• Selected
• Entire List

Abstract:
Two findings dominate prior empirical studies of federal civil appeals. First, appeals courts are more likely to disrupt jury verdicts than bench decisions. Second, trial court defendants fare better than plaintiffs on appeal. Theory supplies two general hypotheses - the attitudinal and selection effect hypotheses - that may explain the appellate court tilt favoring defendants in federal civil appeals. This study exploits a uniquely comprehensive database of state court trials and civil appeals, presents the first statistical models of the appeals process for a comprehensive set of state court civil trials, and provides another empirical test of the theories on appellate outcomes. Using data from 46 large counties consisting of 8,038 trials and 549 concluded appeals, we find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials. Both descriptive analyses as well as more formal models point support appellate judges' attitudes toward trial-level adjudicators as an important explanation for these asymmetric outcomes of civil appeals in state courts.

Abstract:
Two findings dominate prior empirical studies of federal civil appeals. First, appeals courts are more likely to disrupt jury verdicts than bench decisions. Second, trial court defendants fare better than plaintiffs on appeal. But federal cases are limited by subject matter and comprise a small fraction of the nation's civil litigation activity. This study, which exploits a uniquely comprehensive database of state court trials and civil appeals, presents the first statistical models of the appeals process for a comprehensive set of state court civil trials. Using data from 46 large counties consisting of 8,038 trials and 549 concluded appeals, we find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials. Both descriptive analyses as well as more formal selection models point to appellate judges' attitudes toward trial-level adjudicators as an important explanation for these asymmetric outcomes of civil appeals in state courts. Our results are generally consistent with prior research on federal court appeals but also suggest a higher reversal rate of trial outcomes in state court compared to federal court.

Abstract:
We analyze thousands of trials from a substantial fraction of the nation's most populous counties. Evidence across ten years and three major datasets suggests that: (1) juries and judges award punitive damages in approximately the same ratio to compensatory damages, (2) the level of punitive damages awards has not increased, and (3) juries' and judges' tendencies to award punitive damages differ in bodily injury and no-bodily-injury cases. Jury trials are associated with a greater rate of punitive damages awards in financial injury cases. Judge trials are associated with a greater rate of punitive damages awards in bodily injury cases.

Abstract:
This paper examines the political economy of school choice and focuses in particular on the role of suburbanites. This group, which we contend is the most important and powerful stakeholder in choice debates, has yet to receive much attention in the commentary. It turns out that suburbanites, by and large, are not wild about school choice, either public or private. Suburbanites are largely satisfied with the schools in their neighborhoods and want to protect the physical and financial independence of those schools (as well as their property values, which are tied to the perceived quality of local schools). School choice threatens the independence of suburban schools by creating both the possibility that outsiders - particularly urban students - will be able to attend suburban schools and the possibility that some locally-raised revenues will exit local schools as students leave to attend either private schools or public schools outside of their residential districts.

When suburbanites perceive a threat to their schools, they fight back, and they usually win. As the paper documents, school desegregation and school finance litigation, despite some successes, largely left suburban districts undisturbed in their ability to control attendance and the expenditure of local resources. A similar pattern is emerging in school choice plans, almost of all which work to protect the physical and financial autonomy of suburban schools and residents. If this pattern continues, school choice plans will be geographically constrained, will tend to be intradistrict, and will exist primarily in urban districts. So constrained, we argue, school choice will neither be a panacea for public school students (as its proponents claim) nor will it be much of a threat to the continued existence of traditional public schools (as its opponents claim). Instead, as we endeavor to show, such plans hold the promise of limited academic improvement, little to no gain in racial and socioeconomic integration, and limited gains in efficiency among public schools. To achieve the theoretical benefits of school choice, such plans must be expanded, especially in ways that will increase socioeconomic integration. The final part of the paper is devoted to considering ways to do so, which include supporting the drive for increased access to government-funded (though not necessarily government-operated) preschools, the theory being that the more parents experience (a form of) school choice, the more their perceptions and preferences regarding choice might change.

