Category: Law
Judge and Jury: American Tort Law on Trial
My new book, Judge and Jury: American Tort Law on Trial is now out. Click on the ad at right for more information. Written with Eric Helland, Judge and Jury brings together in a popular format much of my research from the past few years on the effect on tort awards of elected judges, jury composition and contingency fees as well as other topics.
Here are some early comments on the book:
"In their pioneering book, Judge and Jury, Helland and Tabarrok are
relentless in their pursuit of hard data to explain the behavior of the
American jury. On a topic on which it is easy to become hyperbolic,
their dispassionate analysis of the effects of race and poverty on jury
behavior is a model for all intelligent discussion of legal reform. The
authors are to be commended for the way in which they confirm some
deep-seated perceptions of runaway juries while debunking other claims
that do not survive their rigorous empirical scrutiny."
–Richard A. Epstein,
James Parker Hall Distinguished Service Professor of Law, University of Chicago Law School
"All too often, the proponents of tort reform have relied upon
anecdote rather than analysis or empirical study to support their
claims. In contrast, Judge and Jury offers solid economic analysis and
empirical study of some very important issues.] Helland and Tabarrok
show that the resolution of a tort claim can importantly depend upon
where the claim is filed, due to differences in jury composition and
whether judges are elected or appointed. They also make a convincing
case that the root of all evils does not lie in contingency fees for
plaintiffs’ lawyers, as many reformers insist. The book should be of
great interest to anyone interest in the U.S. tort system."
–Mark Geistfeld, Crystal Eastman Professor of Law,
New York University School of Law
"Clear, forcefully argued and highly accessible, Judge and Jury makes the perfect introduction to the work of two of today’s most provocative and talked-about empirical legal scholars."
–Walter K. Olson, Senior Fellow, Manhattan Institute
South Korea fact of the day
Players in South Korea have been prosecuted for stealing virtual
property. More than half of the 40,000 computer crimes investigated by
South Korea’s National Police Agency in 2003 involved online games.
Can you defame someone’s avatar? Does antitrust law apply? Here is the link.
Libertarian red meat
Last month, police in Fairfax, Va., conducted a SWAT raid on Sal Culosi Jr., an optometrist suspected of running a sports gambling pool with some friends. As the SWAT team surrounded him, one officer’s gun discharged, struck Culosi in the chest and killed him. In the fiscal year before the raid that killed Culosi, Virginia spent about $20 million marketing and promoting its state lottery.
Here is the Cato link, and thanks to Chris Masse for the pointer.
Le problème du pain
Bread is one of the great pleasures of Paris. The croissants melt in your mouth, the tarts have a crust that is to die for and when you break a baguette the bloom crackles perfectly and yet the inside is moist and chewy. Moreover, I’m not talking about the best bread in Paris (which is likely the best in the world), I’m talking about the bread that you can find in any of thousands of neighborhood boulangeries and patisseries. Why is the bread in Paris better than any that I can find in Washington?
Two answers come quickly to mind. First, competition is intense. Every neighborhood has at least half a dozen shops to buy bread. Second, the French are used to high quality and will reject anything of low quality so tourists benefit from the informed local demanders.
I find both of these explanations wanting. We do have artisanal bread in the United States and take a look at your local supermarket, competition on bread quality is intense. At my local supermarket, there are dozens of different breads all of which compete with an on-premise bakery.
Furthermore, isn’t bread making about knowledge? – i.e. the paradigmatic example of a public good and one that is supposed to diffuse easily around the globe. How difficult can it be to follow the recipe? (I know, that is my point.)
Comments are open if you have some ideas about why bread isn’t nearly as good in the United States as in Paris. But you might also have guessed that I have a larger point in mind.
Le problème du pain is this – if it’s difficult to spread the art of bread making from Paris to Washington then how can we ever hope to spread democracy from Washington to Baghdad?
Male reproductive rights?
With the suit, NCM hopes to establish that a man who unintentionally
fathers a child has the right to decline financial responsibility for
that child, a right based on the same principles laid out in the 1973
case that made abortion legal…
The NCM has been looking for an appropriate plaintiff for this case
for more than 10 years. It finally found one in Matt Dubay…who claims he and
his ex-girlfriend did not use birth control because of her assurances
that she could not get pregnant due to a medical condition. But the
couple, who Dubay told Salon were together for about three months, did
conceive, and Dubay’s ex elected to keep the child, for whom he now
pays $500 a month in child support, despite his contention that he was
always clear about not wanting the child.
