Archive for the ‘Empirical Analysis of Law’ Category

What Difference Representation – A Response

posted by Bob Sable

I am the Executive Director of Greater Boston Legal Services, the primary provider of civil legal services to poor people in the greater Boston area.  My program and I have a great stake in assuring that our limited resources are used where they can be most effective.  Indeed we are participating with Professor Greiner in a study of the impact of our staff attorneys’ representation in defense of eviction cases.  My comments refer to the draft dated February 12, 2011.

It is important with any study; however, to know what it concludes and what it does not.  For instance, and most importantly, the study concedes on page 43 that it could draw no conclusions about the effect on outcome for claimants actually receiving representation, as opposed to just an offer of representation.  Thus, this study should be recognized for what it is: a limited analysis of the somewhat abstract concept of “offering” assistance.  Indeed, the study wisely cautions against drawing any conclusions from the study about the usefulness of free legal assistance or even about the usefulness of offers of representation in unemployment cases in general (page 47).

I feel some changes are necessary to avoid much confusion about (and misuse of) this study’s conclusions (or lack thereof) as to the effect of representation itself, as opposed to just the offer.  For instance, given that this study’s principal conclusions are about an offer of representation and not actual representation, a more accurate title to this study would be, “What Difference an Offer of Representation?”  And the very first sentence of the Introduction on page 5 currently reads, “Particularly with respect to low-income clients in civil cases, how much of a difference does legal representation make?”  It is only a footnote that explains the study looks at offers as well as effect, and much later in the study (page 32) that no conclusions were reached at all as to the effect of representation.  Similarly, the conclusion (“Where Do We Go From Here?”) states, “the present study primarily concerned representation effects on legal outcomes affecting the potential client’s pecuniary interests.”

I am concerned also that the results reported in the study with respect to offers of representation by HLAB are misleading at best and of little utility at worst.  This is because nearly half of the control group were represented by counsel and, more significantly, probably that many and perhaps more in the control group got an offer of free representation from my program or another providing free legal services in unemployment cases.  To make an analogy to the medical world, suppose there was a Pfizer drug trial where 50% of Pfizer’s control group were offered the exact same medication from Merck.  Wouldn’t that cast serious doubt on the outcome of the study?  There is no mention of this 49% in either the abstract or introduction which unfortunately are all many readers will read.

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  March 28, 2011 at 12:10 am   Posted in: Civil Rights, Empirical Analysis of Law, Symposium (What Difference Representation), Uncategorized   Print This Post   No Comments

Uncompensated Torts

posted by Dave Hoffman

There’s a fantastic new article out by Rick Swedloff (Rutgers-Camden) called Uncompensated Torts.  Swedloff examines the obstacles (largely insurance-related) to victim compensation for intentional torts, and offers a sobering take on possible solutions.  The one that most interests me is an insurance mandate.  Though I take it from Swedloff’s article that these kinds of mandates are perhaps less popular than the used to be?  Anyway, the whole thing is well-worth checking out.

  March 25, 2011 at 1:44 pm   Posted in: Behavioral Law and Economics, Empirical Analysis of Law   Print This Post   One Comment

What Difference Representation: Introduction to the Symposium

posted by Dave Hoffman

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:

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  March 23, 2011 at 11:23 am   Posted in: Behavioral Law and Economics, Empirical Analysis of Law, Law Practice, Law Rev (Yale), Law School, Law School (Scholarship), Symposium (What Difference Representation)   Print This Post   One Comment

UCLA Law Review Vol. 58, Issue 3 (February 2011)

posted by UCLA Law Review

Volume 58, Issue 3 (February 2011)

Articles

Good Faith and Law Evasion	Samuel W. Buell	611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19	Katherine Florey	667
The Need for a Research Culture in the Forensic Sciences	Jennifer L. Mnookin et al.	725
Commentary on The Need for a Research Culture in the Forensic Sciences	Joseph P. Bono	781
Commentary on The Need for a Research Culture in the Forensic Sciences	Judge Nancy Gertner	789
Commentary on The Need for a Research Culture in the Forensic Sciences	Pierre Margot	795

Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation	Samuel M. Kidder	803
Defendant Class Actions and Patent Infringement Litigation	Matthew K. K. Sumida	843

  February 25, 2011 at 1:19 pm   Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court   Print This Post   No Comments

The Representation Debate Continues

posted by Dave Hoffman

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.

