Archive for the ‘Empirical Analysis of Law’ Category
What Factors Correlate With Veil Piercing Success?
posted by Dave Hoffman
When Does This Get Pierced?
If you’ve made it through the content of complaints, some data about who gets sued, and descriptive statistics about wins and losses, you basically are pot committed to this veil piercing project. In this post, I’m going to exploit that commitment by describing the results of our statistical analysis of two different kinds of success that plaintiffs may achieve in veil piercing cases: (1) on motions; and (2) at the case level. If you don’t care to follow me beyond the jump, here’s the bottom line (from our abstract):
“Voluntary creditor causes of action promote veil piercing; LLCs are in very limited circumstances better insulated from veil piercing claims than corporations; undercapitalization is strongly associated with success while conclusory grounds like “façade” and “sham” are not; and defendants’ legal sophistication is predictive of plaintiff failure. Extra-legal factors play a more striking and counterintuitive role. Plaintiffs suing companies with few employees are much more likely to win veil piercing motions, and obtain relief in cases, than plaintiffs suing companies employing many workers. This results holds even when controlling for legally-relevant variables. Contrary to both theory and previous empirical work, we also find that judicial liberalism is inversely related to the likelihood of plaintiff success.”
October 9, 2009 at 6:51 am
Posted in: Contract Law & Beyond, Corporate Law, Economic Analysis of Law, Empirical Analysis of Law, Law School (Scholarship)
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What Does Veil Piercing Success Mean Anyway?
posted by Dave Hoffman
If you look at opinions, winning in a veil piercing case is pretty easy to define: did the court agree to pierce the veil, reaching through an entity to its shareholders. If you were inclined, you could model success at those terminal moments in cases, asking which factors (described in the opinions) correlated with courts agreeing to pierce.
There’s value in this approach, not least because opinions shape reality. But there’s a problem too. Not only are opinions unrepresentative, but they come late in cases. The result is an extreme form of selection. It’s not clear (to me, anyway) what the null hypothesis regarding the effect of independent variables ought to be for late-stage dispositions.
Dockets offer the promise of a different approach: asking which factors correlate with success or failure early in cases. Further, assuming that adjudicated motions teach the parties about the strength of their cases, and that they settle strategically, we can even start to learn from the timing and incidence of settlement.
In this post, I’m going to relay some descriptive statistics about the veil piercing successes that plaintiffs achieved in our data. (I’m continuing to pull the data and some text from our paper.) To those who are getting annoyed by all of these posts, I’m sorry! I’ve been living with this project for a long time — I’m excited to finally share it publicly.
October 8, 2009 at 7:24 am
Posted in: Contract Law & Beyond, Corporate Law, Economic Analysis of Law, Empirical Analysis of Law, Law Practice, Law School (Scholarship)
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A Proposed Study To Measure Law Clerk Influence
posted by Dave Hoffman
Judge food.
Citation studies as a proxy for judicial quality are all the rage. I concur with Larry that the effort spent often seems disproportionate to the result. Selection is the culprit here, not just academic modesty: it’s hard to imagine that any truly dramatic effects of judicial character, or legal rule, would not be washed away by parties’ ability to settle strategically.
Exogenous shocks open windows – of limited scope – which may help us penetrate this fog. There’s one ongoing today that I think could in several years allow us to test one of the most important, but obscure, questions about judicial performance. Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it). That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.
So what’s the shock? I think that the period of 2008-2011 will prove, in retrospect, to be bumper years for clerk quality. Anecdotally, I’ve heard that the clerkship market has never been more competitive: Yale grads have been encouraged to take state court clerkships (the horror); judges in popular jurisdictions are receiving literally four to five thousand applications per clerk year; individuals who before might have taken firm jobs are instead throwing their hats in the ring; magistrate judges are taking clerks previously destined for district judges; alumni in practice for five years are going back into the clerk market and competing with fresh-faced 3Ls. As an organ of the government, the judiciary simply eats better brains when the economy stinks.
Assuming the effect is real (which we could test by looking at placement statistics), I’d propose that eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following. The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions. Notably, we can’t perform this same analysis on the effect of past recessions, as (1) they reportedly didn’t have the same effects on the clerkship market; and (2) opinion collection practices were really sporadic before 1995. It’s 2018 or bust. Mitu et al., I call dibs!
