Law and Social Science
Students who read this chapter should be able to
- compare and contrast the approaches of law and social science
- identify reasons for lawyers to be familiar with social science research methods
Many political science majors entertain the goal of attending law school. They don't plan to be social scientists, so why do they need to study social science research methods? There are two big reasons why pre-law students should embrace their methods course-work: (1) the analytical tools and rigor taught in research methods courses may help students better prepare for the LSAT and analysis of caselaw in both law school and legal practice; and (2) the practice of law increasingly involves analysis of social science research, and the ability to evaluate and interpret scientific research is, as a result, an increasingly valuable skill.
Law as Applied Social Science
There are a number of important differences between the approach of law and the approach of social science. While social science is concerned primarily with nomothetic knowledge (generalizable information), legal process primarily--though not exclusively--pursues idiographic knowledge (specific information, such as whether Joe murdered his wife). Normative concerns inform the practice and application of law more than the pursuit of social science. Finally, the practice of law (at least in the United States) is primarily an adversarial process, while the enterprise of social science research is predominately cooperative.
Nevertheless, the study and practice of the law draw on the same set of analytical skills we employ when we engage in social science research. Law schools recognize the importance of analytical reasoning to success in law school and in the practice of law. Consider, for example, the LSAT (Law School Admission Test). Two of the three multiple-choice sections of the LSAT (analytical reasoning and logical reasoning) test the sort of critical thinking that research methods encourages. According to the Law School Admission Council website, the analytical reasoning questions are
designed to measure your ability to understand a structure of relationships and to draw logical conclusions about that structure. You are asked to make deductions from a set of statements, rules, or conditions that describe relationships among entities such as persons, places, things, or events. They simulate the kinds of detailed analyses of relationships that a law student must perform in solving legal problems.<ref>Law School Admission Council (2009). "LSAC". http://www.lsac.org/LSAT/about-the-lsat.asp. Retrieved January 15, 2009. </ref>
Similarly, the logical reasoning questions “are designed to evaluate your ability to understand, analyze, criticize, and complete a variety of arguments.”<ref>Law School Admission Council (2009). "LSAC". http://www.lsac.org/LSAT/about-the-lsat.asp. Retrieved January 15, 2009. </ref>
Indeed, some would argue that the practice of law is an applied social science. As with social science research, the focus of many legal inquiries is on causation, how to define it and how to prove it. Did the asbestos in his workplace cause Larry’s lung cancer (or did his 2-pack-per-day habit)? Did Mega-Lo-Mart’s trademark infringement cause Buy-n-Save’s loss of profits? If both Joe and Mary were negligent, how do we apportion the blame for the accident?
More significantly, the process of engaging in legal reasoning mirrors the process of scientific inquiry. According to Gravetter and Forzano<ref>Gravetter, Frederkick J.; Forzano, Lori-Ann (2009). Research Methods for the Behavioral Sciences (3rd ed.). Wadsworth. pp. 16-22. </ref>, there are five steps to the scientific method: (1) observation; (2) use of induction to generalize from observations and generate a hypothesis; (3) using deduction to generate testable predictions from the hypothesis; (4) testing those predictions through observation; and (5) refine the hypothesis in light of these new observations. As the table below illustrates, these steps correspond with the process of studying the law in a system that relies upon precedent and norms of stare decisis.