  January 31, 2011 at 6:20 am   Posted in: Behavioral Law and Economics, Empirical Analysis of Law, Law School, Psychology and Behavior   Print This Post   One Comment

Harvard Clinic Responds to Greiner Study

posted by Dave Hoffman

  January 24, 2011 at 2:06 pm   Posted in: Behavioral Law and Economics, Civil Rights, Empirical Analysis of Law, Law School (Teaching)   Print This Post   No Comments

Experiments in Lawyering, Take Two

posted by Dave Hoffman

Ian Ayres, commenting on What Difference Representation, asks: “Does HLAB have a duty to stop offering representation or to change its modus operandi? Does it at least have an ethical duty to disclose the results of the study to prospective clients? Can other student legal service organizations ethically ignore the results of the study?”  I agree that the paper raises important questions – though I’m not sure the result generalizes to all “legal service organizations.”   LHAB  represents clients in employment benefit cases, where narrative framing & rough justice is likely to predominate.  This is the weakest case for the representation effect imaginable.  If we saw a similar effect in refugee clinics, or ones offering criminal defense services, it would be mindblowing.  But until we do, I think a little caution is warranted.

How could we encourage experimentation that would help us answer this important question?  The obvious place to start would be the ABA Accreditation Standards Committee, already engaged in a huge debate about both skills training & outcome measures.  If the Committee were so minded, it might link new requirements for more clinical education to rigorous ways to measure whether those new clinics and skill training opportunities produce better results for clients. By incorporating randomized control studies into clinic design, the ABA could thereby produce highly useful data for legal policymakers (which would certainly be otherwise unavailable), and would ensure that schools spend money on clinical education in ways that are socially beneficial.  Given that almost all law school clinics are incredibly oversubscribed, it ought to be quite easy to sell randomization in selection, unless there is an important pedagogical reason for selection that I’m missing.

I recognize that given the politics of clinical education, my proposal is a nonstarter. However, given that it is exceedingly difficult to study the effect of representation by looking only at observational data, randomized clinical selection might be our best chance to figure out when and how lawyers add value.  It would also allow the Bar & legal academy to advance two newly dominant goals for legal education, at very low cost.  What’s not to like?

  January 11, 2011 at 2:20 pm   Posted in: Empirical Analysis of Law   Print This Post   No Comments

Experiments in Lawyering: Does the Harvard Legal Aid Bureau Deserve a Merit Badge?

posted by Dave Hoffman

Mike Heise highlights a paper by James Greiner (Harvard) and Cassandra Wolos Pattanayak:  What Difference Representation? From the abstract:

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 startling. 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 have that initial denial reversed as a result of the litigation, the delay an offer of representation caused inflicted a harm upon such claimants in the form of an additional waiting time for benefits to begin, this with no concomitant increase in the probability of a favorable outcome. In other words, these claimants would have been better off without the offer of representation. Other classes of claimants were unaffected, but in cases with a certain profile, the delay hurt the financing of the unemployment system, again with no concomitant benefit in the probability of a favorable outcome for the claimant. 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. Stepping back, 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.

Greiner/Pattanayak take (very) broad swipes at a variety of previous studies of representation.  Putting that aside, the results from the paper are unsettling, at least if your prior is that legal representation always helps the poor.  And I wanted to pull out one part of the article that is particularly interesting.  From pages 6-7:

[Our] ideas polarized the legal services community.  Some organizations overcame initial nervousness about defining measurable outcomes and about ceding partial control over case selection to a randomizer and embraced the effort. In doing so, these providers demonstrated the courage necessary to subject their programs to gold-standard evaluation. Among the most courageous were the students of the Harvard Legal Aid Bureau (“HLAB”), a student-run, faculty-overseen legal services office that is part of the clinical educational program at Harvard Law School. But other organizations opposed our effort. One group did not limit its opposition to a refusal to participate on its own part. Instead, when it discovered that HLAB was conducting a randomized evaluation, it halted its previous practice of suggesting that clients it could not itself represent call HLAB.

