Law Journals' Policies On Empirical Articles

Browsing the website of the California Law Review, I came across two rules that pose something of a problem for folks writing empirical articles:

4) CLR does not allow the use of images or graphics in our published articles.

5) CLR will publish up to five author-created charts, graphs, and/or tables. All charts, graphs, and tables must be included in the manuscript by the end of the primary editing stage.

Both of these rules may get the in the way of coherent presentation of data, and I'm not sure what motivated the law review to promulgate them. (I imagine that no one actually follows these rules, or that they are negotiable, but why have them in the first place?)

This prompts a question: have people doing empirical work had particularly good or bad experiences working with student-edited journals? From what I've observed, editors stay far away from mucking with data or questioning regression methods, and journals' graphics departments aren't yet STATA-friendly. Is that about the norm?

[Update: Michael Heise reacts here and observes that "CLR's submission requirements invite some level of risk to that Review."]

Posted by Dave Hoffman at 12:18 AM | Comments (8) | TrackBack

Efficacy and Administrative Law, Part II

In an earlier post, I raised the question of whether we might do well to focus greater attention on the role of constitutional and administrative law in promoting the efficacy of regulation, rather than simply its limitation and constraint.

Off-line, Bill Buzbee, my Emory colleague and a scholar of administrative and environmental law, questioned whether I was understating the attention to efficacy in the administrative law literature, prompting me to try out a bit of (extremely) casual empiricism. For the very limited insight it offers, my results:

My search for (“administrative law” /5 limit!) in Westlaw’s Journals and Law Reviews (JLR) database, to begin, yielded 437 hits.

My search for (“administrative law” /5 (efficac! effective!)) in JLR, by contrast, yielded 129.

Look out, Hoffman, I’m a number cruncher now!

Posted by Robert Ahdieh at 07:29 AM | Comments (1) | TrackBack

Which Prediction Market Will Best Predict the Oscars?

The Oscars are coming up, and I bet many readers are going to engage in a bit of betting on the outcome to liven up the otherwise attenuated proceedings. Let's say you want to win against your family and friends: what do the futures markets tell you to do? I thought I'd compare Intrade [I] and Hollywood Stock Exchange [HSX] to find out.

Intrade makes it easy. The futures market currently predicts No Country for Old Men the winner of Best Picture, with a 69% probability. The Cohen Brothers will take the Director nod, at 72.5%, Daniel-Day Lewis for the Actor, at 88.6%, and Julie Christie is favored at 57.8% for best actress.

HSX is a little harder to interpret. The current price for NCfOM is $14.36, which would payout at $25.00 if the movie wins, and 0 if it loses. As I interpret the market, this works out to an estimated 57.44% chance of winning. The Cohen Brothers are favored at $13.19, a 52.8% probability. DDL is again the favorite for best actor, priced at $17.09, or 68.36%. And JC is the favorite for actress, at $12.80, or 51.2%

So the markets basically agree on the favorites, but the HSX market prices much more uncertainty. Since HSX trading is much thicker than the Oscar markets on Intrade (only a few hundred trades, though backed by real money), the spread isn't that surprising. That said, these data recommend buying cheap underdogs in all of the award categories on the Intrade market if you want to make money, but bet the favorites on Sunday night, if you want bragging rights.

Posted by Dave Hoffman at 11:58 AM | Comments (0) | TrackBack

Tipping Points and Viral Law

Which channels for legal authority are most efficient? This enforcement-efficacy question is a tough one, understudied by traditional L&E and even BL&E. Most instrumentalist theories of law spend relatively little time thinking about the costs of distributing legal rules, and the likelihood that their recipients (citizens) will internalize them. Indeed, the basic L&E approach to criminal law (Becker's) is frankly dismissive of law's signaling function, and equates criminal and civil wrongs as taxable infractions.

The problem is not confined to criminal law, of course. Imagine that we want to promote good behavior by a corporate officer. Traditional corporate law doctrine says that we should do so by tinkering with legal rules ("the duty to auction should attach at a Revlon moment"; "Revlon doesn't happen unless control transfers apart from a distributed market transaction"; "officers must seek Board approval for corporate opportunity taking"; etc.) These doctrinal choices are framed against an incentive problem (principal agent). Richer motivational accounts complicate the story: maybe officers won't be incented to avoid negligence by imposing a care rule; maybe monitoring rules will increase distrust). But even behavioral law and economics assumes that the way that law is pushed out to its targets is basically immaterial to whether it is effective.

This is the standard, hierarchical, model of distributing law. Different approaches, born out of network theory, are of course possible. Malcolm Gladwell's The Tipping Point illustrates the point. Gladwell popularized the idea of the "law of the few": "The success of any kind of social epidemic is heavily dependent on the involvement of people with a particular and rare set of social skills." He further identified connectors (people who "link us up with the world ... people with a special gift for bringing the world together"; mavens ("people we rely upon to connect us with new information."); and salesmen ("persuaders"). Finally, he suggested that some messages are more sticky than others. (Source for the quotes: Wikipedia) .

How would these insights apply to law? Well, obviously, we might imagine Judge Hercules thinking about a change in the law. She has some criterion to evaluate the goodness of that change. [Be it Kaldor-Hicks efficiency, or something as subtle as de-biasing a pernicious cognitive error, or maybe a fMRI readout of a few brain scans, or maybe she just flipped a coin. Don't be distracted by the mechanism, stick with the story!] Once she's made the decision, however, she wants the greatest number of people in society to follow her new rule, so as to maximize the benefits she thinks flows from the change. L&E and BL&E have, to date, said almost nothing about this distribution and enforcement problem. (Indeed, as I learned from Alex Rasholnikov's workshop at Temple this week, tax folks haven't done much on enforcement either.) So, she follows the conventional wisdom, issuing her decision in an opinion, or an order if she thinks it likely to be unappealled, and assumes that individuals will learn about the new legal rule in the traditional ways - the media, by word-of-mouth, and by personal experience with the policeman's stick.

