My colleague, Matt Jennejohn, has just posted to SSRN an excellent paper on innovation and contract design. The Private Order of Innovation Networks (forthcoming in the Stanford Law Review) takes aim at the theory of braided contracts described by Ron Gilson, Chuck Sabel, and Bob Scott. According to Gilson et al., formal contracts "braid" with informal norms to mitigate the potential for opportunism. Jennejohn suggests that the weakness of this approach is that it "conceives of the exchange problem only in terms of opportunism." As a result, braiding theory cannot explain many prominent features of strategic alliances, especially the diversity one perceives in alliance agreements. Jennejohn argues instead that "exchange hazards in innovation networks are multidimensional," and he proposes a new conceptual tool for contract analysis, which he calls "multivalent contracting."

Multivalent contracting is the notion that alliance contracts respond to a number of exchange hazards at once. In Jennejohn's words, "The argument is that expanding the menu of exchange hazards from a singular focus on holdup problems to also include 'spillover' and 'entropy' issues explains alliance diversity by illuminating the interdependencies between collaborators’ governance strategies." Jennejohn illustrates the promise of this approach with a preliminary empirical analysis of management committees in alliance contracts.

The paper also includes some ideas that will be of special interest to scholars interested in contract interpretation. Braided contracting is "largely a self-enforcement theory of contract [in which] the focus of much of the analysis is on how parties can solve their own problems without recourse to the courts." By contrast, the theory of multivalent contracting seems to better explain what courts actually do in many cases, namely, using multiple adjacent doctrines to resolve disputes. Thus, according to Jennejohn, "the choice before the enforcement court is not simply whether it will hew to a more formalist or contextualist mode of contract interpretation, but also how it will efficiently intermix a number of available doctrines."

Highly recommended!

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The member of the Zaring family who studies such matters passes along this editorial, which yes, indeed, "prior to publication, authors will have to remove all vestiges of the NHSTP [null hypothesis significance testing procedure] (p-values, t-values, F-values, statements about ‘‘significant’’ differences or lack thereof, and so on)."  The idea is that this sort of testing is less useful in psychology research than is effects testing, given that it's a largely experimental field that often doesn't have huge sample sizes (though huge sample sizes present their own problems of spurious p-values).  It doesn't seem to have led to a stampede away from significance testing yet, but there's an interesting overview of the controversy here.  And I might as well link to the research on which a couple of my colleagues will be dining out for years, demonstrating the suspicious ease with which it is possible to find statistical significance in lots of cases.  And here's a rant.  My sense is that there is very little attention paid in empirical legal research to this issue; Dave Hoffman mulled this over last month, and said that at CELS, every single paper he saw came with a p-value.

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The 14^th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data.

Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.

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...I'll weigh in with a holiday-style observation about this article in the really improving 538 on the possibility that minimalist running shoes are better for you than regular shoes.  It's by an excellent and serious economist, and yes, it's just a column, not rigorous, peer-reviewed work.  But the argument is that, if you just look at studies, it's possible that minimalist running shoes, or barefoot running, is better for you than the kind with shoes.

Now I enjoy running, and firmly believe that you can really overdo it on the space age shoe technology.  But this is an argument in the face of two facts:

• One of the companies selling minimalist running shoes settled a case for millions of dollars facing claims that it had oversold the health benefits of minimalist running shoes.
• At a first approximation, 0.0% of runners who run lots of miles per week use these shoes.  Sure, some race in so-called "racing flats."  But those aren't minimalist, and they don't train in them.  Go see how many of the 35,000 people finishing the New York marathon this year are running in these shoes.  Isn't that a bit of a market test?

The problem with trusting the data is that no one ever collects all the relevant data; I suspect that the above data is more relevant than the health studies.  I predict that minimalist running shoe sales will crater in the next three years.  So note this in your calendar, and email me in 2017 if I turn out to be wrong.  But I think the jury is no longer out on the health benefits of minimalist running shoes and that arguing otherwise just makes empiricists look naive.

