“Mighty In Their Day:” Reflections on the 9th Annual Empirical Legal Studies Conference
In Tolkein’s legendarium, the 9 rings of power were given to mortal men as a means of their corruption.
“Those who used the Nine Rings became mighty in their day, kings, sorcerers, and warriors of old. They obtained glory and great wealth, yet it turned to their undoing. They had, as it seemed, unending life, yet life became unendurable to them. They could walk, if they would, unseen by all eyes in this world beneath the sun, and they could see things in worlds invisible to mortal men; but too often they beheld only the phantoms and delusions of Sauron. And one by one, sooner or later, according to their native strength and to the good or evil of their wills in the beginning, they fell under the thraldom of the ring that they bore and of the domination of the One which was Sauron’s. And they became forever invisible save to him that wore the Ruling Ring, and they entered into the realm of shadows. The Nazgûl were they, the Ringwraiths, the Úlairi, the Enemy’s most terrible servants; darkness went with them, and they cried with the voices of death. — The Silmarillion, Of the Rings of Power and the Third Age, 346.
The fate of those holding one of the Nine struck me as a useful starting off point for my review of the Ninth Empirical Legal Studies Conference. [For previous installments in my CELS recap series, see CELS III,IV, V, and VI, VII, VIII.1, VIII.2] The ring-of-power story is apt for several reasons. ELS is waxing — we’ve obtained “glory and great [relative] wealth,” yet our methods are often described as inscrutable, as we see “things in worlds invisible to mortal men.” One well-known law blogger and sci-fi geek repeatedly has claimed that we behold only Sauron. Ultimately, there’s a fairly decent argument, based on this year’s conference, that our thraldom — to machine learning — is nigh. But putting aside the obvious parallels between the world’s leading legal empiricists and Angmar, the witch-king, there’s a far more pressing reason to use the 9 rings as a hook. Multiple sources told me that they found last year’s two-part recap to be “boring” or at best “workmanlike,” asking for more “made-up anecdotes” to spice it up. So, off we go to Berkeley.
To start, let’s acknowledge the obvious. The West Coast is terribly distant from the home schools of most of the conference’s attendees. (I can’t prove that with data, but I thought this was exactly the kind of unsourced gossip that my readers wanted to see here.) That was especially true for roughly 200 attendees from the Max Planck institute & the entire faculty of every Israeli law school. The weather rendered the long trip tolerable, but only just. Why not bend to reason and just hold a future conference in Germany or in Tel Aviv? Certainly, the conference is now decidedly more international in scope than it was only a few years back. Was this the result of a maturing discipline, rapidly falling domestic travel budgets, or some unknown missing variable? Other than the location, which they couldn’t help and probably were proud of, as West Coasters tend to be, the organizers (Anne Joseph O’Connell and Eric Talley) were magnificent and deserve credit for pulling off an enormous project without a hitch.
I arrived in time for both plenaries the first day. In a session on The Future of Big Data and Social Science, I learned that it’s much easier to do social science research when pesky IRBs don’t stand in your way. Though, given recent events, maybe IRBs only get in your way if you bother to tell them you are working on manipulating the political process with your purloined state seals. In Evidence on Income and Wealth Inequality, Emannuel Saez pitched the utility of very high marginal tax rates as the (only?) solution to persistent and rising inequality. When pushed to articulate whether and how inequality was a social evil, he not surprisingly responded with a market-based argument: i.e., his co-author’s book sales demonstrated the issue’s political salience, and, consequently, the question’s irrelevance. I thought this was a rather chippy answer, though at the end you have to give it to him. It may be the least read popular book of the last fifty years, but that’s a ways better than the least read unpopular book!
And then we were off. I went to Civ Pro I and Only. To my immense gratification, the conference organizers had decided to spend 2/3 of all of the slots dedicated to procedure at this conference to the question of whether – or not – Twiqbal’s effect was measurable empirically. This is an understudied area in civil procedure, and it was good to finally see a spotlight shine. That said, Abby Wood presented her co-authored (with Roger Michalski) paper on state-level Twiqbal effects. As Prof. Wood noted, the problem in state level civil procedure empirics is data availability. Their work is (to my mind) the first really careful empirical paper on state pleading and its effect on state filing rates. Though I might have some concerns about the particular choices made – Nebraska, their target state, may have an idiosyncratic pleadings culture – any empirical work about state courts breaks ground and should be celebrated. I celebrated by asking a snarky question. I then had to duck out of Civil Procedure to talk to a co-author about the appropriate background for our powerpoint presentation (no joke) and then I was off to a paper on the share-price effects of active poison pills.