Save your moralizing, let’s do tax incidence theory. If you were a woman and wanted an unwilling father, or at least wasn’t trying too hard to avoid one, what kind of guy would you pick? Smart, not a criminal, tall, high-earning, and possibly nerdy. You also would pick a flexible, mild-mannered guy, on the grounds that he might grow to like the idea of parenthood (there is some chance you will decide to keep him in the picture).
If financial responsibility could be repudiated, these guys would find it harder to get quality sex. This is a simple economic principal: change the terms at one end of a deal, and they shift back at the other end. The ex-cons, who will take off in any case and are known to have this quality, would not be penalized. They might get even more sex.
Now which of the nerdy guys will suffer the most from holding greater "reproductive rights"? The risk-loving, sex-crazed nerds who like to sleep with strange women and are willing to chance paternity (just rolls off the tongue, doesn’t it?). And the nerds who know they are sterile or vasectomized. Did I mention the nerd who doesn’t much mind a bit of financial (and other kinds of) servitude? No longer will these guys be viewed as potential appealing "victims."
Who will mind this change the least? The local dullard — you went to high school with him but hoped you never had to marry him — who wants to settle down with a wife and family, but otherwise faced competition from the smarter nerd tricked or lured into siring a kid.
The bottom line: This change would be a tax on male nerd sex. It would boost male nerd autonomy, but which of these do nerds need more?
No, one data point does not test a theory, especially when that data point is selected for purposes of national image. Nonetheless here is a photo of Matt Dubay, computer technician. Here is a video of Matt. Prior to the paternity suit, Matt had owned his dream car, a 1998 Trans Am.
Does Mexican immigration reduce crime?
Robert Sampson writes in today’s NYT Op-Ed page:
…evidence points to increased immigration as a major factor associated with the lower crime rate of the 1990’s (and its recent leveling off).
Hispanic Americans do better on a range of various social indicators — including propensity to violence — than one would expect given their socioeconomic disadvantages. My colleagues and I have completed a study in which we examined 8,000 Chicago residents who were asked about the characteristics of their neighborhoods.
Surprisingly, we found a significantly lower rate of violence among Mexican-Americans than among blacks and whites…Indeed, the first-generation immigrants (those born outside the United States) in our study were 45 percent less likely to commit violence than were third-generation Americans, adjusting for family and neighborhood background. [TC: But don’t absolute probabilities play the key role here? And should we compare Mexicans to "blacks and whites" or to each group in isolation?] Second-generation immigrants were 22 percent less likely to commit violence than the third generation.
Our study further showed that living in a neighborhood of concentrated immigrants is directly associated with lower violence (again, after taking into account a host of factors…)
Alas, there is no permalink these days. Here is the relevant project which generated the data. No one of Sampson’s pieces on his web page seems to cover this result, though many are relevant more broadly. Also see this summary of his criticism of "broken window" and "tipping point" theories of crime.
Here is another piece which seems to support the basic result that Mexican immigration lowers crime. Here is a survey article on the topic. This piece (see p.113) suggests that crime is lower in border cities than comparable non-border cities, and that Mexican immigration cannot be identified as a cause of a higher U.S. crime rate.
Yes comments are open, but purely anecdotal accounts of how you were once mugged by a Mexican, or how your neighborhood just isn’t "the same anymore" are discouraged. I’m posting a version of this over at Volokh Conspiracy as well, look for the differing comments.
Addendum: Read Alex on this topic.
Do we need occupational licensing?
Alan Krueger writes:
In a new book, "Licensing Occupations: Ensuring Quality or Restricting
Competition?" (Upjohn Institute, 2006), Morris M. Kleiner, an economist
at the University of Minnesota, questions whether occupational
licensing has gone too far. He provides much evidence that the balance
of occupational licensing has shifted away from protecting consumers
and toward limiting the supply of workers in various professions. A
result is that services provided by licensed workers are more expensive
than necessary and that quality is not noticeably affected.
