The University of Chicago Law School Faculty Blog

Co-authorship, Empiricism and Changes in Legal Scholarship

In the 1973 movie The Paper Chase, there is a well-known scene in which the protagonist law student Hart goes with trepidation to the office of the stern Professor Kingsfield.  Hart’s entrance disturbs Professor Kingsfield from his work – reading and writing about the latest developments in contracts law. 

When viewed in 2011, so much of the movie seems dated.  Legal education – and our image of it – have in many ways changed a great deal since then.  Instructors and students no longer accept routine humiliation as an effective pedagogic technique.   In an age of laptops, i-pads, and electronic casebooks, the very notion of a paper chase seems anachronistic. 

While our image of legal teaching has kept up with the times, our image of legal scholarship has remained relatively fixed.  Most of us imagine that today’s law professor still works like Professor Kingsfield.  Alone in the office, the law professor reads cases and statutes, thinks about them, and then writes about them.  We imagine that legal scholarship remains an inherently solitary and essentially literary endeavor.

In a recent co-authored paper, we found that this image of legal scholarship has for some law professors become just as anachronistic as the paper chase.  Some law professors now work in teams to produce scholarship; more and more scholars utilize  statistical methods and other social science techniques rather than purely conceptual analysis in their scholarship. 

 We examined patterns of collaboration and methodology in top law reviews and two faculty-edited law journals.  We found that the fraction of articles in the top fifteen law reviews that were co-authored trended upwards between 2000 and 2010.  What explains this increase in collaborations?  An increase in empirical articles accounted for a substantial share of the growth in co-authored articles, and the correlation between co-authorship and empiricism persisted after controlling for numerous other influences.  

 These patterns are consistent with standard economic predictions about human capital and teamwork: academic collaboration rises with scholarly specialization.  As the complexity of a field grows, more and more diverse types of human capital are needed to make a contribution.  Prior research has found a similar growth in co-authorship in some social science fields, such as economics, but the trend in law toward more collaboration has received relatively little attention. 

 As a further test of whether empiricism spurred more co-authorship in law, we examined the articles published since 1989 in two prominent, faculty-edited journals specializing in law & economics.  Co-authored articles were far more common in these journals than in the general-interest, student-edited law reviews – a pattern which itself is consistent with the specialization hypothesis.  The share of articles without empirical analysis or formal models in these journals plummeted over this period, while co-authorship rose sharply.  These results support the view that specialization, and specifically the growth of empirical scholarship, has contributed to the trend of co-authorship in legal academia.

 Some have given the recent growth in empirical scholarship the moniker Empirical Legal Studies (ELS), and others, including our own colleague Brian Leiter, have criticized it as an incoherent category and removed from the central normative and conceptual questions of law [see also Professor Wright's critique here].  We do not defend or oppose ELS as a category or a distinct legal subfield.  But our evidence suggests that empirical studies of law and legal institutions increasingly occupy an important place in legal scholarship.  Indeed, our results indicate that the expansion of empirical scholarship is one of the major developments in the legal academy during the last generation, and prima facie, we assume that at least some of it is responsive to the central concerns in law.  The growth in co-authored empirical work in particular likely reflects real gains from specialization rather than simply a trend or fad. 

It is no secret that today’s law professors do not conduct their classrooms in the same manner that Professor Kingsfield ran his.  It is also becoming apparent that the scholarship that some of today’s law professors produce and the manner in which they produce it also bear little resemblance to Professor Kingsfield’s approach.

 --Tom Ginsburg and Tom Miles

Student Blogger - Winter WIP: Tom Ginsburg on Executive Term Limits (and their Evasion)

For most of its history, the United States had an unwritten term limit on Presidents of two four-year terms. This sufficed until World War II, where President Franklin Delino Roosevelt ignored the rule and served four terms, prompting a constitutional amendment. Other countries, such as Honduras and Venezuela, have seen efforts (failed and successful) to amend the constitution to allow incumbent president's to serve beyond previously established term limitations.

It is these evasions of term limitations -- presidential "over-stayers" -- that interest Tom Ginsburg in his latest work in progress (with Zachary Elkins and James Melton), "On the Evasion of Executive Term Limits". In systems with fixed term limits, we can divide executives into three categories: (1) understayers (those who serve for less than the constitutional maximum, for example, those who lose a re-election campaign, retire due to illness, or are removed in a coup), (2) those who serve the maximum term and then exit punctually (George W. Bush or Bill Clinton), and (3) overstayers, those who take action to stay in power beyond the constitutionally-governed rules in place when they entered office.

