Journal of Empirical Legal Studies

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  • Outcaste Politics and Organized Crime in Japan: The Effect of Terminating Ethnic Subsidies

    In 1969, Japan launched a massive subsidy program for the “burakumin” outcastes. The subsidies attracted the mob, and the higher incomes now available through organized crime attracted many burakumin. Thus, the subsidies gave new support to the tendency many Japanese already had to equate the burakumin with the mob. The government ended the subsidies in 2002. We explore the effect of the termination by merging 30 years of municipality data with a long‐suppressed 1936 census of burakumin neighborhoods. We find that out‐migration from municipalities with more burakumin increased after the end of the program. Apparently, the subsidies restrained young burakumin from joining mainstream society. We also find that despite the end of government‐subsidized amenities, once the subsidies neared their end, real estate prices rose in municipalities with burakumin neighborhoods. With the subsidies gone and the mob in retreat, other Japanese found the formerly burakumin communities increasingly attractive places to live.

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  • Is E.U. Merger Control Used for Protectionism? An Empirical Analysis

    The European Commission has often used its merger‐review power to challenge high‐profile acquisitions involving non‐E.U. companies, giving rise to concerns that its competition authority has evolved into a powerful tool for industrial policy. The Commission has been accused of deliberately targeting foreign—especially U.S.—acquirers, while facilitating the creation of European national champions. These concerns, however, rest on a few famous anecdotes. In this article, we introduce a unique dataset that allows us to provide the first rigorous examination of these claims. Our analysis of the over 5,000 mergers reported to the Commission between 1990 and 2014 reveals no evidence that the Commission has systematically used its authority to protectionist ends. If anything, our results suggest that the Commission is less likely to challenge transactions involving non‐E.U. acquirers. Our analysis therefore challenges the common notion of European antitrust protectionism and shifts the burden of proof to those advancing this view.

  • Screening Plaintiffs and Selecting Defendants in Medical Malpractice Litigation: Evidence from Illinois and Indiana

    Many physicians and tort reform advocates believe that most medical malpractice (med mal) claims are “frivolous.” As evidence, they often rely on reports that only about 20 percent of claims result in a payout. Many physicians and reform advocates also believe that plaintiffs lawyers often sue every health provider with even a remote a connection to the patient. Plaintiffs’ lawyers, however, insist that they screen med mal cases carefully, and when they bring a claim, are selective in whom they sue. Can these perspectives be harmonized? We study this question using databases of every insured med mal claim closed in Illinois during 2000–2010 and in Indiana during 1980–2015, and with semi‐structured interviews with six plaintiffs’ lawyers. We innovate by using defense costs to assess whether plaintiffs’ lawyers take a case seriously. We treat cases with under $5k in defense spending as “nonserious” unless they have a payout over $25k. We find evidence that many “cases” are nonserious—suggesting that screening is an ongoing process that does not end when a case is accepted. Observed success rates are sensitive to whether one counts “claims” (each defendant is a separate claim) or “cases” (one plaintiff vs. one or more defendants), includes pro se and/or only represented cases, and includes all versus only serious cases. If we analyze cases instead of claims and limit to serious, represented cases, we find much higher success rates (43 percent in Illinois; 44 percent in Indiana). Success rates are higher still in cases brought solely against institutional defendants (58 percent in Illinois; 68 percent in Indiana). Plaintiffs’ lawyers are also selective in the number of defendants they sue. In med mal cases involving only physicians and/or institutions, the mean number of defendants is 1.5 in Illinois and 1.8 in Indiana.

  • Are Court Orders Sticky? Evidence on Distributional Impacts from School Finance Litigation

    Whether welfare analysis of legal rule changes should evaluate distributional outcomes as well as efficiency depends crucially on how much their distributional impacts stick. That is, do court mandates ultimately affect the distribution of taxes and spending or do legislatures offset the distributional consequences of those court orders with other changes? Little is known about this question. To offer insight into it, I use an event study methodology to show how state revenues and expenditures respond to court orders to increase funding for schools. I find that the court orders' distributional impacts do stick. The education spending is financed by tax increases that do not target the largest beneficiaries of the increased education spending, the poor and those with children. Thus, since the main beneficiaries of the school spending do not pay a disproportionate share of the costs, advocates for school finance reform are effective at transferring resources to poor families. The results suggest that welfare analysis of these legal rules should take into account not only efficiency but also distribution, in a departure from traditional economic analysis of legal rules.

  • Heterogeneity Among Patent Plaintiffs: An Empirical Analysis of Patent Case Progression, Settlement, and Adjudication

    This article empirically studies current claims that patent trolls, also known as patent assertion entities (PAEs) or non‐practicing entities (NPEs), behave badly in litigation by bringing frivolous patent infringement suits and seeking nuisance fee settlements. The study explores these claims by examining the relationship between the type of patentee‐plaintiffs and litigation outcomes (e.g., settlement, grant of summary judgment, trial, and procedural dispositions), while taking into account, among other factors, the technology of the patents being asserted and the identity of the lawyers and judges. The study finds significant heterogeneity among different patent holder entity types. Individual inventors, failed operating companies, patent holding companies, and large patent aggregators each have distinct litigation strategies largely consistent with their economic posture and incentives. These PAEs appear to litigate differently from each other and from operating companies. Accordingly, to the extent any patent policy reform targets specific patent plaintiff types, such reforms should go beyond the practicing entity versus non‐practicing entity distinction and understand how the proposed legislation would impact more granular and meaningful categories of patent owners.