Read more here. I can’t yet find this listed on Amazon.com, any pointers? Here is a pdf of part of the book. Here is a home page for the book.
GMU Law
My colleagues in GMUs school of law can be justly proud of how quickly their program has risen in the rankings. TaxProfBlog excerpts from a National Review article:
Mason vaulted from 71st place in 1995 to 41st in 2005 — an
impressive achievement given that these rankings tend to remain static
from year to year…To use a baseball metaphor, Manne was a scout who specialized in the
minor leagues. Whereas his competitors were obsessed with signing
big-name free agents in hot fields such as feminist legal theory, Manne
quietly assembled a team of undervalued unknowns. "If the market
discriminates against conservatives, then there should be good
opportunities for hiring conservatives," says Polsby. This is exactly
the sort of observation one would expect a market-savvy
law-and-economics scholar to make… "Have you read Moneyball?" asks Todd
Zywicki, another one of Mason’s bright young profs, in reference to the
best-selling book by Michael Lewis on how the Oakland Athletics
franchise assembled playoff-caliber teams on a limited budget. "We’re
the Oakland A’s of the law-school world."
Especially interesting is that GMU is probably undervalued relative to its academic achievement.
[GMU] probably would do even better but for the particular ways U.S.
News calculates worth: Forty percent of a school’s ranking is based on
reputation, as determined by judges and lawyers (15 percent) and law
professors (25 percent). "If we had Dartmouth or Princeton’s name,"
says Polsby, picking two well-regarded schools that don’t have law
programs, "we’d be a top-20 school overnight." …Brian Leiter, a professor at the University of Texas, has created
several ranking systems that rely entirely on objective criteria. It
might be said, for instance, that a school is only as good as its
students. The 75th-percentile LSAT score of Mason’s entering class in
the fall of 2005 was 166 — enough to tie it for 22nd best (with seven
other schools). It might also be said that a school is only as good as
its professors. To measure this, Leiter has created a "scholarly
impact" rating based on faculty per capita citations in scholarly
journals and books. On this scale, Mason ties for 23rd (with four other
schools). Then there’s the Social Science Research Network, which
counts the number of times faculty papers are downloaded from the
Internet; over the last twelve months, Mason professors rank
eleventh….
Legal abortion lowers the gains to marriage
There were many social changes between 1970 and 1980 that could have affected the gains to marriage over the decade. A major change was the national legalization of abortion in 1973. Legal abortions were partially available in some states by 1970. If the partial legalization of abortions in a state reduced the gains to marriage in that state, we would expect to see lower gains to marriage in the early legalizing states relative to later legalizing states in 1970 but not in 1980. Moreover, this difference in difference in the gains to marriage should be concentrated among women of childbearing age. Using marriage rate regressions, Angrist and Evans (1999) showed that the marriage rates of young men and women were lower in early legalizing states relative to later legalizing states in the early 1970s. We show that the stimates of the number of marriages affected are sensitive to whether we use male or female marriage rate regressions. We extend the benchmark model to include whether an individual resided in a state that allowed legal abortions or not as part of the definition of the type of an individual. Methodologically, we extend the standard difference in differences estimator to estimate the effect of a policy change on bivariate distributions. Estimating this extended model, we show that the partial legalization of abortion in some states can explain up to 20 percent of the drop in the gains to marriage among young adults in the 1970s.
That is from "Who Marries Whom and Why," by Eugene Choo and Aloysius Chow, in the January 2006 Journal of Political Economy. Here is an earlier version of the paper.
Does the death penalty deter murders?
