Category: Empirical Analysis of Law


UCLA Law Review Vol. 64, Discourse

Volume 64, Discourse

Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United Alexander Hertel-Fernandez & Paul Secunda 2
Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II Liliana M. Garces 18
Why Race Matters in Physics Class Rachel D. Godsil 40
The Indignities of Color Blindness Elise C. Boddie 64
The Misuse of Asian Americans in the Affirmative Action Debate Nancy Leong 90
How Workable Are Class-Based and Race-Neutral Alternatives at Leading American Universities? William C. Kidder 100
Mismatch and Science Desistance: Failed Arguments Against Affirmative Action Richard Lempert 136
Privileged or Mismatched: The Lose-Lose Position of African Americans in the Affirmative Action Debate Devon W. Carbado, Kate M. Turetsky, Valerie Purdie-Vaughns 174
The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection? Clay Calvert 230
A Worthy Object of Passion Seana Valentine Shiffrin 254
Foreword – Imagining the Legal Landscape: Technology and the Law in 2030 Jennifer L. Mnookin & Richard M. Re i
Imagining Perfect Surveillance
Richard M. Re 264
Selective Procreation in Public and Private Law Dov Fox 294
Giving Up On Cybersecurity Kristen E. Eichensehr 320
DNA in the Criminal Justice System: A Congressional Research Service Report* (*From the Future) Erin Murphy 340
Utopia?: A Technologically Determined World of Frictionless Transactions, Optimized Production, and Maximal Happiness Brett Frischmann and Evan Selinger 372
The CRISPR Revolution: What Editing Human DNA Reveals About the Patent System’s DNA Robin Feldman 392
Virtual Violence Jaclyn Seelagy 412
Glass Half Empty Jane R. Bambauer 434
Social Control of Technological Risks: The Dilemma of Knowledge and Control in Practice, and Ways to Surmount It Edward A. Parson 464
Two Fables Christopher Kelty 488
Policing Police Robots Elizabeth E. Joh 516
Environmental Law, Big Data, and the Torrent of Singularities William Boyd 544

Gifford and Jones on Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law

My colleague Donald Gifford (whose book we featured here) and his co-author sociologist Brian Jones have an important new piece up on SSRN entitled “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law.” The piece is provocative and original: it may the first paper to use cross-state comparisons in an empirical study of the impact of race, income inequality, regional variations, and political ideologies on tort law.

Here is the abstract:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.


The Civilizing Effect of Legal Training

The cultural cognition project has a new article out on how motivated cognition interacts with professionalism:

This paper reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among the competing hypotheses tested in the study, the results most supported the position that professional judgment imparted by legal training and experience confers resistance to identity-protective cognition — a dynamic associated with politically biased information processing generally — but only for decisions that involve legal reasoning. The scholarly and practical implications of the findings are discussed.

Kahan and I have gone back and forth about how best to characterize the results of the study. He, modestly, seeks to constrain the inferences to the data and to a push back against the vulgar understanding of the judiciary as merely housing politicians in robes.  I think the study speaks to something larger still — the value of legal education & experience in producing situation sense, which enables lawyers and judges (and, to a lesser extent, law students) to agree on the results of legal outcomes notwithstanding their political and ideological priors. Such legal judgment is, after all, one of the practical skills that law school conveys, and which it ought to boast about.


The Significant Decline in Null Hypothesis Significance Testing?

The likelihood is higher that this portrait represents Bayes than it does me.

The likelihood is higher that this portrait represents Bayes than it does me.

(Cross-posted at Prawfs.)

Prompted by Dan Kahan, I’ve been thinking a great deal about whether null hypothesis significance testing (NHST, marked by p values) is a misleading approach to many empirical problems.  The basic argument against p-values (and in favor of robust descriptive statistics, including effect sizes and/or   Bayesian data analysis) is fairly intuitive, and can be found here and here and here and here.  In a working paper on situation sense, judging, and motivated cognition, Dan, I, and other co-authors explain a competing Bayesian approach:

In Bayesian hypothesis testing . . .  the probability of obtaining the the effect observed in the experiment is calculated for two or more competing hypotheses. The relative magnitude of those probabilities is the equivalent of a Bayesian “likelihood ratio.” For example, one might say that it would be 5—or 500 or 0.2 or 0.002, etc.—times as likely that one would observe the results generated by the experiment if one hypothesis is true than if a rival one actually one is.

