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:

Jeanne Charn is Director of the Bellow Sacks Access to Civil Legal Services Project and Senior Lecturer in Law at Harvard Law School, teaching clinical courses on civil advocacy, delivery of legal services, professional responsibility and housing law and policy.  In 2006, she stepped down after 27 years as Director of the WilmerHale Legal Services Center at Harvard Law School.  During law school, Jeanne was a student practitioner at Community Legal Assistance Office (CLAO), one of the first O.E.O funded legal service projects. Upon graduation from law school in 1970, Jeanne was a staff attorney at Massachusetts Law Reform Institute representing statewide and local public housing tenant groups and providing training and support for legal services in the state.  In 1973, Jeanne was appointed Assistant Dean for Clinical Programs at Harvard Law School. She arranged for and monitored the educational quality of all course related student placements and worked with Professor Gary Bellow to develop Harvard’s clinical program. In 1978, Gary and Jeanne conceived of a Harvard Law School supported “teaching law office” similar to the teaching hospital in medicine. The predecessor of the WimerHale Legal Services Center opened in 1979.  Jeanne received her B.A. from the University of Michigan in 1967, and her J.D. from Harvard Law School in 1970.

Ted Eisenberg is a Professor of Law at Cornell Law School,  where he has emerged in recent years as one of the foremost authorities on the use of empirical analysis in legal scholarship. After his graduation from University of Pennsylvania Law School, Eisenberg clerked for both the District of Columbia Circuit of the U.S. Court of Appeals, and Chief Justice Earl Warren of the U.S. Supreme Court. After three years in private practice, Professor Eisenberg began teaching at UCLA. A groundbreaking scholar in the areas of bankruptcy, civil rights, and the death penalty, Eisenberg has used innovative statistical methodology to shed light on such diverse subjects as punitive damages, victim impact evidence, capital juries, bias for and against litigants, and chances of success on appeal. He is the founder of the Journal of Empirical Legal Studies and a Fellow of the American Academy of Arts and Sciences. He currently teaches bankruptcy and debtor-creditor law, constitutional law, and federal income taxation.

Steve Eppler-Epstein is the Executive Director of Connecticut Legal Services (CLS), whose core mission is to provide comprehensive civil legal help to low-income people throughout most of Connecticut, partnering with other members of the legal aid network to cover the state.  Steve has worked with CLS since 1984, when he joined them as a staff attorney.  His work has included individual and class-action client service on domestic violence and public benefit issues; legislative advocacy; and community legal education and writing.  In 1995 Mr. Eppler-Epstein was hired to be the Deputy Director of Connecticut Legal Services, and in 2007 he was selected to be the Executive Director.  As a leader in legal services, Mr. Eppler-Epstein’s priorities are keeping program priorities fresh and relevant in light of changes in the client population; empowering staff to explore change and to pursue client service through the most effective means available; and enhancing the public understanding of CLS’ mission of justice so as to maximize the funding resources available to serve low-income people in crisis.  In addition to his work at CLS, Mr. Eppler-Epstein is the Chair of the Board of the Boston-based Center for Legal Aid Education, where he has been very active in the development and deployment of CLAE’s Leadership Institute.  He has served on the Board of Directors of the Connecticut Coalition Against Domestic Violence, and is co-Chair of the Advisory Council to the Judicial Branch Office of Victim Services.  His recognitions include the Governor’s Victim Services Award, the Connecticut Bar Foundation’s Legal Services Leadership Award, and the Connecticut Bar Association’s Charles J. Parker Legal Services award.

Michael Heise is a Professor of Law at Cornell Law School, where he specializes in empirical legal scholarship and bridging empirical methodologies, legal theory, and policy analysis.  His empirical work focuses on a wide array of public and private law topics.  He is the author of numerous articles and has co-edited the Journal of Empirical Legal Studies since 2005.  Michael is also a Founding Director of the Society for Empirical Legal Studies and a contributing editor of the ELS Blog.  Prior to joining the Cornell Law School faculty Michael taught at Case Western and Indiana University.  He is a graduate of Stanford (A.B.), Chicago (J.D.), and Northwestern (Ph.D.).