October 7, 2009 at 8:34 am
Posted in: Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Sociology of Law
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Who Gets Sued in Veil Piercing Cases?
posted by Dave Hoffman
As I described yesterday, Christy Boyd and I have collected a representative sample of veil piercing complaints and have written up some of our analysis of that data in Disputing Limited Liability. Before talking about the meat of the project — the wins and losses — I’ll describe another piece of information that you can extract from complaints but not opinions: who gets sued. In the 690 cases in our sample, plaintiffs sought to pierce the veil of 870 entities. With the generous support of Temple’s Law Library, we purchased information about those entities from Dunn & Bradstreet, including the number of employees and revenues per firm, corporate structure, and organizational home. After the flip, I’ll give you a taste of our findings.
October 7, 2009 at 7:28 am
Posted in: Corporate Law, Empirical Analysis of Law
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The Content of Veil Piercing Complaints
posted by Dave Hoffman
Over the last two years, Christy Boyd and I have been working to collect and analyze a representative sample of federal district court veil piercing cases. (Previous blogging: here on ERISA and here on weird complaints.) We now are ready to circulate the first paper arising from the data — there will be at least two others. That paper, Disputing Limited Liability, is now up on SSRN and is forthcoming in the Northwestern Law Review. I figured that having spent so much time collecting the data, I might as well get a few blog posts out of talking about our findings! I’m going to start today with some information about the kinds of complaints that plaintiffs file. In future posts, I’ll talk about who gets sued, how to model litigation in light of selection effects, the kinds of factors that influence plaintiffs’ success, and the larger implications of our findings for lawyers and scholars.
October 6, 2009 at 1:45 pm
Posted in: Corporate Law, Empirical Analysis of Law
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The Public and Private Goods Produced By Litigation
posted by Dave Hoffman
Eugene Volokh (among many others) recently posted the opinions in Klein v. Amtrak, the now famous EDPA unpublication case involving a settlement that led to the vacating of eight defense-unfriendly district court opinions. Although commentators across the web seemed surprised, in my experience the practice of asking a judge to vacate an opinion that produced a settlement is fairly common – this particular instance is only a small variant on the ordinary case. But Klein provides the opportunity to reflect on some of the unexpected benefits that we get from our ridiculous court system.
The obvious one is that judicial opinions are the public good that the parties prompt society to buy. The price we would pay for any kind of litigation reform would be fewer public decisions, and thus more uncertainty of the kind that unpublication like Klein promotes. The Third Circuit in particular was known for years for having very thin law – indeed, the late Chief Judge Eddie Becker of the Circuit famously led a one-man crusade against the dearth of law by writing copious dicta. The certainty that we get from having opinions strongly suggests that we should resist private attempts to keep the law secret – and should be similarly skeptical of the courts’ unwillingness to free PACER. Here, it appears merely that Judge Stengel asked WL and LEXIS to remove his opinions from his databases. Thus, like 80% of all substantive orders, they are on the docket, but aren’t available to the general public.
There’s an additional private benefit that accompanies litigation which is less illuminated by Klein: the parties get to communicate with one another. Given a regulatory regime that prohibits competitor contact, litigation can be the best way for companies to talk to one another (through discovery and signalling about which positions to take). That litigation-mediated-communication is one reason why some companies might prefer to continue to fight in the public system, rather than in commercial arbitration, where their ability to get discovery may be limited. Again, this isn’t to say that all lawsuits are worth the time and expense that the public invests in settling them, but it does suggest that litigation reform needs to account for these substantial litigation spillovers.
August 20, 2009 at 8:50 pm
Posted in: Civil Procedure, Empirical Analysis of Law, Government Secrecy, Sociology of Law
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Who Knew? Patents Don’t Really Promote the Useful Arts
posted by Deven Desai
Andrew Torrance and Bill Tomlinson have a paper out that challenges “assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems.” The paper, Patents and the Regress of Useful Arts, “employ[s] a multi-user interactive simulation of patent and non-patent (commons and open source) systems (”The Patent Game”), this study compares rates of innovation, productivity, and societal utility.” In other words, the two have taken the idea of a Sim and created PatentSim “to simulate the innovation process in one of three scenarios: a patent system, a “commons” system with no patents, or a system with both patents and open source protection.” In the words of Johnny Carson wild, weird stuff, and quite fascinating too. Under their model and testing system it appears “that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection.”
This post at Against Monopoly has a nice summary of some of the major articles on the topic of patents and innovation. Which reminds me, folks interested in empirical research should take a read of the paper too as it is trying to fill a gap by testing the innovation assumption in patent theory.