Abstract:
Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10% of tried cases that plaintiffs won. Punitive damages were awarded in about 30% these trials. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60%. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60% for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70% or more of the punitive award request outcomes, Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.

punitive damages, litigation, juries, tort

Abstract:
Exxon Shipping Co. v. Baker acknowledged what virtually all methodologically sound punitive damages research shows. The Supreme Court relied in part on an article by the present authors and others to state that empirical studies undercut the most audible criticism of punitive damages and that no mass of runaway punitive awards existed. Paradoxically, the Court simultaneously expressed concern about jury predictability based on a high mean and standard deviation in the punitive-compensatory ratio published in our article. The Court therefore reduced a $2.5 billion punitive award relating to the Exxon Valdez oil spill to $500 million to implement a 1:1 punitive-compensatory ratio and stated that “the constitutional outer limit may well be 1:1.” This article shows that our empirical findings relied on by the Court do not support the unpredictability concern or widely applying the limiting ratio. The high mean and standard deviation are artifacts of not accounting for the key variable that explains punitive awards - the compensatory award. Stratifying the mean and standard deviation of the punitive-compensatory ratio by the level of the compensatory award shows that the ratio is reasonably stable in high award cases and significantly and explicably more variable in low award cases. Basing doctrine on summary statistics that combine these heterogenous distributions is not statistically supportable. The award reduction in Exxon Shipping may have promoted consistency with other high compensatory award cases but the 1:1 principle the case hints at is not statistically supportable across the broad range of compensatory awards, and could contribute to an inability to tailor punitive awards to the facts and circumstances of particular cases.

Punitive Damages, Tort, Empirical Studies

Abstract:
The No Child Left Behind Act represents the federal government's most significant foray into the nation's elementary and secondary public school policymaking terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act's threat to structural federalism as it plausibly strains Congress's conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even more rigorous conception of the coercion prohibition as articulated by the Court in South Dakota v. Dole. The Act, while coercive, is not unconstitutionally coercive as it imposes only an opportunity cost on states willing to forego federal funding. Although the No Child Left Behind Act does not violate the conditional spending doctrine as presently understood, from a policy perspective the Act generates important coercive force. Such policy coercion arises due to the unusually close nexus among various education policies, including student achievement, curriculum, standards and assessments, and finance. Understanding this crucial subtlety about the political economy of education federalism is one key to understanding the full, ongoing debate surrounding intergovernmental squabbles over education policy among federal, state, and local officials.

federalism, education, political economy

Abstract:
Evolving school finance litigation theory reflects an evolving equal educational opportunity doctrine. Decades ago race and school desegregation litigation forged the initial modern understanding of equal opportunity. More recently, school finance litigation displaced desegregation litigation as the major instrument for enhancing equal educational opportunity. Within the school finance litigation movement equity theory understood equal educational opportunity from the perspective of school resources, principally per pupil spending. Current school finance litigation theory - adequacy - approaches the equal educational opportunity doctrine with an eye towards results, notably student academic achievement. If my central claim that adequacy litigation is the most recent judicial articulation of an evolving equal educational opportunity doctrine is correct, an understanding of adequacy litigation requires some understanding of educational opportunity. Society's unending quest for greater educational opportunity, at least since the mid-twentieth century, implies a robust role for state and federal courts. Advocates' reliance on the courts for a drive toward enhanced educational opportunity, however, places critical - and increasingly uneasy - institutional stress on the judiciary. As a consequence, adequacy litigation's future efficacy relies partly on the equal educational opportunity doctrine's stability as well as the courts' institutional capacity to achieve desired educational policy changes.

Abstract:
Part of the Education Law Stories, this book chapter tells the story behind San Antonio Independent School Dist. v. Rodriguez. Mindful of the challenges incident to the federal courts' effort to dismantle de jure and de facto school segregation, the Rodriguez decision evidences reluctance by some of the Justices to become ensnarled in an effort to dismantle school finance systems in way that would affect an overwhelming majority of the nation's public schools. By side-stepping such a confrontation, Rodriguez implicitly reveals important aspects about the federal courts and, in particular, how the Justices view their role in our federal system and the Court's ability as an institution to achieve sought-after policy goals. These various stories and perspectives, separately and collectively, enrichen, fuel, and complicate Rodriguez's enduring and evolving legacy.

education, school desegregation, legal impact, constitutional law

Abstract:
During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much less has been written about whether judges' religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. In this comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking is abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion - religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior. Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we must not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense.