Here is a new and noteworthy NBER abstract:
Does the death penalty save lives? A surge of recent interest in this question has yielded a series of papers purporting to show robust and precise estimates of a substantial deterrent effect of capital punishment. We assess the various approaches that have been used in this literature, testing the robustness of these inferences. Specifically, we start by assessing the time series evidence, comparing the history of executions and homicides in the United States and Canada, and within the United States, between executing and non-executing states. We analyze the effects of the judicial experiments provided by the Furman and Gregg decisions and assess the relationship between execution and homicide rates in state panel data since 1934. We then revisit the existing instrumental variables approaches and assess two recent state-specific execution morartoria. In each case we find that previous inferences of large deterrent effects based upon specific examples, functional forms, control variables, comparison groups, or IV strategies are extremely fragile and even small changes in the specifications yield dramatically different results. The fundamental difficulty is that the death penalty — at least as it has been implemented in the United States — is applied so rarely that the number of homicides that it can plausibly have caused or deterred cannot be reliably disentangled from the large year-to-year changes in the homicide rate caused by other factors. As such, short samples and particular specifications may yield large but spurious correlations. We conclude that existing estimates appear to reflect a small and unrepresentative sample of the estimates that arise from alternative approaches. Sampling from the broader universe of plausible approaches suggests not just "reasonable doubt" about whether there is any deterrent effect of the death penalty, but profound uncertainty — even about its sign.
Here is the paper. I have never been a big believer in retribution per se, as opposed to restraint or deterrence motivations for punishment.
The new Vanderbilt Ph.d. in law and economics
W. Kip Viscusi and Joni Hersch, law and economics scholars at Harvard Law School, will join the Vanderbilt University faculty later this year as the law school launches the first program of its kind – a Ph.D. in law and economics.
By successfully recruiting two of the nation’s premier scholars in law and applied economics, Vanderbilt Law School has embarked on the next generation of law and economics education: a combination of professional and academic degrees that will train scholars not only for academic positions, but also for legal practice, policy-making and public interest work.
Here is the story, and comments are open for those who know more about this. Thanks to David Bernstein for the pointer; also read the comments on his post.
The best sentence I read yesterday
There is surely some irony in that fact that you
can now be prosecuted in Europe for denying a genocide and prosecuted
in Turkey for asserting that a genocide took place.
Here is more.
Law enforcement quotation of the day
"Sometimes it takes five or six interviews to break these girls [prostitutes], to let
them know we’re the good guys," said [police officer] Stack, noting that many have an
inherent distrust of law enforcement officers. "We haven’t gotten any
trafficking victims from these cases. It’s not because we haven’t
spoken to them. It’s not because we’re not trying. It’s just very
difficult to make these girls flip."
Here is the full story.
Constitutional Torture
Liberals are claiming that President Bush has violated constitutional restrictions on torture and spying on Americans. Don’t they understand that the constitution is a living document that must be reinterpreted in light of new events and understandings? An originalist reading of the constitution would throw us back into the
primitive past when the minimum wage was unconstitutional. Fortunately, conservatives know that constitutional interpretation must change with the times and never more so than now. We live in a different world. The Founding Fathers may have been great in their time but they did not face the problems that we face today and we should not be bound by their 18th century ideas of liberty and executive tyranny.
Three new constitutional amendments
The Cato blogad at the right, and Jim Buchanan’s new essay, ask what three amendments you would pick for the American Constitution. Will Wilkinson suggests an amendment to ban interference with voluntary exchange.
Sadly, I am unable to come up with good candidates. I have plenty of ideas, such an amendment to forbid tariffs and quotas on foreign goods and services (would it cover health and safety concerns? Would we be assured of non-pasteurized French cheeses?). But I worry the amendments would place too much weight on the Constitution. It is easy to ignore a Constitution or to overturn it altogether.
Libertarians (and contractarians) often treat the Constitution as a kind of free variable to be manipulated. We can write into it what we want, and if we fail we treat this as a kind of lament, or a sign of moral decay, rather than a problem with our basic approach. In my view, if a constitution deviates from popular opinion (or is it the prevailing structure of interest groups?) by any more than "k" percent, that constitution will be chucked. Furthermore changing your constitution too much, or ignoring it too blatantly, is costly in terms of long-run political order. I view this as a constraint to be satisfied by political thinking, even though we can (and should) criticize that constraint at a meta-level.
That is why my three amendments would have to be modest. Free trade might stick as an amendment, especially if we added a national security clause. The Finns didn’t get very far with a supermajority requirement for fiscal policy. I don’t see "procedural" approaches, such as term limits, as yielding much gain. But local municipalities should not be allowed very strict anti-barbecue codes; I don’t care what they do with the smoke. Nor should commuters be forbidden from driving on side roads during rush hour, just because the homeowners don’t like it.
Here is one relevant critique of Buchanan. Surely you all have better ideas for three constitutional amendments; comments are open.