Gladwellians, however, might imagine the legal change as a proposed social epidemic, and the judge's goal to make that epidemic travel as fast, and as widely, as possible. She also wants the epidemic to stick - to embed itself in individuals' daily behavior, so that post-hoc enforcement costs are low. Thus, she might want to find connectors to send her decision to (bloggers!); talk with mavens about the rules so they can explain them to others (law professors!); and then somehow enlist salesmen to her cause (friendly litigants). To make the message as sticky as possible, she might want to dress it up with provocative rhetoric, or maybe even embed some multimedia in the opinion itself. In short, Gladwell can explain many of the features of the way that the common law today is distributed, and makes sense of, say, the Delaware Supreme Court's tremendous success at increasing their market share: the justices of Delaware understand the law of the few!

There's just one problem with this story: it may not be right. Duncan Watts performed a large-scale experiment to test whether nodes improved virus transmission:

In 2001, Watts used a Web site to recruit about 61,000 people, then asked them to ferry messages to 18 targets worldwide. Sure enough, he found that Milgram was right: The average length of the chain was roughly six links. But when he examined these pathways, he found that "hubs"--highly connected people--weren't crucial. Sure, they existed. But only 5% of the email messages passed through one of these superconnectors. The rest of the messages moved through society in much more democratic paths, zipping from one weakly connected individual to another, until they arrived at the target.

If Watts is more right than Gladwell, it poses a challenge for jurists: what is the most efficient way to distribute legal rules, where you can't rely simply on nodal governance. Because this blog post is already too long, I think I'll leave the question open to solicit your thoughts.

(Image Source: The Sick Doctor, Jehan Georges Vibert)

Posted by Dave Hoffman at 04:57 PM | Comments (3) | TrackBack

Measuring Justice(s) in Louisiana

An article in today's New York Times, by Adam Liptak, reports on a forthcoming article in the Tulane Law Review, co-authored by Vernon Palmer (Tulane Law) and John Levendis (Loyola-New Orleans economics). As Liptak reports it, Palmer - a comparative law scholar - had long been struck by the ability of Louisiana Supreme Court justices to hear cases involving individuals who had previously made campaign contributions to them.

Quite reasonably, Palmer wrote a letter to each of the justices, recommending adoption of a rule mandating disqualification in such cases. Receiving no reply, he wrote again. Once more, no response was forthcoming. Some might have given up on the quixotic endeavor at this point. Being at academic, however, Palmer instead decided to recruit Levendis to help him do an empirical study of campaign contributions to the Court's justices and relevant case outcomes.

Their basic calculations indicated the justices to have voted in favor of their contributors, on average, 65% of the time. (In the case of some justices, the level rose to 80%.) But the really interesting findings came when they used voting patterns in cases without contributors as their control. Liptak is worth quoting:

Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing. . . .

Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.

Not having seen the article itself, it's hard to evaluate the quality of the authors' empirics. If they're even a little right, though, it seems like quite a finding. And perhaps quite telling, about justice and the elected justice.

Posted by Robert Ahdieh at 09:12 PM | Comments (6) | TrackBack

The New Scholars of Judicial Partisanship

These days it seems like everyone is a legal realist. Or are they?

For example, I can't decide whether Miles and Sunstein are or aren't. They've undoubtedly made major contributions to the empirical study of caselaw. Sunstein, Miles, and others have extended, for example, the path-breaking work of Ricky Revesz on partisanship and judging in the area of environmental law to a host of other areas, and have done some fascinating work on panel effects and deliberation. They do great work.

I can't help but puzzle a little, though, over the title to their new piece, The New Legal Realism. Now legal realists provide several rich accounts of how legal actors made decisions. Because the law is often indeterminate, legal realists argue, judges have to draw (and often heavily) on values and social norms to resolve questions of law and fact. Indeed, legal realists can be credited as the first sophisticated theorists of how values, norms and cognition interact in judicial decision-making. But Miles and Sunstein's account of The New Legal Realism seems, at least to my eye, closer to what many critics of legal realism mistakenly take it to be: an accusation that judging is just partisanship dressed up in legal rhetoric and opportunistic precedent selection.

So what would an accurate account of legal realism look like?

A more detailed cultural (think of The Cheyenne Way) and psychological (think of the emphasis on individual variation) conception of what constitutes law would help, one that doesn't reduce personality to party, race, and resume; and one that doesn't reduce law to courtroom judging, but also includes policing, administration, and the informal resolution of legal disputes by private parties. A more faithful conception of this New Legal Realism would, I think, thus be broad enough to encompass the work of folks who do values-informed analyses (like Ricky Revesz), qualitative and quantitative studies of social norms (like Dan Kahan and Tracey Meares), and studies of psychological biases and heuristics (like Tom Tyler and Jeff Rachlinski). In other words, I think that most of the people who do systematic work investigating the extra-doctrinal influences on legal decision-making are legal realists.

And, in their own way, so are Miles and Sunstein. They're just not very good at telling us what legal realism itself.

Posted by Donald Braman at 09:13 AM | Comments (0) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron's characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I'll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Posted by Dave Hoffman at 03:00 PM | Comments (2) | TrackBack

Too Much Happiness?