Constitution, religion, judges, judicial decisionamking, empirical

Abstract:
Scholars who use empirical methods to study the behavior of judges long have labored in relative obscurity, unknown outside of academic circles (and indeed they only recently have emerged into the mainstream of the legal academy). However, the seclusion of the ivory tower has been breached as public attention has become increasingly focused upon studies that suggest the influence of ideological or partisan variables upon the outcomes of court cases. Over the last few years, the statistical work of scholars on judicial decisionmaking has provoked controversy in the wider legal community and has been enlisted by one side of the ongoing debate in the political arena about appointment of federal judges. In this Article, we begin by highlighting each of these episodes in which empirical legal scholarship on judicial decisionmaking emerged from obscurity to become the subject of disputation in a larger societal or academic arena, two disputes that unfolded before the public eye and another which was played out at the highest level of legal academic discourse. We outline each controversy; identify the prominent political, judicial, and academic players that initiated or were drawn into the debate; briefly describe the empirical research involved; and summarize the opposing arguments concerning the implications of the research for public policy or the substance of the academic debate. Next, through separate accounts pertinent to each venue/subject - the public/policy versus the academic/methodological - we submit new evidence for consideration, which is drawn from our own continuing research on decisionmaking in the lower federal courts. We report the results of our comprehensive empirical study of religious freedom decisions in the federal district courts and courts of appeals, the most extensive and multi-faceted study of such decisions to date, with special focus here upon variables that attempt to quantify the anticipated ideological leanings of judges. As frequently but not invariably found in other studies, ideology emerged as significant in certain aspects of our study, but not in a ubiquitous or dominating manner.

Judges, ideology, judicial decisionmaking, empirical

Abstract:
Scholars who use empirical methods to study the behavior of judges long have labored in relative obscurity, unknown outside of academic circles (and indeed they only recently have emerged into the mainstream of the legal academy). However, the seclusion of the ivory tower has been breached as public attention has become increasingly focused upon studies that suggest the influence of ideological or partisan variables upon the outcomes of court cases. Over the last few years, the statistical work of scholars on judicial decisionmaking has provoked controversy in the wider legal community and has been enlisted by one side of the ongoing debate in the political arena about appointment of federal judges. In this Article, we begin by highlighting each of these episodes in which empirical legal scholarship on judicial decisionmaking emerged from obscurity to become the subject of disputation in a larger societal or academic arena, two disputes that unfolded before the public eye and another which was played out at the highest level of legal academic discourse. We outline each controversy; identify the prominent political, judicial, and academic players that initiated or were drawn into the debate; briefly describe the empirical research involved; and summarize the opposing arguments concerning the implications of the research for public policy or the substance of the academic debate. Next, through separate accounts pertinent to each venue/subject - the public/policy versus the academic/methodological - we submit new evidence for consideration, which is drawn from our own continuing research on decisionmaking in the lower federal courts. We report the results of our comprehensive empirical study of religious freedom decisions in the federal district courts and courts of appeals, the most extensive and multi-faceted study of such decisions to date, with special focus here upon variables that attempt to quantify the anticipated ideological leanings of judges. As frequently but not invariably found in other studies, ideology emerged as significant in certain aspects of our study, but not in a ubiquitous or dominating manner.

judges, ideology, judicial decisionmaking, empirical

Abstract:
Brown's legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Although popular mythology emphasizes Brown's critical role in securing equal educational opportunity, careful reflection reveals that the decision's legacy is anything but clear. A narrow focus on school desegregation suggests Brown's legacy is aptly characterized as one of unfulfilled promise. A broader focus that extends to include subsequent equal educational opportunity activity such as the school finance litigation movement, however, casts positive light on Brown's legacy. More important than completing interpretations of Brown's legacy is what the decision implies for current and future efforts to secure greater educational equity through litigation. In this Article I argue that Brown's legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, principally due to how the doctrine has evolved during the past fifty years. Even if one concludes that Brown succeeded in the school desegregation context, the equal educational opportunity doctrine has changed during the past fifty years in ways that make it less amenable to litigation. Unlike past efforts, emerging reform efforts focus more directly on student academic achievement rather than race or school funding. Academic achievement implicates teaching and learning activities - activities located deeper inside schools and classrooms and further from litigation's reach. If past education reformers and litigants found it difficult to penetrate factors located outside schools (school demographic profiles and funding levels), litigation efforts seeking to influence student achievement will encounter even greater difficulty. Student academic achievement's insulation from even successful litigation underscores its inherent complexity, the salience of non-legal components and, more generally, structural limitations of law and litigation as tools to achieve desired social change. If my central claims are correct, the more complicated litigation efforts of the future will require manifestly greater effort. And greater effort alone will not insure success.