  December 21, 2010 at 5:41 pm   Posted in: Articles and Books, Civil Rights, Empirical Analysis of Law, Law School (Teaching)   Print This Post   6 Comments

Trends in Law

posted by Dave Hoffman

Here I was, looking for any way to procrastinate and not grade more exams.  Problem solved.  You can now search 10% of the books ever published through google, looking at trends over time. Here, for example, is an argument for, and against, Grant Gilmore’s the Death of Contract.

“Promissory estoppel” over time:

But now, let’s mix in “contract”.

Yup, promissory estoppel hasn’t been talked about even one hundredth as often as contracts are. You can see a similar dominance in the cultural life of tort law:

I’ve got to say, this is an incredibly cool toy. Some more flashes in the pan follow, after the jump.

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  December 17, 2010 at 3:14 pm   Posted in: Empirical Analysis of Law   Print This Post   3 Comments

Evolution of Privacy Breach Litigation?

posted by Sasha Romanosky

In addition to empirical work on data breaches and breach disclosure laws, I’ve also become very interested in data breach litigation. While plaintiffs have seen very little success with legal actions brought against companies that suffer data breaches, I still believe there is some very interesting empirical work that can be done regarding these lawsuits.

In a recent post, Daniel Solove cited  a paper by Andrew Serwin (found here) who described in great detail the legal theories and statutes  that plaintiffs use when bringing legal actions against companies that suffer data breaches. It isn’t my purpose to repeat that work, but rather to identify an interesting pattern that appears to have emerged over the past 5 to 10 years of privacy breach litigation. Special thanks to Paul Bond of Reed Smith LLP who first brought this to my attention. 

Category 1: You lost my data, now I will sue you.
This first category could be characterized by what is classically considered a data breach: plaintiffs suing a company simply because their personally identifiable information (PII) was lost, stolen, or improperly disposed. For example, Choicepoint, TJX, Hannaford, Heartland, etc. Plaintiffs claim that this disclosure of data has harmed, or will harm them, and that they are justified in seeking relief for actual fraud losses, monitoring costs, future expected loss, or emotional distress. Plaintiffs bring these actions under many kinds of tort and contract theories, but generally lose because they’re unable to prove a harm that’s legally recognized (as we discuss further below). The defining characteristic of this category is that the burden lies with the alleged victims to show they were harmed in a legally meaningful way.

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  December 13, 2010 at 12:22 pm   Posted in: Cyberlaw, Economic Analysis of Law, Empirical Analysis of Law, Legal Theory, Privacy (Consumer Privacy), Privacy (ID Theft), Uncategorized   Print This Post   4 Comments

Evaluating Data Breach Disclosure Laws

posted by Sasha Romanosky

I imagine most of you have received one or more letters from companies informing you that they lost your personal information. If so, what, if anything, did you do about it? Did you check your credit history?; close a financial account?; something else?; or nothing at all? If you did act, you likely did it to reduce your risk of suffering identity theft. My research question is: did it work? This is something that I’ve been examining for a number of years now.

In a paper coauthored with Rahul Telang and Alessandro Acquisti at Carnegie Mellon University, we empirically examine the effect of data breach disclosure (security breach notification) laws on identity theft. For a policy researcher, this represents a fantastic opportunity: a clear policy intervention (adoption of laws across different states), a heated controversy regarding the benefits and consequences of the laws that is both practically and academically interesting, good field data, and a powerful empirical analysis methodology to leverage (criminology).

An initial version of the paper used consumer reported identity theft data collected from the FTC from 2002-2006. Using just these data, we found a negative but not statistically significant result. In fact, I was quoted as saying, “we find no evidence that the laws reduce identity theft.” And it was true, we didn’t.

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  December 1, 2010 at 6:04 pm  Tags: data breach disclosure laws, identity theft, security breach notification  Posted in: Cyberlaw, Economic Analysis of Law, Empirical Analysis of Law, Privacy   Print This Post   5 Comments

CELS V: The Year of the Experiment

posted by Dave Hoffman

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?

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  November 7, 2010 at 1:20 pm   Posted in: Bankruptcy, Behavioral Law and Economics, Conferences, Contract Law & Beyond, Economic Analysis of Law, Empirical Analysis of Law   Print This Post   4 Comments

Baron on Leiter on Empirical Legal Studies

posted by Dave Hoffman

A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron.  Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally.  The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999).   Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.”  That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago.  So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.