Increasingly, the study of “happiness” is making its way into legal academic writing. In some analyses it is framed as an alternative to money as a measure of welfare; in others as a focus on addressing the recurring problem of law firm associates’ pessimism. It is applied to tax policy, the calculation of pain-and-suffering damages, democratic institutions, and more. And happiness is making its way into law schools—well, in a sense anyway—with seminars being offered at Yale and Temple Law Schools on, for instance, “Law, Happiness, and Subjective Well-Being.” The study of happiness, and the related research program in positive psychology, are becoming increasingly prominent in law and policy.

The connection to the also-burgeoning literature on paternalism is clear; to the extent different interventions might be able to increase people’s happiness and welfare, is government justified in promulgating such interventions (or even obligated to do so)? That’s a can-of-worms type of question that I won’t get into in this post, but it connects with an interesting new article that indirectly raises the question whether such intervention—even if justified—might in fact backfire. That article, “The Optimum Level of Well-Being: Can People Be Too Happy?,” suggests that even though higher happiness seems to correlate with higher success in other areas, simply continuing to increase happiness might not increase that success consistently. The abstract follows:

Psychologists, self-help gurus, and parents all work to make their clients, friends, and children happier. Recent research indicates that happiness is functional and generally leads to success. However, most people are already above neutral in happiness, which raises the question of whether higher levels of happiness facilitate more effective functioning than do lower levels. Our analyses of large survey data and longitudinal data show that people who experience the highest levels of happiness are the most successful in terms of close relationships and volunteer work, but that those who experience slightly lower levels of happiness are the most successful in terms of income, education, and political participation. Once people are moderately happy, the most effective level of happiness appears to depend on the specific outcomes used to define success, as well as the resources that are available.

We know that “money doesn’t buy happiness”—that simply increasing financial success doesn’t directly correlate with happiness above a certain (surprisingly low) point; here’s an interesting suggestion that above a certain point, happiness doesn’t “buy” success.

Posted by Jeremy Blumenthal at 02:13 PM | Comments (2) | TrackBack

This is Your Brain on ... the New York Times

A recent NY Times bit talks about “neurorealism,” that is, people’s increased tendency to believe psychological or other scientific assertions when those assertions are accompanied by images from brain scans. The piece quotes Deena Weisberg, who wrote an article in the Journal of Cognitive Neuroscience documenting this empirically (in both laypeople and, if I remember the article correctly, in experts, though to a lesser extent), and the neologizer, Eric Racine. The piece mentions a newspaper article “about how high-fat foods activate reward centers in the brain,” and asks, “Couldn’t we have proced that with a slice of pie and a piece of paper with a check box on it?” Brian Leiter also noted the Times piece, with a plug for his paper criticizing legal academics’ use of evolutionary biology.

But the Times bit, and these scholars, conflate two very different points. The first is the “credulousness” issue—that people believe the assertions when accompanied by brain images. That’s an important point, especially in the legal context, where judges, jurors, or policy-makers might be exposed to such scans and misled by such scientific “explanations” of behavior. (Of course, it’s not enormously surprising, given past concerns about jurors’ understanding of complex scientific evidence.)

But that’s quite a different point from the dismissive “check box” question, criticizing even the usefulness of such neurological research. fMRI and other such scans can of course provide important and useful evidence, and certainly can tell us more than simple self-reports or even other behavioral studies. Matt Lieberman, a psychologist at UCLA [disclosure: we were in grad school together] and one of those most prominently associated with the newish field of social cognitive neuroscience, has addressed this well, in answering whether SCN provides something more than conventional social psychology. Summarizing just one of his papers on the issue: he points out that fMRI can provide evidence that “two psychological processes that experientially feel similar and produce similar behavioral results, but actually rely on different underlying mechanisms,” such as memory for social and non-social information. It can document “processes that one would not think rely on the same mechanisms, when in fact they do,” such as the common neurological pathways in the experience of both physical and social pain. And more speculatively, he suggests, as “more is learned about the precise functions of different regions of the brain it may be possible to infer some of the mental processes that an individual is engaged in just from looking at the activity of their brains.” This is an important advantage to overcome potential difficulties in, for instance, self-report.

There is of course danger in over-selling fMRI and similar neurological evidence—whether evaluating psychiatric patients, capital defendants, or others—and documenting people’s susceptibility to such over-sell is important. But it’s quite a different question whether such scans can be useful, and to dismiss them out of hand is just as obviously a mistake.

Posted by Jeremy Blumenthal at 10:57 AM | Comments (2) | TrackBack

Interdisciplinarity, Leiter and the Bluebook

Gordon Smith has a nice summary post of the debate between Brian Leiter, Mary Dudziak and others on whether Brian's faculty citation rankings accurately measure "impact in legal scholarship."

The basic framework of the debate is

Objection: "But you didn't measure X..."
Leiter: "True. Let a hundred flowers bloom, and do your own data collection!"

(Which strikes me as pretty persuasive.) I wanted to add a different ingredient into the pot. I think Leiter's rankings mismeasure impact in interdisciplinary scholarship for a reason unrelated to his methodology or its merits. Simply put: the Bluebook itself undervalues interdisciplinary collaborations and thus scholarship.

I'm not nearly the first to observe that the Bluebook's citation rules have an ideological component. See, e.g., Christine Hurt's great piece on that very topic. But consider the interaction between Bluebook Rule 15.1, 16 and Leiter's study. R.16 states that the citation of author names in signed law review articles should follow Rule 15.1. R. 15.1 states that when there are two or more authors, you have a choice:

Either use the first author's name followed by "ET AL." or list all of the authors' names. Where saving space is desired, and in short form citations, the first method is suggested . . Include all authors' names when doing so is particular relevant.

