Category: Law Rev (Yale)

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Randomization Uber Alles?

Jim and Cassandra write:

“To Dave, we say that our enthusiasm for randomized studies is high, but perhaps not high enough to consider a duty to randomize among law school clinics or among legal services providers.  We provided an example in the paper of practice in which randomization was inappropriate because collecting outcomes might have exposed study subjects to deportation proceedings.  We also highlighted in the paper that in the case of a practice (including possibly a law school clinic) that focuses principally on systemic change, randomization of that practice is not constructive.  Instead, what should be done is a series of randomized studies of an alternative service provider’s practice in that same adjudicatory system; these alternative provider studies can help to assess whether the first provider’s efforts at systemic change have been successful.”

I meant to cabin my argument to law school clinics.  And I do understand that there may be very rare cases where collecting outcomes will hurt clients (such as deportation).  But what about a clinic that focuses on “systemic change.” Let’s assume that subsidizing such a clinic would be a good thing for a law school to do (or, put it another way, we think it is a good idea for current law students to incur more debt so that society gets the benefit of the clinics’ social agitation).  Obviously, randomization of client outcomes would be a terrible fit for measuring the success of such a clinic.  It would be precisely the kind of lamppost/data problem that Brian Leiter thinks characterizes much empirical work.

But that doesn’t mean that randomization couldn’t be useful in measuring other kinds of clinic outcomes.  What about randomization in the allocation of law student “employees” to the clinic as a way to measure student satisfaction in the “learning outcomes“? Or randomization of intake and utilizing different client contact techniques as a way of measuring client satisfaction with their representation (or feelings about the legitimacy of the system?)  One thing that the commentators in this symposium have tried to emphasize is that winning & losing aren’t the only outputs of the market for indigent legal services.  Controlled study of the actors in the system needn’t be constrained in the way that Jim and Cassandra’s reply to my modest proposal to mandate randomization suggest.

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Randomization, Intake Systems, and Triage

Thanks to Jim and Cassandra for their carefully constructed study of the impact of an offer from the Harvard Legal Aid Bureau for representation before the Massachusetts Division of Unemployment Assistance, and to all of the participants in the symposium for their thoughtful contributions.  What Difference Representation? continues to provoke much thought, and as others have noted, will have a great impact on the access to justice debate.  I’d like to focus on the last question posed in the paper — where do we go from here? — and tie this in with questions about triage raised by Richard Zorza and questions about intake processes raised by Margaret Monsell.   The discussion below is informed by my experience as a legal service provider in the asylum system, a legal arena that the authors note is  strikingly different from the unemployment benefits appeals process described in the article.

My first point is that intake processes vary significantly between different service providers offering representation in similar and different areas of the law.  In my experience selecting cases for the asylum clinics at Georgetown and Yale, for example, we declined only cases that were frivolous, and at least some intake folks (yours truly included) preferred to select the more difficult cases, believing that high-quality student representation could make the most difference in these cases.  Surely other legal services providers select for the cases that are most likely to win, under different theories about the most effective use of resources.  WDR does not discuss which approach HLAB takes in normal practice (that is, outside the randomization study).  On page twenty, the study states that information on financial eligibility and “certain additional facts regarding the caller and the case”  are put to the vote of HLAB’s intake committee.  On what grounds does this committee vote to accept or reject a case?  In other words, does HLAB normally seek the hard cases, the more straightforward cases, some combination, or does it not take the merits into account at all?

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What Difference Presentation?

David Udell is the Executive Director of the National Center for Access to Justice and a Visiting Professor from Practice at Cardozo Law School.

In my line of work, I have seen many efforts in the political realm to shut down civil legal services for the poor, and have continually worked to combat such efforts.  In 1996, when the Gingrich Congress barred federally funded legal services lawyers from bringing class actions on behalf of the poor, I left Legal Services for the Elderly in order to finish a lawsuit on behalf of widows and widowers who were suing to compel the United States Treasury to fix its practices for replacing stolen Social Security payments.  When I later moved to the Brennan Center for Justice, I helped bring a lawsuit against the rules that barred legal services lawyers from participating in such class actions, I filed another lawsuit against similar rules that barred law school clinic students from bringing environmental justice cases in Louisiana, and I built a Justice Program at the Brennan Center dedicated to countering such attacks on the poor and on their lawyers.

In their March 3, 2011 draft report, What Difference Representation? Offers, Actual Use, and the Need for Randomization (“the Study”), authors D. James Greiner & Cassandra Wolos Pattanyak are right about the importance of developing a solid evidence base – one founded on methodologies that include randomization – to establish what works in ensuring access to justice for people with civil legal cases. They are right again that in the absence of such evidence, both the legal aid community and its critics are accustomed to relying on less solid data.  And they are smart to “caution against both over- and under-generalization of these study results.”  But, unfortunately, the bare exhortation to avoid over- and under-generalization is not sufficient in the highly politicized context of legal services.

While the authors obviously do not have any obligation to arrive at a particular result, they can be expected to recognize a need to avoid statements that have a high probability to mislead, especially in light of the likely inability of much of the Study’s audience to understand the authors’ methodology and findings.  In fact, because of the Study’s novelty and appearance in a non-scientific journal, it will be relied on to analyze situations where it doesn’t apply, and by people who have no background in social science research, plus it will be given disproportionate weight because so few comparable studies exist to judge it against.  It is these factors, in combination with the politicization of legal services, that make it crucial that the authors’ assertions, particularly in the sections most likely to be seen by lay readers (the title and the abstract), do not extend beyond what the findings justify.

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What Difference Representation: Introduction to the Symposium

Should Law School Clinics Select Clients by Roulette?