“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.

But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.

The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.

But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?

As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.

But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?

In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.

I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”

Thanks, Jane!

  October 20, 2010 at 3:35 pm   Posted in: Articles and Books, Bright Ideas, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Sociology of Law   Print This Post   4 Comments

Why Don’t You Need IRB Approval to Talk About People in Cases?

posted by Dave Hoffman

Legal archaeology is a term sometimes used to refer to scholarship that brings a rich context to famous cases.   If you were a legal researcher seeking to enrich a modern classic – e.g., Pepsico [contracts], Lawrence [con law], Liebeck [torts], Twombly [civ pro] – you might proceed by interviewing the parties and their attorneys, examining prior and related cases, and boning up on the briefs and exhibits.  It seems pretty clear to me that before undertaking such research, a prudent professor would check in with their IRB.  The interviewing of the parties and their attorneys in particular doesn’t appear to be clearly covered by any exemption, and I imagine that at least expedited review would be indicated.

But how about simply writing about living parties – or judges – in modern cases? It would seem inconceivable to go to the IRB before writing about, say, Yaser Hamdi.  Well, you never know how your local IRB will deal with novelty.  So let’s go back to the basics.   Is this research under Section 46.102? Arguably: it is a “systemic investigation . . . designed to contribute to generalizable knowledge.”  Is it research regarding human subjects? Well, under 46.102(f), human subjects are people you collect data from through actual contact or those who you collect data that is otherwise private.   Private information “includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record).”  Are their facts about behavior disclosed in judicial opinions which fit this definition?  I can think of many: disclosure of facts from police reports, medical records, taxes, etc.  Indeed, most opinions disclose facts about individuals that they’d never, ever, want told to the public, and were forced to disclose only through contentious discovery.  Quite often, the discovery contained stipulations of confidentiality that bind the parties, but not the court.

Nevertheless, it’s clear that writing about such personal facts in released opinions is in fact exempt from IRB review, since a judicial opinion is, under 46.101(b)(4), a public record.  So you might think that this entire exercise is academic.  And for some IRBs, it would be.  But most IRBs would take the position – if asked – that researchers must submit an application to them, so that the board can evaluate the claim for exemption.  This is a slam dunk case for exemption, but that doesn’t mean that the professor gets to decide for herself that no application is necessary.  Of course, I’ve never heard of a law professor submitting to an IRB before writing an article about a recent case of interest, even when discussing the most personal facts relating to the parties or the judge. In fact, some articles about particular judges  have created political scandals of some note.  Unless I’m mistaken about any of the previous analysis, I think that means that most law professors, some of the time, are not in technical compliance with a set of (very silly and possibly unconstitutional as applied) regulations.  Ironically, it is probably constitutional law professors, who write about recent cases involving individual parties most often,  who are the prime violators.  If your law school has not reached a general understanding with your local IRB about how to proceed, it should.

Thoughts?

  September 1, 2010 at 3:04 pm   Posted in: Administrative Law, Bioethics, Constitutional Law, Empirical Analysis of Law, Law School (Scholarship)   Print This Post   6 Comments

The Partisan Price of Judicial Elections

posted by Michael Kang

A major study of judicial elections released today reports that campaign spending in judicial elections doubled over the past decade and that “judicial elections are increasingly focusing not on competence and fairness but on promising results in the courtroom after election day.” The report was authored by the Justice at Stake Campaign, the Brennan Center for Justice, and the National Institute on Money in State Politics, with a foreword by Sandra Day O’Connor. It has already received extensive press coverage as the fall cycle begins to heat up.

My forthcoming article in N.Y.U. Law Review with my co-author Joanna Shepherd offers some important insights regarding the influence of campaign money on judicial decisions. Using a dataset of virtually every state supreme court decision in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with a statistically significant increase in the probability that the judges will vote for business litigants. Although Joanna and I study the period preceding this decade, from 1996 through 1998, our finding helps substantiate the concerns articulated by the Brennan Center report released today.

What is more, we find that this association between dollars and decisions disappears when we look at only retiring judges in their final term. Those judges, unburdened by campaign considerations for the future, seem not to decide in favor of their business contributors’ interests to the same degree. Although we offer only very tentative conclusions in this direction, this latter finding suggests that the association between dollars and decisions is the result of more than a mere selection effect in the election of judges, but instead hints at a potential biasing of incumbent judges by the expected need for campaign money in the future.

