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Category: Empirical Analysis of Law

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Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?

Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.

History is rife with examples of Justices who disappointed their appointing presidents.   As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.”  My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.

My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.

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The Senate’s Influence over Supreme Court Appointments

Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.

With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.

Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.

Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.

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The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.

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Should Empirical Legal Scholars Have Special Responsibilities?

Before delving into the substance of my first post, I wanted to thank the crew at Concurring Opinions for inviting me to guest blog this month.

Recently, I have been thinking about whether empirical legal scholars have or should have special ethical responsibilities. Why special responsibilities? Two basic reasons. First, nearly all law reviews lack formal peer review. The lack of peer review potentially permits dubious data to be reported without differentiation alongside quality data. Second, empirical legal scholarship has the potential to be extremely influential on policy debates because it provides “data” to substantiate or refute claims. Unfortunately, many consumers of empirical legal scholarship — including other legal scholars, practitioners, judges, the media, and policy makers — are not sophisticated in empirical methods. Even more importantly, subsequent citations of empirical findings by legal scholars rarely take care to explain the study’s qualifications and limitations. Instead, subsequent citations often amplify the “findings” of the empirical study by over-generalizing the results. 

My present concern is about weak data. By weak data, I don’t mean data that is flat out incorrect (such as from widespread coding errors) or that misuses empirical methods (such as when the model’s assumptions are not met). Others previously have discussed issues relating to incorrect data and analysis in empirical legal studies. Rather, I am referring to reporting data that encourages weak or flawed inferences, that is not statistically significant, or that is of extremely limited value and thus may be misused. The precise question I have been considering is under what circumstances one should report weak data, even with an appropriate explanation of the methodology used and its potential limitations. (A different yet related question for another discussion is whether one should report lots of data without informing the reader which data the researcher views as most relevant. This scattershot approach has many of the same concerns as weak data.)

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Why Is Privatized Procedure So Rare?

For some time, I’ve been mulling over how closely parties can tailor the rules of civil procedure to their own purposes. That is: can parties write enforceable contract terms which state that if they sue each other, the ordinary procedural rules won’t apply? Do such contracts exist? For example, parties might contract to be able to take 5 depositions in a case instead of the default 10. Or they might dispose of the rules of hearsay.  The literature on this topic of private procedure arguably started with the Scott/Triantis piece, Anticipating Litigation in Contract Design, and has gotten new momentum from Bone, Kapeliuk/Klement, Dodge, and Drahozal/Rutledge. My contribution, freshly up on SSRN, ended up being slightly more empirical than I’d expected — though I guess this won’t surprise any of our long-time readers.  In Why Is Privatized Procedure So Rare?, I try to explain why there is actually so little private procedure in places we’d expect to see it:

“Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures — a trend said to be explosive — they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering.

How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. I search a large database of agreements entered into by public firms, and a hand-coded set of credit card contracts. In both databases, clauses that craft private procedural rules are rare. This is a surprising finding given recent claims about the prevalence of these clauses, and the economic logic which makes them so compelling.

A developing literature about contract innovation helps to explain this puzzle. Parties are not rationally ignorant of the possibility of privatized procedure, nor are they simply afraid that such terms are unenforceable. Rather, evolution in the market for private procedure, like innovation in contracting generally, is subject to a familiar cycle of product innovation. Further developments in this field will not be linear, uniform and progressive; they will be punctuated, particularized and contingent.”

Download it here. I’d love your comments. It’s out in the scrum, but I’m intending to continue to revise it as data continues to come in.

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The Stanford Law Review Online: School Security Considerations After Newtown

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jason P. Nance entitled School Security Considerations After Newtown. Professor Nance writes that strict school security measures may be ineffective but have a balkanizing effect:

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent such atrocities from happening again. In fact, many states have enacted or proposed legislation to provide additional funds to schools for metal detectors, surveillance cameras, bulletproof glass, locked gates, and law enforcement officers. Because increased security measures are unlikely to prevent someone determined to commit a violent act at school from succeeding, funding currently dedicated to school security can be put to better use by implementing alternative programs in schools that promote peaceful resolution of conflict.

He concludes:

The events at Newtown have caused all of us to deeply consider how to keep students safe at school. A natural response to this atrocity is to demand that lawmakers and school administrators invest our limited public funds into strict security measures. But this strategy is misguided. Empirical evidence suggests that these additional investments in security equipment and law enforcement officers may lead to further disparities along racial and economic lines. Further, it is imperative that all constituencies understand that there are more effective ways to address violence than resorting to coercive measures that harm the educational environment. Indeed, schools can make a tremendous impact in the lives of students by teaching students appropriate ways to resolve conflict and making them feel respected, trusted, and cared for. These are the types of schools that can make a real difference in the lives of students.

Read the full article, School Security Considerations After Newtown at the Stanford Law Review Online.