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Back in October I posted about a fantastic conference at the University of Kentucky on the Securities Act at 80.  I've just posted my article on SSRN, abstract below.  Any guesses on which JOBS Act change had an effect on underwriting spreads?  You'll have to download to find out!*

U.S. underwriting fees, or spreads, have somewhat inexplicably clustered around 7% for years, a phenomenon that some have suggested evidences implicit collusion. The goal of Title I the JOBS Act of 2012 was to make going public easier for smaller firms; certain provisions specifically should make the underwriters’ task less risky, and thus less expensive. Presuming these provisions are effective, then one would predict that underwriting spreads would decrease as the costs to the underwriter for a public offering declined. Admittedly the prior presumption is a big one: it may be that the JOBS Act reforms were largely ineffective, and thus could be expected to have little effect on underwriter cost. This article is the first to examine post-JOBS Act underwriting spreads to determine whether spreads have in fact declined. A finding that underwriting costs stayed constant might be evidence of either collusion or that the JOBS Act was ineffective at reducing the cost of going public. I find that one provision has lowering the spread, thus suggesting elasticity in the spread and offering at least some evidence of the Act’s effectiveness.

 

*OK, that was kind of obnoxious, I'll just tell you.  I find a statistically significant correlation between emerging growth companies that file a confidential draft registration statement and a lower gross spread.  But go read the whole thing and tell me what you think.

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I am getting ready to teach MGM v. Scheider next week in Contracts. The case (347 N.Y.S.2d. 755) involves whether a series of communications between a Hollywood studio and actor Roy Scheider (who would later star in JAWS) constituted a contract that bound the star to act in an ABC tv series. [Note: should any of my contract students read this post, the foregoing is not an example of a good case brief.]

When going over the aftermath of this case in class, the inevitable question comes up: “Why didn’t the lawyers insist on a more formal, written, and executed contract?” The same answers surface: sloppiness, lack of sophistication, time pressure. It makes for an easy moral for law students (“be tougher and more careful”), but one that I find increasingly less satisfying and nutritious. Sloppiness just seems too pat an answer to explain this or many of the other lawyer “mistakes” that populate a Contracts case book.

Fortunately, Jonathan Barnett (USC Law) has a new working paper that provides a much more nuanced answer. Barnett’s “Hollywood Deals: Soft Contracts for Hard Markets” explores why many contracts between Hollywood studios and star level talent (both sides usually represented by experienced lawyers) fall into this netherworld of “soft contracts” – that is agreements of questionable status as enforceable contracts. Barnett’s explanation involves both parties navigating two different risks – project risk (the risk a film won’t happen or will flop) and hold-up risk (the risk that a necessary party to a film will back out, possibly to hold the project hostage). The studio system used to provide a way to balance these two risks.  The decline of this sytem, according to Barnett, gave rise to a growing use of “soft contracts.” Here is the abstract:

Hollywood film studios, talent and other deal participants regularly commit to, and undertake production of, high-stakes film projects on the basis of unsigned “deal memos,” informal communications or draft agreements whose legal enforceability is uncertain. These “soft contracts” constitute a hybrid instrument that addresses a challenging transactional environment where neither formal contract nor reputation effects adequately protect parties against the holdup risk and project risk inherent to a film project. Parties negotiate the degree of contractual formality, which correlates with legal enforceability, as a proxy for allocating these risks at a transaction-cost savings relative to a fully formalized and specified instrument. Uncertainly enforceable contracts embed an implicit termination option that provides some protection against project risk while maintaining a threat of legal liability that provides some protection against holdup risk. Historical evidence suggests that soft contracts substitute for the vertically integrated structures that allocated these risks in the “studio system” era.

