JOHN J. DONOHUE, Yale Law School, National Bureau of Economic Research (NBER)
Email: j.donohue@yale.edu
MICHAEL STEIN, William & Mary Law School, Harvard Law School
Email: mastei@wm.edu
SASCHA BECKER, affiliation not provided to SSRN
Email: sascha.d.becker@gmail.com
CHRISTOPHER L. GRIFFIN, Yale Law School
Email: christopher.griffin@yale.edu

In this article, we offer innovative analysis and additional evidence on the relationship between the Americans with Disabilities Act ("ADA") and the relative labor market outcomes for people with disabilities, the very class protected by its landmark provisions. Using individual-level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics ("PSID"), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7120 unique male household heads between the ages of 21 and 65 as well as a subset of 1147 individuals appearing every year from 1981 to 1986. Our analysis of the larger sample suggests the ADA had a negative impact on the employment levels of disabled persons relative to non-disabled persons but no impact on relative earnings. However, our evaluation of the restricted sample raises questions about these findings. Using these data, we find little evidence of adverse effects on weeks worked but strong evidence of wage declines for the disabled, albeit declines beginning in 1986, well before the ADA's passage. These results therefore cast doubt on the adverse ADA-related impacts found in previous studies, particularly Acemoglu and Angrist (2001). The conflicting narratives that emerge from our analysis shed new light on, but also counsel caution in reaching final conclusions about, the impact of the ADA on employment outcomes for people with disabilities.

JOSHUA B. FISCHMAN, University of Virginia - School of Law
Email: jfischman@virginia.edu
DAVID S. LAW, Washington University School of Law, Washington University, St. Louis - Department of Political Science
Email: davidlaw@wustl.edu

Scholars have for decades sought to measure judicial ideology and its impact on judicial behavior. However, they have not always taken care to identify the phenomenon that they are measuring in clear and convincing terms. Nor have they made a habit of evaluating different measurement approaches for their suitability to the task at hand. In this Article, we attempt to remedy the recurring weaknesses of the existing empirical literature in three ways. First, we identify the major conceptual and methodological obstacles to the empirical measurement of judicial ideology. Second, we compare the performance of several popular approaches to the measurement of judicial ideology. Third, we propose measurement approaches of our own that, for certain applications, offer significant improvements over some of the most popular alternatives.

At a conceptual level, empirical scholars confront the difficulty of defining ideology and the related challenge of disentangling ideological and nonideological preferences. As a methodological matter, scholars face the challenge that ideology is an intangible phenomenon that cannot be directly observed. From this fact stems the further problem of observational equivalence: the observable behavior of judges is open to multiple interpretations and may be attributable to both ideological and nonideological motivations. A further complication is the possibility that judicial ideology may be multidimensional across different areas of law.

It is crucial that scholars give explicit attention to the strengths and weaknesses of different measurement approaches, and their suitability to different types of research questions. To that end, we identify and contrast three broad families of approaches - namely, those that rely upon some easily observable proxy for a judge's ideology, those that require assessment of a judge's actual behavior in a particular context, and those that involve transplanting ideology estimates from one context to another. We also discuss issues surrounding the coding of cases for empirical analysis, with particular attention to the choice between unidimensional, multidimensional, and agnostic coding schemes.

Finally, we perform head-to-head evaluations of several popular measures of judicial ideology to see how well they predict voting behavior on the federal courts of appeals and the Supreme Court. For the courts of appeals, we test two widely used proxy measures - namely, party of appointing president and the judicial common space scores - against a novel approach that entails analyzing past voting behavior to estimate not only each judge's ideology, but also the impact of collegiality concerns and dissent costs on judicial voting. As between the two proxy measures, we find that the common space scores perform only slightly better than party of appointing president at predicting actual votes. Moreover, both proxy measures yield almost identical estimates of the impact of ideology on actual judicial voting. By contrast, the novel approach that we employ boasts greater predictive power than either of the proxy measures, and it further reveals that ideology has a much greater impact on judicial voting than could be discovered using either of the proxy measures.

