In "Diseconomies of Law," JWI Deputy Director Garrett Snedeker reviews Trouble at the Bar by Clifford Winston, David Burk, and Jia Yan. The book's authors attempt to assess American legal practice through the tools of economics. While Snedeker is thankful for the data aggregation, he maintains that no one can reach solid conclusions about the law solely through quantitative reasoning. We have included a few excerpts from his review for your perusal below.

"While Trouble at the Bar’s three authors, none of whom have practiced law or hold a juris doctorate, helpfully aggregate data and perform regression analyses on LSAT scores, law school rankings, and attorneys’ earnings premiums, these types of analyses act more like hammers in search of nails when applied to wide-scale analyses of actual legal questions and specific personalities. They are improper tools for analyzing, in particular, the work of the Office of U.S. Solicitor General and the judicial reasoning of current and recent justices of the U.S. Supreme Court. The authors should have thought twice about their methods before applying them to the members of the legal profession they criticize. The book is a useful reminder therefore of the limits of economic analysis on the practice of law."

"When the authors review the “box scores” of how certain cases were decided, looking for patterns between political ideology and judicial ideology, they track seemingly everything but the most important criteria: the actual judicial reasoning in those decisions. But is such an impartial assessment of judicial reasoning possible or even helpful? Any cross-categorization of judicial reasoning across opinions by different justices obscures enormous variables influencing how the justices consider an outcome just. The econometric model the authors propose for understanding the outcome of cases is more dizzying than coherent, though this reviewer admits he is not its intended audience. Nevertheless, what was clear was that the authors neglected to view these cases through the eyes of the justices who, to a person, profess to approach each case uniquely, not as reflective of political and judicial ideology."

"However, the authors do not prove much of anything. Their holding rests on some fatal conceits. First, the authors are working with small numbers of idiosyncratic personalities and varying circumstances. Of the eleven 'Top Supreme Court Advocates,' the authors base the performance of more than half of the advocates on representative cases or a case from a single year of employment outside of the federal government….The authors warn that 'unobserved variables' may affect outcomes while also admitting that the stage of an advocate’s career will affect whether he or she takes a difficult case in private practice. The breadth of this admission swallows the validity of the authors’ claims. If the authors purport that their findings have any consistency, these findings would not be so reliant on the idiosyncratic choices made by such a small sample of top advocates."

"Thus, their analysis of the justices reads as a ham-fisted attempt by economists to impose a kind of order on subjects, judicial opinions, that defy the simplistic categorization that the authors impose. As legal commentator Edward Whelan observed when critiquing a separate study of judicial voting habits co-authored by legal scholar Lee Epstein whom the authors of Trouble at the Bar rely upon, 'I am open to the possibility that statistical analysis of voting patterns might discover apparent anomalies that suggest avenues for further exploration. But that further exploration, if it is going to be fruitful, will have to involve the sometimes difficult and often contestable work of legal reasoning—work that is beyond the bounds that modern political scientists have imposed on themselves.'"

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