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Empirical Studies Workshop

Intrigued by the goings on at CELS VII?  Join the revolution.  Andrew Martin asked me to post the following:

Title: Conducting Empirical Legal Scholarship Workshop, May 22-24, 2013

On Wednesday, May 22, 2013 through Friday, May 24, 2013, Lee Epstein and Andrew Martin will be teaching their annual Conducting Empirical Legal Scholarship workshop.  This workshop will be held in Los Angeles, and is co-sponsored by USC Gould School of Law and Washington University Law. There is more information available about the workshop here:

http://law.usc.edu/EmpiricalWorkshop

The Conducting Empirical Legal Scholarship workshop is for law school and social science faculty interested in learning about empirical research.  The instructors provide the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop.  Topics to be covered include research design, sampling, measurement, descriptive statistics, inferential statistics, and linear regression.

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CELS VII: Low Variance, High Significance

[CELS VII, held November 9-10, 2012 at Stanford, was a smashing success due in no small part to the work of chief organizer Dan Ho, as well as Dawn Chutkow (of SELS and Cornell) and Stanford's organizing committee.  For previous installments in the CELS recap series, see CELS III, IV, V, and VI. For those few readers of this post who are data-skeptics and don’t want to read a play-by-play, resistance is obviously futile and you might as well give up. I hear that TV execs were at CELS scouting for a statistic geek reality show, so think of this as a taste of what’s coming.]

Survey Research isn't just for the 1%!

Unlike last year, I got to the conference early and even went to a methods panel. Skipping the intimidating “Spatial Statistics and the GIS” and the ominous “Bureau of Justice Statistics” panels, I sat in on “Internet Surveys” with Douglas Rivers, of Stanford/Hoover and YouGuv. To give you a sense of the stakes, half of the people in the room regularly use mTurk to run cheap e-surveys. The other half regularly write nasty comments in JELS reviewer forms about using mTurk.  (Oddly, I’m in both categories, which would’ve created a funny weighting problem if I were asked my views.) The panel was devoted to the proposition “Internet surveys are much, much more accurate than you thought, and if you don’t believe me, check out some algebraic proof.  And the election.”  Two contrasting data points. First, as Rivers pointed out, all survey subjects are volunteers, and thus it’s a bit tough to distinguish internet convenience samples from some oddball scooped up by Gallup’s 9% survey response rate.  Second, and less comfortingly, 10-15% of the adult population has a reading disability that makes self-administration of a survey prompt online more than a bit dicey.  I say: as long as the disability isn’t biasing with respect to contract psychology or cultural cognition, let’s survey on the cheap!

Lunch next. Good note for presenters: avoid small pieces of spinach/swiss chard if you are about to present. No one will tell you that you’ve spinach on a front tooth.  Not even people who are otherwise willing to inform you that your slides are too brightly colored. Speaking of which, the next panel I attended was Civil Justice I. Christy and I presented Clusters are AmazingWe tag-teamed, with me taking 9 minutes to present 5 slides and her taking 9 minutes to present the remaining 16 or so.  That was just as well: no one really wanted to know how our work might apply more broadly anyway. We got through it just fine, although I still can’t figure out an intuitive way to describe spectral clustering. What about “magic black box” isn’t working for you?

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Stanford Law Review Online: The Obama Justice Department’s Merger Enforcement Record

Stanford Law Review

Continuing our dialog on antitrust enforcement, the Stanford Law Review Online has just published an Essay by Daniel A. Crane entitled The Obama Justice Department’s Merger Enforcement Record. Professor Crane responds to Carl Shapiro and Jonathan Baker’s criticism of his response to his earlier Essay:

My recent Essay, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?, examined the three major areas of antitrust enforcement—cartels, mergers, and civil non-merger—and argued that, contrary to some popular impressions, the Obama Justice Department has not “reinvigorated” antitrust enforcement. Jonathan Baker and Carl Shapiro have published a response, which focuses solely on merger enforcement. Baker and Shapiro’s argument that the Obama Justice Department actually did reinvigorate merger enforcement is unconvincing.

He concludes:

Jon Baker and Carl Shapiro are smart, effective economists for whom I have great respect. I have few quarrels with how they or the Obama Administration in general conduct antitrust enforcement. The point of my essay was that antitrust enforcement has become largely technocratic and independent of political ideology. I have heard nothing that dissuades me from that view.

Read the full article, The Obama Justice Department’s Merger Enforcement Record by Daniel A. Crane, at the Stanford Law Review Online.

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Workshop on Empirical Approaches to Access to Justice

Symposiast Jim Greiner passes along the following call for applications:

Working together across the lines of scholarship and practice, a group of researchers and field professionals in access to civil justice (A2J) in the United States is soliciting applications to attend a two-day Workshop to be held in Chicago, Illinois on December 7-8, 2012. The Workshop opens with a poster session and town hall meeting on the afternoon of Friday, December 7. This open session, held in conjunction with the National Legal Aid and Defender Association annual meetings, will bring together scholars and practitioners from many perspectives to identify and explore access to justice research needs. On the following day, Saturday, December 8, the Workshop will convene a smaller, closed session to push forward the work of revitalizing A2J research. We are grateful to the National Science Foundation Law and Social Sciences Program (SES-1237958) for recommending financial support.

The application materials are here: NSF Workshop Application.  Jim encourages all interested parties – which should include anyone who is interested in empirically examining access to justice issues – to apply.