constitution, education, law and policy, litigation, empirical

Abstract:
This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Our first article, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa Law Review 1043 (May 2001) ( "Rebellion I" ), examined national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We considered whether the decline resulted primarily from trends in discretionary decision-making among the front line actors in the sentencing system (prosecutors, defense counsel, probation officers, and district judges) when dealing with individual cases, or whether the decline flowed from non-discretionary factors, such as changes in statutory or guidelines law, alterations in the mix of criminal cases brought to the federal system. Rebellion I arrived at four conclusions:

First, the downward trend in federal drug sentence length is real. Second, at least some of the decrease flows from non-discretionary factors. Third, the decrease in drug sentences since 1991-92 cannot be entirely explained by non-discretionary causes, but is, to a significant degree, the product of an array of discretionary choices by front line sentencing actors. National data show: (1) at virtually every point in the Guidelines sentencing process where prosecutors and judges can exercise discretionary authority to reduce drug sentences, they have done so; and (2) where we can measure trends, the trend since roughly 1992 has been toward exercising discretion in favor of leniency with increasing frequency. Fourth, we suggested that these discretionary choices are, at least in part, a product of a widespread perception among front line sentencing actors that drug sentences are often too high, or are at the very least often higher than necessary to achieve the personal or institutional objectives of these front line actors of the federal criminal system.

In the current article ( "Rebellion II" ) we update our data and reexamine them organized by the federal judicial districts. In our empirical analyses of average drug sentence length we find:

(1) From the district-level perspective, the movement of average drug sentences has been markedly uneven. While fifty-one districts experienced a decline in average drug sentence between 1992 and 1999, average drug sentences increased in forty-one districts. Nonetheless, those districts in which sentences decreased accounted for 72% of all federal drug cases. (2) Increases in prosecutorial workload correlate with decreases in average drug sentence within districts. However, increases in judicial workload do not correlate significantly with decreases in average drug sentence. We remain unconvinced that workload pressures are a strong factor in the decline of the national average federal drug sentence. (3) Changes in the mix of drug types prosecuted within a district correlate with changes in average drug sentence within a district. In particular, during 1996-99, increases in the percentage of marijuana cases prosecuted within a district correlate with a decline in the district's average drug sentence. (4) Between 1996 and 1999, a dramatic increase in the number of marijuana prosecutions in the five Mexican border districts taken together with the adoption in these districts of "fast-track" sentence discounts for many marijuana offenders exerted downward pressure on average drug sentences nationally. (5) The available evidence continues to suggest a prolonged, if not regionally uniform, pattern of exercise of discretionary choice by frontline sentencing actors to decrease federal drug sentences.

length of prison sentences, narcotics violations, federal drug sentences, sentencing system, prosecutors, defense counsel, probation officers, district judges, Guidelines sentencing, Federal Sentencing Guidelines, judicial districts, drug types, marijuana, fast-track, sentence discounts

Abstract:
Criminal case complexity persists as a central tenet in many academic and public critiques of our legal system even though little is known about two critical questions. One question is whether key actors (juries, attorneys, and judges) view case complexity similarly. In other words, do juries, attorneys, and judges agree on whether a case is complex? A second question involves the determinants of case complexity for each group. That is, what factors make a case more (or less) complex for juries, attorneys, and judges. This Article explores both questions from an empirical perspective with the benefit of recent data from four jurisdictions. The data are important because, within the context of criminal cases, they permit analyses of agreement levels among the three key actors. Results suggest that the three different actors possess slightly different views on whether cases are complex. Judges reported the lowest levels of case complexity; jurors the highest. Moreover, important variation exists in terms of what made cases complex for each group. The results implicate legal reform efforts. No clear consensus exists among the critical actors on complexity perceptions. Many of the variables that influence case complexity fall outside of reformers' reach. Variables within the reach of policy do not appear to systematically reduce case complexity.