|Scientific Method||Legal Analysis|
|Observation||Read Case Law (Precedent)|
|Inductive Reasoning: Generate Hypothesis||Inductive Reasoning: Generate "Black Letter Law" from Precedent|
|Deductive Reasoning: Generate Testable Predictions||Deductive Reasoning: Evaluate New Fact Pattern and Anticipate How Courts Will Respond|
|Test Prediction Through Observation||Submit Argument to Court|
|Refine Hypothesis||Update Understanding of Black Letter Law in Light of Outcome of New Case|
Lawyers “observe” their world by reading case law--past decisions of the courts which constitute precedent. From individual case-observations, they use inductive reasoning to make generalized assertions about what the law is; for example, a lawyer might read the opinions in half a dozen recent Supreme Court decisions dealing with searches of cars in an effort to formulate general rules about when and how cars may be searched consistent with the Fourth Amendment. Next, lawyers use their understanding of existing law to deduce predictions about how the courts will respond to a novel fact pattern; in law school, a student will respond to a professor’s hypothetical, while in the actual practice of law, a lawyer will make predictions about whether a specific client will succeed or fail. Lawyers then make their arguments to the court and observe the outcome (do their clients win or lose?), and use those outcomes to update their understanding of the state of the law. Judges engage in the same sort of recursive analysis, though they may be making predictions specifically about how higher courts, other government actors, or even the public will respond to their decisions; or they may be making predictions about the consequences of their decisions when they are implemented by the lower courts.
It is not surprising, then, that law schools actively seek out students who possess the skills we teach in undergraduate research methods. Methods training prepares students for the LSAT and thus increases both their odds of being admitted to law school and the quality of the law schools to which they are admitted. More importantly, research methods curricula that focus on the analytical approach to problems, inductive and deductive reasoning, and causation actually prepare students for the practice of law itself.
Lawyers as Consumers of Social Science
In today’s world, legal professionals need more than just a rudimentary understanding of theory building and causation. Rather, legal professionals need a more detailed understanding of the scientific method, and a general understanding of basic statistical methodology is an asset. More and more, judges and lawyers must evaluate social and physical scientific methodologies and results in order to do their jobs.
With the rise of the legal realism movement throughout the 20th century, social scientific evidence became increasingly accepted as a basis for constitutional decision- making. Most famously, in Brown v. Board of Education (1954), the Supreme Court relied on empirical social scientific studies (including experiments) for proof that segregated schools cause psychological and educational harm to African-American children.
Today, law and science are deeply intertwined.
Scientific issues permeate the law. Criminal courts consider the scientific validity of, say, DNA sampling or voice prints, or expert predictions of defendants’ “future dangerousness” that can lead courts or juries to authorize or to withhold the punishment of death. Courts review the reasonableness of administrative agency conclusions about the safety of a drug, the risks attending nuclear wast disposal, the leakage potential of a toxic waste dump, or the risks to wildlife associated with the building of a dam. Patent law cases can turn almost entirely upon an understanding of the underlying technical or scientific subject matter. And, of course, tort law, assessing civil liability for injury or death, often involves difficult determinerations about the degree of risk of death or injury associated with a chemical ingredient of, say, a pesticide or of any other product.<ref>Breyer, Stephen (1998). "The interdependence of science and law". Judicature 82 (1): 24-27. </ref>
Lawyers hoping to prove discrimination in compensation use regression analyses of company salaries as evidence. Defense attorneys seeking a change of venue for their clients use surveys of the potential jury pool. Attorneys trying to impeach the reliability of eyewitness testimony may employ expert witnesses who will testify about countless experiments that demonstrate the frailty of human perception and recall.
In short, physical and social scientific evidence are everywhere in the law, from criminal law to intellectual property law to family law, and at every stage of the legal process, from pretrial motion hearings to amicus briefs filed with the Supreme Court.
While lawyers will hire experts to conduct the actual scientific studies and will confer with those experts about the reliability of the opposing experts, lawyers have to be conversant enough in the scientific methods being used to craft legal arguments that marry the science with the law. Moreover, experts do not simply testify in narrative form; attorneys have to elicit their testimony through proper questioning and the experts are subject to cross-examination. The attorneys have to be comfortable enough with the methodolgy to ask their experts the right questions on direct, cross-examine opposing experts, respond to the answers they receive, and rehabilitate their experts after cross- examination. The “hired gun” experts may point the lawyers in the right direction, but when the rubber hits the road in the courtroom, it is up to the attorneys to handle the evidence independently.
