Epstein, Landes, and Posner: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

Professor Dr. Lee Epstein, Professor Dr. William M. Landes, and Senior Circuit Judge Richard A. Posner, have published The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, 2013).

Here is the publisher’s description:

Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.

The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors’ view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making.

HT @law_book

Sag on Predicting Fair Use

Professor Matthew Sag of Loyola University of Chicago School of Law has published Predicting Fair Use, Ohio State Law Journal, 73, 47-91 (2012).

Here is the abstract:

Fair use is often criticized as unpredictable and doctrinally incoherent – a conclusion which necessarily implies that the copyright system is fundamentally broken. This article confronts that critique by systematically assessing the predictability of fair use outcomes in litigation. Concentrating on characteristics of the contested use that would be apparent to litigants pre-trial, this study tests a number of doctrinal assumptions, claims and intuitions that have not, until now, been subject to empirical scrutiny.

This article presents new empirical evidence for the significance of transformative use in determining the outcomes of fair use cases. It also substantially undermines conceptions of the doctrine that are hostile to fair use claims by commercial entities and that would restrict limit the application of fair use as a subsidy or a redistributive tool favoring the politically and economically disadvantaged. Based on the available evidence, the fair use doctrine is more rational and consistent than is commonly assumed.

In this study the author estimates multivariate logit and ordinary least squares (OLS) models for purposes of quantitative legal prediction.

Boyd, Hoffman, et al. on Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints

Professor Dr. Christina L. Boyd of the State University of New York (SUNY) – Department of Political Science, Professor David A. Hoffman of the Temple University School of Law and the Cultural Cognition Project at Yale Law School, and colleagues, have posted Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints.

This article has been published in: Journal of Empirical Legal Studies, 10(2), 253-287 (2013): http://dx.doi.org/10.1111/jels.12010

Here is the abstract:

This project empirically explores civil litigation from its inception by examining the content of civil complaints. We utilize spectral cluster analysis on a newly compiled federal district court dataset of causes of action in complaints to illustrate the relationship of legal claims to one another, the broader composition of lawsuits in trial courts, and the breadth of pleading in individual complaints. Our results shed light not only on the networks of legal theories in civil litigation but also on how lawsuits are classified and the strategies that plaintiffs and their attorneys employ when commencing litigation. This approach permits us to lay the foundations for a more precise and useful taxonomy of federal litigation than has been previously available, one that, after the Supreme Court’s recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), has also arguably never been more relevant than it is today.

This study is notable for several reasons, including that Computational Legal Studies founders Professor Dr. Daniel Martin Katz and Michael Bommarito commented on the statistical methodology used in the study, and that the study uses government data made public through RECAP, the open government data project developed by Harlan Yu, Stephen Schultze, and Timothy B. Lee, all of Princeton’s Center for Information Technology Policy.

Further, this study exemplifies the scholarly use of open government data predicted by David Robinson, Harlan Yu, and Ed Felten, in their influential article, Government Data and the Invisible Hand.

HT @freemoth.

Talley and O’Cane on A Protocol for Tokenizing Force Majeure Clauses in M&A Agreements

Professor Eric L. Talley and Drew O’Cane, both of University of California, Berkeley School of Law (Boalt Hall) and the Berkeley Center for Law, Business, and the Economy, have posted The Measure of a MAC: A Quasi-Experimental Protocol for Tokenizing Force Majeure Clauses in M&A Agreements, on SSRN. Here is the abstract:

We develop a protocol for using a well known lawyer-coded data set on Material Adverse Change/Effect clauses in acquisitions agreements to tokenize and calibrate a machine learning algorithm of textual analysis. Our protocol, built on both regular expression (RE) and latent semantic analysis (LSA) approaches, is designed to replicate, correct, and extend the reach of the hand-coded data. Our preliminary results indicate that both approaches perform well, though a hybridized approach improves predictive power even more. We employ Monte Carlo simulations show that our results generally carry over to out-of-sample predictions. We conclude that similar approaches could be used much more broadly in empirical legal scholarship, most specifically in the study of transactional documents in business law.

