Wednesday, June 17, 2009
Wednesday, June 10, 2009
___ W. Va. ___, ___S. E. 2d ___, reversed and remanded.
My strong sense is that the majority got this right. I find the fact that there are 39 states with contested and privately funded judicial elections to be an abomination. I strongly resist the view that being a judge is simply politics by another means, and my opposition to privately funded judicial elections is that they foster that view. Judges are and ought to be different. I'm not going to press this too far. Rather, let me try to be constructive. Let me divide up my brief comments into two separate issues. The first has to do with the impact of the decision on matters already decided. The second involves a simple suggestion regarding what to do going forward.
The principal points of the dissenters is that this is undue federal influence in state matters and that it will open up the floodgates of reconsideration of lots of decided matters. I have no particular expertise on the federalism question here, but it strikes me that a state that allows the sort of practice that characterized the West Virginia dispute is a state that comes close to deciding matters of law by auction, which cannot be good. With regard to the matter of reconsiderations, I suppose that that is a problem that demands an administrative solution. I don't think that the Supreme Court could have said, "This practice was OK up to June 8, 2009, but hereafter it should not be allowed." So, if the states have allowed this to go on, or if judges and justices have not had the modicum of good sense to recuse themselves at the slightest hint of impropriety, then the states will simply have to live with dealing with the costs of reconsiderations.
As to what to do going forward, if states do not wish to scrap judicial elections or to outlaw private funding of those elections or if they are worried that judges might not recuse themselves when they ought to, then they simply must adopt the Ayres, Bulow, and Ackerman proposal for a secret donation booth. See the original Ayres & Bulow paper, here, or Ackerman & Ayres, Voting with Dollars (2004).
Saturday, June 6, 2009
I apologize for the large gap in postings. This has been a particularly taxing semester. But the worst is behind me, and the best is ahead.
Here are a few things to check out as I ease back into blogging about law and economics:
1. I've been rereading two marvelous articles by Charles E. Lindblom, "The Science of 'Muddling Through,'" 19 Pub. Admin. Rev. 79 (1959) and Lindblom, "Still Muddling, Not Yet Through," 39 Pub. Admin. Rev.517 (1979).
2. Buccafusco, Bronsteen, & Masur, "Welfare and Happiness," available at www.ssrn.com.
3. Al Roth's blog Market Design.
4. Henderson, Wolfers, & Zitzewitz, "Predicting Crime," available at www.ssrn.com.
5. Garcia & Tor, "The N Effect: More Competitors, Less Competition," available at www.ssrn.com. Avishalom Tor presented this paper at the recent ALEA Annual Conference at the University of San Diego.
More in the near future.
Tuesday, March 24, 2009
James Q. Wilson, whose work I admire immensely and who is one of the most careful scholars of crime and criminal justice policy, has a marvelous column today at AEI summarizing what we know and do not know about the effects of incarceration (or punishment, generally) on crime levels. The article is available here.
Sunday, March 8, 2009
I'm sitting outside the Weaver Street Market in Carboro, North Carolina (just outside Chapel Hill), on a delightful Spring morning. I've visiting my dear friend Mitu Gulati, who is off at a spinning class while I drink coffee and catch up on some work. We are going to meet another dear friend, Richard McAdams, in a while to eat Allen & Sons barbecue and go to the UNC-Duke basketball game this afternoon. Barbecue, law and economics with two of the best practitioners of the genre, delightful weather, and UNC-Duke basketball -- this is as good as it gets.
I highly recommend an article about Zip Cars in this morning's New York Times Sunday Magazine: Mark Levines, "Share My Ride" -- available here. The story of the growth of the company (including the painful dismissal of one of its founders) is fascinating, as is the idea of substituting shared for wholly owned automobiles. The University of Illinois has recently joined the Zipcar network. I'm not certain how many of their cars are available on our 40,000-student campus in Urbana-Champaign, but the attraction to the company of having that many people away from home and, possibly, cut off from the use of the family car must make the campus an attractive business proposition. I'm eager to find out more about the availability on our campus.
You can access the Zipcar website at www.zipcar.com, where there is a link to the New York Times article mentioned above.
Thursday, March 5, 2009
For years I have used a discussion of the droit de suite (the artist's right to share in the proceeds of sales of his or her work beyond the first sale) to teach my law students about transaction costs, social subsidies to creative and expressive activities, and more. The State of California since 1977 has had such a practice (requiring subsequent sales of an artist's work to remit 5 percent of the sale price to the artist if the sale is over $1,000 and not between art dealers). There is a wonderful story -- available here -- in today's Wall Street Journal about a California state official whose job it is to track down artists who are entitled to payment.
Monday, January 26, 2009
This article, available at SSRN, by William Ferguson of the Department of Economics at Grinnell College, is a wonderful, brief introduction to recent developments in economic theory. I think that those in the legal academy who are not in regular contact with economics will find this very helpful.
Monday, January 19, 2009
Adam Liptak's column in The New York Times for tomorrow -- available here -- contends that there are credible studies showing that paying judges more, as urged annually by the Chief Justice of the United States in his report on the federal judiciary, does not result in better judging.