This seems to me to express a pretty strong non-listing preference. The "problem" is that much good interdisciplinary work results from collaborations among more than two authors - it is the nature of the beast. Take, for example, my colleague Jaya Ramji-Nogales' forthcoming triple-authored article Refugee Roulette: Disparities in Asylum Adjudication, which was front-paged by the Times back in June. Two of the article's authors are in danger of being ET AL.'ed in many law review footnotes, and consequently ignored in subsequent Leiter citation counts (unless the citing article's author chooses to mention them by name in the text). This seems like a trivial objection, but it will take on increasing weight over the next ten years as empirical legal studies really comes online in the major law reviews. (Obviously, I'm writing in part because I've two articles in the pipeline where I'm a part of three-author teams, and the "et al." problem is somewhat salient.)

Bluebook editors: I know you are lurking here! Can you fix this silly problem in the 19th edition?

Posted by Dave Hoffman at 01:12 PM | Comments (13) | TrackBack

Clarification about Clarify

I recently switched to STATA from SPSS. The choice seemed overdetermined, not least because of the abundance of freeware add-ons for STATA (compared with the pricey programs for SPSS). For example, Clarify, developed by Michael Tomz, Jason Wittenberg and Gary King, makes it easy to estimate predicted probabilities by simulating data, a highly useful technique, especially when graphed. (I first learned about Clarify in the Martin/Epstein legal-empirical methods stats camp.) Going through this kind of work by hand is a hassle, as my co-authors and I learned when writing Docketology.

I've a question about the software that seemed unanswered by the documentation, and I thought there was a chance (a slim one) that it might be something our readers could answer. Ordinarily, when estimating a model that contains two or more mutually exclusive dummies, you are supposed to omit one as a comparison. Is that true when using the estsimp command in Clarify, or, because the assumption is that omitted variables are set to their mean, you should specify a value for all variables (and thus include all of the dummies in the set.)

Hope that makes sense! Additionally, if anyone else has experiences with Clarify or questions about it to share, consider this an open forum.

Posted by Dave Hoffman at 02:14 PM | Comments (1) | TrackBack

A Positive Externality of Surveillance

I've been skimming the first chapter of Randall Collins's Violence: A Micro-Sociological Inquiry, and came across this interesting perspective on an unexpected benefit of a high-surveillance society:

Violence as it actually becomes visible in real-life situations is about the intertwining of human emotions of fear, anger, and excitement, in ways that run right against the conventional morality of normal situations. It is just this shocking and unexpected quality of violence, as it actually appears in the cold eye of the camera, that gives a clue to the emotional dynamics at the center of a micro-situational theory of violence.

We live in an era in which our ability to see what happens in real-life situations is far greater than ever before. . . .The video revolution has made available much more information about what happens in violent situations than ever before.

***

Technologies of recording real-life conflict are useful for a series of reasons: they can provide us details that we otherwise wouldn’t see at all, that we were not prepared to look at, or did not know were there; they can give us a more analytical stance, more detached from the everyday perceptual gestalts and the clichés of conventional language for talking about violence.

Collins's observations here remind me of a recent discussion in my admin class on the inevitably value-laden nature of most verbal characterizations of situations. We discussed the simple statement "Jack pushed John." The key word here--push--carries with it all manner of charged associations. The types of images that can spring to mind from such a description are diverse. Perhaps only a video of the event can "tell the truth."

On the other hand, co-blogger Dave Hoffman has argued that, even in video evidence, "we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events."

But Collins has an answer to that claim as well:

It is not literally true that a picture is worth a thousand words. Most people will not see what is in a picture, or will see it through the most readily available visual clichés. It takes training and an analytical vocabulary to talk about what is in a picture, and to know what to look for. A picture is worth a thousand words only for those who already have internalized an adequate vocabulary. This is particularly so when we have to train ourselves to see micro-details: the movements of some facial muscles rather than others that distinguish a false smile from a spontaneous one; the movements that display fear, tension, and other emotions; the smoothness of rhythmic coordination and the hitches that indicate disattunement and conflict; the patterns in which one person or another seizes the initiative and imposes a rhythm upon others. The methods of visual and auditory recording now available open up the potential to see a vast new landscape of human interaction; but our ability to see goes in tandem with the expansion of our theories of what processes are out there to be seen.

A fascinating viewpoint on the inextricable intertwining of description and judgment.

Posted by Frank Pasquale at 10:23 AM | Comments (0) | TrackBack

Bar Passage & Accreditation: The "Neutral" Case Against Standards

Back in August, the ABA withdrew proposed interpretive standard 301-6, which would have de-accredited schools that didn't graduate students who passed their state bar at certain rates:

Under the first option, a school would have to show that in three or more of the most recent five years, in the jurisdiction in which the largest proportion of the school’s graduates take the bar exam for the first time, they pass the exam above, at or no more than 10 points below the first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the primary one, the schools also would be required to demonstrate that at least 70 percent of those students passed their bar examination over the two most recent bar exams.

Schools unable to satisfy the first alternative still could comply by demonstrating that 80 percent of all their graduates who take a bar examination anywhere in the country pass a bar examination within three sittings of the exam within three years of graduation.

The major critiques I saw of 301-6 focused on its alleged discriminatory effects:"all of the five ABA accredited law schools with the highest African-American enrollment (Howard, Southern, Texas Southern, North Carolina Central, and District of Columbia) would fail to meet the proposed interpretation."I recently saw an interesting paper by Gary Rosin titled Benchmarking the Bar: No Unity in Difference Scores that seems to provide a race-neutral argument against the standard. From the abstract:

Under ABA proposed Interpretation 301-6, the primary benchmark used to measure the adequacy of a law-school's academic program would be the amount by which is “local” Bar passage rate for first-takers differs from the overall passage rate for all first-takers from ABA-approved law schools. The study used generalized linear modeling as a method to compare Bar “difference scores” of ABA-approved law-schools in two states, New York and California. The study found that Bar difference scores in California were significantly more sensitive to changes in law-school relative LSAT scores than were Bar difference scores in New York. Bar difference scores - subtracting the “local” overall ABA Bar passage rate - do not fully adjust for variations in state grading practices, especially differences in minimum passing scores (“cut scores”) .

