1. 1 Intuitive Lawmaking: The Example of Child Support Ira Mark Ellman Sanford Braver Robert J. MacCoun Conference on Empirical Legal Studies New York University November 2007

2. 2 How Do People Think About Rules? Child Support awards as case study

3. 3 Child Support: The Legal Context Decisions were once highly discretionary More recently, states use guidelines  Similar to sentencing guidelines  Written by consultants  Difficult tradeoffs not addressed Our study  Asks people to address them: what principles?  Asks them to decide cases: how much support?

4. 4 Some of Our Questions What do people favor?  Decision principles  Child-support amounts  Do their favored amounts follow logically from the principles they explicitly endorse? Is there consensus? Do characteristics like gender matter? Are Lay intuitions on support amounts consistent with existing law?

5. 5 Method: Survey Instruments Who We Ask  Members of jury pool in Tucson  Good community sample  70% response rate to long forms  Today’s data from first 2 sessions  About 400 respondents Continuing study  Nine weeks of further variations  Gender among them

6. 6 What We Ask Likerts: 1 (strong disagree) to 7 (strong agree) Support Amounts in Scenarios that assume  One child (9 year old boy)  Mom is CP, Dad is support obligor  Son “lives mostly with Mom, but Dad sees him often”  Dad earns $6000, $4000, or $2000 a month in “take-home pay”. Mom: $5,000, $3,000, or $1,000  Every subject asked about all nine income combinations

7. 7 We want to know the amount of child support, if any, that you think Dad should be required to pay Mom every month, all things considered. The only thing that will change from story to story is how much Mom earns, and how much Dad earns. There is no right or wrong answer; just tell us what you think is right. Try to imagine yourself as the judge in each of the following cases. Picture yourself sitting on the bench in a courtroom needing to decide about what should be done about ordering child support in the case and trying to decide correctly. To do so, you might try putting yourself in the shoes of Mom, Dad, their child, or all three of them, or imagine a loved one in that position.

8. 8 Variations you won’t hear much about Set 1: Gender, CP and child Set 2: Income and number of kids Set 3: Order: Likerts v. Scenarios Set 4: Schaeffer wording Set 5: Showing incomes Set 6: Varying visitation arrangements Set 7: relocation and remarriage of the custodial mom

9. 9 Likert Items 1 through 3 Item% Who Clearly Agree % Who Clearly Disagree Men or Women Agree More? CHILD WELL-BEING The most important reason to require child support payments is to ensure the well-being of children. 92.6 (1) 1.4No Diff GROSS DISPARITY The father should be required to pay only the child support amount needed to make the child completely comfortable, even if the father has a high income and lives much better than the child.‡ 21.637.9Men (.70) If the father has a lot more money than the mother has, he should pay enough child support to make sure the child doesn't live too much worse than he lives. 57.2 (5) 7.2Women (.65)

10. 10 Item% Who Clearly Agree % Who Clearly Disagree Men or Women Agree More? EARNER’S PRIORITY PRINCIPLE The father should be required to pay child support even if he is in poverty.‡ 30.732.1Women (.84) The father should not have to pay so much child support that his children live better than he lives. 39.618.1No Diff While child support is very important, the father should be able to keep enough of his earnings to be able to feed himself and pay for a decent place to live. 76.8 (2) 3.5No Diff Likert Items 4 through 6

11. 11 Likert Items 7 through 9 Item% Who Clearly Agree % Who Clearly Disagree Men or Women Agree More? DUAL-OBLIGATION Even if the mother has enough money to provide the child with everything that might be important to the child's well-being, the father should still have to pay some child support. 69.2 (3) 7.1Women (.77) The mother should receive child support payments from the father even if she can meet the child's basic physical and educational needs without them. 58.7 (4) 7.7Women (.74) When the mother has enough money to support the child fully, the father should not have to pay child support at all.‡ 8.172.4Men (.90)

12. 12 Item% Who Clearly Agree % Who Clearly Disagree Men or Women Agree More? NO COMPELLED SUPPORT Parents should support their children, but the law should never force one parent to pay child support to the other. 6.6 78.3Men (.57) DECENT MINIMUM ONLY We should only require enough child support to make sure a child's basic physical and educational needs are met. There should be no additional child support required beyond that. 15.049.7Men (.62) Child support should not be limited to the amount needed to make sure a child's basic physical and educational needs are met. If the father can afford it, he should be required to pay more.‡ 50.511.9Women (.83) Likert Items 10 through 12

13. 13 Item% Who Clearly Agree % Who Clearly Disagree Men or Women Agree More? POOI Even if the mother's income goes up a lot, the fathers required child support payments should stay the same. 27.234.1Women (.96) The more income the mother earns, the less the father should have to pay in child support.‡ 5.327.6Men (1.16) ENSURE NO FINANCIAL LOSS FROM DIVORCE The father should be required to pay enough child support to protect the child from suffering any financial loss from divorce. 56.38.4Women (.88) The father should be required to pay enough child support to protect the mother and child from suffering any financial loss from divorce. 41.314.8Women (.96) Likert Items 13 through 16

