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Improving the credibility of empirical legal research: practical suggestions for researchers, journals, and law schools
Get PDFFields closely related to empirical legal research are enhancing their methods to improve the credibility of their findings. This includes making data, analysis code, and other materials openly available, and preregistering studies. Empirical legal research appears to be lagging behind other fields. This may be due, in part, to a lack of meta-research and guidance on empirical legal studies. The authors seek to fill that gap by evaluating some indicators of credibility in empirical legal research, including a review of guidelines at legal journals. They then provide both general recommendations for researchers, and more specific recommendations aimed at three commonly used empirical legal methods: case law analysis, surveys, and qualitative studies. They end with suggestions for policies and incentive systems that may be implemented by journals and law schools
Gendered Complications of Covid-19: Towards a Feminist Recovery Plan
Get PDFCOVID-19 exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly those who are Black, Latina, or Native American, were at the intersection of the inequities in the pandemic economy. The catalogue of COVID-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. This Article argues that COVID-19 has complex implications for gender equality and gender equity as state and local governments, the federal government, and private actors focus on recovery plans. The negative effects of the pandemic include hundreds of thousands of deaths, lingering health complications for many who have contracted the virus, massive economic disruption and loss for individuals, families, and communities, and the exacerbation of structural inequalities in areas ranging from children’s education to women’s status. The creative policy responses prompted by the devastating impact of COVID-19 provide promise for building a more transformative and equitable future. Indeed, while a return to the status quo might be possible, developing a roadmap to resilience provides an opportunity to address the gender inequities in our social infrastructure—if there is political will to follow that roadmap. Proposing a feminist recovery plan, this Article focuses on a set of issues relating to pre-existing gender inequities concerning work and family, including the gender pay gap, the child care crisis, and the disproportionate role of women—particularly, women of color—in providing essential but undervalued care work
Don’t Bring an Army to an Arbitration (England, 1411)
Get PDFThe name of our friend Derek Roebuck will always be linked to the long history of arbitration and mediation which he has chronicled so thoroughly in a dozen volumes by my count and many articles and chapters. On a spectrum of dispute resolution methods from formal courtroom litigation to savage brute force, arbitration stands at an interesting intermediate point. In tribute to Derek’s memory, I offer this glimpse of a curious episode at the intersection of due process of law, armed violence and principled arbitration. It reminds us that these three alternatives were not always as widely differentiated as we suppose
An Introduction to “Critical Legal Research: The Next Wave”
Get PDFThis symposium continues and sustains the exchange of ideas initiated at a panel presentation offered at the 2021 American Association of Law Schools (“AALS”) Annual Meeting in January 2021. The panel was titled Critical Legal Research: The Next Wave, and here we advance and extend that conversation with written contributions from the panelists.
The symposium and panel are outgrowths of truly organic collaboration that sprang from the passion for critical legal research felt by both the panel’s honorees—Professors Richard Delgado and Jean Stefancic—and an exceptional group of academic law librarian scholars—Yasmin Sokkar Harker, Julie Krishnaswami, Grace Lo, Nicholas Mignanelli, and Nicholas F. Stump. Indeed their passion for Critical Race Theory and its potential impact on the law—and also, necessarily, on legal research—has stood the test of time by maintaining its power and its appeal to all those who struggle against the oppressive forces that permeate and sustain our economic and social order. Thirty years after Delgado and Stefancic first exposed these radical ideas to the light of day, the torch has been passed to a new generation of lawyers, legal academics, law librarians, and scholars
Can Sandel Dethrone Meritocracy? Comment on M. Sandel\u27s The Tyranny of Merit
Get PDFThis is an invited review essay of Michael Sandel, The Tyranny of Merit: What\u27s Become of the Common Good? (FSG 2020), for the inaugural issue of The American Journal of Law and Inequality (R. Kennedy, M. Minow, C. Sunstein, eds.). Sandel makes three principal arguments: (1) meritocracy is deeply flawed because it worsens inequality and fills meritocracy\u27s winners with hubris and losers with shame; (2) universities should introduce a lottery into the admissions process; and (3) this reform, coupled with increased emphasis on the dignity of labor, will repair the politics of resentment that now roil our country./= / \u3e/= / \u3eI respond in the following ways. First, treating meritocracy as an ideology, I assess the underlying tension in Sandel\u27s logic, which accords primary moral value to the form of politics over outcomes, and status over materiality. Given the complex culture of meritocracy, I question whether its excesses can be curbed, or gross inequality reduced, with an approach that fails