That is, because of state-to-state variation in slope of the bar passage curve, a standard that uses that curve as a predominant factor in accreditation decisions will have disparate effects. This seemed like an neat finding, but I wondered whether it is possible that the ABA (if it has to be the agency doing this) could correct for this slope problem using a weighting technique of some kind. I asked Gary, and he has kindly permitted me to quote his answer, after the jump.

"The most certain way to handle it would be to calculate a "reference" LSAT difference score that corresponds to the national Bar difference score that is adopted. You would then use that reference to calculate each state Bar difference score.

1. Calculate an LSAT-only national model (see the earlier paper, Unpacking the Bar).

2. Use that model to calculate the LSATs that correspond to (i) the national average for ABA first-takers and the BPR that gives the adopted lowest acceptable Bar difference score.

3. Use the resulting LSAT difference score as the standard of reference.

4. Calculate an LSAT + cut score national model.

5. For each state, use the second model to calculate the LSAT that corresponds to the average for ABA first-takers in that state.

6. Subtract the reference LSAT difference score from that "average" LSAT to find the lower LSAT bound.

7. Use the second model to find the Bar passage rate that corresponds to that LSAT. The difference between that BPR and the state ABA average would be the lower bound for the Bar difference score in that State.

The reason that you can't just use the slopes is that the slopes fall at an increasing rate as LSAT falls. So what you want is the slope of the chord between the reference (LSAT, Bar) pairs. Because the slopes don't change a constant rate, you can't depend on the slope of the reference chord.

Another problem is the size of the 95% confidence intervals for a law school's BPR, which is

+/- 1.96 * SQRT[Bar*(1-Bar)/N] (N is the number of the school's
candidates)

Again, the size of the confidence interval increases both as BPR falls towards 50%, and as N falls. For the schools in the study, the school confidence intervals ranged from +/- 2.7% to +/- 15.1%. That's more than enough to swamp a 10% difference score!"

This is an interesting problem, which deserves more discussion. (There was a good, but technical, comment thread on the ELS blog about Gary's earlier paper.) I imagine that the Bar will be back at some point soon with a new proposed standard that will ameliorate the politically hot diversity objections. But Gary's objection strikes me as deeper, and potentially more fatal to the project of using Bar passage as a good accreditation measure. What do you think?

Posted by Dave Hoffman at 06:26 PM | Comments (2) | TrackBack

In Praise of Market Imperfections

You would expect to go out of business if you hired people without knowing if they could do the job. And, the same would be true if you had no reliable way of measuring if they actually were doing the job once they were hired. Law Schools do both of these. They would prefer to hire second tier students from elite law schools rather than top students form non elite schools. Yet, the empirical evidence I know of shows that the scholarly production of the non elites once hired is no lower than that of the elites. In fact, since law reviews use credentials as a basis for article selection, non elites may be actually outperforming elites. Do we have any reliable way to evaluate what the new hires do? Give me a break. We have faculty classroom visits announced ahead of time that result in evaluations that could have been written ahead of time – all positive given the propensity of law professors to shirk from institutional responsibilites. And we have student evaluations that largely reflect expected grades. On scholarship, we send the articles to a list of reviewers influenced by the candidate or just the regular suppliers of positive letters. Be grateful for market imperfections!

Posted by Jeffrey Harrison at 01:43 PM | Comments (0) | TrackBack

Does the Phillies' Pennant Mean It's Good to be a Philadelphia Plaintiff's Lawyer?

I had the tremendous pleasure of attending yesterday's 6-1 Phillies victory over the Nationals. In the ninth, the crowd learned of the Mets' loss (and consequent, miraculous, Phillies clinching of the National League East pennant) about five minutes before the scoreboard posted that result, demonstrating the quick response time of social networks. I screamed my head off, and as a result will be hoarse for class tonight. Ironically, I'm teaching acceptance by silence.

But I didn't put up this post just to gloat. That would be wrong.

Well after the game, I wondered about the interaction between sports victories and legal decision making. I know there are studies out there that correlate a home-team's victory with a limited bump in local discretionary spending, and that overall wins (and teams) have negligible effects on economic growth. That makes some sense to me. But sports victories certainly have noneconomic effects. Wins change the atmosphere in cities (like Philadelphia) where there are tightly-connected urban communities. Just to relay an anecdote: this morning, on the subway, I observed someone actually give up their place to a woman transporting two small children. I don't think that happens on an ordinary day in Philly.

Does winning matter for law? It's not implausible, and it is relatively easy to test. I bet that jury awards today for prevailing plaintiffs are higher than average, and that judges are slightly less likely to grant summary judgment. (And visa versa. I would not want to open a civil case before a Queens jury today.) Civic noise certainly matters to legal decisionmakers: if the narrative around town is "the underdog has prevailed," that has got to have some impact on the legal system. All of which is to say: plaintiffs lawyers able to choose cases might consider picking clients likely to go to trial in jurisdictions with winning local sports teams.

Posted by Dave Hoffman at 04:17 PM | Comments (3) | TrackBack

The Efficient Sports Betting Market Hypothesis

Reader CDP passes along a link to this interesting story from SportsInsights.com, sort of an intellectual's Sports Book. The article summarizes some academic literature on the efficiency of the betting market in professional and college-level football games. It's just a puzzle: the sports betting market, despite being quite liquid and well-researched, isn't particularly efficient.