Both lawyers and judges have a heightened obligation to understand the methodologies employed by expert witnesses in the wake of the Supreme Court’s Daubert ruling. Throughout the bulk of the 20th century, the touchstone for the admissibility of scientific evidence was the Frye standard: whether the methodology and principles underlying the scientific evidence were generally accepted in the scientific community. Under Frye, the scientific community determined what was and was not reliable scientific theory, and the courts simply followed their lead. But in 1993, the Supreme Court announced its opinion in Daubert v. Merrell Dow Pharmaceuticals, and everything changed.
Under Daubert, judges are the evidentiary gatekeepers; judges must determine whether scientific evidence is relevant and reliable, and that analysis includes a determination that the underlying principles and methodologies are scientifically reliable. While general acceptance in the scientific community may be one element of that analysis, it is neither a necessary nor a sufficient condition for reliability. In other words, judges--trial judges--must now independently evaluate the quality of the methods behind scientific evidence. Moreover, the Daubert standard requires judges to be more specific in their evaluation. For example, when an expert in an employment discrimination case presents a regression analysis of compensation, it is not enough for the judge to determine that regression analysis is a reliable methodology; the judge must look at its application in the particular case to determine whether adequate control variables were used and whether the measurement of compensation and qualifications was appropriate. (see, e.g., Hemmings v. Tidyman’s, Inc., 285 F.3d 1174 (9th Cir. 2002))
“Judges are not trained scientists. The inevitably lack the scientific training that might facilitate the evaluation of scientific claims or the evaluation of expert witnesses who make such claims.”<ref>Breyer, Stephen (1998). "The interdependence of science and law". Judicature 82 (1): 25-26. </ref> Recognizing the potential for manipulation of scientific evidence and the general inability of judges to evaluate scientific methodologies, an alarm has been sounded by judges and scholars alike.<ref>Breyer, Stephen (1998). "The interdependence of science and law". Judicature 82 (1). </ref> <ref>Rustad, Michael; Koenig, Thomas (1993). "The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs". North Carolina Law Reivew 72 (1): 91-162. </ref> Suggestions for helping judges better evaluate scientific evidence range from appointment of scientific advisory councils to hiring specialized law clerks. However, all of these proposals are costly and none have been implemented on a wide scale.
Moreover, the focus on providing technical assistance to judges overlooks the problem of attorneys who lack the technical skill to present the evidence to the judges in the first place. While firms practicing patent law generally seek out lawyers with scientific backgrounds precisely because of the technical nature of so much patent-law evidence, there is no such expectation that an employment discrimination lawyer will have a background in statistics, despite the increasing importance of statistics in the practice of employment law. Ultimately, at least part of the solution must be increased education of judges and lawyers on scientific method, research methodology, and basic statistical methods.
Indeed, in the wake of the Daubert decision, the Federal Judicial Center produced a reference manual on scientific methods for judges; the manual, now in its second edition, is available as a free, downloadable document from the FJC’s website.<ref>Federal Judicial Center (2000). "Reference Manual on Scientific Evidence, Second Edition". http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/610. Retrieved July 8, 2011. </ref> Similarly, a number of law schools offer courses that focus, or at least touch, on statistical methods: Harvard (Analytical Methods for Lawyers), Yale (Empirical Law and Economics), Stanford (Quantitative Methods: Finance; Scientific Evidence and Expert Testimony; Statistical Inference in Law), and Northwestern (Social Science in Law), represent just a few such courses. Undergraduate education, however, can play a part in preparing future lawyers and judges for the challenges that await them by introducing them to scientific methods of inquiry.
If you are planning to go to law school, it may be difficult to grasp (right now) how your social science research methods course is relevant to your career goals, but it is. Mastering the notion of random sampling will help you better understand the pitfalls of various methods of jury pool selection. Probability theory will help you distinguish between fair and biased line-ups (for purposes of eyewitness identification). More complex multivariate statistical analyses will crop up in your practice of employment law, products liability law, and even criminal law ... including important challenges to the application of the death penalty. Don't zone out during your research methods class. Embrace this opportunity to get a head start learning valuable tools for the practice of law and honing your analytical thinking skills.
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