Publications by Author:

2006
The Effect of War on the Supreme Court
Lee Epstein, Daniel E. Ho, Gary King, and Jeffrey A. Segal. 2006. “The Effect of War on the Supreme Court.” In Principles and Practice in American Politics: Classic and Contemporary Readings, edited by Samuel Kernell and Steven S. Smith, 3rd ed. Washington, D.C. Congressional Quarterly Press.Abstract

Does the U.S. Supreme Court curtail rights and liberties when the nation’s security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation’s security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected. We attempt to explain this seemingly paradoxical evidence with one unifying conjecture: Instead of balancing rights and security in high stakes cases directly related to the war, the Justices retreat to ensuring the institutional checks of the democratic branches. Since rights-oriented and process-oriented dimensions seem to operate in different domains and at different times, and often suggest different outcomes, the predictive factors that work for cases unrelated to the war fail for cases related to the war. If this conjecture is correct, federal judges should consider giving less weight to legal principles outside of wartime but established during wartime, and attorneys should see it as their responsibility to distinguish cases along these lines.

Article
2005
The Supreme Court During Crisis: How War Affects only Non-War Cases
Lee Epstein, Daniel E Ho, Gary King, and Jeffrey A Segal. 2005. “The Supreme Court During Crisis: How War Affects only Non-War Cases.” New York University Law Review, 80, Pp. 1–116.Abstract
Does the U.S. Supreme Court curtail rights and liberties when the nation’s security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation’s security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected. We attempt to explain this seemingly paradoxical evidence with one unifying conjecture: Instead of balancing rights and security in high stakes cases directly related to the war, the Justices retreat to ensuring the institutional checks of the democratic branches. Since rights-oriented and process-oriented dimensions seem to operate in different domains and at different times, and often suggest different outcomes, the predictive factors that work for cases unrelated to the war fail for cases related to the war. If this conjecture is correct, federal judges should consider giving less weight to legal principles outside of wartime but established during wartime, and attorneys should see it as their responsibility to distinguish cases along these lines.
Article
2003
Building An Infrastructure for Empirical Research in the Law
Lee Epstein and Gary King. 2003. “Building An Infrastructure for Empirical Research in the Law.” Journal of Legal Education, 53, Pp. 311–320.Abstract
In every discipline in which "empirical research" has become commonplace, scholars have formed a subfield devoted to solving the methodological problems unique to that discipline’s data and theoretical questions. Although students of economics, political science, psychology, sociology, business, education, medicine, public health, and so on primarily focus on specific substantive questions, they cannot wait for those in other fields to solve their methoodological problems or to teach them "new" methods, wherever they were initially developed. In "The Rules of Inference," we argued for the creation of an analogous methodological subfield devoted to legal scholarship. We also had two other objectives: (1) to adapt the rules of inference used in the natural and social sciences, which apply equally to quantitative and qualitative research, to the special needs, theories, and data in legal scholarship, and (2) to offer recommendations on how the infrastructure of teaching and research at law schools might be reorganized so that it could better support the creation of first-rate quantitative and qualitative empirical research without compromising other important objectives. Published commentaries on our paper, along with citations to it, have focused largely on the first-our application of the rules of inference to legal scholarship. Until now, discussions of our second goal-suggestions for the improvement of legal scholarship, as well as our argument for the creation of a group that would focus on methodological problems unique to law-have been relegated to less public forums, even though, judging from the volume of correspondence we have received, they seem to be no less extensive.
Article
2002
Empirical Research and The Goals of Legal Scholarship: A Response
Lee Epstein and Gary King. 2002. “Empirical Research and The Goals of Legal Scholarship: A Response.” University of Chicago Law Review, 69, Pp. 1–209.Abstract
Although the term "empirical research" has become commonplace in legal scholarship over the past two decades, law professors have, in fact, been conducting research that is empirical – that is, learning about the world using quantitative data or qualitative information – for almost as long as they have been conducting research. For just as long, however, they have been proceeding with little awareness of, much less compliance with, the rules of inference, and without paying heed to the key lessons of the revolution in empirical analysis that has been taking place over the last century in other disciplines. The tradition of including some articles devoted to exclusively to the methododology of empirical analysis – so well represented in journals in traditional academic fields – is virtually nonexistent in the nation’s law reviews. As a result, readers learn considerably less accurate information about the empirical world than the studies’ stridently stated, but overconfident, conclusions suggest. To remedy this situation both for the producers and consumers of empirical work, this Article adapts the rules of inference used in the natural and social sciences to the special needs, theories, and data in legal scholarship, and explicate them with extensive illustrations from existing research. The Article also offers suggestions for how the infrastructure of teaching and research at law schools might be reorganized so that it can better support the creation of first-rate empirical research without compromising other important objectives.
Article
The Rules of Inference
Lee Epstein and Gary King. 2002. “The Rules of Inference.” University of Chicago Law Review, 69, Pp. 1–209.Abstract

Although the term "empirical research" has become commonplace in legal scholarship over the past two decades, law professors have, in fact, been conducting research that is empirical – that is, learning about the world using quantitative data or qualitative information – for almost as long as they have been conducting research. For just as long, however, they have been proceeding with little awareness of, much less compliance with, the rules of inference, and without paying heed to the key lessons of the revolution in empirical analysis that has been taking place over the last century in other disciplines. The tradition of including some articles devoted to exclusively to the methododology of empirical analysis – so well represented in journals in traditional academic fields – is virtually nonexistent in the nation’s law reviews. As a result, readers learn considerably less accurate information about the empirical world than the studies’ stridently stated, but overconfident, conclusions suggest. To remedy this situation both for the producers and consumers of empirical work, this Article adapts the rules of inference used in the natural and social sciences to the special needs, theories, and data in legal scholarship, and explicate them with extensive illustrations from existing research. The Article also offers suggestions for how the infrastructure of teaching and research at law schools might be reorganized so that it can better support the creation of first-rate empirical research without compromising other important objectives.

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