  • Victim‐Oriented Tort Law in Action: An Empirical Examination of Catholic Church Sexual Abuse Cases

    Catholic Church sexual abuse cases have received worldwide attention, with lawsuits and nationwide investigations reported in various countries. This study examines a procedure—a hybrid between tort litigation and a victim compensation fund—that not only allowed sexual abuse victims to seek monetary compensation on an individual basis, but also nonmonetary relief, including an apology, recognition, and measures against those responsible for the abuse. The publication of all decisions offers a unique opportunity to analyze what victims pursued by filing a claim, whether what they were offered matched their objectives, and what impacted the probability of victims obtaining certain types of nonmonetary relief. After analyzing 1,237 decisions, this study reveals a mismatch between what victims sought and what they were offered. Surprisingly, the presence or absence of a few panelists (out of 27) turns out to be the best predictor of whether adjudicators ordered nonmonetary relief. Consequently, whether victims obtained nonmonetary relief did not only depend on a proper legal infrastructure, but mostly on the mentality and attitudes of those participating in the system.

  • Moral Disengagement in Legal Judgments

    We investigated the role of moral disengagement in a legally‐relevant judgment in this theoretically‐driven empirical analysis. Moral disengagement is a social‐cognitive phenomenon through which people reason their way toward harming others, presenting a useful framework for investigating legal judgments that often result in harming individuals for the good of society. We tested the role of moral disengagement in forensic psychologists’ willingness to conduct the most ethically questionable clinical task in the criminal justice system: competence for execution evaluations. Our hypothesis that moral disengagement would function as mediator of participants’ existing attitudes and their judgments—a theoretical “bridge” between attitudes and judgments—was robustly supported. Moral disengagement was key to understanding how psychologists decide to engage in competence for execution evaluations. We describe in detail the moral disengagement measure we used, including exploratory and confirmatory factor analyses across two separate samples. The four‐factor measure accounted for a total of 52.18 percent of the variance in the sample of forensic psychologists, and the model adequately fit the data in the entirely different sample of jurors in a confirmatory factor analysis. Despite the psychometric strengths of this moral disengagement measure, we describe the pros and cons of existing measures of moral disengagement. We outline future directions for moral disengagement research, especially in legal contexts.

  • Consumer Litigation Funding and Medical Malpractice Litigation: Examining the Effect of Rancman v. Interim Settlement Funding Corporation

    Consumer litigation funding, a growing industry in the United States, is an alternative credit source for cash‐strapped tort plaintiffs. Financiers give plaintiffs nonrecourse loans that are premised on lawsuit outcomes. This article is the first to empirically examine the effect of consumer litigation funding. Specifically, I explore the impact of nonrecourse loans on medical malpractice litigation outcomes by exploiting the variation in timing and geography from two Ohio policy changes: the Ohio Supreme Court's 2003 ban of funding in Rancman v. Interim Settlement Funding Corporation and the state's subsequent legislative legalization of funding in 2008. Using closed‐claim data from the National Practitioner Data Bank, I find evidence that the availability of funding increases claim payment and claim duration.

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Featured documents

  • The Effect of Tort Reform on Medical Malpractice Insurance Market Trends

    In this article, we examine the extent to which the timing of reforms to the tort liability system coincides with changes in medical malpractice insurance market conditions. Our research is motivated by the fact that, while policy discussions and academic research pertaining to the merits of tort...

  • Lawyers as Agents of the Devil in a Prisoner's Dilemma Game

    Do the parties in a typical dispute face incentives similar to those in the classic prisoner's dilemma game? In this article, we explore whether the costs and benefits of legal representation are such that each party seeks legal representation in the hope of exploiting the other party, while...

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    Drugs, crime, and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of...

  • Corporate Politics, Governance, and Value Before and After Citizens United

    How did corporate politics, governance, and value relate to each other in the S&P 500 before and after Citizens United? In regulated and government‐dependent industries, politics is nearly universal, and uncorrelated with shareholder power, agency costs, or value. However, 11 percent of CEOs in...

  • An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?

    This article analyzes the 205 death‐eligible murders leading to homicide convictions in Connecticut from 1973–2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, ...

  • Can You Buy Sperm Donor Identification? An Experiment

    In the United States, most sperm donations are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor‐conceived child once he or she reaches ...

  • Medical Malpractice Litigation and the Market for Plaintiff‐Side Representation: Evidence from Illinois

    How concentrated is the market for medical malpractice (med mal) legal representation? Do successful plaintiffs’ lawyers start off with better cases to begin with, do they add more value to the cases they handle, or both? How do top plaintiffs’ lawyers market their services, and where did they go...

  • On Probation: An Experimental Analysis

    Does probation pay a double dividend? Society saves the cost of incarceration, and convicts preserve their liberty. But does probation also reduce the risk of recidivism? In a meta‐study we show that the field evidence is inconclusive. Moreover, it struggles with an identification problem: those...

  • The Predicates of Military Detention at Guantánamo: The Role of Individual Acts and Affiliations

    The military detentions at Guantánamo have provoked intense controversy. Judges, legislators, and military officials disagree sharply about the scope of detention authority. To date, little is known about the granular determinants of decisions to transfer detainees from custody at the Cuban base or ...

  • The Standard of Proof in the Substantiation of Child Abuse and Neglect

    We measure the extent to which requiring a high standard of proof for substantiation of child abuse or neglect by child protection agencies actually influences the disposition of a report of abuse or neglect. Using data on nearly 8 million reports from fiscal 2000–2012, we show that a high standard ...

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