Image: World’s first patent for a golf tee; British patent #12941 of 1889, by Bloxsom & Douglas
Source: WikiCommons
The image size is reduced for our site, but go to the original to see/read the patent.
August 13, 2009 at 6:57 am
Tags: empirical studies, golf tee, innovation, patents, simulators
Posted in: Empirical Analysis of Law, Intellectual Property, Technology
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New Empirical Work on International Criminal Law
posted by Jenia Turner
Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.
Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.
The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.
July 26, 2009 at 7:49 am
Tags: Criminal Procedure, Empirical analysis, ICTY, international criminal law, managerial judging
Posted in: Criminal Procedure, Empirical Analysis of Law, International & Comparative Law
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Mirror, Mirror on the Wall, Who is the Most Activist of Them All?
posted by Corey Yung
In my last post, I gave some results based upon collective groupings of appellate judges. In this post, I want to focus on the performance of individual judges. The primary reason that I am working to create a relatively large dataset is to allow for individual judge assessments. That has not been possible with the existing appellate court databases.
So, while I cannot yet tell you who the most activist judge was in 2008 because I have only reviewed data from five circuits, I can share my preliminary results for a few higher profile judges, including the most recent nominee to the United States Supreme Court. Here are the activism scores based upon my preliminary data for some of the highest profile judges in the Second, Third, Fourth, Seventh, and Eighth Circuits ranked from most activist to least activist:
June 4, 2009 at 8:07 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Applying My Measure of Judicial Activism
posted by Corey Yung
In my previous post, I finally got around to explaining my measure of judicial activism. In this post, I will give some of the results based upon my preliminary data.
One of the most remarkable things I have found so far is that, although each of the circuits has a relatively consistent reversal rate, the activism scores vary by significant margins. The chart below shows the reversal rates and activism differentials for each of the five circuits that I have examined:
The activism scores are negative numbers with the higher numbers indicating a higher degree of activism. Thus, the 3rd Circuit is the most activist and the 4th Circuit is, by far, the least activist.
Of course, one thing that is always interesting to look at is which President’s appointees are the most activist. Here are the results I have so far:
This chart should be taken with a very large grain of salt. Although in some senses, I already have a large amount of data, in others I have very limited sample sizes. When I start analyzing data that uses the judge as a unit of measure, I only have 52 judges with adequate sample sizes. So, there are few representatives for some presidents. That is also why I am not including any regression analysis in these posts. I include this chart simply to show one of variables that I will explore in regards to activism. Other examples of variables I will examine include background experience (district court, private practice, prosecutor, law professor, etc.), conditions at the time of the appointment (election year, unified government, etc.), and other assorted factors (law school attended, activism in particular areas of law, ABA ratings, etc.).
As this project is still ongoing, I welcome any comments and/or suggestions. In my next, and probably last, post, I will give some information about some high profile judges including Judge Sotomayor.
Update: Based upon popular demand, I have changed the second graph to a bar chart.
June 2, 2009 at 9:25 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Measuring Judicial Activism by Federal Appellate Judges
posted by Corey Yung
In my last post, I briefly described the major approaches to studying activism. In this post, I will outline my measure for the concept as well as the contours of my dataset.
Since judicial activism at its core is about substituting judgment of other constitutional actors, for federal appellate courts it makes the most sense to study where they do most of their work: reviewing the judgments of district courts. That ensures large sample sizes, wide coverage of different areas of law, and decisions that are still restrained so some non-activist baseline can be derived.
To that end, standards of review offer a powerful tool to understand judicial decision making at the federal appellate level. There are deferential (i.e. clear error) and non-deferential (i.e. de novo) reviews of district court judgments. As you can see from the chart below derived from my dataset, standards of review do affect reversal rates.
May 30, 2009 at 9:15 pm
Posted in: Empirical Analysis of Law, Legal Theory
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Studying Judicial Activism by Federal Appellate Judges
posted by Corey Yung
In my last post, I offered a new definition of judicial activism as applied to federal appellate judges. In this post, I will discuss some of the existing research on the subject.
The existing empirical scholarship is largely focused on two things: activism by the U.S. Supreme Court and judicial review of the other federal branches. While there is a lot of interesting work within those studies, I think the focus on Supreme Court review of other branches offers an extremely narrow view of judicial activism.
