes:

(1)        More experiments & psychologists at the conference than in past years.  It seemed that John Darley was on every other panel.  There were relatively fewer (I thought) case-counting projects, though this could be just the panels I went to.

(2)        More co-authorship between law professors & folks from other disciplines (rather than people from other disciplines coming in to talk about law, or law professors banding together).

(3)        The overall quality of the methods was quite sophisticated.  To the extent that the conference once billed itself as a place for people who needed help to get better … well, that’s not exactly what’s happening today.  The level of polish and gloss is high.  If if I were a junior scholar with incomplete data or methods, I don’t know that I’d feel comfortable presenting at CELS.  I do think that schools would do well to send empirically minded junior scholars to watch the panels – you can learn tons from watching error!

(4)        I only saw one paper that manifested Leiter’s claim that ELS practictioners use datasets to chase questions.  And that is exactly what the paper’s commentator said, though in much nicer terms.  Self-policing is alive and well.

(5)        CELS VI will be at Northwestern.  Will Lee Epstein make a push against powerpoint and toward whatever cool software she uses to run presentations?  Now’s her chance to make it happen!

(6)      After the dinner speech by Orly Ashenfelter, I know much more about wine pricing than I used to.  Good cocktail party conversation information.