The very accessible paper is worth a read – not only for Contracts scholars and teachers, but also for those interested in the theory of the firm. For a different, stimulating approach to supplementing the teaching of contracts (Hollywood and otherwise), Larry Cunningham’s new book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter is out from Cambridge University Press. Larry gave a preview of the book and his approaching to teaching the subject in our Conglomerate forum on teaching contracts last summer. The book is chock full of very useful stories on chestnut casebook opinions, as well as contracts straight out of Variety involving stars from Eminem to Jane Fonda.

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Since the mid-2000s, researchers have been studying the impact of foreclosures on surrounding property values.  A colleague and I recently finished an important contribution to this line of research.  Anyone attempting to craft responses to the housing market's current woes, particularly efforts to stabilize neighborhoods and home values, should give two of our results serious consideration. 

First, our findings suggest that most prior studies overstate the impact that foreclosures have on surrounding property values.  The reason they overstate the impact of foreclosures is that they don't take into account long term vacancy or property abandonment even though vacancy and abandoned property also drive down surrounding property values (either by adding units of supply or dis-amenities, depending on the vacant home or abandoned property's condition).  In our study, we include measures of all three (both individually and collectively) and we find (in Table 10 on p.42, for those interested) that when you only measure one of the three factors that drive down housing values, you overstate the influence of the factor you are measuring.  This result is important because it tells us that foreclosures do not decrease surrounding property values as much as previous studies suggest, and that attempts to stabilize markets should address vacancy and abandonment in addition to foreclosure.

Second, and more importantly, we illustrate how foreclosure, vacancy, and abandonment have differential impacts on weak housing markets relative to average housing markets.  (The following information summarizes Tables 12-14.)  When we subdivide Cuyahoga County's (home to Cleveland) housing markets by strength, we see huge differences.  In the markets that more closely approximate the average market in the US, we see what prior research and theory would predict: foreclosures, vacancies, and abandoned housing all substantially lower surrounding home values.  In these markets, long-term vacancy and property abandonment are not as common or as problematic as foreclosure.

But in weaker sub markets, things are strikingly different: long term vacant homes and abandoned properties drive down prices more than foreclosures, and are more common than they are in normal markets.  Part of what drives this result is that lenders are attempting (and usually succeeding) to selectively foreclose on the "best-of-the-worst:" properties that have some prospect of resale because they are in the best neighborhoods in weak housing sub markets. 

Understanding the relationship between foreclosure and abandonment is tricky: in weak markets, foreclosure accelerates abandonment, but does not appear to cause it.  Foreclosed properties are sometimes abandoned, for example when lenders foreclose on a property that turns out to be among the worst-of-the-worst, they sell it to a property speculator that usually abandons it.  But abandonment is really driven by long-term population loss that resulted in an oversupply of housing relative to demand.  Plenty of property has been vacant long term or abandoned but has not been through a foreclosure recently. 

The fact that vacancy and abandonment are bigger problems in weak housing markets than foreclosure is not surprising to those that have studied, worked, or lived in these markets.  People with no experience with weak housing markets often overlook the problems of vacancy and abandonment, instead focusing on foreclosure.  It is critical for policymakers to understand the differences between average and weak housing markets because the best tools for stabilizing housing in them differ. Weak markets need subsidies for the removal of vacant or abandoned homes, and less funding for rehabilitation.  Likewise, proposals to move REO to rental property might not be as wise in weak markets as they are in average or stronger markets.

There are some promising local practices, such as modern land banking and low-value REO donation accompanied by per-property demolition grants that will help correct this supply/demand imbalance.  Still, I personal think it would be better in the long run if policymakers paid more attention to right-sizing weak housing markets, and less to subsidizing rehab and new construction in them.

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This is the fourth installment of a series of previews of the papers being presented at the AALS Financial Institutions & Consumer Financial Services Section meeting this Sunday from 9 am to 10:45 am at the Marriott Wardman Park.