The Supreme Court is an unusual body in American courts. It is not subject to any higher review. The Justices are largely free to decide a case however they feel. As a result of the unrestrained nature of the Court, “activism” is a hard concept to measure. There is difficulty in finding a baseline against which to measure the Justices. A Justice who is an outlier on one Court might have regularly been in the majority during a different era. The problem of measuring activism is compounded by the Court’s very small docket. Because there are so few cases, the sample sizes are not large. Further, because the docket is self-selected, the cases are not random and are concentrated in just a few areas of law.
May 30, 2009 at 7:31 am
Posted in: Empirical Analysis of Law, Legal Theory, Uncategorized
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Defining Judicial Activism by Federal Appellate Judges
posted by Corey Yung
First off, I wanted to thank Dan and the rest of the Concurring Opinions bloggers for having me back so soon. My last stint was cut a bit short by some unexpected family issues. As it turns out the subject I wanted to blog about then, judicial activism by federal appellate judges, is more timely now because of the Sotomayor nomination. She is already being attacked as an activist judge as a basis for rejecting her nomination (even if those attacks are just part of some inevitable game we play). For some time, I have been working on a project that attempts to provide an effective measure of judicial activism by federal appellate judges like Sotomayor. Over the next few posts, I will explain my measure and show some preliminary results. However, I need to do a bit of work defining the concept first.
May 29, 2009 at 7:34 pm
Posted in: Empirical Analysis of Law, Legal Theory
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What Should a Judge’s Reversal Rate Be?
posted by Dave Hoffman
Via TPM, I found that critics of Judge Sotomayor have made some hay of her reversal rate in the Supreme Court (50% of 6 cases heard). Though I like data more than the next guy, I will freely admit that this use of quantitative empirical legal studies is demonstrably silly. I’m going to try to demonstrate to you in this post that a reversal rate of fifty percent is exactly what the state-of-science would predict to be ordinary [or even below average], and a rate of zero (which some might think of as emblematic of a law-abiding judge) tells you that the judge in question might be departing quite severely from precedent.
Let’s start with the obvious. Most appellate court opinions aren’t subject to a cert petition; almost no cert petitions are granted; only some granted cert petitions end up in full argument and a written opinion by the Supreme Court. Throughout this long process, parties may settle their cases and exit the system. They may do soduring briefing before the appellate court or after argument (with some limitations), they may settle after an opinion issues but before a cert petitition is filed, and they may settle thereafter until the Court rules (again, with some limitations based on mootness doctrine). This potential for settlement after the appellate court issues its mandate creates selection effects.
Though such selection effects are likely less predictable & more dominated by wealth & party characteristics than the immense selection that occurs in the district court, it remains that case that the universe of cases that survive the decision to appeal and the decision to grant certiorari is significantly winnowed. That winnowing produces a distinct set of cases. Cases before the Supreme Court contain legal & factual issues more finely balanced than those that issued from the courts below. To put it another way, cases are argued (usually) because the parties both believe they are going to win. If the parties are rational & wealth neutral, an assumption that sometimes holds, we should expect that the resulting decisions from the Court will be a bit of a random walk. (See my earlier post on bankruptcy scholarship for more on this hobby-horse of mine. Also, note that much of this applies to civil cases, not criminal cases, which create unique settlement patterns. The actual rate of reversal, over all cases, ranges between 60 and 75%.)
What’s the upshot? An appellate judge’s “reversal statistic” tells you less than you think about the “merits” of her opinions, or even how such opinions stacked up against governing Supreme Court precedent. Ironically, when a judge significantly departs from precedent either for or against the plaintiff, settlement may be particularly likely, as the parties’ chances above are quite clear: thus a judge who convinces her colleagues to depart from precedent often will almost never be reviewed or reversed by the Supreme Court. Cases where the judge stuck with precedent, by contrast, may face appeal and reversal, especially if the precedent shifted due to ideological change on the Court itself.
There’s lots of good work on this, much of it recent. And what it teaches me is that we have no idea what an appropriate reversal rate for an appellate judge ought to be. It also suggests that there is no way to evaluate the quality of an appellate judge’s work except to read her opinions and decide for yourself what you think of them. This is a clear instance where statistics mislead.
May 26, 2009 at 3:20 pm
Posted in: Empirical Analysis of Law, Supreme Court
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Measuring Gender Discrimination
posted by Jaya Ramji-Nogales
I’m normally a fan of the statistical reports produced by the OECD, so was surprised to find myself in disagreement with the methodology of their recently-created Social Institutions and Gender Index (SIGI). The idea behind SIGI is a good one — to get at the root of gender discrimination by examining traditions and social norms that impede women’s empowerment. To this end, SIGI assesses twelve variables in 102 non-OECD countries and then ranks these countries based on their “performance in social institutions.” The selection and evaluation problems with their study highlight the difficulty of empirically measuring and ranking intangible phenomena such as social norms.
