Category: Empirical Analysis of Law

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Whatever

Blonde burris more compressed.JPGI’ve been working on a business for when I get tired of being a law professor. False memories. There’s a huge potential market. Everyone has missing pages in the scrapbook, things we’ve always wanted to do but never managed — that grand April affair in Paris, climbing K-2, or perhaps just nobly and diligently overcoming some childhood adversity. False memories have a bad name in law: we don’t like it when a victim remembers abuse that never happened, or an eye-witness realizes that the short Black defendant is the tall White gunman he saw pull the trigger. But why not harness that power for good? My idea is to help people recover detailed memories of things that, if you want to be technical about it, never actually happened. From the point of view of present emotional value, a false memory is just as good as a real one, so why confine your remembrance of things past to that poor parade of things that actually passed you?

Well I thought this was a pretty good idea, until last week, when a New York Times editorial reminded me that this sort of fantasy is already a mainstream business. Working in public health law, I should have realized a long time ago that most of what passes for the facts beneath our health policy are, in fact, things we know for sure that just ain’t so. (Wait, I just recovered a memory of having this precise insight fifteen years ago, during a magical week in Paris). Anyway, in this editorial, the Times catalogued the myths that shape health care politics in America today. Here’s a bit:

Seven years ago, the World Health Organization made the first major effort to rank the health systems of 191 nations. France and Italy took the top two spots; the United States was a dismal 37th. More recently, the highly regarded Commonwealth Fund has pioneered in comparing the United States with other advanced nations through surveys of patients and doctors and analysis of other data. Its latest report … ranked the United States last or next-to-last compared with five other nations — Australia, Canada, Germany, New Zealand and the United Kingdom — on most measures of performance, including quality of care and access to it.

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Law Review Forum at ELS Blog

The Empirical Legal Studies blog has hosted a great forum over the last few days, evaluating the Nance-Steinberg paper on law review submission practices. The first post is here, and there are eight others, featuring comments by Christine Hurt, Christopher Zorn, Ahmed Taha, and Ben Barton, among others, as well as the ELS regulars. It has been a remarkable discussion. Check it out.

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Docketology: Bigger, Better, and Under Submission

lottery5.jpgThis summer, I’ve been working to revise my co-authored paper Docketology, District Courts, and Doctrine, which I’ve previously talked about here, here, and here, and which the ELS blog highlighted here. The paper is finally updated. I think I’ve dealt with some of the major critiques we got from readers. In particular I spent a significant amount of time justifying the paper’s statistical inferences and in finding ways to demonstrate that an order-focused view of litigation may destabalize not only quantitative studies of trial court work but qualitative scholarship as well.

You can download it here (SSRN) or here (Selected Works). If you happen to be a law review articles editor, you will be getting a chance to read the paper whether you download it or not, as I’ve just today sent it out into the law review lottery. Here’s hoping my number comes up!

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Law (Professor) Blog Ranking

counting2.jpg[UPDATES IN RED] With the assistance of our intern, Sam Yospe, I decided to update the law blog ranking project first completed by Roger Alford at Opinio Juris. The following list ranks 41 law professor blogs according to traffic (as calculated by The Truth Laid Bear). To minimize distortion, we applied average monthly data, and ran the measurements about two weeks ago. This list only includes blogs that have at least one law professor as a regular blogger, and we exclude blogs that focus entirely on politics or current events, and blogs that are not tracked by Truth Laid Bear. Some blogs, like Patently-O, appear to be tracked only inconsistently by TLB and are not included in this list for the time being.

While this list ranks blogs by traffic, we have also included Truth Laid Bear’s own weighted rankings. TLB ranks blogs using an algorithm that accounts for a “link score,” a measure of how often blogs are linked to by other blogs. While the ranking by traffic that appears below and TLB’s ranking are related, the correlation appears to be statistically insigificant. For example, Bainbridge ‘s blog is ranked second by TLB amongst legal blogs. Yet, by traffic it ranks ninth. Conversely, Sentencing Law and Policy is the ranked third amongst all legal blogs in traffic, yet it ranked 2,164 by TLB, a lower ranking than some legal blogs that receive less traffic.

These data suggest that there is significant heterogeneity in the audience of legal blogs, as some blogs seem to have wide audiences of readers not shared by others, and (indeed) exist in entirely different communal spaces. This fractured audience finding challenges my flat traffic thesis. Importantly, this post does not intend to suggest a thing about the relative quality of the blogs ranked, nor those that are not mentioned. This isn’t even a popularity contest.

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Is Inequality Bad in Itself?

Incometo2004.jpg

As the AMT debate heats up, there are a lot of efforts to justify the trend in income distribution represented in the chart above (which appears to only be getting more pronounced). But few economists have chronicled the rise of inequality in America as insightfully as Robert Frank.