Stavros Gadinis (U.C. Berkeley) has authored the fourth paper that will be presented on Sunday. His work, From Independence to Politics in Banking Regulation (forthcoming in the Duke Law Journal) provides a very insightful empirical study of how lawmakers are responding to the financial crisis. Surprisingly, Gadinis finds across a number of countries, lawmakers are moving away from giving responsibility for bank regulations to independent agencies. Instead, lawmakers are increasingly assigning responsibility to officials subordinate to elected politicians or to politicians themselves.

Here is his abstract:

U.S. financial regulation traditionally relied on independent agencies, such as the Federal Reserve and the FDIC. In the last two decades, countries around the world followed the U.S. example by strengthening the independence of their financial regulators, encouraged by recommendations from international organizations such as the Basel Committee and the IMF. Yet, reforms introduced following the 2007-2008 financial crisis abandon the conventional paradigm of agency independence and allocate authority to officials under the direct control of elected politicians, such as the Secretary of the Treasury. This paper studies reforms in 10 key jurisdictions for international banking. It shows that politicians gained new powers with three distinct features. First, politicians have new authority not only to handle emergencies, but also to oversee banks’ financial condition during regular times of smooth business operation. Second, politicians exercise these powers directly, rather than by delegation to a regulatory bureaucracy. Third, while reforms did not dismantle independent regulators, they require them to work under the leadership of politicians in new systemic oversight arrangements. Whenever reformers established new regulatory bodies or mechanisms, they placed politicians at the helm.

Gadinis’s paper promises to launch a fleet of subsequent scholarship. Beyond the normative/ policy question of whether this shift away from independence is a good development, are interesting questions that would drill down into the data. I would find it surprising that elected officials would assume all these new powers without building in mechanisms to hedge the risk of being blamed for the next crisis.

At the same time, Gadinis is writing at a particularly fertile juncture of financial regulation and administrative law. Some of the influential recent administrative law scholarship in this area has argued that traditional hallmarks to measure agency independence and traditional mechanisms to safeguard that independence need to be rethought, at least in the U.S. context. For example, Lisa Schulz Bressman & Robert Thompson have looked at the nuanced ways in which the President can exercise influence over agencies.   Rachel Barkow has laid out other ways in which agencies can be insulated from capture beyond the traditional mechanisms (which, include taking away the President’s power to fire an agency head and exempting agency regulations from Executive Office cost-benefit review). So we need to pay much more attention to texture and nuance in defining agency independence and serving its underlying goals. Of course, the coding in a comparative empirical study cannot take into account all the differences in institutional environments among numerous countries.

Gadinis’s paper is sure to spark a lively scholarly conversation. Shruti Rana (Maryland) will serve as discussant and be first to engage.

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Time Magazine’s “person of the year” is the “protestor.” Occupy Wall Street’s participants have generated discussion unprecedented in recent years about the role of corporations and their executives in society. The movement has influenced workers and unemployed alike around the world and has clearly shaped the political debate.

But how does a corporation really act? Doesn’t it act through its people? And do those people behave like the members of the homo economicus species acting rationally, selfishly for their greatest material advantage and without consideration about morality, ethics or other people? If so, can a corporation really have a conscience?

In her book Cultivating Conscience: How Good Laws Make Good People, Lynn Stout, a corporate and securities professor at UCLA School of Law argues that the homo economicus model does a poor job of predicting behavior within corporations. Stout takes aim at Oliver Wendell Holmes’ theory of the “bad man” (which forms the basis of homo economicus), Hobbes’ approach in Leviathan, John Stuart Mill’s theory of political economy, and those judges, law professors, regulators and policymakers who focus solely on the law and economics theory that material incentives are the only things that matter.

Citing hundreds of sociological studies that have been replicated around the world over the past fifty years, evolutionary biology, and experimental gaming theory, she concludes that  people do not generally behave like the “rational maximizers” that ecomonic theory would predict. In fact other than the 1-3% of the population who are psychopaths, people are “prosocial, ” meaning that they sacrifice to follow ethical rules, or to help or avoid harming others (although interestingly in student studies, economics majors tended to be less prosocial than others). 