Andrew D. Martin is Professor of Political Science and Professor of Law at Washington University in St. Louis. He is the Chair of the Political Science Department in Arts & Sciences, and serves as the founding Director of the Center for Empirical Research in the Law in the School of Law. Professor Martin is a Resident Fellow of the Center in Political Economy, and is a core faculty member of the Center for Applied Statistics.  Professor Martin’s expertise is in the study of judicial decisionmaking, with special emphasis on the Supreme Court and the lower federal courts. He also works extensively in the field of political methodology and applied statistics. He has published in a number of prominent law reviews and leading social science and applied statistics journals, and is a frequent presenter at conferences and workshops throughout the country. His research has been supported by the National Science Foundation, the MacArthur Foundation, and the National Institutes of Health.  Professor Martin is the principal investigator of the The Judicial Elections Data Initiative, a study of litigation processes in employment discrimination suits initiated by the EEOC, and a cross-national study that examines decisionmaking in constitutional courts around the globe. He is also a collaborator on The Supreme Court Database project, and a contributor to The Discography. With his collaborator Kevin M. Quinn (UC Berkeley), Professor Martin developed the Martin-Quinn Scores that are widely used to measure ideology on the U.S. Supreme Court.  Professor Martin teaches courses in the law school on judicial decisionmaking and on social science and statistics for lawyers, in addition to graduate and undergraduate courses in political methodology in Arts & Sciences. He also regularly offers workshops on social science research methods for judges, prosecutors, and legal academics.

Margaret Monsell joined the Massachusetts Law Reform Institute in January 1999.  She practices employment law in areas including unemployment insurance, the earned income tax credit program and low-wage worker protections, and she is a co-author of the Unemployment Advocacy Guide. Prior to joining MLRI, she worked as a law clerk at the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court, as an Assistant Attorney General in the state Attorney General’s office, and as General Counsel for the Senate Committee on Ways and Means in the Massachusetts Legislature. She received a Ph.D. in Theological and Religious Studies from Boston University in 1988, and she graduated with honors from Boston College Law School in 1990.

Kevin Quinn is a Professor of Law at the UC Berkeley School of Law. Prior to  joining the Boalt faculty in 2009 he was associate professor of Government at Harvard University. Professor Quinn holds a Ph.D in Political Science from Washington University in St. Louis. He has written extensively on judicial decision making and statistical methodology. His research has been supported by the National Science Foundation and has appeared in, among other outlets, the Columbia Law Review, the Stanford Law Review, the University of Pennsylvania Law Review, the American Journal of Political Science, the Quarterly Journal of Political Science, the Journal of the American Statistical Association, and the Journal of the Royal Statistical Society Series A. Professor Quinn is a three time winner of the Gosnell Prize for excellence in political methodology. He is currently an Associate Editor for the Journal of the American Statistical Association.

Bob Sable has served as the Executive Director of Greater Boston Legal Service since 1991, and he has spent more than 40 years as a legal services lawyer.  He has won many awards for his service, including the Massachusetts Bar Association’s Legal Services Award and the Boston Bar Association’s John G. Brooks Legal Services Award.  Some would say that Bob Sable’s proudest moment occurred in 1994, when with the help of the Boston Bar Association and the Volunteer Lawyers Project, he gave up more than $2.1 million in federal funding for GBLS funding rather than accept new Legal Services Corporation rules that would have restricted the types of representation and people who could be represented by GBLS.  After giving up the LSC funding, GBLS grew from a budget of $6 million to $14 million expanding its base of support to include everyone from individuals, corporations, law firms foundations, state and federal government to the United Nations enabling GBLS to serve more than 15,000 individuals and families as well as continuing to bring major cases.  A graduate of Harvard College, Bob Sable served as a Peace Corps Volunteer in Liberia before going on to Yale Law School, where he was Chair of the Student Legal Services Corporation.

