The Federal Bias In Criminal Law Scholarship


John Pfaff has an interesting post up at Empirical Legal Studies Blog entitled Federalism and Empirical Legal Research. In it he asks why there appears to a skew towards analysis of federal law among empirical researchers of criminal law. He ultimately boils his questions down to these:

1. Do we focus “too much” on federal outcomes?

2. If we do, does this mean that we are not developing results that explain either the impact of or the forces behind the legal changes that actually play a bigger role in people’s lives?

3. If so, how can we rectify this? In particular, if it’s a problem of data availability, how can we get the numbers we actually need?

In my view, we do focus too much on federal courts. Most cases – and prisoners – are in state systems. And states really are different. The employees are different because state criminal jobs often involve less training and lower salaries than comparable federal positions. State facilities are often in much poorer condition. State sentencing schemes vary widely from state to state, and often look little like federal provisions. And because most state prosecutors and judges stand for election, they operate under a different set of professional pressures. I would expect these differences have substantial effects on case processing and outcome.

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Modeling to the Ignorant

The very brilliant Matthew Stephenson has recently published a positive political theory paper on the choice for Congress between delegation to agencies and delegation to courts. He thinks that a rational Congress will delegate decisions to agencies if it wants to create a regime that will be ideologically consistent across issues but variable over time (he studiously avoids examples, but perhaps agricultural subsidies – which could be changed in the future but in the present Congress wants done in a particular way – are the idea). And that Congress will delegate decisions to courts if it wants temporal consistency but ideological variability (perhaps a regulation requiring the alternating, as opposed to direct, current, or maybe rules that affect long-term government contracts, are cases where Congress would roll the dice on the content of the choice – delegate it to the courts – but hope that whatever choice is made becomes a predictable precedent that future courts follow).

The second part of Stephenson’s paper, though, is, quite literally, Greek to me:


Modeling is upon us. You see it in the Journal of Empirical Legal Studies – though empiricism is conventionally thought to be a form of social science that might be practiced without sophisticated modeling – and now you see it in the Harvard Law Review. Stephenson develops eight such formulas in the formal proof portion of his piece on legislative delegations.

What is the upside of this sort of modeling for lawyers and political scientists? God knows the latter do plenty of it, but there’s an audience cost – I expect that most of the legal scholars sympathetic to positive political theory apply its insights without even being close to being able to model like McNollgasts can. And I’ve been at conferences where law professors assessed models more with fear and trembling than with confidence in the clarity of the modeled insights. I am, after all, semi-like Stephenson, an eager and promising administrative law scholar [ed. – hoo boy. Might be a good time to disable comments.]. But I doubt that Stephenson was writing part II of his paper for my benefit, or if he was, he certainly won’t enjoy my incisive critique of it – I simply skipped it.

So other than noting, gentle reader, that perhaps you ought to try to learn the basics of modeling if you expect to be reading a lot of legal scholarship in the future, I wonder if I might trouble those of you who do enjoy reading modeling pieces to recommend legal scholarship (I guess I’ll leave economists and mathematicians out for now – I’ll assume without deciding that their modeling presents different concerns than does modeling in public law subjects) in which the thesis was inexpressible without the model. I’d also like advice on meta-scholarship – that is, good resources on how to read models. In short, I’d like to hear advice for a inexperienced consumer of formally modeled scholarship. I suspect you’d be doing more of the Co-Op’s readers a service than you might think.


Nothing Ordinary About Sexual Orientation Discrimination

ford-logo.jpgOn Monday, the Securities and Exchange Commission ruled that Ford Motor Company must allow a shareholder vote on a resolution altering the company’s anti-discrimination policy. The resolution eliminates sexual orientation from the policy, implicitly suggesting that discrimination against gay people is OK. This is yet another volley in the ongoing culture wars playing out at Ford. A few months back, social conservatives pressed the company to withdraw ads from magazines targeted at gay people. The company decided to pull ads from gay-oriented publicatioins, explaining that the decision was purely financial. The American Family Association withdrew its threat to boycott the company. Then, after meeting with members of the gay community, the company backed off and re-committed to advertise in these publications. Now, a shareholder named Robert Hurley of Alton, Illinois, is taking a new approach: turning Ford “gay-unfriendly” from the inside.