However, Joanna and I also find that holding nonpartisan elections, instead of partisan ones, seems to make a significant difference when it comes to the relationship between campaign contributions and later decisions. At least over our period of study, we find a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests only for judges elected in partisan elections, not nonpartisan ones. Numerous commentators have suggested that nonpartisan judicial elections are partisan in all but name, but our findings point to an important role of political parties in connecting campaign contributions to judicial decisions under partisan elections that appears not the same under nonpartisan ones. Of course, there are many reasons to choose between nonpartisan and partisan elections on other grounds, but when it comes to an uncomfortably tight relationship between campaign money and judicial decisions, our article concludes that nonpartisan elections likely present fewer concerns.

  August 16, 2010 at 3:23 pm   Posted in: Constitutional Law, Current Events, Economic Analysis of Law, Election Law, Empirical Analysis of Law, First Amendment, Law and Inequality, Politics   Print This Post   No Comments

Hypotheticals, the Classroom, and Moral Biology

posted by Glenn Cohen

Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.

At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab.  In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that].  The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.

As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.

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  August 13, 2010 at 8:22 am   Posted in: Bright Ideas, Empirical Analysis of Law, Jurisprudence, Law and Humanities, Law and Psychology, Law School, Law School (Teaching), Legal Theory, Teaching, Uncategorized   Print This Post   One Comment

Fooled By the Monkeys

posted by Dave Hoffman

Some people think that empirical legal scholars produce a disproportionate amount of mediocre work.  The claim is (on its own terms) somewhat difficult to falsify.   I tend to think that empirical work gets a bad rap because it can be difficult to evaluate (the black-box problem) and because errors (when they occur) are embarrassingly public.  This story on data-collection by the populizer of moral organs provides some evidence for the latter hypothesis. As it turns out, monkey coding seems like even a harder task than coding dockets.

Not incidentally, the news story provides another opportunity to plug the cultural cognition project’s screed against punishment naturalism.

  August 12, 2010 at 2:48 pm   Posted in: Criminal Law, Empirical Analysis of Law   Print This Post   No Comments

Litigating Toward Settlement

posted by Dave Hoffman

What is the relationship between litigation and settlement?  In a new working paper, Christina Boyd and I explore that question using data from federal trial dockets.  Our basic intuition is that motion practice propels cases toward faster settlements, as it unlocks information about the facts, the parties’ strategies, the resources they will spend on the case, and (sometimes) what the judge thinks of the merits.  Our results essentially support such hypotheses: the mere filing of a motion speeds case settlement. Moreover, “motions which are granted are more immediately important to the settlement rate than motions denied, plaintiff victories are more important than defendant victories, motions about unclear areas of law are more important than motions about settled law, and motions later in cases are more important that motions earlier in cases.”  These findings are suggestive.  Though motion practice is often thought of as parasitic, driven by agency costs, and part the problem of litigation, our results imply that it has significant pro-social consequences.  Indeed, paying homage to Gilson, why not re-imagine lawyers as canny litigation costs engineers?

We also found some nifty case effects.  Women judges were on average (as Boyd had previously established) better at encouraging settlement than men: “the likelihood of a case settling in any given month is, on average, 25% larger when a female judge presides than when a male judge does.” Also, imbalance between the size of the firms representing the plaintiff and the defendant had a significant influence on compromise’s timing, as the figure below illustrates:

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  August 6, 2010 at 9:52 am   Posted in: Behavioral Law and Economics, Civil Procedure, Economic Analysis of Law, Empirical Analysis of Law, Law and Psychology   Print This Post   No Comments

From the Ivory Tower to the Courts

posted by Corey Yung

It has been conventional wisdom for some time that the legal academy has become increasingly disconnected from the practice of law. And because of this, law reviews are said to be of little use to attorneys and judges. A recent piece in the California Lawyer by a law professor and former law school dean has received some attention for making these claims in the strongest terms. From the article:

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite—or perhaps because of—the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley’s alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

As Adam Liptak of the New York Times observed a few years ago, “Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions—which is to say the practice of law—is beneath them.”