May 22, 2009 at 7:38 am
Posted in: Empirical Analysis of Law, Feminism and Gender
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Does Law and Economics Destroy Law Students’ Sense of Justice?
posted by Dave Hoffman
Richard Posner. Founder. Latter-Day Apostate?
A draft paper by Raymond Fisman (Columbia Business), Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications. Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different. Perhaps “Law and Economics Eats Law Students’ Hearts.”
The authors looked at first-year students at Yale Law School taking contracts and torts. They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.* They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded professors behave differently than those taught by professors disposed toward humanism or critical-legal studies?
The bottom line: students taught by economically-minded professors were both more selfish and more likely to see fairness as a form of kaldor-hicks efficiency. By contrast, students taught by humanists were more generous and also likely to see fairness as a matter of equity.
These are important results for those interested in legal education.
- First, and most obviously, it suggests that our preferences for altruism and the content of fairness are highly manipulable — one semester of teaching by a professor – at Yale, no less – can affect them. I admit to being a bit surprised by the size of the effect, given the mixed results from earlier work on the relationship between economics and altruism. It’s also surprising that Yalies are so impressionable! I wonder whether the effect persists past a semester, and whether better coding of actual classroom discussion would have changed the results.
- Second, it suggests yet more reasons for researchers to think hard about the effect that law school teaching has on the content of legal doctrine. As I’ve argued, it’s quite likely that some law school professors who never published a lick have had more effect on substantive legal doctrine than those who’ve written reams, simply by influencing how their students (who went on to be lawyers and judges) thought about the content of rules and the byways of arguments. We should do more work like this!
- Third, and most personally, this makes me nervous. I’m a highly socratic teacher who places lots (and lots) of emphasis in the first-year on efficiency-arguments and on the need to look beyond questions about distributional equality in the present case. I thought that by doing so I was helping students to think critically about the dynamic nature of contract law – the relationship between contract rules and market price; the usefulness of an intelligent system of defaults; the importance of getting beyond gut intuitions. But maybe I’m also indoctrinating the students to grab more of the pie for themselves. Nuts.
*The method they used to code economic preferences was, to be frank, a little mystifying. They gave points for PhD’s in economics, but had to make exceptions for Alan Schwartz, PhDless but L&E to the bone, Guido, for obvious reasons, and both Robert Gordon and Carol Rose, who are similarly off-set. Why not simply ask the professors themselves how much they emphasized economic rhetoric in class? Or the students?
May 18, 2009 at 6:17 pm
Posted in: Behavioral Law and Economics, Contract Law & Beyond, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Law School (Teaching), Law Student Discussions
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Why Not A Supreme Empiricist?
posted by Dave Hoffman
The 14th Amendment does not (yet?) enact Mr. Herbert Spencer's Social Statics.
In the last post, I suggested that we shouldn’t be selecting for judicial smartness, at least standing alone. Here, I’d like to add my two cents to the pile of unsolicited, and likely unused, advice for the Obama vetting team. The Administration should give some thought to picking a Justice who has prior background working with statistics, data collection, and more general empirical methods.
The footnote 17 debacle is, of course, a recent and salient example of how the Court can go wrong when evaluating empirical work:
“Cornell law professor Jeffrey Rachlinski told the Times that [Ted] Eisenberg’s study shows “punitive damages are pretty orderly,” yet Souter did not seem to think any studies had proven that point.
The Times asked Eisenberg for his reaction and summarized his response this way: “Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: ‘I believe the court went seriously astray’ in concluding that his work supported a reduced award.”
Statistical problems before the Court aren’t new – Brown & McClesky both come to mind – but it is likely that the Court will face increasingly sophisticated empirical methods in briefs over the next generation. Not only has the Supreme Court bar gotten much more sophisticated, but so have the underlying methods in empirical legal scholarship. As methods grow more sophisticated, it becomes harder for judges to play referees, since the errors (if any) in the parties’ positions are more subtle. A Justice who could be an intelligent consumer of empirical work, rather than a credulous user, would be a huge bonus.