She recommends a three-factor model for judges, regulators and legislators who want to shape human behavior:

 “Unselfish prosocial behavior toward strangers, including unselfish compliance with legal and ethical rules, is triggered by social context, including especially:

(1)         instructions from authority

(2)         beliefs about others’ prosocial behavior; and

(3)         the magnitude of the benefits to others.

Prosocial behavior declines, however, as the personal cost of acting prosocially increases.”

While she focuses on tort, contract and criminal law, her model and criticisms of the homo economicus model may be particularly helpful in the context of understanding corporate behavior. Corporations clearly influence how their people act. Professor Pamela Bucy, for example, argues that government should only be able to convict a corporation if it proves that the corporate ethos encouraged agents of the corporation to commit the criminal act. That corporate ethos results from individuals working together toward corporate goals.

Stout observes that an entire generation of business and political leaders has been taught that people only respond to material incentives, which leads to poor planning that can have devastating results by steering naturally prosocial people to toward unethical or illegal behavior. She warns against “rais[ing] the cost of conscience,” stating that “if we want people to be good, we must not tempt them to be bad.”

In her forthcoming article “Killing Conscience: The Unintended Behavioral Consequences of ‘Pay for Performance,’” she applies behavioral science to incentive based-pay. She points to the savings and loans crisis of the 80's, the recent teacher cheating scandals on standardized tests, Enron, Worldcom, the 2008 credit crisis, which stemmed in part from performance-based bonuses that tempted brokers to approve risky loans, and Bear Sterns and AIG executives who bet on risky derivatives. She disagrees with those who say that that those incentive plans were poorly designed, arguing instead that excessive reliance on even well designed ex-ante incentive plans can “snuff out” or suppress conscience and create “psycopathogenic” environments, and has done so as evidenced by “a disturbing outbreak of executive-driven corporate frauds, scandals and failures.” She further notes that the pay for performance movement has produced less than stellar improvement in the performance and profitability of most US companies.  

She advocates instead for trust-based” compensation arrangements, which take into account the parties’ capacity for prosocial behavior rather than leading employees to believe that the employer rewards selfish behavior. This is especially true if that reward tempts employees to engage in fraudulent or opportunistic behavior if that is the only way to realistically achieve the performance metric.

Applying her three factor model looks like this: Does the company’s messaging tell employees that it doesn’t care about ethics? Is it rewarding other people to act in the same way? And is it signaling that there is nothing wrong with unethical behavior or that there are no victims? This theory fits in nicely with the Bucy corporate ethos paradigm described above.

Stout proposes modest, nonmaterial rewards such as greater job responsibilities, public recognition, and more reasonable cash awards based upon subjective, ex post evaluations on the employee’s performance, and cites studies indicating that most employees thrive and are more creative in environments that don’t focus on ex ante monetary incentives. She yearns for the pre 162(m) days when the tax code didn’t require corporations to tie executive pay over one million dollars to performance metrics.

Stout’s application of these behavioral science theories provide guidance that lawmakers and others may want to consider as they look at legislation to prevent or at least mitigate the next corporate scandal. She also provides food for thought for those in corporate America who want to change the dynamics and trust factors within their organizations, and by extension their employee base, shareholders and the general population.

 

 

 

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Outrage over Bank of America's proposal to charge a monthly fee for debit cards has not abated, even though the bank has backed down on making the change.  A social media protest to encourage customers to move funds from Bank of America (and other national banks) to credit unions has gained steam.  Organizers have named tomorrow, November 5th, "Dump Your Bank Day" (evidently, the "V is for Vendetta" film has staying power and revived popular American interest in Guy Fawkes).