Finance professor Richard Borghesi, of Texas State, has done much of the recent work on the problem.

One recent paper shows that the "home underdog" effect is most robust late in the season, when the influx of naive bettors swamps the ability of sophisticated bettors to "fix" the line. Another paper suggests that the betting market is quite slow to react to new, odds-relevant, weather information.

Why do such inefficiencies persist? Borghesi argues that the market makers are crooked: bookies are deliberately taking advantage of bettors' cognitive biases. Perhaps, but as Josh Wright argued here in response to a post of mine about consumer irrationality, such explanations don't satisfy unless we've got a theory explaining why competitors don't compete away the "irrationality premium."

So what of the explanation that the late-season betting is "too heavy" with amateurs to remain rationally priced. This is odd too: the home-dog effect is is well-known, yet it persists as a good strategy. Given all that money lying on the table, why hasn't Goldman established a private sports betting fund?

The only reason I can think of is that such interventions would be unlawful. Thus, restrictions on gambling, presumably in place to deter fraud, are in fact enabling exploitation of gamblers. We could test the hypothesis by looking at markets where gambling was totally lawful but which have very irrational fan bases. Does the home-dog effect pop up for premier league soccer games?

Posted by Dave Hoffman at 11:24 PM | Comments (0) | TrackBack

Whatever

I’ve been working on a business for when I get tired of being a law professor. False memories. There’s a huge potential market. Everyone has missing pages in the scrapbook, things we’ve always wanted to do but never managed -- that grand April affair in Paris, climbing K-2, or perhaps just nobly and diligently overcoming some childhood adversity. False memories have a bad name in law: we don’t like it when a victim remembers abuse that never happened, or an eye-witness realizes that the short Black defendant is the tall White gunman he saw pull the trigger. But why not harness that power for good? My idea is to help people recover detailed memories of things that, if you want to be technical about it, never actually happened. From the point of view of present emotional value, a false memory is just as good as a real one, so why confine your remembrance of things past to that poor parade of things that actually passed you?

Well I thought this was a pretty good idea, until last week, when a New York Times editorial reminded me that this sort of fantasy is already a mainstream business. Working in public health law, I should have realized a long time ago that most of what passes for the facts beneath our health policy are, in fact, things we know for sure that just ain’t so. (Wait, I just recovered a memory of having this precise insight fifteen years ago, during a magical week in Paris). Anyway, in this editorial, the Times catalogued the myths that shape health care politics in America today. Here’s a bit:

Seven years ago, the World Health Organization made the first major effort to rank the health systems of 191 nations. France and Italy took the top two spots; the United States was a dismal 37th. More recently, the highly regarded Commonwealth Fund has pioneered in comparing the United States with other advanced nations through surveys of patients and doctors and analysis of other data. Its latest report … ranked the United States last or next-to-last compared with five other nations — Australia, Canada, Germany, New Zealand and the United Kingdom — on most measures of performance, including quality of care and access to it.

We lead the developed world in un-insurance. Germans get to specialists faster, and our access score is even worse if you decide to count the poor and uninsured. “The United States ranks dead last on almost all measures of equity because we have the greatest disparity in the quality of care given to richer and poorer citizens.” And so it goes, through measures of public health, health care quality and even patient satisfaction.

I started to think about what this means, this gap between the real and the imagined, and fortunately, when I was not reading the Times, I was going back and forth between Dan Kahan and Martha Nussbaum on shaming sanctions, a debate that actually sheds some light on the question of our fantasy politics league. Kahan’s recent partial recantation of shaming sanctions is based on his theories of the social meaning of legislation. I think he’d say that, after all, our health policy will never be primarily about good health statistics and a fair and efficient system; rather, it will be a symbolic crusade, or set of nested crusades, that will turn on questions like the extent to which reform proposals can somehow affirm our national greatness, and can have enough pliability of meaning to unite free-marketeers and social-safety-netters. It may not be pretty, I can imagine him saying, but that’s just how it is.

Nussbaum, by contrast, takes the Enlightenment line. In her Hiding from Humanity, she distinguishes between two kinds of shame. “Primitive shame” is “a shame closely connected to an infantile demand for omnipotence and the unwillingness to accept neediness -- is, like disgust, a way of hiding from our humanity that is both irrational in the normative sense, embodying a wish to be a type of creature one is not, and unreliable in the practical sense, frequently bound up with narcissism and an unwillingness to recognize the rights and needs of others.” This shame does no good for the individual or the society; it is just another defeat in the struggle for reason. But there is also a healthy, mature and socially productive shame. Nussbaum tells about her reaction to Nickel and Dimed, Barbara Ehrenreich’s account of her effort to get by in the unskilled labor market. Nussbaum is ashamed at the gap between our social values of equality and opportunity and the real conditions of life for the poor in our country, and is spurred to action. As a public health person, I was schooled in stories of epidemiological data and social statistics instigating reform. Just think of the great sanitary reports of Chadwick or Shattuck, or The Jungle. This is how I thought things were supposed to work in a liberal society.

I want to believe that I still inhabit a society that can feel shame when facts and norms collide, but I doubt I am the only empirical legal scholar who wonders what it takes to get people mad. Several years ago, I and my colleagues published an exhaustive study of EEOC processing of employment discrimination complaints. We focused on the ADA, but showed that the EEOC was basically tossing most cases coming in for “investigation” into the circular file. In all, we showed that the administrative system for dealing with American workers’ claims of discrimination was broken. The media were barely interested and I’m not aware of any Congressional or executive action, much less social outrage. Later we added plausible evidence that courts and administrative agencies enforcing the ADA actually discriminate against people with psychiatric disabilities. And we are hardly alone. I take considerable comfort in the fact that the elegant Harvard Malpractice Study and its replications have had no significant impact on tort reform, in spite of demonstrating that our malpractice system doesn’t do anything it is supposed to. Or consider Melissa Jacoby and Elizabeth Warren’s work on the link between high health care costs and personal bankruptcy, which seems to have given no pause whatsoever to the proponents of the punitive bankruptcy “reform” movement.

