Intuitive Lawmaking: The Example of Child Support

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Intuitive Lawmaking The Example of Child Support
Conference on Empirical Legal Studies New York
University November 2007

• Ira Mark Ellman
• Sanford Braver
• Robert J. MacCoun

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How Do People Think About Rules?

• Child Support awards as case study

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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?

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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?

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Method Survey Instruments

• Who We Ask
• Members of jury pool in Tucson
• Good community sample
• 70 response rate to long forms
• Todays data from first 2 sessions
• About 400 respondents
• Continuing study
• Nine weeks of further variations
• Gender among them

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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

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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.
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Variations you wont 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

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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) 1.4 No 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. 21.6 37.9 Men (.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) 7.2 Women (.65)
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Likert Items 4 through 6
Item Who Clearly Agree Who Clearly Disagree Men or Women Agree More?
EARNERS PRIORITY PRINCIPLE
The father should be required to pay child support even if he is in poverty. 30.7 32.1 Women (.84)
The father should not have to pay so much child support that his children live better than he lives. 39.6 18.1 No 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) 3.5 No Diff
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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) 7.1 Women (.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) 7.7 Women (.74)
When the mother has enough money to support the child fully, the father should not have to pay child support at all. 8.1 72.4 Men (.90)
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Likert Items 10 through 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 78.3 Men (.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. 15.0 49.7 Men (.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. 50.5 11.9 Women (.83)
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Likert Items 13 through 16
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. 27.2 34.1 Women (.96)
The more income the mother earns, the less the father should have to pay in child support. 5.3 27.6 Men (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. 56.3 8.4 Women (.88)
The father should be required to pay enough child support to protect the mother and child from suffering any financial loss from divorce. 41.3 14.8 Women (.96)
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Likert Items 17-20
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. 45.4 12.5 Women (.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. 46.7 11.6 Women (.90)
The father should be required to pay enough to make sure that the child and mother live as well as he does. 31.1 22.6 Women (.72)
The purpose of child support is not to make sure the child lives as well as the father. 36.1 27.4 Men (.46)
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• EFA explains 52
• 1 GD
• Mean rating 4.99
• 2 Dual Obligation
• Mean rating 4.82

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Factors 3 4

• 3 Capping Fathers Responsibility
• Most disagree mean rating 2.81
• 4 Earners Priority
• Highest average agreement of all 5.69

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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.

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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 fathers obligation.
• the negative of the EPP, which loads positively
  on this factor
• the two POOI items,
• Average agreement with Factor 2 is 4.82.

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Gender Effects in Factors 1 2
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Gender Effects in Factor 3
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Gender Effects in Factor 4
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Child Support Amounts

• Each respondent is asked to make 9 judgments (3 x
  3 income matrix)
• We construct a regression model predicting
  subject is preferred support amount in case j
• Constant coefficient Moms income
  coefficient Dads income coefficient Moms
  income Dads income error term

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• Average regression lines show
• Respondents believe moms income matters
• Lower CP income yields steeper slope

Low income mom
High Income mom
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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.

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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)

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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

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Gross Disparity as Predictor of Child Support
Amounts
Mothers Income ? 5000 3000 ?
1000 Gross Disparity Low High
Fathers Income
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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

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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 its 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

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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

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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