Category: Empirical Analysis of Law

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Empirical Studies Workshop

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

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

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

http://law.usc.edu/EmpiricalWorkshop

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

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CELS VII: Low Variance, High Significance

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

Survey Research isn't just for the 1%!

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

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

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

Stanford Law Review

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

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

He concludes:

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

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

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Workshop on Empirical Approaches to Access to Justice

Symposiast Jim Greiner passes along the following call for applications:

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

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

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Does Topic Sequence in Teaching Matter?

What are we really teaching our students?  Those of us who complain that our students are too focused on learning rules and doctrines should read a provocative empirical study recently published on SSRN by my colleague Don Gifford, Villanova sociologist Brian Jones, and two of Don’s former students with expertise in statistical analysis, Joseph Kroart and Cheryl Cortemeglia. Donald G. Gifford, Joseph Kroart, Brian Jones & Cheryl Cortemeglia, What’s on First?: Organizing the Casebook and Molding the Mind, 44 Ariz. St. L.J. ___ (2013) (forthcoming).  The article describes an empirical study suggesting that whether the Torts professor begins with intentional, negligent, or strict liability torts affects the students’ understanding of the role of the common-law judge in a statistically significant way. The authors argue that the judge’s role in deciding intentional tort cases is at least to some extent more rule-based than her role in negligence and strict liability cases. Applying the work of sociologist Eving Goffman, they posit that beginning with intentional torts frames the judicial role in this manner. Further, they hypothesize that once frequently anxious first-semester students latch onto one particular conception of the judicial role during the initial weeks of the semester, it becomes anchored and resistant to change even after the students have studied other categories of tort liability.

Gifford et al. surveyed more than 450 first-year law students at eight law schools that vary widely in terms of their
reputational ranking. The students were surveyed at the beginning, middle, and end of the first semester. The survey results supported the authors’ hypothesis that students who begin their study of Torts with strict liability experience a greater shift toward understanding the judge’s role as being influenced by social, economic, and ideological factors and a sense of fairness and less as a process of rule application than do students who begin their study with either intentional torts or negligence.  Even when the authors controlled for the ranking of the law school, topic sequence still generated a significant effect on students’ perceptions of the role of the common law judge.  Nor did the effect of topic sequence vary by gender. The authors were surprised to find that students who began with intentional torts experience a greater attitudinal shift toward perceiving the judicial role as being policy influenced than do students who began with negligent torts.

Despite their disclaimers, the authors implicitly criticize the overwhelming majority of Torts professors who begin with intentional torts. Most Torts casebooks begin with intentional torts, at least after a brief introductory chapter.  Their editors claim that these cases are “accessible,” “memorable,” and provide “a nice warm up” for studying other torts. Some of these same editors admit that intentional torts comprise a “backwater” in modern tort practice. Gifford et al. suggest that the real reason for beginning with intentional torts may be because that is the way it always has been done. They note that the first Torts casebook, edited by James Ames Barr, Dean Langdell’s colleague, began with intentional torts. They provocatively suggest that Ames may have begun with intentional torts in part precisely because these torts were most rule-like in nature and furthered Langdell’s mission to make the law appear “scientific” in order to justify its inclusion within the university curriculum. If this is true, note the authors, then most modern-day Torts professors are “unwitting conscripts” in the Langdellian mission. Read More

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Stanford Law Review Online: Evaluating Merger Enforcement During the Obama Administration

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jonathan Baker and Carl Shapiro entitled Evaluating Merger Enforcement During the Obama Administration. Professors Baker and Shapiro take issue with Daniel Crane’s assertions in his Essay of July 18:

We recently concluded that government merger enforcement statistics “provide clear evidence that the Obama Administration reinvigorated merger enforcement, as it set out to do.” Three weeks later, in an article published in the Stanford Law Review Online, Professor Daniel A. Crane reached the opposite conclusion, claiming that “[t]he merger statistics do not evidence ‘reinvigoration’ of merger enforcement under Obama.”

Crane is simply wrong. The data regarding merger enforcement unambiguously support our conclusion and cannot reasonably be read to support Crane’s assertions. Crane’s conclusion regarding merger enforcement is inaccurate because he relies upon flawed metrics and overlooks or misinterprets other important evidence.

They conclude:

Our analysis of merger enforcement at the DOJ during the George W. Bush Administration—based on the enforcement statistics and more—showed that it was unusually lax and in need of reinvigoration. It is too early to reach a comparably definitive conclusion about merger enforcement at the DOJ during the Obama Administration, but nothing in Daniel Crane’s article seriously challenges our interpretation of the preliminary data as demonstrating that the necessary reinvigoration has taken place.

Read the full article, Evaluating Merger Enforcement During the Obama Administration by Jonathan Baker and Carl Shapiro, at the Stanford Law Review Online.

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Stanford Law Review Online: The Dirty Little Secret of (Estate) Tax Reform

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Edward McCaffery entitled The Dirty Little Secret of (Estate) Tax Reform. Professor McCaffery argues that Congress encourages and perpetuates the cycle of special interest spending on the tax reform issue:

Spoiler alert! The dirty little secret of estate tax reform is the same as the dirty little secret about many things that transpire, or fail to transpire, inside the Beltway: it’s all about money. But no, it is not quite what you think. The secret is not that special interests give boatloads of money to politicians. Of course they do. That may well be dirty, but it is hardly secret. The dirty little secret I come to lay bare is that Congress likes it this way. Congress wants there to be special interests, small groups with high stakes in what it does or does not do. These are necessary conditions for Congress to get what it needs: money, for itself and its campaigns. Although the near certainty of getting re-elected could point to the contrary, elected officials raise more money than ever. Tax reform in general, and estate tax repeal or reform in particular, illustrate the point: Congress has shown an appetite for keeping the issue of estate tax repeal alive through a never-ending series of brinksmanship votes; it never does anything fundamental or, for that matter, principled, but rakes in cash year in and year out for just considering the matter.