Twenty years ago, Frank’s groundbreaking Choosing the Right Pond focused on the importance of status in everyday life, eloquently documenting the hidden injuries of class. Ten years later, in The Winner Take All Society, Frank questioned the myths of merit so often used to justify high levels of inequality. He showed how technology could exponentially increase returns to “superstars” who were marginally (or perhaps not at all) better performers than “also-rans.” Frank’s Luxury Fever chronicled the disastrous effects of “spending cascades” unleashed by the new inequality: as the near-rich strived to emulate the ever-wealthier rich, so the middle class strived to emulate the near-rich, leading to extraordinary levels of indebtedness. Each book developed the theme of “positional competition“–the wasteful race for goods that are valued to the extent others are denied them.

Between these books, Frank has also published fascinating works on moral psychology (such as Passions Within Reason and What Price the Moral High Ground), and has formalized his insights in leading economics journals. In the tradition of Albert O. Hirschman and Jon Elster, Frank is one of few leading social scientists capable of enriching economic thought with philosophical, psychological, and sociological insight.

But Frank’s work has also attracted an array of critics. . . .

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Consent Decrees and Unintended Consequences

lapd.jpgRobert Parry of the LA Daily News has written a curious column about the relationship between legal rules and police behavior.

As Parry explains:

In the late 1990s, rogue Rampart Division CRASH officers provided the Los Angeles Police Department’s legion of critics with ammunition . . . to place their vaunted enemy under the oversight of a federal court . . . All complaints against officers are now thoroughly investigated and subject to triple audits — by the LAPD Audit Bureau, the inspector general and the consent decree monitor . . . Serious uses of force are double-investigated — one administrative investigation and one criminal one . . . In short, after six years, if the LAPD was at all brutal and corrupt, shootings should be down, use of force down, complaints down, sustained complaints up and more officers prosecuted.

But, Parry asserts, shootings have increased 15%, complaints have increased, but guilty findings have decreased. Indeed, the “only statistic that appears to have tracked as the activists indicated is use of force. On a per-100-arrests basis, serious use of force is down about 20 percent.”

Parry asserts that these complicated data can be boiled down to a simple cause: “Cops are fleeing in record numbers [because of the increased supervision] . . . As a result, inexperienced cops with unseasoned supervision are using more deadly force and getting more complaints, but the force is deemed acceptable and the complaints are increasingly bogus.”

To my reading, this claim is bogus.

Attrition problems at the LAPD are old – they certainly predate the consent decree, starting as early in the mid-1980s. The problem’s severity has engendered a number of explanations, and solutions, varying from: excessive financial disclosure requirements, bad press due to the Rodney King riots, insufficient funds, a convoluted application process, bad equipment and physical plant, and even affirmative action policies. Shucks, the only explanation not offered is that LA’s famously sunny climate makes officers too happy to effectively walk the beat.

Even were attrition to be exacerbated by the consent decree, Parry still hasn’t come close to making his claim stick.

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Are Survivors’ Costs a Pro-Life Issue?

The conservative Manhattan Institute recently commissioned a study of a gap in life-expectancy gains over the past 20 years. The data that inspired the study are startling:

While U.S. life expectancy increased by 2.33 years from 1991 to 2004, some jurisdictions — the District of Columbia (5.7 years), New York (4.3 years), California (3.4 years) and New Jersey (3.3 years) — led the way, while others, such as Oklahoma (0.3 years), Tennessee (0.8 years) and Utah (0.9 years), trailed the national average by significant margins.

To make a long story short, the researcher found that found that “longevity increased the most in those states where access to newer drugs . . . in Medicaid and Medicare programs has increased the most.”

Unfortunately, budgetary rules often make the federal government concentrate more on the costs of such interventions than their benefits. For example, the CBO counts “increased costs to the Medicare program for extending the life of its beneficiaries” as “survivors’ costs.” Tim Westmoreland’s fascinating article on the topic (95 Georgetown L.J. 1555, June 2007) calls this “euthanasia by budget:”

In describing why its model included costs but no savings from new access to pharmaceuticals, the Congressional Budget Office said, inter alia, “ [T]o the extent that a drug benefit helps people live longer, they may consume more health care over their remaining lifetime than they would have without the benefit.” In other words, it is still cheaper for Medicare beneficiaries to die.

One wonders if the same reasoning was behind a Texas law that permitted hospital authorities to cut off life support to a conscious woman.

I admit that Daniel Callahan has eloquently questioned the “research imperative,” and perhaps his reasoning could be extended to health care more generally. But it strikes me that in our accounting the costs and benefits of health care in this country, budgetary savings arising out of early death ought to be suspect.

Argument & Authority

One part of the intro to Kennedy & Fisher’s Canon of American Legal Thought really hit me today:

Law students struggle to understand the relationship between “the rules” and the vague arguments that lawyers call “policy.” Should “policy” begin only in the exception—when legal deduction runs out—or should it be a routine part of legal analysis? If the latter, how should lawyers reason about policy? What should go into reasoning about “policy”—how much ethics, how much empiricism, how much economics? Which of the arguments laypeople use count as professionally acceptable arguments of “policy” and which do not? Which mark one as naïve, an outsider to the professional consensus? What is it about policy argument that makes it seem more professional, more analytical, more persuasive, than talking about “mere politics”?