Rebecca L. Sandefur is a senior research fellow at the American Bar Foundation, which she joined in September 2010 to lead the Foundation’s new access to justice research initiative. Her research has two strands: one focuses on inequality and civil justice and the other focuses on lawyers’ work and careers. A nationally and internationally recognized expert on legal professions, access to justice and public experience with civil justice problems, she is a frequent speaker at scholarly conferences and meetings of practitioners. Her scholarship has appeared in numerous edited volumes and law reviews as well as outlets such as American Sociological Review, Annual Review of Sociology, and Law and Society Review. She is the editor of the multidisciplinary volume Access to Justice (Emerald/JAI Press, 2009) and an author of Urban Lawyers: The New Social Structure of the Bar (with John P. Heinz, Robert L. Nelson and Edward O. Laumann, University of Chicago Press, 2005). She has served in elected governance positions with the American Sociological Association, the Law and Society Association, and the Pacific Sociological Association, as well as on the editorial boards of the American Journal of Sociology, Law and Social Inquiry and Law and Society Review. Her public service includes work on the Right to Counsel Committee of the California Access to Justice Commission and on the Research Advisory Board of the Civil Right to Counsel Leadership and Support Initiative. Before joining the American Bar Foundation, Sandefur served on the faculty of Stanford University for nine years after receiving her PhD in sociology from the University of Chicago. In addition to being Senior Research Social Scientist at the ABF, she is Consulting Assistant Professor of Sociology at Stanford University.

Jeffrey Selbin is a Clinical Visiting Professor of Law at Yale Law School and a Clinical Professor of Law at the University of California, Berkeley, School of Law (Boalt Hall). He is also Faculty Director of the East Bay Community Law Center, Boalt Hall’s community-based poverty law clinic. He founded EBCLC’s HIV/AIDS Law Project in 1990 and served as the organization’s Executive Director from 2002 through 2006. His research interests include clinical education, anti-poverty lawyering, and community lawyering, with an emphasis on evidence-based approaches. He is a graduate of the University of Michigan, L’Institut d’Etudes Politiques, and Harvard Law School.

David Udell is Executive Director of the National Center for Access to Justice, is also a Visiting Professor from Practice at Cardozo Law School. He was founding director of the Justice Program of the Brennan Center for Justice from September 1997 through August 2010, and earlier served as a Senior Attorney at Legal Services for the Elderly and as a managing attorney at MFY Legal Services. He has served in leadership roles in the national civil right to counsel movement and the national indigent defense reform movement, and has coordinated national advocacy initiatives to help strengthen the Legal Services Corporation. Mr. Udell has taught as an adjunct professor at New York University School of Law and at Fordham Law School, and has served on the Pro Bono and Legal Services Committee of the Association of the Bar of the City of New York. He is currently a member of the Advisory Board to the Justice Center of the New York County Lawyers’ Association. He is a 1982 graduate of New York University School of Law.

Richard Zorza is an attorney and independent consultant who has worked for the past fifteen years on issues of access to justice.  He is the coordinator of the national Self Represented Litigation Network, see www.selfhelpsupport.org, and has acted as a consultant to the Harvard Law School Bellow-Sacks Project on the Future of Access to Civil Justice, www.bellowsacks.org, and works in support of the national LawHelp network of access to justice websites, www.lawhelp.org.His book, The Self-Help Friendly Court: Designed from the Ground Up to Work for People Without Lawyers, was published by the National Center for State Courts in 2002.   His article The Disconnect Between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality when Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications, 17 Georgetown Journal of Legal Ethics, 423 (2004) is widely used to define the structure of thought on the topic.  He coordinated the National Judicial Conference on Self-Represented Litigation held at Harvard Law School in November of 2007, the launching conference of the Court Leadership Package on Self Represented Litigation, in the fall of 2008, and a national confernce on Public Libraries and Access to Justice in January of 2010.  He is the recipient of the 2008 American Judicature Society Kate Sampson Access to Justice Award. He lives in Washington DC, and is in partnership with his wife Joan.  Additional information and publications are available on his website, www.zorza.net. He blogs at www.accesstojustice.net.

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

You may also like...

1 Response

  1. Erik says:

    This is an interesting methodology, but the use of “randomized control trial” is not appropriate. In a “real” randomized control trial, one uses statistical analysis with the understanding that all participants are randomized to a treatment that controls for confounding.

    This, at least from what I can see, isn’t what has been done here. That is, the counterfactual is obviously not known but is being simulated through statistical assumptions. I may be wrong, but there could still be confounding in your study, regardless of your “randomization”.