Criminal, empirical, complexity, reform, jury

Abstract:
Case complexity persists as a central tenet in many academic and public critiques of our legal system even though little is known about two critical questions. One question is whether key actors (juries, attorneys, and judges) view case complexity similarly. In other words, do juries, attorneys, and judges agree on whether a case is complex? A second question involves the determinants of case complexity for each group. That is, what factors make a case more (or less) complex for juries, judges, and attorneys. This Article explores both questions from an empirical perspective with the benefit of recent data from four jurisdictions. The data are important as, within the context of criminal cases, they permit analyses of agreement levels among the three key actors. Results suggest that the three different actors possess slightly different views on whether cases are complex. Judges reported the lowest levels of case complexity, jurors the highest. Moreover, important variation exists in terms of what made cases complex for each group. The results implicate reform efforts. No clear consensus exists on complexity perceptions. Many of the variables that influence case complexity fall outside of reformers' reach. Variables that policy can manipulate are inefficacious.

Empirical, case complexity, criminal, jury, judge, jury reform

Abstract:
Standard economic analysis of judicial behavior, at least with respect to federal judges, has to some extent foundered on the apparent success of the Constitution's Framers in designing an institution where almost the whole thrust of the rules governing compensation and other terms and conditions of judicial employment is to divorce judicial action from incentives. That is, the structure takes away the carrots and sticks and the different benefits and costs associated with different behaviors which inform human action in an economic model. Nonetheless, our earlier empirical work, as well as work by others, found significant associations between promotion potential and judicial decision making in the federal district bench. This earlier work left unclear, however, how district judges might use their positions to enhance their opportunities for advancement. In this paper we examine how federal judges can use the content and outcome of their decisions to signal that they would be appropriate candidates for elevation to a higher court. We first develop a framework that explains how judges can use decisions and opinions to signal to appointing authority. We then test the theory through a detailed examination of federal district judges' behavior in their decisions on the constitutionality of the sentencing guidelines during the "Sentencing Guidelines Crisis of 1988." Examining judges' decisions to rule through a written opinion, we find evidence supporting the signaling hypothesis. Judges were more likely to use written opinions to communicate their rulings in Sentencing Guidelines cases where the potential for promotion to the circuit court of appeal was greater. We also find that precedent influences outcome but not the particular reasons judges articulate for their decisions.

judges, judicial decisionmaking, economics, precedent

Abstract:
Brown's legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Although popular mythology emphasizes Brown's critical role in securing equal educational opportunity, careful reflection reveals that the decision's legacy is anything but clear. A narrow focus on school desegregation suggests Brown's legacy is aptly characterized as one of unfulfilled promise. A broader focus that extends to include subsequent equal educational opportunity activity such as the school finance litigation movement, however, casts positive light on Brown's legacy. More important than completing interpretations of Brown's legacy is what the decision implies for current and future efforts to secure greater educational equity through litigation. In this Article I argue that Brown's legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, principally due to how the doctrine has evolved during the past fifty years. Even if one concludes that Brown succeeded in the school desegregation context, the equal educational opportunity doctrine has changed during the past fifty years in ways that make it less amenable to litigation. Unlike past efforts, emerging reform efforts focus more directly on student academic achievement rather than race or school funding. Academic achievement implicates teaching and learning activities - activities located deeper inside schools and classrooms and further from litigation's reach. If past education reformers and litigants found it difficult to penetrate factors located outside schools (school demographic profiles and funding levels), litigation efforts seeking to influence student achievement will encounter even greater difficulty. Student academic achievement's insulation from even successful litigation underscores its inherent complexity, the salience of non-legal components and, more generally, structural limitations of law and litigation as tools to achieve desired social change. If my central claims are correct, the more complicated litigation efforts of the future will require manifestly greater effort. And greater effort alone will not insure success.