That’s not the same as saying that a Ph.D. in stats, or political science, ought to be a credential. Lawyers who have litigated complicated employment, antitrust, or securities cases have to deal with statistics experts and are well exposed to the kinds of questions that need to be asked about their analyses. To a lesser extent, so are judges who have sat on such large commercial cases. The point is that at least some exposure in statistics and social science techniques is quickly becoming part of a well-rounded legal education. It should also be part of what we look for in a Justice.
[Update: Michael Heise has more.]
May 6, 2009 at 7:47 pm
Posted in: Empirical Analysis of Law, Sociology of Law, Supreme Court
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Robin Malloy on Entrepreneurship, Property, and Markets
posted by Deven Desai
I recently wrote about the Creativity, Law and Entrepreneurship Workshop at the University of Wisconsin in which I participated. One of the speakers, Robin Malloy who is the E.I. Chair and Distinguished Professor of Law at Syracuse University College of Law, emailed me and about the ideas he presented. I am quite interested Robin’s ideas and approaches to this area of the law, so I asked whether he would mind writing a short piece to share with our readers. He was gracious enough to agree. So I am pleased to offer Robin Malloy:
ROBIN MALLOY
Law and Entrepreneurship offers many opportunities for interdisciplinary work and for finding common ground among the various categories of property (real, personal, intangible, cultural, IP, etc.) The recent Conference at Wisconsin on Creativity, Law and Entrepreneurship highlighted this exciting possibility. In thinking about property transactions and entrepreneurship I believe there are at least four central starting points, all of which can be expanded. 1) It is important to get beyond definitions of property and look at what we can do with property… to look at transactions in exchange (asking not just what is property but also, and more importantly, what can we do with property). And from the perspective of market exchange theory asking how we capture and create value from transactions in property. 2) Entrepreneurship requires us to develop a more complex vocabulary. We need to start thinking about a variety of types of entrepreneurship instead of always dealing in an abstract sense with just one big category called “entrepreneurship”, as if all entrepreneurship is of the same type or kind. We need to develop more nuanced categories of entrepreneurship based on different observable patterns of behavior and motivations as they might relate to different types of transactions and different categories of property. 3) Creativity is key to entrepreneurship and this requires us to incorporate a theory of interpretation because creativity requires both an understanding of current boundaries of meaning and a recognition of a possibility for setting new boundaries. Recognizing something as new, of course, requires a cultural-interpretive reference point and, thus, interpretation theory is key to understanding a set of given relationships and to imagining the potential for something new and different. 4) The relationship between law and entrepreneurship requires a dynamic approach to market theory. Traditional efficiency analysis is not entirely helpful since it is really a status quo analysis with little application to creativity. Efficiency is directed at thinking about ways of allocating already known resources and not about the market conditions under which creativity, innovation, and discovery are best facilitated. This means that there is a need to think creatively about the meaning of markets and the tools we use to understand law in a market context.
May 6, 2009 at 4:03 pm
Tags: entrepreneurship, markets, property, Robin Malloy
Posted in: Economic Analysis of Law, Empirical Analysis of Law, Intellectual Property, Property Law
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Creativity, Law and Entrepreneurship Workshop at Wisconsin
posted by Deven Desai
On Friday I was in lovely Madison, Wisconsin for the Creativity, Law and Entrepreneurship Workshop which Shubha Ghosh put together and was sponsored by UW Law School, the Institute for Legal Studies, the Initiative for Studies in Technology Entrepreneurship (INSITE), and the Global Legal Studies Center. I’m afraid I don’t have the ability to capture everything that happened, but I will try and call out what each panel did (although the link above sets out the program and speakers).
Those details are below the break. Before that, I want to say that Wisconsin was a great host. The group was excellent. Each paper linked in some way to the other papers in its session. In addition, the pace was perfect. Three papers per session allowed one to present the core ideas of the paper and have plenty of time to get into the discussions. Furthermore, it was a a great pleasure to have the business school folks attend. I, for one, was able to get valuable feedback and learn about some literature that looks like it will help my work in general. In short, thanks to Wisconsin and all those who put together the event for a job well done. Now on to the panels.
April 27, 2009 at 1:09 pm
Posted in: Corporate Law, Empirical Analysis of Law, Intellectual Property
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Should We Have Professional Juries?
posted by Daniel Solove
According to Legal Profession Blog:
The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”
The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.
What should one conclude from this case?
The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”
But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:
I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .
Additionally, jurors are usually prohibited from taking notes. . . .
In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).
The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?
Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.
March 20, 2009 at 11:04 am
Posted in: Civil Procedure, Criminal Law, Empirical Analysis of Law, Law Practice, Tort Law
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