Journal of Empirical Legal Studies

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 1740-1453

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Latest documents

Effects of the Joint Custody Law in Italy
We study the effect of a 2006 reform to Italian family law that made joint custody the default for separating couples. The reform boosted joint legal custody by about 75 percentage points. Our research design uses difference‐in‐differences to estimate reform effects on the likelihood of a contested settlement, length of trial, and transfers between separating parents. The analysis is based on Italian individual‐level administrative data, which cover the entire population. The joint custody default appears to have increased dispute rates and length of trial markedly, without affecting transfers. There is no evidence that mothers buy custody rights back through reduced support. Our findings are consistent with the excessive discretion given to judges on some aspects of law implementation, which resulted in a partial application of the reform.
Entrepreneurs’ Legal Status Choices and the C Corporation Survival Penalty
Foundational to the American Dream is the ability to easily and rapidly start a new business. Over the past quarter‐century, the limited liability company (LLC) dramatically shifted the choice of legal status calculus for entrepreneurs, and in its wake a consensus against the use of traditional C corporations by closely‐held firms emerged. The C corporation, scholars argued, had fatal drawbacks despite its simplicity: tax disadvantages as well as governance inflexibility. Due to historically limited sources of data, there has been little empirical research on choice of entity generally and none that explores the anti‐C corporation thesis in particular. Have C corporations underperformed as compared to similarly situated businesses with alternative legal statuses? This article exploits a large panel dataset that contains legal status, owner, business, financing, and other firm‐specific information collected from an eight‐year survey of nearly 5,000 enterprises that were formed in 2004. It presents four main results. First, C corporation status is associated with firm failure rates that are 38 percent higher (significant at 0.1 percent) than those of non‐C corporations with similar characteristics. Second, this C corporation survival penalty persists at nearly the same magnitude and significance even after a subset of “anticipated cash‐exit” C corporations with (a) venture capital investors or (b) employee stock option plans are separated out. Third, nonwhite and foreign‐born entrepreneurs have a significantly higher likelihood of choosing C corporation status. Fourth, within the subset of firms that appear eligible to elect out of the default (subchapter C) corporate tax classification and into the tax‐advantaged subchapter S classification, nonwhite and older entrepreneurs are significantly more likely to remain in C corporation status. These findings suggest that increasing legal status complexity is unlikely to be neutral from a distributive perspective, and may be disproportionately burdensome for marginalized entrepreneurs.
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Legal Techniques for Rationalizing Biased Judicial Decisions: Evidence from Experiments with Real Judges
Judges rarely reveal their real reasoning in their opinions when they are influenced by factors that they know they should not consider. The natural next question is how, when a judge is improperly influenced, he or she reasons to justify a biased decision. In a set of experiments using incumbent Chinese judges, we first replicated the findings of previous studies that showed judges can be influenced by extra‐legal factors. More importantly, we showed that judges may employ a range of legal techniques to rationalize decision biases: they interpret legal standards and legal concepts strategically, finesse the applicability of law, infer or deny causation and foreseeability, and draw different conclusions from facts. Our findings provide a more realistic understanding of how judges behave, and cast doubt on reasoned elaboration as a guarantee of judicial transparency and trustworthiness.
Legal Uniformity in American Courts
Intercircuit splits occur when two or more circuits on the U.S. Courts of Appeals issue different legal rules about the same legal question. When this happens, federal law is applied differently in different parts of the country. Intercircuit splits cause legal nonuniformity, are an impediment to lawyering and judging, and have practical consequences for U.S. law. Despite intercircuit splits’ importance, there is almost no quantitative research about them. We created a unique original dataset that includes intercircuit splits that arose between 2005 and 2013. For each intercircuit split, we identified every circuit and every case involved. These data reveal that one‐third of intercircuit splits are resolved by the Supreme Court. Two‐thirds are not. We show that those that will be resolved are resolved within three years after they arise and that splits are more likely to be resolved when they exhibit contemporaneous and growing disagreement. However, many such splits are never resolved by the Supreme Court. Those that are not resolved by the Supreme Court continue to yield litigation and do not dissipate on their own. The likelihood of resolution does not rise as time passes.