Saturday, January 10, 2009
Bruce P. Smith, a noted legal historian and award-winning University of Illinois
“Bruce is a scholar of considerable vision and energy with
high ambitions for the college,” said Richard Herman, chancellor of the
Dean Smith, 44, says his years on the U.of I.
Dean Smith, whose research has focused on Anglo-American
criminal procedure in the 18th and 19th centuries, is co-director of the Legal
History Program at the college, whose graduates include Illinois Supreme Court
Justice Lloyd Karmeier and Michael Strautmanis, longtime legal counsel to
President-elect Barack Obama. He has written a book that will be published this year on the
history of common law, along with numerous articles that have appeared in
peer-reviewed journals and law reviews. In 2008, Dean Smith was one of two recipients of the
university’s prestigious Campus Award for Graduate and Professional Teaching,
which recognizes excellence in the classroom, innovative approaches to teaching
and other contributions to improved instruction, including influence on
“I have been deeply impressed by the intensity and
dedication of Professor Smith’s work as a scholar and teacher of law, and by
the exciting vision he brings to the challenges of the law deanship,” said
Provost Linda Katehi.
Before joining the U.of I.
Wednesday, December 17, 2008
One of the great problems that modern scholars have is keeping track of all the references that might go into one's articles and books. EndNote is a wonderful help for that part of the scholar's task. Today's column in the New York Times by Professor Olivia Judson of Imperial College, London -- normally her blog is on evolutionary biology -- contains a pitch for two programs that will help to keep track of all the references that can turn up on the Internet: Zotero (which is free) for the PC and Papers (which is available for $40) for the Apple. There are links in the article to the sites from which to download both programs. I've used Zotero for a few days and find it very easy to use and very helpful.
Tuesday, December 16, 2008
When a university department hires an entry-level candidate to be an assistant professor, the members of the department frequently have widely different views of whether the new assistant professor will be a successful researcher, an engaging teacher, and a valued colleague. This very general problem of predicting success is the subject of a wonderful piece in this week's New Yorker by Malcolm Gladwell, "Most Likely to Succeed: How Do We Hire When We Can't Tell Who's Right for the Job?" The article is available here, in the magazines "Annals of Education." The article compares the difficulties of predicting who will be a good elementary school teacher (with the difference between good and bad teachers being demonstrably huge) and a good NFL quarterback. Very highly recommended.
Saturday, December 6, 2008
Here's a fascinating article from The Economist, describing experiments done by Dutch researchers on the relationship between social disorder and crime. This is an attempt to explore the "broken windows" hypothesis of Kelling and Wilson, who held that when there is patent evidence in a neighborhood that no one is paying attention or cares for the well-being of the properties in that neighborhood, crime will be more likely to take place. The Dutch experiments find very significant increases in the amount of crime when it appears to be the case that social order in the neighborhood has broken down. Highly recommended.
Tuesday, November 25, 2008
Today's New York Times has a wonderful column by Adam Liptak, "From One Footnote, a Debate Over the Tangles of Law, Science, and Money," available here. The article discusses footnote 17 in the U.S. Supreme Court's opinion in Exxon v. Baker, handed down in June, 2008. In 1989 the Exxon Valdez struck a reef and spilled 11 million gallons of crude oil into Prince William Sound in Alaska. A jury awarded 32,000 Alaskan natives, landowners, and commercial fishermen $507 million in compensatory damages and $5 billion in punitive damages. The Ninth Circuit, on appeal, had reduced the amount of punitive damages to $2.5 billion. The U.S. Supreme Court, in a 5-3 decision, said, through Justice Souter, that the punitives should be further reduced to $500 million on the ground that there should be a ratio of compensatory to punitive damages of one-to-one, at least in admiralty cases.
In footnote 17, Justice Souter had written,"The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous 'mock juries,' where different 'jurors' are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, "Deliberating About Dollars: The Severity Shift," 100 Colum. L. Rev. 1139 (2000); Hastie, Schkade, & Payne, "Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards," 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, "Assessing Punitive Damages (with Notes on Cognition and Valuation in Law)," 107 Yale L. J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it."
What has caused a stir is the final line in the footnote. And understandably so. The articles and authors cited there are all excellent scholarship and first-rate scholars. The implicit criticism of their work as being advocacy rather than scholarship is unfortunate. I fully understand the worry that research funded, even in part, by a party to litigation could be tainted. But I think that there is something deeper going on here. To begin, one of the central skills that we teach in law school is advocacy, which means, among other things, putting your client's case in the best possible light. There are, of course, constraints on what a legal advocate may do in representing her client's case. Nonetheless, there is a sensible fear on the part of some legal decisionmakers, such as judges, that those constraints are not sufficient for the decisionmaker to rely upon the advocate's assertions. Why? Two reasons. First, the adversary's client may cite assertions to the contrary. And second, the decisionmaker feels unequipped to evaluate the assertions.