Ford sought to have the resolution excluded from a vote under SEC Rule 14a-8(i)(7), which provides that a company need not submit an issue to shareholders if it involves “ordinary business operations.” The question, then, is whether anti-discrimination policies are part of ordinary business operations. Let me say, first, that I have not dealt with SEC matters since I was a young associate in New York. But I would have guessed that an anti-discrimination employment provision would be part of ordinary business operations. Some might contend that mundane employment policies cease to be “ordinary” when they touch on hot-button social issues – and sexual orientation anti-discrimination policies, arguably, fit this category. But from my cursory research of SEC no-action letters, it appears that the SEC often allows companies to kill shareholder votes on employment polciies and does so even when the issues involve socially controversial matters.

On one hand, I tend to agree with those who believe in shareholder democracy. I am suspicious when a company seeks to shelter its policies from shareholder scrutiny and input. But I would be troubled if the SEC’s new decision reflects a changed attitude about sexual orientation discrimination, rather than corporate governance. That is, is the SEC now forcing companies to put all manner of employment policy resolutions to a vote? Or did it only choose to do so when sexual orientation was at issue? I simply don’t have the expertise to know.

Whatever the motives of the SEC, I’m not sure that the result is bad. Many progressives have come to believe that civil rights won through debate and democratic choice are more stable than those obtained through the decisions of small groups of elites. When change happens by majority choice, the remaining objectors can’t play the “anti-majoritarian” card. There is no denying that, sometimes, elites – Presidents, judges, or corporate boards – spur positive change through anti-democratic actions. But on the issue of gay rights, I think that the public has already become pretty well engaged.

As for Ford, I say let Mr. Hurley have his vote. There are good business and social reasons for Ford to take a stand against discrimination. I agree with KipEsquire: those who seek to discriminate and diminish will be forced to the margins. And if they lose by acclamation, rather than declaration, perhaps they will find other things to be grumpy about.

UPDATE: I have not been able to find a free copy of this SEC letter, which was released on March 6, 2006. It is available on Westlaw at 2006 WL 739897.

FURTHER UPDATE: Thanks to Marty Lederman, a PDF copy of the letter is now available gratis.


As the Law Blog Prospers, Whither the Law School?

Prawfsblawg is 1 year old today, Concurring Opinions just turned six months old. I’ve guested on both, and I thought that a post honoring my two generous hosts might usefully be combined with what I hope will be the least essential analysis of the US News law school rankings yet.

In the past year, what has happened to the rankings of the schools who have provided the Co-Op and Prawfs with their full-time staff?

Concurring Opinions (GW, TJ, Temple, AL) net +6

Prawfsblawg (FSU, Hastings, MI, SW, ND, Hofstra, Miami) net +4

Let’s not think too hard about the methodology, shall we? Instead correlative congratulations are due to both staffs!

Necessary Investment Incentives?

scrooge mcduck.jpg

Pretty soon the alternative minimum tax is going to hit millions more taxpayers—even people making less than $50,000 annually. This extended reach will primarily harm those who work hard, pay property taxes, and have other deductions for things like dependent care, education, and health care. This AMT bite was never intended by Congress—it’s just reaching down the tax bracket because the figures it’s based on were drawn up decades ago.

You’d think this problem would be at the top of the tax reform agenda. Sadly, no. Rather, the big debate is over whether to extend tax cuts on investment income. As brilliant NYT tax reporter David Cay Johnston observes,

Among taxpayers with incomes greater than $10 million, the amount by which their investment tax bill was reduced averaged about $500,000 in 2003, and total tax savings, which included the two Bush tax cuts on compensation, nearly doubled, to slightly more than $1 million.

So this debate is basically about whether to make such windfalls permanent, or to try to stop our current fiscal irresponsibility and actually do something about our massive national debt.

But perhaps I misunderstand the issue. Is there a good policy reason for tax cuts for the superrich? Would they simply refuse to invest if better tax treatment weren’t given—choosing instead, perhaps, to roll around in vaults of money ala Scrooge McDuck? Would they renounce U.S. citizenship and move to the Isle of Man? I’m just trying to understand this policy on a higher level than positive political theory (which would, of course, predict that those best able to invest in money-intensive politics would get the highest returns). I guess I need to start reading the Tax Prof Blog!


If Not Scholarship, What?

Bill Henderson has a tremendous post up on the Conglomerate which follows up on Dan’s post of earlier this week on the relationship between time and US News reputation ranking scores. As Bill and Dan have now shown, a law school’s academic reputation score is pretty sticky: even with increased, but varied, emphasis on scholarship in the last decade, few schools have moved much up or down. I guess this isn’t totally surprising, given the difficulty in transforming a faculty, the relative weakness of academic institutions at marketing, etc. But it is sobering.