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

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

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

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

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

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The Yale Law Journal Online: Opting out of the Law of War

yljonline

In Opting out of the Law of War: Comments on Withdrawing from International Custom, David Luban responds to Curtis A. Bradley and Mitu Gulati’s recent Yale Law Journal Article, Withdrawing from International Custom. Professor Luban’s Essay focuses on Professors Bradley and Gulati’s reading of historical focus, which they use to show both that the customary law was historically considered subject to unilateral withdrawal (the Default View) and that the opposing Mandatory View carries a colonialist legacy. Professor Luban uses the law of war as his principal example to suggest that “stickiness” in international law rules may be a virtue, because if the Default View carries the day, “the alternative to supposedly outmoded customary law is likely to be no law rather than better law.”

Please visit YLJ Online to read our latest Essays and to view the latest issues of our print edition in an electronic format.

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The Yale Law Journal Online: Conditional Taxation and the Constitutionality of Health Care Reform

yljonline

The recent passage of health care reform has sparked contentious debate on the constitutionality of the requirement that individuals purchase a qualifying health insurance plan or be subject to a tax (the “individualized responsibility requirement” or “IRR”). In the latest YLJ Online Essay, Conditional Taxation and the Constitutionality of Health Care Reform, Professor Brian Galle argues that even if the commerce power and Necessary and Proper Clause do not clearly authorize the IRR, it is a straightforward application of Congress’s broad taxation authority. Professor Galle further contends that attacks on the normative desirability of this reading of the taxing power are misguided.

Preferred citation: Brian Galle, Conditional Taxation and the Constitutionality of Health Care Reform, 120 YALE L.J. ONLINE 27 (2010), http://yalelawjournal.org/2010/5/31/galle.html.

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The Yale Law Journal, Vol. 119, Issue 6 (April 2010)

The Yale Law Journal

April 2010 | Volume 119, Issue 6

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The Yale Law Journal, Vol. 119, Issue 4 & Forthcoming Supreme Court Conference

The Yale Law Journal

January 2010 | Volume 119, Issue 4

ARTICLES
Antibankruptcy
Douglas G. Baird & Robert K. Rasmussen
648
Fourth Amendment Seizures of Computer Data
Orin S. Kerr
700
FEATURE
American Needle v. NFL: An Opportunity
To Reshape Sports Law

Michael A. McCann
726
NOTE
Strategic or Sincere? Analyzing Agency Use of
Guidance Documents

Connor N. Raso
782
COMMENTS
Suspending the Writ at Guantánamo: Take III? 825
Constitutional Avoidance Step Zero 837


yljonline

On Tuesday, March 23, 2010, The Yale Law Journal Online will join with the Yale Law School Supreme Court Advocacy Clinic to host the concluding segment of “Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process.”  The panel will bring together federal judges, members of the legal academia, and practitioners to discuss potential reforms to the Supreme Court’s certiorari process. All events will be held at Yale Law School’s Sterling Law Building in New Haven, CT. Please click here for more information.

IMPORTANT QUESTIONS OF FEDERAL LAW
Yale Law School | New Haven, CT | March 23, 2010

Panel I: The Judge’s Perspective: Is the Court Taking the “Right” Cases?
4:10pm‐5:30pm, Room 129

Moderator: Linda Greenhouse (Yale Law School)
Panelists:
The Honorable José Cabranes (2d Cir.)
Drew Days (Yale Law School)
The Honorable Brett Kavanaugh (D.C. Cir.)
The Honorable Sandra Lynch (1st Cir.)

Panel II: The Practitioners’ Perspective: What Makes An Issue “Important” to the Court?
5:40pm‐6:55pm, Room 127

Moderator: Charles Rothfeld (Mayer Brown LLP and Yale Law School)
Panelists:
John Elwood (Vinson & Elkins LLP)
Orin Kerr (George Washington University Law School)
Patricia Millett (Akin Gump LLP)
Judith Resnik (Yale Law School)

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The Yale Law Journal Online: The Justice as Commissioner: Benching the Judge-Umpire Analogy

yljonline

The approach of viewing federal judges in the United States as baseball umpires has gained traction with the recent nomination processes of the Supreme Court, and sparked debate in both legal academia and across the political spectrum. The Yale Law Journal Online is therefore pleased to announce the publication of The Justice as Commissioner: Benching the Judge-Umpire Analogy by Aaron Zelinsky (Yale Law School). Mr. Zelinsky offers a timely assessment and critique of this analogy, as well as alternatives to envisioning the role of the Supreme Court.

Preferred citation: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 YALE L.J. ONLINE 113 (2010), http://yalelawjournal.org/2010/03/03/zelinsky.html.

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The Yale Law Journal Online: Richard Lazarus and Sanford Levinson on the Supreme Court’s Certiorari Process

yljonline

Concluding its series on proposed reforms to the certiorari process, The Yale Law Journal Online is pleased to present pieces by Richard Lazarus of the Georgetown Law Center and Sanford Levinson of the University of Texas Law School.  Lazarus and Levinson approach the issue of the Supreme Court’s docket composition through a variety of perspectives, and shed light on the ongoing debate over whether the declining number of cases before the Court presents a problem for the American judicial system.

The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic will be a hosting a second conference on the subject on March 23, 2010 at Yale Law School in New Haven, Connecticut.  Further details will be provided shortly.

Preferred Citations:

Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at http://yalelawjournal.org/2010/01/24/lazarus.html.

Sanford Levinson, Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?, 119 Yale L.J. Online 99 (2010), available at http://yalelawjournal.org/2010/02/01/levinson.html.