A plurality of executives are actually understayers, and most of those leave for "normal" reasons (election defeat or retirement). Professor Ginsburg, however, is most interested in the interplay between categories two and three. Amongst executives with an opportunity to overstay, a not-inconsequential number (nearly 20%) stay longer then they would otherwise be allowed. They do this via constitutional amendment, declaration of emergency, or by simply rewriting the constitution wholesale. And these figures might understate the problem: they don't include, for example, an executive who installs a crony or relative to take his or her place upon retirement, or one who simply diverts power to a new office and assumes that upon retirement (in both cases, think Vladimir Putin).

Measuring all reported instances of executive overstay, the authors found (among other things) that older leaders were more likely to overstay than younger ones, leaders with military backgrounds were more likely to overstay compared to executives with other backgrounds (generally lawyers), and that a history of overstays actually decreased the likelihood of repetition (each time an executive overstayed, it decreased the probability that next executive would do the same). Moreover, they found that overstay via "extra-constitutional" means was becoming increasingly rare, and that overstay rarely seems to provoke a constitutional crisis.

The paper also examines way that countries can guard against executive overstay. It's worth noting here that this presumes that overstay is a problem and, as a corollary, that term limits are a good thing -- something that is not necessarily clear. Most obviously, term limits prevent the polity from re-electing a leader that they otherwise would support -- it is an interference with pure majoritarianism, possibly deprives a country of experienced leaders, raises the problem of what to do with retired, former presidents, and forces voters to select a devil they don't know over one that they do. There are, of course, solid arguments for term limits -- overcoming voter apathy, guarding against tyrannical instincts, preventing executives from entrenching themselves indefinitely via corruption and fraud -- the point is that the debate over how to check against overstay necessarily presumes certain conclusions about the usefulness of term limits.

Professor Ginsburg forwards several institutional models for reducing overstay. Countries could offer rewards to executives who step down on time. These rewards could be monetary (such as Mo Ibrahim's $5 million award, plus $200,000 a year for life, to African leaders who step down from power) or governmental -- France makes all ex-presidents ex officio members of the country's constitutional court. For many leaders, international opportunities with the United Nations or other international organizations might help cushion the blow of being out of power. Alternatively, countries could modify the electoral system to account for incumbency advantages -- the authors consider a version of Bruce Ackerman's "supermajoritarian escalator" in suggesting that incumbents should have to gain ever-higher shares of the voters each time they run for re-election (plurality in the first run, majority in the second, 55% in the third, and so on).

The broader point is that, regardless of whether one generally thinks fixed executive term limits are advisable or not, the debate would benefit from an infusion of empirical data. How often overstay threatens the political fabric of a country, which policies are effective in checking overstay and which policies are not, and what factors make overstay more or less likely are all of use to policymakers seeking to construct governmental systems with an eye towards writing the rules of the executive branch.

Sudan: Does International Criminal Law Help or Hurt?

Last week the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Al-Bashir, confirming charges of war crimes and crimes against humanity but rejecting the prosecutor’s charge of genocide.  The immediate response has been for Al-Bashir to dig in, expelling 13 international aid groups as “spies” and severely worsening the humanitarian situation. This raises the issue of whether or not international criminal law deters or exacerbates human rights violations.  Professors Ku and Nzelibe argued for the latter in an article a couple years ago; the vast majority of international criminal law scholars seem to believe the former.

What is clear is that this is a make-or-break decision for the ICC, as I explore recently in an article our Chicago Journal of International Law. Some optimists believe that Al-Bashir will be turned over by his own countrymen.  But the more likely outcome, given the negative reaction to the indictment by the African Union, China and much of the Arab World, is that Al-Bashir will continue to be able to defy the Court. With a Chinese veto, the Security Council is unlikely to approve new sanctions or to take collective steps for Al-Bashir’s arrest.  This puts the West in the position of ratcheting up costly sanctions on the Sudan (unlikely to be effective without Security Council support) or else appearing impotent in the face of a severely deteriorating humanitarian situation.  In the short run, then, I am afraid Ku and Nzelibe seem to have the better argument.

Ginsburg and New Website Connect Constitutional Scholars and Drafters

The U.S. Institute of Peace and the Comparative Constitutions Project (CCP) have announced the launch of constitutionmaking.org, a site intended to provide people engaged in constitutional drafting access to essential materials, insights, and expertise.

Constitutionmaking.org was created by a team of scholars and drafters—including the University of Chicago Law School's Tom Ginsburg—with the guiding principle that those writing constitutions should have access to (1) a variety of options for constitutional design and (2) analysis of the consequences of design choices.  To this end, the site features three basic components:

• OPTION REPORTS.  This section includes a series of reports on a wide-ranging set of topics that are central to historical and contemporary constitutions.  These reports provide sample provisions and information on trends and patterns in the use of different constitutional provisions.  The data and analysis for these reports come from an original set of data on the content of constitutions that the researchers have been collecting since 2005.
• CONSTITUTONAL REPOSITORY.  The site also includes a growing repository of constitutional texts.  The researchers have identified the major constitutional changes for each independent state since 1789 and have collected 95% of the documents associated with these amendments and replacements.  Some of these documents are under copyright, but the repository will include all publicly available materials. 
• FORUM.  A third component of constitutionmaking.org features regular commentary from scholars on issues and events surrounding constitutional design. The goal is the same as that for constitutionmaking.org more generally: to connect scholars and drafters.  The forum endeavors to bring to light two sorts of information: (1) reports of constitutional deliberation (and challenges therein) from various corners of the world, and (2) reports of noteworthy research on the subject. The ideas are serious but the tone is direct and lively.  Posts have covered recent constitutional activity in Bolivia, Venezuela, Thailand, and Burma.