The German Federal Courts Dataset 1950–2019: From Paper Archives to Linked Open Data
Various reasons explain why Europe lags behind the United States in empirical legal studies. One of them is a scarcity of available data on judicial decision making, even at the highest levels of adjudication. By institutional design, civil‐law judges have lower personal profiles than their common‐law counterparts. Hence very few empirical data are available on how courts are composed and how that composition changes over time. The present project remedies that by easing access to such data and lowering the threshold for empirical studies on judicial behavior. This paper introduces the German Federal Courts Dataset (GFCD) as a resource for empirical legal scholars, with the objective of inspiring more European lawyers to engage with empirical aspects of civil‐law adjudication. To that end, several thousand pages of German court documentation were digitized, transcribed into machine‐readable tables (ready to be imported into statistics software), and published online (www.richter-im-internet.de). To simultaneously explore innovative ways of sharing public‐domain datasets, the data were modeled as linked open data and imported into the Wikidata repository for use in any computational application.
A Deeper Look at Bar Success: The Relationship Between Law Student Success, Academic Performance, and Student Characteristics
In recent years, law schools have experienced a decline in enrollment and bar passage, and legal education has been challenged to understand this new phenomenon and conduct research that can inform practices and policies regarding law student success. This article presents findings from research conducted at the University of Cincinnati College of Law, a large, midwestern public university, which aimed to investigate which factors and student characteristics contribute to bar passage within the home jurisdiction (Ohio). Results suggest bar passage can be predicted by a wide battery of variables, most notably student performance during the law school course of study. Despite some prior literature that suggests otherwise, however, LSAT and undergraduate GPA were only weakly predictive of first‐time bar passage among admitted students: the best prelaw model based on student admissions and demographic data identified just over one‐third of the students who ultimately failed the bar on the first attempt. Information from the first year of law school—even just performance in one first semester course—explained significantly more variation in bar passage. Furthermore, data from beyond the first year of legal study, including upper‐level course taking in bar‐tested subjects, enriched the predictive power of the model, enabling us to predict 78 percent of students who failed the bar compared to just 58 percent after the first year. These preliminary results provide important insights into bar passage, particularly given the increased public scrutiny around incoming student credentials, bar success, and law school performance and accreditation.
Lawyers and Jurors: Interrogating Voir Dire Strategies by Analyzing Conversations
This study of individualized jury selection for 792 potential jurors across 12 North Carolina capital cases, selected with purposive case selection, analyzes the conversations that occur during voir dire to examine the process that produces decisions about who serves on juries. Lawyers question prospective jurors in voir dire partly to gather information about prospective jurors’ ability to decide a case without prejudice. Jury selection, however, suffers from what social scientists call demand characteristics. Demand characteristics provide a respondent with clues about the expected response and interfere with effective information gathering. We identified two characteristics that bear on the presence and strength of demand characteristics: the form and tone of the question. We sorted all 8,583 general legal opinion questions along a four‐step scale by combining these characteristics. We then used time‐series analyses to examine responses to these questions in sequence. Juror responses were longest and most likely to include an affective utterance when the demand characteristics were weaker, and that loquaciousness and affect fell at each step of the scale. An independent qualitative study replicated these findings, and supported the assertion that length and form are valid measures of quality in this context.
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Right‐to‐Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State‐Level Synthetic Control Analysis
This article uses more complete state panel data (through 2014) and new statistical techniques to estimate the impact on violent crime when states adopt right‐to‐carry (RTC) concealed handgun laws. Our preferred panel data regression specification, unlike the statistical model of Lott and Mustard that had previously been offered as evidence of crime‐reducing RTC laws, both satisfies the parallel trends assumption and generates statistically significant estimates showing RTC laws increase overall violent crime. Our synthetic control approach also finds that RTC laws are associated with 13–15 percent higher aggregate violent crime rates 10 years after adoption. Using a consensus estimate of the elasticity of crime with respect to incarceration of 0.15, the average RTC state would need to roughly double its prison population to offset the increase in violent crime caused by RTC adoption.