So I’m pursuing a two-prong strategy. I’ll keep doing research on the gap between what the law promises and what it delivers, in the hope that shame is more powerful than the spin of the moment or the disassociative shrug of “Whatever.” But, just in case, I’m developing some false memories of how much better things got at the EEOC after Congress instituted sweeping administrative and budgetary reforms.

Don’t remember your work having a big impact? Hey, call me.

Posted by Scott Burris at 08:11 AM | Comments (4) | TrackBack

Law Review Forum at ELS Blog

The Empirical Legal Studies blog has hosted a great forum over the last few days, evaluating the Nance-Steinberg paper on law review submission practices. The first post is here, and there are eight others, featuring comments by Christine Hurt, Christopher Zorn, Ahmed Taha, and Ben Barton, among others, as well as the ELS regulars. It has been a remarkable discussion. Check it out.

Posted by Dave Hoffman at 06:39 PM | Comments (1) | TrackBack

Docketology: Bigger, Better, and Under Submission

This summer, I've been working to revise my co-authored paper Docketology, District Courts, and Doctrine, which I've previously talked about here, here, and here, and which the ELS blog highlighted here. The paper is finally updated. I think I've dealt with some of the major critiques we got from readers. In particular I spent a significant amount of time justifying the paper's statistical inferences and in finding ways to demonstrate that an order-focused view of litigation may destabalize not only quantitative studies of trial court work but qualitative scholarship as well.

You can download it here (SSRN) or here (Selected Works). If you happen to be a law review articles editor, you will be getting a chance to read the paper whether you download it or not, as I've just today sent it out into the law review lottery. Here's hoping my number comes up!

Posted by Dave Hoffman at 01:20 PM | Comments (0) | TrackBack

Law (Professor) Blog Ranking

[UPDATES IN RED] With the assistance of our intern, Sam Yospe, I decided to update the law blog ranking project first completed by Roger Alford at Opinio Juris. The following list ranks 41 law professor blogs according to traffic (as calculated by The Truth Laid Bear). To minimize distortion, we applied average monthly data, and ran the measurements about two weeks ago. This list only includes blogs that have at least one law professor as a regular blogger, and we exclude blogs that focus entirely on politics or current events, and blogs that are not tracked by Truth Laid Bear. Some blogs, like Patently-O, appear to be tracked only inconsistently by TLB and are not included in this list for the time being.

While this list ranks blogs by traffic, we have also included Truth Laid Bear's own weighted rankings. TLB ranks blogs using an algorithm that accounts for a "link score," a measure of how often blogs are linked to by other blogs. While the ranking by traffic that appears below and TLB's ranking are related, the correlation appears to be statistically insigificant. For example, Bainbridge 's blog is ranked second by TLB amongst legal blogs. Yet, by traffic it ranks ninth. Conversely, Sentencing Law and Policy is the ranked third amongst all legal blogs in traffic, yet it ranked 2,164 by TLB, a lower ranking than some legal blogs that receive less traffic.

These data suggest that there is significant heterogeneity in the audience of legal blogs, as some blogs seem to have wide audiences of readers not shared by others, and (indeed) exist in entirely different communal spaces. This fractured audience finding challenges my flat traffic thesis. Importantly, this post does not intend to suggest a thing about the relative quality of the blogs ranked, nor those that are not mentioned. This isn't even a popularity contest.

Blog	Hits	Rank
Volokh Conspiracy	23,084	18
Althouse	12,204	153
Sentencing Law and Policy	4,066	2,164
Balkinization	3,727	781
Tax Prof Blog	3,619	3,298
Concurring Opinions	2,737	2,708
Brian Leiter’s Law School Reports	1,826	9,823
BlackProf	1,794	4,704
Prawfsblawg	1,785	2,799
Professor Bainbridge	1,683	94
Sports Law Blog	1,107	5,548
Discourse.net	1,062	2,875
White Collar Crime Prof	1,013	9,034
Conglomerate	871	3,268
Opinio Juris	839	16,066
Is That Legal?	699	2,770
WorkPlace Prof	673	9,972
Chicago Law Faculty Blog	619	5,991
The Right Coast	565	10,784
IdeoBlog	534	6,552
CrimProf Blog	512	8,857
ImmigrationProf Blog	453	8,142
Wills, Trusts, and Estates Prof	445	25,058
Election Law	389	4,586
MoneyLaw	351	12,955
Jurisdynamics	349	12,943
Ratio Juris	348	33,169
Empirical Legal Studies Blog	323	2,224
Religion Clause	298	10,274
Contracts Prof	294	20,849
Family Law Prof	294	28,835
Legal History Blog	271	16,579
Legal Profession Blog	233	17,391
Int’l Law and Economics Policy Blog	200	24,350
Sex Crimes	199	12,459
Truth on the Market	192	10,114
CrimLaw	159	6,155
PropertyProf	148	23,140
Madisonian	143	9,969
Antitrust Review	131	19,096
Mauled Again	100	13,057

Interested in playing with the data? Download the file. Again, this post is was created with the really great help of Sam Yospe. Thanks, Sam!

Posted by Dave Hoffman at 01:21 PM | Comments (15) | TrackBack

Is Inequality Bad in Itself?