For the Supreme Court, we test party of appointing president, the Martin-Quinn scores, the Segal-Cover scores, and our own measure of judicial ideology computed from the voting behavior of the justices. The performance of the Martin-Quinn scores at predicting judicial votes is comparable on the whole to that of our customized measure and noticeably superior to that of the Segal-Cover scores, which in turn outperform party of appointing president by a substantial margin.

JOSEPH SEINER, University of South Carolina School of Law
Email: seiner@law.sc.edu

Punitive damages were described by one early court as "an unsightly and an unhealthy excrescense." While the views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter Congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in discrimination cases brought under Title VII. Kolstad has only generated more confusion concerning the proper standard for exemplary relief, and recent district and appellate court decisions reflect this uncertainty.

Attempting to determine the impact of punitive damages in Title VII cases after Kolstad, I performed an analysis of all federal district court decisions during the calendar years of 2004 and 2005. The study examined over six hundred relevant district court opinions issued during this time frame. Of these cases, there were only twenty-four district court decisions either awarding punitive damages under Title VII or upholding a jury's award of punitive relief. An additional study performed during this time frame further revealed that slightly over 17% of those Title VII cases that went to a jury during this time frame resulted in a punitive damage award by the jury, and approximately 29% of those juries that found in favor of the plaintiff also awarded punitive damages.

This paper explores the basic foundations of punitive damages in the American judicial system, and examines the goals of providing this form of relief in employment discrimination cases. While public perception suggests that punitive damages have been instrumental in helping to eradicate employment discrimination, the numerical data paint a different picture. After analyzing this data, this paper suggests one alternative way of better achieving the original deterrent purpose behind the addition of punitive damages to Title VII. The paper proposes a three-part framework for analyzing all cases of intentional discrimination and recommends adopting a new scheme for remedial relief under Title VII. The paper then explores the implications of adopting the proposed approach and examines how the proposal fits within the contours of the academic scholarship. The paper concludes by urging that the Congressional intent of deterring unlawful discrimination can more properly be achieved through the proposed form of relief.

THEODORE EISENBERG, Cornell University - School of Law
Email: te13@cornell.edu
CHARLOTTE LANVERS, Disability Rights Education & Defense Fund, Inc.
Email: charlotte.lanvers@gmail.com

This article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs' litigation success or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to have been 66.9% in 2001-02. Regardless of the method of computing settlement rates, no reasonable estimate of settlement rates supports an aggregate rate of over 90% of filed cases, despite frequent references to 90% or higher settlement rates. The aggregate rate for the EDPA alone was 71.6% and for the NDGA alone was 57.8%, suggesting significant interdistrict variation, which persists even within case categories. We report separate settlement rates for employment discrimination, constitutional tort, contract, and tort cases in the two districts. The highest settlement rate was 87.2% for tort cases in the EDPA and the lowest was 27.3% for constitutional tort cases in the NDGA. Our results, consistently with prior settlement research, suggest a hierarchy of settlement rates. Of major case categories, tort cases tend to have the highest settlement rates, then contract cases, then employment discrimination cases, followed by constitutional tort cases. Attorney fee structure and the nature of the parties may explain settlement rate variation. Our findings provide no evidence of a material change in aggregate settlement rates over time.

KEVIN M. CARLSMITH, Colgate University - Psychology Department
Email: kcarlsmith@mail.colgate.edu
JOHN MONAHAN, University of Virginia - School of Law
Email: JTM9P@VIRGINIA.EDU
ALISON EVANS, affiliation not provided to SSRN
Email: kcarlsmith@mac.com

Two experiments find that support for civil commitment procedures for sexually violent predators is based primarily upon the retributive rather than incapacitative goals of respondents. Two discrete samples composed of students (N = 175) and jury-eligible citizens (N = 200) completed experimental surveys assessing their support or opposition to scenarios in which a sexual predator was to be released after completing his criminal sentence. Respondents were sensitive to likelihood of recidivism only when the initial sentence was sufficiently punitive. When initial sentence was lenient, respondents strongly supported civil commitment without regard to future risk. Results are discussed in light of the U.S. Supreme Court's ruling in Kansas v. Hendricks (1997) on the constitutionality of civil commitment laws for sexually violent predators.