This raises two empirical questions.  First, do credit unions treat their customers any better?  A great recent paper by Ryan Bubb (NYU Law) and Alex Kaufman both suggests that they do and explains why.  The paper provides both a model and empirical evidence that explain how the ownership structure of credit unions reduces the incentive for these lenders to extract hidden fees from their customers compared to for-profit, shareholder-owned banks.  (Note that this paper was written long before the "Dump Your Bank" protest started and does not endorse this movement).  Here is the abstract:

In this paper we show how ownership of the firm by its customers, as well as nonprofit status, can prevent the firm from exploiting consumer biases. By eliminating an outside residual claimant with control over the firm, these alternatives to investor ownership reduce the incentive of the firm to offer contractual terms that exploit the mistakes consumers make. However, customers who are unaware of their problems making good decisions, and consequent vulnerability to exploitation, may fail to recognize this advantage of non-investor-owned firms and instead continue to patronize investor-owned firms. We present evidence from the consumer financial services market that supports our theory. Comparing contract terms, we find that mutually owned firms offer lower penalties, such as default interest rates, and higher up-front prices, such as introductory interest rates, than do investor-owned firms. However, consumers most vulnerable to these penalties are no more likely to use mutually owned firms.

Ryan presented the paper at a workshop here in Colorado over the summer.  One of the questions I had then was why credit unions can't win customers by sending a credible signal that, to put it colloquially, "we'll screw you less."  This Bank of America episode provides an interesting answer that perhaps customers are starting to recognize hidden fees and market choices.

A second question is whether this protest will hurt Bank of America and other national banks?  There are historical antecedents for this movement.  In the 1960s, protestors tried to start bank runs with calls for depositors to withdraw all funds from banks and then re-deposit them.  I'm not aware that any banks suffered as a result. 

There is a possibility that this current protest may actually help banks somewhat.  There have been plenty of news stories of banks complaining about excess deposits.  Some banks have mulled charging fees for large corporate customers and large deposits.  Still, I would be surprised if BofA welcomed this protest, just as I would be surprised if the protest inflicted more than p.r. damage on BofA.

 

 

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If you are at Law & Society this Friday and Saturday, come to the mini-conference on Entrepreneuship & Law that Brian Broughman (Indiana - Maurer School of Law) and our own Gordon Smith (BYU) have organized.  Here is the line up:

Friday, June 3, 2011

8:15 am to 10:00 am Regulating Entrepreneurs 2122 (Chair: Brian Broughman)

• Mira Ganor (Texas), The Power to Issue Stock
• Erik Gerding (New Mexico), Shadow Banking, Financial Innovation, and Regulatory Arbitrage
• Michelle Harner (Maryland), Mitigating Financial Risk for Entrepreneurs
• Poonam Puri (Toronto), The Regulatory Burden of Corporate Law
• Discussants: Kristin Johnson (Seton Hall) & Sarah Lawsky (UC Irvine)

12:30 pm to 2:15 pm Governance Structure of Entrepreneurial Firms 2322 (Chair: Brian Broughman) 

• Brian Broughman (with (Jesse Fried & Darian Ibrahim), Delaware Law as Lingua Franca: Evidence from VC-Backed Startups

• George Geis (Virginia), Organizational Contracting and Third Party Rights
• Alicia Robb (Kauffman Foundation), Entrepreneurial Finance and Performance: A Transaction Cost Economics Approach
• Discussant: Bobby Bartlett (UC Berkeley) 

Saturday, June 4, 2011

8:15 am to 10:00 am Law, Entrepreneurship, and Innovation 3116 (Chair: Gordon Smith)

• Mike Burstein (Harvard), Exchanging Information without Intellectual Property

• Sean O’Connor (Univ. of Washington), Transforming Professional Services to Build Regional Innovation Ecosystems
• Peter Lee (UC Davis), The Accession Insight and Patent Infringement Remedies
• Karl Okamoto (Drexel), Law and Entrepreneurship: An Assessment Approach

4:30 pm to 6:15 pm Global Entrepreneurship 3519 (Chair: Gordon Smith)