I think that one could make a case that most legal decisionmakers are equipped to evaluate scholarly work in the law. What they may feel unequipped to evaluate are empirical results. And if so, that is a terrible shortcoming in our method of legal education. An increasing number of policy and legal issues involve empirical evidence, and as a result, lawyers ought to have the skills to look at that work critically.
The scholars whose work Justice Souter declined to use in resolving the case were not writing as advocates. They were writing as scholars. And there is a subtle but very important difference between being an advocate and being a scholar. Two colleagues (Jen Robbennolt and Bob Lawless) and I have wrestled with this difference in a course that we jointly teach in empirical methods. We ask our students to do an empirical project and present the preliminary results to the class. The presentations always serve as the occasion to talk about the difference between advocacy and scholarship. What is the difference? Among other things, the scholar's duty is to the truth and to balanced inquiry. The scholarly community values transparency, so that the scholar should be prepared to share her data. Indeed, following the practices of most peer-reviewed journals, we require our students to submit their data along with their final papers. There is also a scholarly norm by which scholars build upon the work of others, criticizing others gently, if at all. The presumption is that the scholarly community is collegial and cumulative, working jointly ("standing on the shoulders of giants," to use Newton's marvelous phrase) to reach a mutually shared goal -- better understanding. This is not to say that there isn't fierce competition in the scholarly community. Of course there is. And, of course, there are mistakes made in scholarly work, even fraud. But the peer review process (by which I mean the presentation to conferences, scholarly seminars, and the like; the review of work before publication; and the evaluation of a scholarly record for promotion and tenure) generally catches those. In short, the scholarly norms, the prudent concern of the scholar for his or her reputation, and the peer review process generally weeds out scholarship that is mere advocacy.
With respect to the particular articles and scholars cited in footnote 17 of Exxon v. Baker, I find it inconceivable that those articles or scholars could have confused advocacy and scholarship. The Justices could have and should have relied on the literature cited there.
Saturday, September 27, 2008
Friday, September 26, 2008
Wednesday, September 24, 2008
This article in yesterday's Wall Street Journal reports on research that suggests that there are distinct personality types in the different regions of the United States. I do not know the underlying methods or data that were used to reach the conclusions. But let us assume for the time being that the data are correct. The study raises the fascinating question of issues of why there should be these regional types, that is, why do they arise (to accommodate real regional conditions, such as population densities, immigration patterns, educational levels, economic opportunities, rural v. urban splits) and why do they persist, particularly in light of the fact that approximately 25 percent of the U.S. population moves each year -- many of them across state (and, presumably, regional) lines. Do people, for example, sort themselves out by moving to different sections of the country, trying out various possibilities, and staying only in those regions whose personality type is most congenial to them? Or are there endogenous regional cultures that shape the people who live there (on a theory, say, that you have to accommodate to the local customs in order to get along)? Or is there some other process by which relatively invariant regional psychology types assert themselves?
l suppose that one other possibility is that the empirical finding on which the article is based is incorrect.
I am a fan of prediction markets -- unless, of course, they are being manipulated so as not to reflect the true aggregated beliefs of traders. So, this column at fivethirtyeight.com (an excellent source of statistical information about the election) about suspicious trading at intrade.com in the presidential market is worrisome. (Thanks to Michael Vogel for pointing this out.)
Sunday, September 21, 2008
Saturday, September 20, 2008
The causes of the financial crisis and the particular correctives of the federal government's bailout plan are both a bit hazy to us nonspecialists. Today's Freakonomics column, guest written by Douglas Diamond and Anil Kashyap and available here, is extremely clear and helpful.
Wednesday, September 17, 2008
Last Friday and Saturday, four of my colleagues at the University of Illinois College of Law (David Hyman, Jay Kesan, Bob Lawless, and Jen Robbennolt) and I attended the Third Annual Conference on Empirical Legal Studies. The conference was held at Cornell Law School in beautiful Ithaca, New York. Our hosts (and the co-organizers) were Ted Eisenberg, Valerie Hans, Michael Heise, and Jeff Rachlinski. They all deserve a great round of applause for a marvelous conference.
From a relatively modest but enthusiastic number of people attending the first conference two years ago at the University of Texas Law School, the number of attendees at the Cornell conference exploded to 350. Michael Heise told me that the organizers' wildest upper-bound estimate on attendance was just above 200, and that they were nearly overwhelmed by the number who found their way to Ithaca. There was a full and enticing schedule of papers from early on Friday till late on Saturday, and most sessions had seven concurrent panels.
I had the pleasure of commenting on Anthony Niblett, Richard Posner, and Andrei Shleifer's "The Evolution of a Common Law Rule," which was very ably presented by Anthony. The paper, available on SSRN, is a very important study of the extent to which state appellate courts converged on an efficient interpretation of the economic loss rule between 1970 and 2005. The long and the short of a complex story is that the courts did not converge on the efficient or any other single interpretation of the ELR. There is much food for thought in the paper.
Next year's CELS is at the Gould Law School of the University of Southern California on November 20-21. And the following year (2010) the conference will be held at University College London.