I think I might begin my administrative law class next term with those questions at the forefront. Administrative Law is occasionally derided as a Seinfeld class–a class about nothing–because the precedents seem so malleable and ad hoc. All seems to turn on an increasingly complicated jurisprudence of deference. But the agencies are often getting deference because they are presumed to have a better grasp on “empiricism and economics” than nonspecialist judges.

The problems raised by K&F go beyond law into flelds like economics itself. Consider EconJournalWatch’s recent issue examining the role of math in top-level publications. Sutter & Pejsky ask “Where Would Adam Smith Publish Today?,” and note a “near absence of math-free research in top journals.” A bit from their conclusion:

The emphasis on mathematical modeling and regression analysis imposes a toll on the profession. Adam Smith spent his early years studying literature, history, ethics, political and moral philosophy, and then teaching literature and rhetoric to college students. Today to succeed in the profession he would need to study model building and regression analysis well enough to publish in “good” journals, and he (and the rest of us) would have lost the value added from the studies displaced. The same would apply for many Nobel prize winners who published their work in an economics profession less tied down to model building and regression analysis.

Sutter & Pejsky, along with many other interesting authors in EJW, are arguing for a more pluralistic approach to economic authority. I hope to show my students in Admin the multiple sources of authority for agency decisions…and how that complexity, while occasionally frustrating and obfuscatory, can make the resulting decisions stronger, like a Peirce’s cable.

Scientists Manques?

Ever wonder why Richard Posner has gotten so interested in pragmatism? Well, James R. Hackney’s book Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity suggests that he’s right to be looking for a post-scientific discourse for the style of law & economics he advances. Here’s an abstract of Hackney’s work:

The current dominant strand of legal economic theory is what is commonly referred to as law and economics (but more appropriately labeled “law and neoclassical economics”). [This movement] gained its claim to objectivity based on the philosophical premises of logical positivism and the analytic philosophy movement generally. . . . In understanding the claim of objectivity in the law and neoclassical economics movement and why that claim can no longer be sustained (in part due to new conceptions of science and developments in philosophy) it is crucial that legal-academics have a fuller understanding of developments in science and how they shape our general cultural ethos.

Hackney synthesizes a wide variety of CLS and socio-economic critiques to show how “law and economics often cloaks ideological determinations—particularly regarding the distribution of wealth—under the cover of science.” Toward the end of the book he tentatively points a way forward for the discipline, urging greater humility about theoretical claims and greater reliance on empirical work. In other words, the cure for scientism is genuine science.

I have some sympathy with this perspective, and new awareness of “uniformity costs” in both law and legal scholarship backs up Hackney’s position. But the problem of “scientism” may extend beyond law and neoclassical economics…

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From Right-of-Reply to Norm-of-Trackback

One of the things I love about the blogosphere is the way that comments let readers correct you or turn your attention to something you may have missed. One of my recent posts on copyright law illustrates how this process can work. James Grimmelmann has suggested that this right to comment, and to trackback to one’s own post upon linking to another’s post, is a big victory for free speech. While right-of-reply laws may be stymied by Miami Herald v. Tornillo, these innovations let everyone have their say.

Should the mainstream media adopt similar norms? Consider the case of a recent WSJ commentary entitled “The Innocence Myth,” arguing that the rate of false convictions is very low. You can find critiques of it online if you google “innocence myth,” and the WSJ does publish some skeptical letters to the editor. But my colleague Michael Risinger is about to publish a piece that he believes definitively refutes the WSJ piece. As he argues:

If one is at all serious about trying to determine the empirical truth about the magnitude of the wrongful conviction problem, one must make an attempt to associate the denominator with the same kind of cases represented in the numerator. . . . In an article now in galleys at Northwestern Law School’s Journal of Criminal Law and Criminology, I have tried to do just that. Using only DNA exonerations for capital rape-murders from 1982 through 1989 as a numerator, and a 407-member sample of the 2235 capital sentences imposed during this period, this article shows that 21.45%, or around 479 of those, were cases of capital rape murder. Data supplied by the Innocence Project of Cardozo Law School and newly developed for this article show that only two-thirds of those cases would be expected to yield usable DNA for analysis. Combining these figures and dividing the numerator by the resulting denominator, a minimum factually wrongful conviction rate for capital rape-murder in the 1980’s emerges: 3.3%.

The WSJ has so far failed to publish Prof. Risinger’s letter to the editor, and claims a policy against allowing responses to commentaries. But would it at least behoove the Journal to provide a link to Risinger’s work after this opinion piece? I don’t see how this could hurt. . . . especially given time already devoted to screening letters to the editor. The Journal could make the links inobtrusive, as it does in this fantastic article on predatory debt collectors.

I hope that more of the mainstream media (MSM) follows the lead of the Washington Post, which provides great links to blogs (and opportunities for comment) on virtually all of its online articles (including editorials). Perhaps “opening up” the letters to the editor section in this way will be a bit of a burden at the beginning. But as technology makes these online forums more permeable, the usual excuse of “space constraints” (for shutting out diverse views) will be less and less convincing.