constitution, education, law and policy, litigation, empirical

Abstract:
This Essay reviews Rosemary C. Salomone, Same Different, Equal: Rethinking Single-Sex Schooling (New Haven: Yale University Press 2003). Professor Salomone, a leading education law scholar, advances an argument that supports publicly-funded single-sex schooling on constitutional, statutory, and policy grounds. Paradoxically, Professor Salomone notes that in certain circumstances single-sex schooling options can enhance rather than degrade equal educational opportunity, especially for (but not necessarily limited to) low-income and minority girls. Part I considers how single-sex schooling forces constitutionalists and feminists to confront anew the complicated and dynamic equal educational opportunity doctrine. The implications of the Supreme Court's VMI decision for the recently created Young Women's Leadership School, serving low-income minority girls in East Harlem, receive particular attention. Drawing on the structure of Salomone's argument, Part II assesses how Salomone's use of social science evidence informs her legal and policy analyses and arcs back to the Brown v. Board of Education decision. Part III places the prospect of single-sex education within the larger education reform context. Owing in part to fundamental shifts in education reform policy, in conclusion I consider whether the legal and political fate of all-girls' schools might be inexorably tied to the legal and political fate of all-boys' schools.

Constitution, education, public policy, law and social science, equal education

Abstract:
Recent school finance litigation illustrates yet again how law can generate unintended policy consequences. Seeking to improve student achievement and school accountability, more states now turn to educational standards and assessments. At the same time, a multi-decade school finance litigation effort develops and changes its theoretical base. Recently, educational standards and school finance litigation converged in a way that enables school districts to gain financially from their inability to meet desired achievement levels. Specifically, courts increasingly allow litigants and lawsuits to transform standards and assessments into constitutional entitlements to additional resources. As a consequence, increased legal and financial exposure for school districts follows from the implementation of what many consider a plausible educational policy. The judiciary's participation in this transformation uncovers old and new problems that arise when courts are asked to set educational policy.

Abstract:
By drawing upon empirical social science evidence to inform a core tenet of the Court's understanding of equal education the Warren Court established one of its enduring - if under-appreciated - legacies: The increased empiricization of the equal educational opportunity doctrine. All three major subsequent legal efforts to restructure public schools and equalize educational opportunities among students - post-Brown school desegregation, finance, and choice litigation - evidence an increasingly empiricized equal educational opportunity doctrine. If my central claim is correct, it becomes important to consider the consequences of this development. I consider two in this Article and find both benefits and costs flowing from this trend. One important consequence involves how an empirical mooring informs the equal education doctrine, especially by narrowing the doctrine's construction and potentially privileging empirical over non-empirical perspectives as well as broader notions of justice and underlying constitutional values. A second consequence is institutional and sheds light on the Court's comparative abilities to deploy empirical social science. I conclude that while an empirical perspective on equal education adds important value, it should supplement and not supplant alternative perspectives and constitutional values.

Abstract:
Clemency is an extrajudicial measure intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant characteristics, political factors, and clemency's structure on clemency decisions. The results suggest that although a defendant's race and ethnicity did not influence clemency, gender did play a role, as women were far more likely than their male counterparts to receive clemency. Analyses of political and structural factors point in different directions. Political factors such as the timing of gubernatorial and presidential elections and a governor's lame-duck status did not systematically influence clemency. However, how states structure clemency authority did make a difference. Clemency grants were more likely in states that vest authority in administrative boards than in states that vest authority in the governor. Regionality and time were also important as clemency grants were less likely in southern states and declined after 1984. Overall, these mixed results contribute to a critique that clemency decisions are arbitrary and inconsistent. Thus, important questions regarding fairness that plague earlier aspects of the death penalty process persist to its final stage.

Abstract:
Clemency is an extrajudicial measure intended to both enhance fairness in the administration of justice, as well as allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant characteristics, political factors, and clemency's structure on clemency decisions. The results suggest that although a defendant's race and ethnic origin do not influence clemency, gender does play a role as women are far more likely than their male counterparts to receive clemency. Analyses of political and structural factors point in different directions. Political factors such as the timing of gubernatorial and presidential elections and a governor's lame-duck status do not systematically influence clemency. However, how states structure clemency authority makes a difference. Clemency grants are more likely in states that vest authority in administrative boards than in states that vest authority in the governor. Regionality and time are also important as clemency grants are less likely in Southern states and declined after 1984. Overall, these mixed results contribute to a critique that clemency decisions are arbitrary and inconsistent. Thus, important questions regarding fairness that plague earlier aspects of the death penalty process persist to its final stage.