As the AMT debate heats up, there are a lot of efforts to justify the trend in income distribution represented in the chart above (which appears to only be getting more pronounced). But few economists have chronicled the rise of inequality in America as insightfully as Robert Frank.

Twenty years ago, Frank's groundbreaking Choosing the Right Pond focused on the importance of status in everyday life, eloquently documenting the hidden injuries of class. Ten years later, in The Winner Take All Society, Frank questioned the myths of merit so often used to justify high levels of inequality. He showed how technology could exponentially increase returns to "superstars" who were marginally (or perhaps not at all) better performers than "also-rans." Frank's Luxury Fever chronicled the disastrous effects of "spending cascades" unleashed by the new inequality: as the near-rich strived to emulate the ever-wealthier rich, so the middle class strived to emulate the near-rich, leading to extraordinary levels of indebtedness. Each book developed the theme of "positional competition"--the wasteful race for goods that are valued to the extent others are denied them.

Between these books, Frank has also published fascinating works on moral psychology (such as Passions Within Reason and What Price the Moral High Ground), and has formalized his insights in leading economics journals. In the tradition of Albert O. Hirschman and Jon Elster, Frank is one of few leading social scientists capable of enriching economic thought with philosophical, psychological, and sociological insight.

But Frank's work has also attracted an array of critics. . . .

--In The Substance of Style, Virginia Postrel argued that Frank deeply misunderstood the meaning of luxury spending. To Postrel, luxury spending reflected less Veblenesque conspicuous consumption than deep appreciation of style and aesthetic pleasure.

--Many libertarian critics saw Frank's concerns about status as an unduly subjective way of assessing social outcomes. If people at the bottom resent those at the top, isn't that their problem? Why don't they just snap out of it?

--Tyler Cowen has claimed (in What Price Fame) that Frank has overstated the "superstar effect" in sports and entertainment. He sees a world of "proliferating fame," and proliferating status competitions generally, where virtually everyone has the chance to achieve high status in something.

--Finally, some believe that there is no such thing as a purely "positional good"-only goods with positional aspects. While Frank deems competitions ranging from litigation spending to test preparation as positional, society as a whole may benefit from the striving that goes into them. For example, the South Korean Supreme Court held legislation against "cram schools" there unconstitutional, in part because it felt the frenzy for top rank in exams helped the country advance economically.

Frank has responded to some of these criticisms, and I have earlier tried to take on Postrel's views on fashion and glamour. But Frank's most recent work, Falling Behind, has led me to believe that Frank relies too much on subjective self-reports of well-being in crafting his case against inequality. In the next post in this series (How Not to Argue Against Inequality), I'll look at some of the weak points of Frank's work. I'll then focus on Frank's genuine contributions to philosophical and economic debates over inequality.

A sneak preview of my take: power differentials are the fundamental issue raised by inequality, as Thomas Scanlon's discussion of procedural fairness suggests. As commodification advances, inequality becomes increasingly important.

Posted by Frank Pasquale at 10:30 PM | Comments (10) | TrackBack

Consent Decrees and Unintended Consequences

Robert Parry of the LA Daily News has written a curious column about the relationship between legal rules and police behavior.

As Parry explains:

In the late 1990s, rogue Rampart Division CRASH officers provided the Los Angeles Police Department's legion of critics with ammunition . . . to place their vaunted enemy under the oversight of a federal court . . . All complaints against officers are now thoroughly investigated and subject to triple audits — by the LAPD Audit Bureau, the inspector general and the consent decree monitor . . . Serious uses of force are double-investigated — one administrative investigation and one criminal one . . . In short, after six years, if the LAPD was at all brutal and corrupt, shootings should be down, use of force down, complaints down, sustained complaints up and more officers prosecuted.

But, Parry asserts, shootings have increased 15%, complaints have increased, but guilty findings have decreased. Indeed, the "only statistic that appears to have tracked as the activists indicated is use of force. On a per-100-arrests basis, serious use of force is down about 20 percent."

Parry asserts that these complicated data can be boiled down to a simple cause: "Cops are fleeing in record numbers [because of the increased supervision] . . . As a result, inexperienced cops with unseasoned supervision are using more deadly force and getting more complaints, but the force is deemed acceptable and the complaints are increasingly bogus."

To my reading, this claim is bogus.

Attrition problems at the LAPD are old – they certainly predate the consent decree, starting as early in the mid-1980s. The problem’s severity has engendered a number of explanations, and solutions, varying from: excessive financial disclosure requirements, bad press due to the Rodney King riots, insufficient funds, a convoluted application process, bad equipment and physical plant, and even affirmative action policies. Shucks, the only explanation not offered is that LA’s famously sunny climate makes officers too happy to effectively walk the beat.

Even were attrition to be exacerbated by the consent decree, Parry still hasn’t come close to making his claim stick.

Assume that Parry’s data are accurate (which is a leap, I think, given the notorious unreliability of crime statistics generally). The problem is that Parry gives no sense of the underlying baseline or demographic trends which the reader would need to know what effect, if any, the consent decree is having on police conduct. Shootings are up, but compared to what baseline and what trend? Serious use of force is "down about 20 percent": how does that compare to other similarly situated departments? Descritive statistics like these simply can't be used to make the causal inferences that Parry leaps to.

With respect to the relationship between complaints filed, complaints sustained, and deterrence of brutality, the relationship is even more complex. I imagine that the point of the consent decree would not be to increase prosecutions of officers and resulting conviction rates, but rather to decrease officer brutality and corruption: a really successful deterrence system acts rarely, and either scares potential offenders into line or removes them from the force entirely.

Despite these issues, Mickey Kaus hypes this piece as Limits of Judicial Government, Part XVIII, with an exceedingly mild qualifier. Typical.