14. 14 Item% Who Clearly Agree % Who Clearly Disagree Men or Women Agree More? ENSURE MARITAL LIVING STANDARD The father should be required to pay enough child support to make sure that the child lives as well as he or she did during the marriage. 45.412.5Women (.93) ENSURE EQUAL LIVING STANDARD The father should be required to pay enough to make sure that the child lives as well as he does. 46.711.6Women (.90) The father should be required to pay enough to make sure that the child and mother live as well as he does. 31.122.6Women (.72) The purpose of child support is not to make sure the child lives as well as the father.‡ 36.127.4Men (.46) Likert Items 17-20

15. 15 EFA explains 52% 1 = GD+ Mean rating = 4.99 2 = Dual Obligation Mean rating = 4.82

16. 16 Factors 3 & 4 3: Capping Father’s Responsibility –Most disagree: mean rating 2.81 4: Earner’s Priority –Highest average agreement of all: 5.69

17. 17 Notes for Slide 16, EFA EFA explains 52% of the variance in respondent ratings of individual Likert items. Factor 1 “Gross Disparity Plus”  7 items with high positive loadings 3 No Loss, 2 Equal Living Standards, 2Gross Disparity Plus the negative of Decent Minimum Only  Average agreement with Factor 1 items: 4.99 Agreement could reflect economic naiveté or Policy aspirations which they know must be weighed against other principles in which they also believe, such as the EPP.

18. 18 Notes for Slide 16, EFA, continued Factor 2: Dual Obligation  6 items with comparable loadings near.6 The 3 Dual Obligation items (the negative item has equivalent negative loading) 3 other items that emphasize father’s obligation.  the negative of the EPP, which loads positively on this factor  the two POOI items,  Average agreement with Factor 2 is 4.82.

19. 19 Gender Effects in Factors 1 & 2

20. 20 Gender Effects in Factor 3

21. 21 Gender Effects in Factor 4

22. 22 Child Support Amounts Each respondent is asked to make 9 judgments (3 x 3 income matrix) We construct a regression model predicting subject i’s preferred support amount in case j:  Constant + coefficient * Mom’s income + coefficient * Dad’s income + coefficient *Mom’s income * Dad’s income + error term

23. 23 Average regression lines show –Respondents believe mom’s income matters –Lower CP income yields steeper slope Low income mom High Income mom

24. 24 “Coherent Arbitrariness” Considerable dispersion in the Y-intercept  95% confidence interval is 249 to 366 Little dispersion in the slopes  CP income = -82 per 1000 95% confidence interval is -89 to -75  NCP income = 185 per 1000 95% confidence interval of 177 to 193 Ariely called this pattern “coherent arbitrariness”  Initial choice is arbitrary  Relative values are coherent.

25. 25 Connecting Principles with Cases Can we predict preferred support amounts from Likert ratings of support principles? Factor 1 (GD +) as example Compare the average child support regression line of two groups  Agree more with Gross Disparity + (High Rating)  Agree Less with Gross Disparity + (Low Rating) Method: Hierarchical Linear Modeling (HLM)

26. 26 Details of the Groups Agree with Gross Disparity Plus  Mean item rating: 6.32  1 SD above group mean Disagree with Gross Disparity Plus:  Mean item rating: 3.59  1 SD below group mean Group Mean = 4.99, SD = 1.33

27. 27 Father’s Income Mother’s Income: ▲= 5000 ■ = 3000 ● = 1000 Gross Disparity +: Low High Gross Disparity+ as Predictor of Child Support Amounts

28. 28 What Prior Slide Tells Us Within each Factor 1 group, basic pattern repeats  CS amounts go down as CP income rises, and go up as NCP income rises If you rate GD+ high, then  You prefer more CS at any point  You increase support amounts more rapidly with increasing NCP income. These differences in CS amounts follow logically from the GD+ ratings

29. 29 Some of Our Answers: Within individuals  Beliefs, as measured by attitudes toward 20 principles, reflect a consistent pattern  Preferred support amounts in particular cases reflect these beliefs about principles Between individuals  Men and women really are different and it’s legal nurture as well as nature  Individual support schedules differ in their starting point but not much in their slope  People care more about child well-being than does existing law

30. 30 Our Subjects v. Iowa, Slide 25 Notes  Variability among states challenges this comparison  We look only at Income shares states, not POOI Guideline amount without adjustment for medical costs or child care States that use net incomes rather than gross  Literature identifies 12 Net Incomes Shares states  And identifies Iowa as requiring the median support amount for the one example considered: Father income of 2631, mother income of 1762  We thus compare the amounts our respondents gave for the nine scenarios to Iowa support amounts for the same net income

31. 31 Our Subjects v. Iowa For Low Income CPs, our subjects prefer higher support amounts For High Income CPs, our subjects prefer lower support amounts This patterns is consistent with placing higher value on Child Well-Being than does Iowa (as compared to other factors) Consistent with subjects’ Likerts, which were so uniformly high that Well- Being scores provide little power to predict support amounts