He concludes:

On the estate tax, then, it is easy to predict what will happen: not much. We will not see a return to year 2000 levels, and we will not see repeal. The one cautionary note I must add is that, going back to the game, something has to happen sometime, or the parties paying Congress and lobbyists will wise up and stop paying to play. But that has not kicked in yet, decades into the story, and it may not kick in until more people read this Essay, and start to watch the watchdogs. Fat chance of that happening, too, I suppose. In the meantime, without a meaningful wealth-transfer tax (the gift and estate taxes raise a very minimal amount of revenue and may even lose money when the income tax savings of standard estate-planning techniques, such as charitable and life insurance trusts, are taken into account), one fundamental insight of the special interest model continue to obtain. Big groups with small stakes—that is, most of us—continue to pay through increasingly burdensome middle class taxes for most of what government does, including stringing along those “lucky” enough to be members of a special interest group. It’s a variant of a very old story, and it is time to stop keeping it secret.

Read the full article, The Dirty Little Secret of (Estate) Tax Reform by Edward McCaffery, at the Stanford Law Review Online.

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Has the Obama Justice Department Reinvigorated Antitrust Enforcement?

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Daniel Crane entitled Has the Obama Justice Department Reinvigorated Antitrust Enforcement?. Professor Crane assesses antitrust enforcement in the Obama and Bush administrations using several empirical measures:

The Justice Department’s recently filed antitrust case against Apple and several major book publishers over e-book pricing, which comes on the heels of the Justice Department’s successful challenge to the proposed merger of AT&T and T-Mobile, has contributed to the perception that the Obama Administration is reinvigorating antitrust enforcement from its recent stupor. As a candidate for President, then-Senator Obama criticized the Bush Administration as having the “weakest record of antitrust enforcement of any administration in the last half century” and vowed to step up enforcement. Early in the Obama Administration, Justice Department officials furthered this perception by withdrawing the Bush Administration’s report on monopolization offenses and suggesting that the fault for the financial crisis might lie at the feet of lax antitrust enforcement. Even before the AT&T and Apple cases, media reports frequently suggested that antitrust enforcement is significantly tougher under President Obama.

For better or worse, the Administration’s enforcement record does not bear out this impression. With only a few exceptions, current enforcement looks much like enforcement under the Bush Administration. Antitrust enforcement in the modern era is a technical and technocratic enterprise. Although there will be tweaks at the margin from administration to administration, the core of antitrust enforcement has been practiced in a relatively nonideological and nonpartisan way over the last several decades.

He concludes:

Two points stressed earlier should be stressed again: (1) statistical measures of antitrust enforcement are an incomplete way of understanding the overall level of enforcement; and (2) to say that the Obama Administration’s record of enforcement is not materially different than the Bush Administration’s is not to chide Obama for weak enforcement. Rather, it is to debunk the claims that antitrust enforcement is strongly dependent on politics.

This examination of the “reinvigoration” claim should not be understood as acceptance that tougher antitrust enforcement is always better. Certainly, there have been occasions when an administration would be wise to ease off the gas pedal. At present, however, there is a high degree of continuity from one administration to the next.

Read the full article, Has the Obama Justice Department Reinvigorated Antitrust Enforcement? by Daniel Crane, at the Stanford Law Review Online.

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Are We Really Growing “More Divided” By Party Over Time?

Over at the Cultural Cognition Blog, I’ve written a bit about some new evidence about partisan division.  The headline news is that partisanship is a better predictor than it used to be of cultural division.  But as I read the data, the undernews is that we’re actually no more divided than we used to be on common ideological and cultural measures.  Given all that’s happened in the last quarter-century – including media differentiation, the digital revolution and 24-hour news cycle, more bowling alone, sprawl – isn’t that kind of a huge deal? The fact that partisan self-identification is a better predictor of cultural views than it used to be simply means that the parties are cohering better.  That might be bad for the functioning of our particular form of representative government, but it doesn’t mean that we’re drifting apart as a country.

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A Taxonomy of Federal Litigation

For the last two years, Christy Boyd and I, along with some friends, have been working on a paper on how attorneys construct complaints.  The project began when we were working to code some other detritus of federal litigation and decided to collect the causes of action in complaints to understand the legal issues in our cases in a better manner than NOS codes alone permitted.  Soon enough, we got to thinking that our causes of action were pled in distinctively patterned ways.  Obviously, this isn’t an earth-shaking insight, as most first year students have thought, at one time or another, that each of their classes’ exam fact patterns could easily substitute for any other.  That is: causes of action are alternative, mutually complementary, theories that channel a limited number of fact patterns into claims to legal relief.   Everyone knows that contract and tort claims are pled together, and that constitutional claims come accompanied by state law torts.  But we thought it’d be worthwhile to nail down this insight using a very similar analysis to the one that enables Amazon to tell you which books you might like — i.e., if you plead a particular cause of action, what other causes of action are you likely to bring in a particular case?

We gathered a set of 2,500 complaints (from a much larger sample of federal complaints derived through RECAP).  The complaints were sampled to be fairly representative of all federal litigation, excluding pro se, social security, and prisoner petition cases. The sample contained 11,500 individual causes of action – around 4.6 causes of action per case.  Guided by co-authors at Temple’s Center for Data Analytics, we used spectral clustering to examine the relationship between causes of action.  Two years later and presto, we’ve a (draft) paper is up on SSRN!  The ungainly title is Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints. I welcome your comments, and your suggestions for a better title. Follow me after the jump for an exploration of our findings.

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