Empirical Analysis and the Fate of Capital Punishment

In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Supreme Court’s prior command in Atkins v. Virginia that unless the imposition of the death penalty “measurably contributes to one or both of [the legitimate penological goals of deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Justice Breyer’s opinion illuminates the central role that empirical studies have played in death penalty litigation since Furman v. Georgia on issues ranging from the lack of deterrence associated with the death penalty; to racial and ethnic bias in its administration; to the extensive delays, cost, errors, and arbitrary implementation; and to the failure to limit capital punishment to the worst of the worst offenders. Two months after Glossip, the battle over the empirical evaluation of capital punishment played out in the contentious 4-3 decision in State v. Santiago, in which the Connecticut Supreme Court found the death penalty unconstitutional in the wake of the state legislature’s prior prospective abolition. The bitter judicial contention in both Glossip and Santiago over the evaluation of evidence of racial and ethnic bias and an array of other empirical issues highlights both the critical importance of empirical analysis to the fate of the death penalty and the difficulty that many judges have in properly evaluating statistical evidence. The statistically unsupportable attempts by the State’s expert to undermine the overwhelming evidence of racial disparity in capital charging in Connecticut underscores that highly flawed statistical evidence will often be pressed upon (or seized upon by) judges who may be ideologically inclined to accept work that true experts would readily reject. If the Supreme Court is able to effectively appraise the best empirical work in applying the Atkins standard, it is difficult to see how the death penalty could be sustained as a constitutional punishment. Unless the imposition of the death penalty “measurably contributes to one or both of these goals [deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” – Atkins v. Virginia, 536 U.S. 304, 318–19 (2002) (emphasis added)

The Effects of Fee Shifting on the Settlement Rate: Theoretical Observations on Costs, Conflicts, and Contingency Fees

Litigation costs could be conceived as a bribe to parties to reach a contractual agreement settling their dispute. The question of what effect fee-shifting rules might have on the rate of settlements in lawsuits is examined

The Impact of Legalized Abortion on Crime

We offer evidence that legalized abortion has contributed significantly to recent crime reductions. Crime began to fall roughly 18 years after abortion legalization. The 5 states that allowed abortion in 1970 experienced declines earlier than the rest of the nation, which legalized in 1973 with Roe v. Wade. States with high abortion rates in the 1970s and 1980s experienced greater crime reductions in the 1990s. In high abortion states, only arrests of those born after abortion legalization fall relative to low abortion states. Legalized abortion appears to account for as much as 50 percent of the recent drop in crime.

The Law and Economics of Antidiscrimination Law

This essay provides an overview of the central theoretical law and economics insights concerning antidiscrimination law across a variety of contexts including discrimination in labor markets, housing markets, consumer purchases, and policing. The different models of discrimination based on animus, statistical discrimination, and cartel exploitation are analyzed for both race and sex discrimination. I explore the theoretical arguments for prohibiting private discriminatory conduct and illustrates the tensions that exist between concerns for liberty and equality. I also discuss the critical point that one cannot automatically attribute observed disparities in various economic or social outcomes to discrimination, and illustrate the complexities in establishing the existence of discrimination. The major empirical findings showing the effectiveness of federal law in the first decade after passage of the 1964 Civil Rights Act are contrasted with the generally less optimistic findings from subsequent antidiscrimination interventions.

Shooting Down the More Guns, Less Crime Hypothesis

John Lott and David Mustard have used regression analysis to argue forcefully that 'shall-issue' laws (which give citizens an unimpeded right to secure permits for concealed weapons) reduce violent crime. While certain facially plausible statistical models appear to generate this conclusion, more refined analyses of more recent state and county data undermine the more guns, less crime hypothesis. The most robust finding on the state data is that certain property crimes rise with passage of shall- issue laws, although the absence of any clear theory as to why this would be the case tends to undercut any strong conclusions. Estimating more statistically preferred disaggregated models on more complete county data, we show that in most states shall- issue laws have been associated with more crime and that the apparent stimulus to crime tends to be especially strong for those states that adopted in the last decade. While there are substantial concerns about model reliability and robustness, we present estimates based on disaggregated county data models that on net the passage of the law in 24 jurisdictions has increased the annual cost of crime slightly -- somewhere on the order of half a billion dollars. We also provide an illustration of how our jurisdiction-specific regression model has the capacity to generate more nuanced assessments concerning which states might profit from or be harmed by a particular legal intervention.