Bommarito, Katz, and Isaacs: An Empirical Survey of the Population of United States Tax Court Written Decisions

Michael J. Bommarito II and Daniel Martin Katz, both of the University of Michigan’s Center for the Study of Complex Systems and Computational Legal Studies, and Jillian Isaacs-See of BDO USA, LLP, have published An Empirical Survey of the Population of United States Tax Court Written Decisions, Virginia Tax Review, 30, 523-557 (2011). Here is the abstract:

What can empirical data tell us about the jurisprudence of United States Tax Court? Which sections of the Internal Revenue Code are most frequently cited and has recent tax legislation sparked change in the Tax Court’s decisions? This article presents an analysis of the citation practices of the United States Tax Court between 1990 and 2008. While previous citation studies focus on case-to-case citations, we modify this approach to focus on statutory citations, which better capture the nature of tax jurisprudence. By applying techniques from computer science, we collect and analyze more than 11,000 decisions and 244,000 statutory citations authored by the United States Tax Court between 1990 and 2008. Our approach includes both a static and longitudinal analysis of the most cited Internal Revenue Code sections. In addition, we carry out a network analysis of these case-to-statute citations to uncover patterns in citation practices, concept relationships, and legislative acts. This article answers the call for greater empiricism in tax scholarship and paves the way for future research on Tax Court jurisprudence.

Silver on The Need for Empirical Research in Regulating Lawyers and Legal Services in a Global Economy

Professor Carole Silver of the Indiana University School of Law has published What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in a Global Economy, 43 Akron Law Review 1009-1080 (2010) (Issue No. 3). Here is the abstract:

This paper suggests an adjustment to the existing regulatory regime, setting aside, at least for the moment, any challenge to the merits of the system itself. My proposal is quite modest: In order to inform the choices implicit in rulemaking, regulation ought to be based upon sound empirical evidence. This is particularly important because of the complexities brought about by globalization. To generate this foundation for regulation, it is important to reach beyond the stakeholders typically represented on regulatory agendas so that the larger context in which lawyers act and legal services are delivered is visible. To this end, a new collaboration is suggested, combining empirical scholars who study lawyers, the organizations that participate in the “production of lawyers,” and professions generally, with regulators and policy-makers to generate a comprehensive understanding of the activities and actors comprising the legal profession as it exists in the context of globalization.

The article begins with a consideration of the general issues that globalization raises for regulators of lawyers and legal services, and then suggests possible areas for research by identifying several voids in our current understanding. In doing this, it describes a number of relevant actors and institutions whose work intersects with global forces and who thus might be the subject of fruitful investigation. This general outline for thinking about how globalization matters in the world of legal services is offered only as a starting point; the identification of relevant actors and activities necessarily will change over time, as new mechanisms emerge for delivering legal services and our traditional forms of organization adapt to changed circumstances. Even the relevant issues may require modification because of changes that cannot now be anticipated. The paper suggests one possible institutional structure for the outlined research, and offers possible first steps towards implementing the project.

According to Professor Silver, the full text of the article is available on Westlaw.

Thanks to Professor Silver for providing the abstract.

Call for Papers: MLEA 2010: Midwestern Law & Economics Association Annual Meeting

A call for papers — with submission deadline of 1 September 2010 — has been issued for MLEA 2010: The Midwestern Law and Economics Association Annual Meeting, to be held 8-9 October 2010, at the University of Colorado School of Law in Boulder, Colorado, USA.

The conference is sponsored by the University of Colorado School of Law and its Silicon Flatirons Center for Law, Technology, and Entrepreneurship.

The conference invites “papers with varying degrees of law and economics content, ranging from empirical analyses and formal economic modeling to legal philosophy and doctrinal papers infused with economic thinking.”

For more information, please see the call for papers.

MLEA 2010: Midwestern Law & Economics Association Annual Meeting

MLEA 2010: The Midwestern Law and Economics Association Annual Meeting, will be held 13-15 8-9 October 2010, at the University of Colorado School of Law in Boulder, Colorado, USA. A call for papers should be issued soon.

Click here for the call for papers.

Thanks to Professor Jeffrey Stake for this news.

[NOTE: This post was updated on 31 July 2010 to correct the conference dates & link to the call.]

Video Available for Chicago Law.gov Workshop

Video is now available for the Chicago Law.gov Workshop, held 21 May 2010 at The Chicago-Kent College of Law in Chicago, Illinois, USA.

The workshop was co-sponsored by CALI: The Center for Computer-Assisted Legal Instruction and The Oyez Project.

Click here for the workshop program.

Click here for archived Twitter tweets from the workshop (scroll down to May 21, 2010).

Click here for press coverage of the workshop.

Click here for information about the Law.gov legal open government data project.

HT Carl Malamud.

May 21, 2010: Chicago Law.gov Workshop

The Chicago Law.gov Workshop will be held 21 May 2010 at The Chicago-Kent College of Law in Chicago, Illinois, USA.

The workshop is co-sponsored by CALI: The Center for Computer-Assisted Legal Instruction and The Oyez Project.

Click here for the conference program.

Click here for archived Twitter tweets from the workshop (scroll down to May 21, 2010).

Click here for information about the Law.gov legal open government data project.

HT Carl Malamud.