Abstract:
This is the first of two articles, the second of which will appear in January 2002 edition of the IOWA LAW REVIEW, in which we seek an explanation for the little-noticed and hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations has been declining steadily since 1991-92.

According to figures maintained by the Administrative Office of the United States Courts, in the eight years between 1991 and 1999, the average federal drug sentence decreased from 95.7 months to 75.2 months, a drop of 22%, or nearly two years, per defendant. United States Sentencing Commission statistics report a less precipitous, but still unmistakable, decline in average drug sentence from 88.2 months in 1992 to 75.2 months in 1999, a drop of 14.7%. Preliminary figures from the Sentencing Commission show the decline continuing through FY 2000.

The article examines national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We focus particularly on the question of whether the decline has resulted primarily from trends in discretionary decision-making among the front line actors in the sentencing system (prosecutors, defense counsel, probation officers, and district judges) when dealing with individual cases, or whether the decline was caused primarily by non-discretionary factors such as changes in statutory or guidelines law, alterations in the mix of criminal cases brought to the federal system, and so forth. (We recognize, of course, that the categories "discretionary" and "non-discretionary" are necessarily somewhat imprecise and that some causal phenomena have both discretionary and non-discretionary aspects - a point the article discusses in detail.)

Based on our review of national data, we arrive at four conclusions:

First, the downward trend in federal drug sentence length is real.

Second, at least some of the decrease is attributable to non-discretionary factors, such as the passage in 1994 of the so-called "safety valve" measures that allowed a reduced sentence for certain first-time drug offenders.

Third, the decrease in drug sentences since 1991-92 cannot be entirely explained by non-discretionary causes. Rather, the continuing downward movement over nearly a decade is, to a significant degree, the product of an array of discretionary choices by judges, prosecutors, defense counsel, and probation officers involved in sentencing individual defendants. Put plainly, the national statistics show: (1) at virtually every point in the Guidelines sentencing process where prosecutors and judges can exercise discretionary authority to reduce drug sentences, they have done so; and (2) where we can measure trends, the trend since roughly 1992 has always been toward exercising discretion in favor of leniency with increasing frequency.

Finally, we suggest, albeit far more tentatively, that these discretionary choices are, at least in part, a product of a widespread perception among the judges, lawyers, and probation officers of the federal criminal justice system that drug sentences are often too high, or are at the very least often higher than necessary to achieve the personal or institutional objectives of these front line actors of the federal criminal system.

In the second half of our project, we will examine some regional and local federal sentencing data to gain additional perspective on national drug sentencing trends.

sentencing, drug offender, federal prison sentences, Federal Sentencing Guidelines

Abstract:
The judicial, legislative, and executive branches interact in many ways. These interactions fuel a constitutional dialogue that serves as a backdrop to myriad governmental activities, both large and small. The judiciary's participation is necessary, desirable, and, as a practical matter, inevitable. In my article I analyze two competing models that bear on the normative question: What form should the judiciary's participation take?

Debates over the judiciary's appropriate role in the public constitutional dialogue have captured scholarly attention for decades. Recent attention has focused on a growing distinction between the active and passive models of judicial participation. My article approaches this debate and tests these models from the vantage point of one specific jurisprudence - school finance - and within a discrete judicial setting - state supreme courts. While this vantage point limits my analysis, it offers the advantage of keeping the judicial context constant so as to better isolate the differences that separate the consequences flowing from the active and passive judicial participation models. Although school finance decisions by state supreme courts are structurally tilted in a manner favorable to the active model, results from a modest comparison provide more support for the passive model.

Abstract:
The Supreme Court's two-pronged affirmative defense limiting employer liability for sexual harassment, articulated in the Faragher and Ellerth decisions, generated substantial scholarly commentary. Many scholars were quick to predict how lower courts would apply the affirmative defense. However, many predictions about the affirmative defense were advanced prior to the emergence of a sufficient number of judicial opinions applying it.

In this article we report results of our empirical study of the first 72 post-Ellerth and Faragher opinions involving employers' summary judgment motions that include affirmative defenses in response to allegations of sexual harassment in the workplace. We find that employer-related factors heavily influence the courts' construction of both prongs of the affirmative defense. Somewhat surprising is the degree to which the courts look to employer conduct when characterizing employee conduct. In our discussion we consider the legal and policy implications generated by an incentive structure informed by the courts' application of the affirmative defense.