Probably foolishly, I missed this paper asserting that making prenups enforceable reduced the divorce rate, and a paper which looked at the content of veil piercing opinions to say something about the “true” roots of the doctrine. (But cf!) I stopped by a paper on USNews ranking, briefly, to learn that they are, counterintuitively, immensely important in the decision-making of basically everyone in the legal academy’s orbit. Sadly, I missed a paper claiming that limiting payday lending also decreases economically-based crime. (Was there ever a paper better-designed to be blurbed in Freakonomics IV?)
Then it was time for the poster session. As many noted, Ted’s absence was especially felt when surrounded by CELS posters, where he was in his roughly-assembled-poster-with-scotch-tape-glory. I just had to close my eyes to picture him just-over-there, in the corner of the room, taking all comers to explain some Israeli-high-court empirical project, or take-down of the US Chamber of Commerce, or a field-creating survey of settlement rates. Or maybe all three at once, with a quiet smile on his face.
He would have particularly enjoyed the diversity of the poster session, which spoke to the flowering of the ELS movement. Among the papers I really enjoyed were: No Tribal Court is an Island? Citation Practices of the Tribal Judiciary, Sin Taxes and Social Insurance, and Taboo Procedural Tradeoffs: Examining How the Public Experiences Tradeoffs between Procedural Justice and Cost. I do wish that ELS posters took a cue from those at cognate disciplines’ conferences by putting a bar code on each poster which, when scanned by your smartphone, enabled a quick paper download. I also would have preferred the organizers not to serve bruschetta. I thought I’d been really clear about that previously: physically awkward people should not be permitted to hold bruschetta at academic poster sessions. What’s wrong with cocktail franks, for the love of god?
The next day I woke up to present my co-authored experimental paper (with Zev Eigen) on contract formalities. The paper finds that recitals of consideration produce no more effects on promise keeping than no recitals at all, and are statistically indistinguishable from disclaimers of obligation. By contrast, paying subjects a small amount of additional money does motivate promise keeping. We got some good feedback, and I wisely left the hardest questions in Zev’s capable hands. In that same panel, the Florencia Marotta-Wurgler presented an empirical paper on the content of privacy policies. Here’s what I got out of that paper: no extant regulatory approach works to make such policies less nominally exploitative.
The next panel I saw was “Juries and Adjudication,” where Jessica Salerno presented really interesting work on how deliberation interacts with the kinds of arguments juries find persuasive, and Roseanna Sommers presented a paper on motivated cognition in evaluation of video evidence. Both of those projects, not incidentally, resulted from ongoing work at law-and-psych labs (ASU’s jury lab, and Tom Tyler’s rapidly expanding group at Yale). By CELS XX, I’m guessing that projects outside of groups like these are going to be rare birds. I also checked out Avani Sood’s amazing paper on motivated cognition and the exclusionary rule, forthcoming in the Georgetown Law Journal.
I missed two papers on the influence of extraneous events on law (one on sports and adjudication, another sports and crime). But I checked fully back in to watch Tess Wilkinson-Ryan present our co-authored paper on common sense intuitions about contract formation. I was struck, as I often am about our line of work, at how much the field needs a lucid set of background papers on framing the relationship between folk intuitions about law and doctrine. In the absence of that theory, work like ours doesn’t have an easy conceptual landing place.
At that point, I went back to the hotel room and huddled into a ball. Some general observations:
1. There are now entire fields (finance, patent) where both the empirics and the underlying research questions are so hyper-specialized so as to render themselves opaque to casual, though informed, inquiry. This isn’t exactly a new trend, but there were panels at this conference, nominally in english, where I neither understood the subject matter of debate nor the methodological concerns raised. That made me feel sad. At CELS I, II, and III it was possible to feel like we were all in this project (of doing empirical work) together.
2. Empiricists of crime are on the march. You might think that’s because of the importance of the questions raised. More cynically, data on crime statistics is a cheap DV, and the number of moderately plausible IVs to test is nearly infinite. So, expect more on the relationship between seemingly-unrelated law X and shoplifting rates in small towns starting with a Y.
3. For the first time that I can remember, CELS didn’t have a segregated Law and Psych panel, though there was a panel labeled “experimental.” I wasn’t sure whether the panel’s title was intended to reflect the organizers’ skepticism about the enterprise.
4. I tried to start #CELS twitter meme, and failed to achieve social contagion. It does seem odd to me that this conference, which hosts a good number of wildly interesting papers which the blogosphere would eat up if it knew of them, has such a weak social media presence. Luckily, there’s always next year, in St. Louis.
What did you see and like?