• Afra Afsharipour (University of California, Davis), US Private Equity Investments in India

• Sofia Johan (York Univ.)(with April Knil and Nathan Mauck), Determinants of Sovereign Wealth Fund Investment in Private Equity
• Gordon Smith, Stability and Adaptability

###

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Okay, this isn't entirely new, but it's alway entertaining to look at a citation analysis, and I'm not sure if Peter Oh's paper on the citation patterns of the best corporate and securities articles has gotten much attention.  It's lacking conclusions, but it takes a couple of takes on the the best corporate law papers of the past fifteen years ago, and compares them with a random selected sample of Columbia, Harvard, and Yale Law Review/Journal articles.  It also shows that your average top corporate law article, even when picked by law professors, gets outcited by your randomly selected CHY article - which is a trend I've often thought exemplifies some of the resilience, for better or for ill, of student law review publications, which are cited much, much more often than are peer reviewed publications, with a ranking bias.  It also shows that corporate law pieces may continue to face a citation handicap compared to con law or IP.  We'll see if that continues.  Table 1 is the place to look for the data, which I won't reproduce here partly because there appears to be a "do not reproduce" request in the SSRN draft.

  
 
 

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Almost all economists, and certainly most of the well-cited ones, are quantitative empiricists now (and really a particular kind of empiricist, now they don't do big regressions, they look for instruments or experiments) - that's up from circa zero empiricists 50 years ago.  Political science is a bit more heterogeneous, but APSR is almost exclusively the domain of quantitative empiricists, leading some in that field to observe, as Brian Leiter did yesterday re empirical legal studies, that the field is risking becoming arcane and narrow (here's Josh Wright and Professor Bainbridge on it too). 

When will law follow suit?  I think it will take a while, not least because the sort of state of the art that people with Ph.Ds are expected to do is a very far cry from the sort of work almost any law professor could be expected to do.  I like my colleagues in the Finance Department, in other words, but I don't submit to the Journal of Finance (here's the latest edition - some of the subjects are of interest, but do have a look at the methods sections).  In a discipline where only a tiny minority of the faculty have social science Ph.Ds, the tipping point towards technical empiricism is harder to identify than it probably is for economics and political science ... and that's not counting the possibility of buyer's remorse in those fields, or in this one, the conflation of the Ph.D with the ability or desire to do empirical work, the prospect that a subgroup will go down an unproductive rabbit hole (as far as I can tell, the law and courts people are still trying to decide whether the law constrains people, especially judges), and so on. 

But look, corporate law and law and economics have been acquainted with empiricism as long as anyone, and one way of looking at how ELS is doing would be to see how those scholars are being cited, and for that we might consider Leiter's own invaluable empirical research.

Here's the corporate law list:

John Coffee

Lucian Bebchuk

Larry Ribstein

Stephen Bainbridge

Roberta Romano

Ronald J. Gilson

Reinier Kraakman

Bernard Black

Donald Langevoort

Robert Thompson

Runners-up for the top ten

Henry Hansmann

Mark Roe

Lynn Stout

Stephen Choi

Jill Fisch

Highly Cited Scholars Whose Cites Are Not Exclusively in This Area

Jonathan Macey

Melvin Eisenberg

On which I count between 2 and 4 empiricists.  Here's the law and economics list:

Richard Epstein

Eric Posner

Ian Ayres

Steven Shavell

Robert Cooter

Louis Kaplow

Thomas Ulen

Christine Jolls

Einer Elhauge

George Priest

W. Kip Viscusi

Runners-Up for the Top Ten

Lewis Kornhauser

Saul Levmore

A. Mitchell Polinsky

On which I count between 4 and 6 (though I may be missing some).  For a total of between 6 and 10 out of 31.  This is the senior list, but I've got to tell you, I don't think lists of juniors would be that different (you could look at the youngest members of Leiter's list and consider whether they would characterize themselves as empiricists or not).  And those are the most economically-oriented fields.  With everyone at every school doing scholarship now, I predict that there will be many scholars who write and cite work that isn't empirical, or the kind of empirical that social scientists understand as empirical, for years.  Of course, social scientific empiricists won't care who cites them if they get jobs that they like, but still, you take the point.