Hugo Chavez and the Rule of Law

Hugo Chavez goes to the polls in his second bid to amend the Venezuelan Constitution to eliminate presidential term limits. Should he lose, he has vowed to leave office when his current term ends in 2012; should he win, he hopes to rule for life. Chavez’s success seems likely because he has learned to manipulate the rule of law in his favor.

Chavez’ power grab, pursued through perfectly legal channels, exposes the Achilles’ heel of the rule of law: so long as you abide by its principles, you can do just about anything, including changing the rules to extend your control. The rule of law, as conventionally defined, requires that laws be clear, open, and equally applied to individuals and government alike. In recent years, it has become the subject of overlapping international consensus, such that dictatorships and democracies from Beijing to Burundi proclaim its virtues. The World Bank and other international donors have poured billions of dollars into improving the rule of law around the world. Everyone likes the principle because it promises procedural order and straightforward implementation of the rules, whatever they might be.

Thailand's Court resolves crisis--for now

I had just cancelled my flight to Bangkok, where I was due to attend a conference this coming weekend, when I learned that the Constitutional Court had issued a long-awaited decision disbanding the ruling party (the PPP). The decision had been widely anticipated, given the apparent violations of electoral law by the PPP. It assumed greater importance, however, because of the crisis perpetuated by anti-government protestors. With tacit support from the police, military and monarchy, they had occupied Bangkok’s airports, stranding hundreds of thousands of tourists and causing serious economic pain (not to mention the cancellation of my conference!)

There are two points of general interest illustrated by this affair.  First, like many other countries, Thailand has experienced “judicialization” with the courts resolving major political issues. In a forthcoming article available here, I argue that Thailand’s constitutional order is just an extreme case of a general trend toward “post-political” constitutions, reflecting a distrust of politics and a faith that technocratic institutions, like courts, counter-corruption commissions and ombudsmen, can somehow resolve problems in a neutral manner. 

Second, courts seem to respond to signals of public opinion in such circumstances. Had the protests been put down or been less enduring, the Court might have sided with the PPP and found the violations of law de minimis. Some years ago, the Court’s predecessor had essentially taken this approach with regard to the party associated with now-discredited premier Thaksin Shinawatra. This time, the Thai Constitutional Court said it had “no choice” but its decision can also be read as furthering its own institutional interest in remaining relevant in the light of great public pressure. The Court’s prestige has arguably been enhanced by the whole affair. 

As a normative matter, this state of affairs leaves much to be desired. Don’t like the government? Simply organize a large scale protest, bring the government to a halt, and then accuse it of not providing leadership. If the protest is big enough, the courts will have no choice to side with you. The key, of course, is to have enough support that law enforcement takes your side. But technocratic institutions like courts, the military or police, are no substitute for political institutions. I suspect this is not the final round of Thailand’s political crisis, as the government party will emerge again in some reconstituted form.

Kabul Report

I had not been to Kabul in five years, and the city looks more or less unchanged. There seem to be fewer women in burqas, and a few more cars. There are quite a few more private shops on the streets, especially beauty parlors and barber shops. But things appear basically the same. 

The mood, on the other hand, is not. When I was here in early 2003, there was a halting sense of hope, but little has materialized from the Karzai government and people are overwhelmingly pessimistic. Streets are still potholed. Jobs are scarce. Prices are rising. Things are moving backward steadily, and the Taliban have attacked places as close as 30 miles away. Literally no one has a good thing to say about Karzai (the "mayor of Kabul") and the government.  Movement is restricted and armed guards protect any place frequented by foreigners or Afghans who can afford the protection.

Why China Allows its Citizens to Sue the Government

Earlier this year I gave a talk to the students, available on the podcast section of the website, on Why China Allows its Citizens sue the Government. The talk focused on the growth of administrative litigation under the Administrative Litigation Law, in force since the early 1990s , under which citizens routinely sue and win cases against the Chinese government. To a lesser degree I talked about quasi-constitutional litigation (so-called because the Chinese Constitution is not formally justiciable) under which lawyers and judges invoke the Chinese Constitution in support of other legal claims that have a public law character.  Why would a dictatorship like China tolerate, and even encourage, such challenges to state action?