Abstract:
This article addresses the need to understand better our civil justice system by exploring possible determinants of disposition time for civil cases that reach a jury trial. This study uses one year of civil jury case outcomes from 45 of the nation's 75 most populous counties and identifies locale as one important variable, along with certain case types, results, and party characteristics. An empirically moored understanding of the causes of case disposition time will assist public policy and reform efforts that seek to make civil justice speedier and, as a consequence, more inexpensive and just. Findings from this study call into question the efficacy of recent reform efforts that focus on variables not found to influence civil case disposition time and ignore other variables that exert systematic influence.

civil justice, case disposition time, empirical

Abstract:
This article addresses the need to understand better the civil justice system by exploring possible determinants of disposition time for cases that reach a jury trial. The study uses one year of civil jury case outcomes from 45 of the nation's 75 most populous counties and identifies locale as one important variable, along with certain case types and results and party characteristics. An empirically moored understanding of the causes of case disposition delay will assist reform efforts that seek to make the civil justice system speedier and, as a consequence, more inexpensive and just. Findings from this study call into question the efficacy of recent reform efforts that focus on variables not found to influence civil case disposition time and ignore other variables that exert systematic influence.

Abstract:
Inadequate schools impede America's long-standing quest for greater equal educational opportunity. The equal educational opportunity doctrine, traditionally moored in terms of race, has expanded to include notions of educational adequacy. Educational adequacy is frequently construed in terms of educational spending and framed in terms largely incident to constitutional litigation.

This paper explores the potential intersections of the school choice and school finance movements, particularly as they relate to litigation and policy. The paper argues that school choice policies constitute a viable remedy for successful school finance litigation and form a remedy that simultaneously advances individual autonomy, one critical constitutional principle.

Abstract:
Legal scholarship is becoming increasingly empirical. Although empirical methodologies gain important influence within the legal academy, their application in legal research remains underdeveloped. This paper surveys and analyzes the state of empirical legal scholarship and explores possible influences on its production. The paper advances a normative argument for increased empirical legal scholarship.

Abstract:
Note: The following is a description of the article and not the actual abstract.

The pursuit of equal educational opportunity persists and strikes deep chords in American legal and popular imagination. Increasingly, debates surrounding equal educational opportunity focus on the distribution of educational resources, especially funding. Most modern school finance issues, once re-cast for litigation purposes, seek to advance an adequacy theory. Adequacy theory stands in sharp contrast to school finance litigation's earlier mooring in equity theory. Although reasons for the sharp demise of equity theory have received extensive scholarly attention, a coherent explanation eludes legal scholars. This article explores one such explanation -- judicial inefficacy -- from an empirical perspective.

Abstract:
Note: The following is a description of the article and not the actual abstract.

State supreme courts increasingly are called upon to resolve vexingly complicated constitutional challenges to school finance systems. State courts' treatment of these challenges frequently implicates key political, economic, and educational issues. In particular, school finance litigation evidences important structural stresses, especially those relating to the political question doctrine. From an empirical perspective, such litigation frequently presupposes the efficacy of court decisions. Where school finance court decisions do not achieve what they set out to achieve, one important explanatory variable relates to issues moored in the political question doctrine.

Abstract:
This paper considers the efficacy of judicial efforts to address constitutional concerns relating to the equal educational opportunity doctrine through school finance litigation from an empirical perspective. Specifically, a technique common in the econometric literature (interrupted time-series analysis) is used to assess the impact of successful early school finance equity court decisions and, in particular, their relation to changes in state educational spending levels. No independent, positive relation between successful court decisions and increased state educational spending is found. That is, even successful equity school finance lawsuits did not alter educational spending in ways most likely sought by plaintiffs. These results at once help explain the relatively recent (1989) shift in school finance litigation theory (from equity to adequacy) and, more generally, underscore the complex and understudied relation between court decisions and educational policy as well as legal impact. The results suggest that although early successful equity-based school finance lawsuits might yield some important direct and indirect effects, one commonly sought after (and assumed) direct effect -- increased educational spending -- was not detected.