Anyway, I'm not sure what to make of this.  Nobody wants solely doctrinal scholarship or totally ungrounded theory.  I do some "empirical" work, but I do it to be an upstanding member of the community, to take first cracks at developing data that someone else might use, to add context to nonempirical papers, and to steel myself to keep reading that literature.  I wouldn't advise anyone else to do anything more than that, unless they've got their Ph.D and go to social science conferences, but your mileage may vary.

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In an idle moment last week, I decided to do a little amateur empirical research into a question that been nagging me, “Why does it seem there were vastly more articles on the effects (particularly the supposed ill effects) of Sarbanes Oxley than Gramm Leach Bliley (and the repeal of Glass Steagall)?”

Before delving into the hypothesis, I wanted to make sure my perception was reality. So I did a quick Lexis/Nexis search of U.S. law reviews for the first five full years after those two acts passed. I looked only for titles in which the name of the act appeared ((Gramm or GLB or Steagall) compared to (Sarb! or SOX)).

I came up with a list of 34 articles for Gramm, Leach, Bliley/Glass Steagall versus 354 articles for SOX.

What accounts for the greater SOX appeal? One possible explanation is that Sarbanes Oxley affected vastly more companies and occupied a greater number of lawyers.

What I’d like to test is a second hypothesis, that Sarbanes Oxley was seen as more momentous for the U.S. economy. Which I think is a very interesting contention itself. Just eyeballing the two lists of titles, the portion of the Sarbanes articles that appear on their face to be critical of that act seems larger than the portion of the facially critical GLB articles.

Now before you jump ahead and call scholarly conspiracy (or think that I am looking to identify one), let me be clear about the dynamic I think is worth exploring. I think it is worth asking whether the SOX, which imposed new requirements on industry, generated a lot more political heat, to which legal scholars responded – including with a lot of very good empirical studies. GLB, by contrast, removed a lot of big regulatory barriers – so there was less heat from industry and therefore less demand for scholarship.

Have I proven this? Not al all – this is just the just the beginning.

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I'm back from the Conference on Empirical Legal Studies at USC (at which I presented this paper) - always one of the best conferences around.  Love the precision timing of the talks, the interesting papers, and I think you'll find that it is one of the relatively rare conferences where lots of panels have lots of attendees.

It's all very good, and very cheering, but it strikes me that ELS has a number of different constituencies, and the common cause among them is not always obvious.  There's the law and courts crowd of political scientists, who are quantitatively sophisticated, and deeply divided from those political scientists who are more like constitutional lawyers.  They talk about the Supreme Court, mostly because of the data there, rather than any reason related to its importance, but are beginning to move into other areas of public law.  There's the more econ-oriented quant crowd, and they often teach in Finance and Accounting departments in business schools, but are unlikely to be Bayesians or whatever (that's more common in political science, I think).  They write about government action, when they aren't pricing derivatives or mergers, etc: an example is the literature on whether Sarbanes-Oxley has been good or bad, or whether independent courts are a sine qua non of economic development. And then there are the two kinds of law professor quant crowds.  There's the kind that try to operate in these two worlds (often very successfully, given that they have the same Ph.D.s as do the political scientists and the economists), and the kind who do not - this latter group often hand collects data on interesting legal questions and runs basic regressions (I'm one of these, with the possible exception of the interesting legal questions part!).

All of these people, to varying degrees, show up at CELS, and learn, I think, from one another, but each of them ask rather different questions, using rather different methods.  It will be interesting to see if the constituencies start their own conferences in the future, or if CELS will continue to serve them all.

Larry Ribstein has some additional thoughts here.

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