to stress material outcomes./= / \u3e/= / \u3eSecond, I conclude that Sandel\u27s proposal to reform university admissions could only be realistically implemented at a handful of highly selective and wealthy institutions. Even then, its impact on meritocratic faith or tangible inequality is likely to be exceedingly modest. Worse, randomizing distribution may in fact lead to a backlash among communities that have (over)invested in the means to compete for slots at elite universities and colleges, which would undermine Sandel\u27s objectives. Despite these misgivings, his idea may still be worth a try./= / \u3e/= / \u3eThird, I praise Sandel\u27s concern that meritocracy is contributing to the broader politics of resentment. But I say that his approach to emotions in politics is incomplete, for it focuses too narrowly on white grievance in a single election, and we need to get better at assessing historical claims of anger and disillusionment from multiple communities across time. I conclude by suggesting that Trumpism was not a coherent attack on meritocracy, but one that tried to harness resentment to introduce meritocratic logic into new domains, such as immigration and refugee policy. If we want to reduce meritocracy\u27s dominance in particular social domains, I argue, we must offer a potent substitute that can bring elites and everyday people together. In certain domains such as university admissions or border control where the politics are fraught, that alternative may be the rhetoric of fairness
The Ethics of Research That May Disadvantage Others
Get PDFIn prospective interventional research, a treatment may provide an advantage for the recipient over other humans not receiving it. If the intervention proves successful, the treated are better able to compete for a scarce ventilator, a class grade, or a litigation outcome, potentially risking the deaths, jobs, or incomes of non-treated persons. The concerns for “bystanders” have typically focused on direct harms (e.g., infecting them with a virus), unlike the mere competition for rivalrous goods at issue here./= / \u3e/= / \u3eAfter broadly scoping this problem, analysis reveals several reasons that such research is typically permissible, notwithstanding the potential setbacks to the interests of non-participants. After considering the almost-dispositive concept of clinical equipoise, insights are gleaned from the harm principle, status quo bias, the levelling-down problem, and a potential bias against prospective interventional research versus program interventions with retrospective study. Consideration of institutional relationships also does not change the analysis that such research is permissible
The Effect of Generic Market Entry on Antibiotic Prescriptions in the United States
Get PDFWhen patented, brand-name antibiotics lose market exclusivity, generics typically enter the market at lower prices, which may increase consumption of the drug. To examine the effect of generic market entry on antibiotic consumption in the United States, we conducted an interrupted time series analysis of the change in the number of prescriptions per month for antibiotics for which at least one generic entered the US market between 2000 and 2012. Data were acquired from the IQVIA Xponent database. Thirteen antibiotics were analyzed. Here, we show that one year after generic entry, the number of prescriptions increased for five antibiotics (5 to 406%)—aztreonam, cefpodoxime, ciprofloxacin, levofloxacin, ofloxacin—and decreased for one drug: cefdinir. These changes were sustained two years after. Cefprozil, cefuroxime axetil and clarithromycin had significant increases in trend, but no significant level changes. No consistent pattern for antibiotic use following generic entry in the United States was observed
Some Special Words for Robert Burdick
Get PDFMany words can be used to describe Bob Burdick, my supervisor, colleague, and friend at the Boston University Civil Litigation Program since the fall of 1993. BU has recognized him as a “Quiet Legal Giant”; as his colleagues, we have commented on his compassion, low-key humility, creativity and innovation, strength as a mentor, and expertise in negotiation. We share common images and experiences as well: the open door to his office and the light already burning at 6:30 on dark mornings as we arrived early to go to court. His insight and understanding after a disturbing experience with an opposing attorney. His visits to clients in apartments that fell well below the State Sanitary Code. We share memories of regular comments: “It’s a negotiation,” when negotiation might be the last thing we could see in a situation. Or we hear from the student who pondered a point Bob made about the lawyer’s role—for example, a recent student described learning that part of a lawyer’s duty is to respect clients’ rights to decide, even when the student disagrees with the client’s choice
Race, Risk, and Personal Responsibility in the Response to COVID-19
Get PDFThe COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportionate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece offers an account of the theoretical frameworks that underpin the personal responsibility approach to public health and argues that it is necessary to foreground the social determinants of health in the response to the pandemic
Supreme Court to Hear Lawsuits Against Texas Abortion Law
No full textFor the first time, the Supreme Court will hear lawsuits against the Texas abortion law, which makes abortions illegal as early as six weeks into a pregnancy. Linda McClain, a professor of law at Boston University, joins CBSN with more on what to expect