As Bill asks: “Why does every law school strategic plan, formed in the crucible of USNWR rankings angst, emphasize a plan of more and better scholarship when, empirically, such a strategy is unlikely to produce substantial improvements relative to peer schools?”

This all raises, at least for me, two possibly interrelated questions.

1. Is this just an artifact of known US News data collection problems? That is, assume that Leiter’s rankings went back before 1999: would the resulting string evidence non-random movement of multiple schools over time? Will using less sophisticated, but very objective, systems like the SSRN top school ranking produce data that rewards and reflects pro-scholarship expenditures like an SSRN series, workshops, chaired lateral hiring, etc?

2. As I explored here, it is interesting to think about the application of Moneyball to law school hiring. Bill and Dan’s posts suggest that the comparative advantage of selecting for productive scholars as a rankings boost is waning. [Believe me, I don’t mean to suggest that this is nearly the only reason to select for scholarship, just a reason that rational schools might care about.] Billy Beane himself has remarked that the irrationalities he exploited in his early career (overvaluing the five tools, undervaluing walks and HRs) have largely been washed away, and he is finding it harder to exploit new advantages against well-managed peer teams. As I understand it, the new smart money in baseball is paying for defense and speed. I know this because the Phillies are paying for power and David Bell.

Are law schools in the same situation? And, if so, what should the smart money be spending cash on? Employment? Marketing? Facilities? Remember: the goal of this spending is to get as much relative peer-to-peer growth for your buck as possible. So, pretend you are a law school dean. What is in your next budget?

A Triumph for Divided Government?

Apparently Massachusetts politicians have hammered out a plan providing universal health coverage in that state. The bill is an interesting mix of mandates, incentives, and taxes. There’s still some chance a squabble over taxes on businesses that don’t provide insurance coverage may scuttle the deal. But overall, it’s a very encouraging sign.

As the deal is finalized, I’ll be watching my indefatigable friend Nathan Newman’s blog (and that of PLAN, a group advocating social justice on a variety of fronts in state legislatures, and the Center for American Progress). Newman appears pretty pleased with the direction of reform now. If it works, it might stand as a great argument for divided government. Everyone knows health care reform is necessary, but few interests appear willing to give anything if “the other side’s” party is the only one responsible for legislation (remember the scorched earth tacticians Harry & Louise?). A Republican governor in Massachusetts, balanced by a strongly Democratic legislature, appears to have broken the gridlock.


Leaving Tulane (Updated April Edition)

tulane.jpg Newest updates in blue below, based on an email from a Tulane student. There have been a number of recent blog entries about the aftermath of Hurricane Katrina for educational institutions in New Orleans: law blogs have focused particular attention on Tulane Law. One aspect of the story that seems to be missing is the extent of Tulane’s loss of faculty from this year to next. Based on lots of sources, here is a list of the ten eleven current Tulane law faculty who will not be at the school for all, or part of, next year. (I also hear that one of their incoming hires has decided not to join the faculty, but can not confirm a name.) If there are errors, additions or subtractions, please let me know.

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Publishing Student Work

I run a seminar each Spring and I often get terrific student papers. I encourage my students to publish their work, frequently referring them to Eugene Volokh’s extraordinarily helpful guide (and, yes, encouraging them to buy it!). I’m now trying to boil down some advice for them into a draft memo.

I’m inserting a rough draft of it after the jump. I’d love to hear any advice from readers about ways I could improve this memo…particularly if you know particular journals that welcome the work of students from outside their home institution. And, of course, if this humble effort can be of any aid to your students, please feel free to distribute it (with the caveat that it’s just a draft!).

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Law of Conservation of Responsibility?

Back in 2004, a Florida judge angrily sent 11 defendants—mainly traffic offenders—to a jail cell for hours because they happened to be in the wrong courtroom. He’s now trying to keep his job, and claims in his defense that he had undiagnosed attention-deficit hyperactivity disorder (ADHD).

I think the case raises fascinating issues, less for the judge’s defense (I have no idea whether it’s accurate or exculpating), than for the cultural effect of such defenses. Are support groups for people with ADHD glad to see such defenses raised in court, since they add legal heft to diagnoses? Or are they worried that opportunistic defendants are going to discredit ADHD as one more tool to “get around” conventional notions of responsibility? I’d love to hear more on this type of debate, either in the criminal context (over the insanity defense) or in civil contexts. It’s a bit topical, given that the Supreme Court will hear arguments in Clark v. Arizona on April 19, to determine whether defendants have a constitutional right to an insanity defense.

All I’ll say for now is that this is not just a scientific question….

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