Under Bayes’ Theorem, the likelihood ratio is not the “probability” of a hypothesis being true but rather he factor by which one should update one’s prior assessment of the probability of the truth of a hypothesis or proposition. In an experimental stetting, it can be treated as an index of the weight with which the evidence supports one hypotheses in relation to the another.

Under Bayes’ Theorem, the strength of new evidence (the likelihood ratio) is, of course, analytically independent of one’s prior assessment of the probability of the hypothesis in question. Because neither the validity nor the weight of our study results depends on holding any particular prior about the [question of interest] we report only the indicated likelihood ratios and leave it to readers to adjust their own beliefs accordingly.

To be frank, I’ve been resisting Dan’s hectoring entreaties arguments to abandon NHST.  One obvious reason is fear: I understand the virtues and vices of significance testing well.  It has provided me a convenient heuristic to know when I’ve “finished” the experimental part of my research, and am ready to write the over-promising introduction and under-delivering normative sections of the paper.  Moreover, p-values are widely used by courts (as Jason Bent is exploring).  Or to put it differently, I’m well aware that the least positive thing one can say about a legal argument is that it is novel.  Who wants to jump first into deep(er) waters?

At this year’s CELS, I didn’t see a single paper without p-values. So even if NHST is in decline, the barbarians are far from the capital.  But, given what’s happening in cognate disciplines, it might be time for law professors to get comfortable with a new way of evaluating empirical work.


UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672



Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794

Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

Any resemblance to current members of the SELS council is purely coincidental.

“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!

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Evolving Contract Schemas

A Meeting of the Minds

A Meeting of the Minds?

With co-authors, I’ve been working on a series of experimental papers about contract law that appear to be converging on a theme: what individuals think “contract” means has purchase in the real-world, and that contractual schema is evolving.

A schema is nothing more than a mental model – a framework – to help us organize and process information. A contract schema is the set of background assumptions that we fill in when we think about a legally operative bargain. For those of us who grew up in a largely off-line world, our contract schema involve “doing the paperwork,” “getting it in writing,” and “signing on the dotted line.” (See this article for details). Indeed although most contracts law professors make fun of the metaphor of the meeting of the minds, it captures a real heuristic for a certain segment of society. That so even though form contracts have been part of modern life since the 50s, and almost none of us ever actually negotiate contracts that could end up in court. Indeed, when I started teaching in 2004, students routinely would say “she signed it, she must be bound to it,” even in cases like Specht.  Since this mental model is quite a ways from the reality of online contract, consumers may think they are in contracts when they aren’t, and visa versa.

But what happens when contracts widely explored in pop culture – and presented to you in your formative years – were never signed, never reduced to writing, never negotiated.  The cheerios arbitration debacle, facebook’s demystified terms, your cellphone contract, your cable company’s impossible-to-escape relationship.  What happens when every time you think “contract,” you don’t call up the mental image of a “signature on vellum” but instead “loki on steroids.”  And when companies, realizing this, increasingly pushed “no contract” plans that were actually contracts, just without penalty clauses attached.

Perhaps citizens born after 1980 will have dramatically different attitudes toward contract than those born before. If that’s true, we’ll increasingly find cohort effects in contracting behavior online, as lay intuitions about how to respond to “contract” increasingly turn on the age of the promisee. For those coming of age offline, “click to agree” calls up memories of signature, and consequently infuses bargains with personal honor; for those born digital, “click to agree” means “nothing good is about to happen to me.” Those attitudes toward contract will play out in behavior – in likelihood to breach, to shirk, and to behave opportunistically.

At some point we expect to have direct evidence worth sharing in support of this argument! For now, I thought start discussion by fast forwarding fifteen years, when many judges born in the digital age will have assumed the bench. What changes in contract doctrine follow from changes in contract’s schema? Then again, will there be any contract cases left to decide, or will they all been sucked into arbitration’s black hole?



UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480



Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548





UCLA Law Review Vol. 61, Issue 4

Volume 61, Issue 4 (May 2014)

Expressive Enforcement Avlana Eisenberg 858
Insider Trading as Private Corruption Sung Hui Kim 928
Marriage Equality and Postracialism Russell K. Robinson 1010



Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico Jessica A. Eby 1082
Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review Charlie Sarosy 1134