I’m not quite sure the method that the author used to identify just six citations to law reviews, but I performed a quick and dirty Lexis search and turned up far more. The bigger question, though, is whether the author is right that judges are not reading law reviews. A new article by David Schwartz and Lee Petherbridge indicates that, at least for the federal appellate courts, the conventional wisdom seems to be flat wrong. In fact, according to their study, law review citations have increased dramatically in the last twenty years (even when accounting for the increased number of journals). I couldn’t cut and paste the tables and graphs from the article, but the results regarding the proportion of court opinions that cite law reviews are clear.

So, why is the conventional wisdom so completely wrong on this point? Maybe citations are clerk driven. Or it could be that judges are misremembering the golden age of law reviews. I want to offer a different explanation, though. Judges and commentators have argued that because law review articles are rarely concerned with legal doctrine, they are of no use to those practicing law and judging cases. I think there is a strong argument that it is precisely because law reviews are unconcerned with doctrine, they are much more valuable to judges and are cited as a result. Articles that merely outline, discuss, or analyze doctrinal areas do little to advance the judge’s knowledge beyond what he or she could establish alone. Instead, it is the broader theoretical points and empirical studies that are outside of a judge’s metaphorical wheelhouse. Just as judges will not allow an expert on law to testify, it makes little sense for law reviews to inform judges about topics which they are comfortable. Instead, like the expert on ballistics evidence or biological sciences, law reviews that are increasingly removed from “law” actually educate judges where they are weakest. And, as a result, law reviews are increasingly being cited by the very judges who proclaim their uselessness.

  July 31, 2010 at 6:54 pm   Posted in: Empirical Analysis of Law, Law School, Legal Theory   Print This Post   13 Comments

The Influence of Law Blogs (2006-Present)

posted by Dave Hoffman

I asked my wonderful research assistant, Robert Blumberg (TLS ’12), to update the Yospe/Best study on court citation of blogs and the Best 2006 study on law review citation of blogs.  He used as a dataset the 2009 legal educator blog census (which we are currently updating – see future posts for details), excluded some general sites which happen to have a law professor as rare contributor (the Huffington Post), and ran searches in WL’s JLR database.  Since 2006, under those conditions, law blogs have been cited in the journals 5460 5883 times.  Here are the top twenty sites since 2006.  Total citations are in (parenthesis), 2006 rank in [brackets]:

1. FindLaw’s Writ (618)
2. The Volokh Conspiracy (402) [2]
3. SCOTUSBlog (305) [4]
4. Balkinization (259) [3]
5. Patently-O: Patent Law Blog (211) [8]
6. Concurring Opinions (162)
7. Sentencing Law and Policy (160) [1]
8. JURIST – Paper Chase (130)
9. PrawfsBlawg (122)
10. The Becker-Posner Blog (104) [10]
11. Conglomerate (102)
12. White Collar Crime Prof Blog (89) [12]
13. Election Law @ Mortiz (85)
14. Legal Theory Blog (85) [5]
15. The University of Chicago Law School Faculty Blog (76)
16. Technology & Marketing Law Blog (74)
17. Lessig Blog (73) [6]
18. The Harvard Law School Forum on Corporate Goverance and Financial Regulation (72)
19. Ideoblog (72)
20. Election Law Blog (69)

Overall, the top 20 represented around 63% of all citations over the four year study period.  In 2006, the top 20 represented 76% of  852 citations.  In 2007, the top 20 represented 68% of 1095 citations.  In 2008, the top 20 represented 61% of 1388 citations.  In 2009, the top 20 represented 63% of 1441 citations.  Finally, in 2010 (so far) the top 20 has represented 65% of 562 citations.  It is difficult to make out any clear trend lines in the data.  Even taking into account the lag time of publication for 2009 and 2010 volumes, the rate of citations to law blogs is not increasing. There is a very mild trend toward diffusion in influence, although the top blogs still appear to drive the conversation, even as the number of professors blogging increased.  In the aggregate, the top few  blogs would each (if considered to be individual scholars) be worthies on Leiter’s citation lists.

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  July 23, 2010 at 11:36 am   Posted in: Blogging, Empirical Analysis of Law, Law Professor Blogger Census, Law School (Rankings), Law School (Scholarship)   Print This Post   12 Comments

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