The Role of Social Science in Legal Decisions

Abstract

In this study, we explore the problems and the potential involved in combining social science and legal decision making, drawing primarily on examples from the United States. We also briefly discuss the situation in Israel, which provides an interesting comparison. We suggest that a complex act of translation is needed in order for law to incorporate social science findings, particularly in light of the many differences between law and social science in terms of goals, methods, social roles, and epistemologies. On the one hand, social science has much to offer legal decision makers, both in terms of the information it provides about how society and law operate, and in terms of critical vantages on the law itself. On the other hand, there may be important limits to judges' comprehension of the social science arena, so that caution is necessary in attempting to bring the two fields together.

In scrutinizing the institutional dimensions of translation difficulties between social science and law, we can identify a number of core tensions associated with the fields' quite distinct approaches to the reconstruction of facticity. These tensions are not only abstract questions of epistemology; they speak to the core of law's claims to rationality, and thus are particularly significant for any theory of democracy. The first tension, most crucial to democracy discourse, can be termed political or institutional. Simply put, the tension is between the democratic reluctance to delegate adjudicative facticity to expert discourse, on the one hand - and on the other hand, society's interest in adjudication that is based on the “best available” knowledge rather than fragmentary “lay notions” (whose political or ideological character hides behind conceptions of “common sense” or “experience”). The second tension may be termed metascientific and involves the validity conditions of social scientific findings qua science: in other words, it is the concern that courts rely upon and apply valid rather than “junk” science. Here we must deal with the internal dynamics that yield legitimacy within the institution of social science itself. The third tension is both scientific and institutional, resulting from the intersection of social science and law, and emanates from the controversies between different legitimate scientific approaches and findings as they play out in court. As we will see below, the line between the second (metascientific) and third (scientific - institutional) tensions can at times be difficult to discern, when advocates of one competing scientific paradigm attempt to convince the court that their competitor is in fact “junk” rather than legitimate science. Finally, a fourth tension - not dealt with directly here - concerns situations where social science functions ideologically in the background of the case, and where portions of social science have infiltrated and permeated legal discourse. Economics is a case in point, as can be seen in the example of the relatively successful “Chicago School” in several areas.

Our discussion begins with an overview of the distinct methods, goals, social roles, and epistemological positions of social science and law, outlining the scholarship discussing this divergence. This necessarily schematic presentation provides a general template for identifying some of the potential difficulties that legal decision makers might encounter in achieving a fruitful marriage of law and social science. We briefly compare the overt tensions that exist in the United States with contrasting situation of law and social science in Israel today. The next section examines the ways in which social science has actually been used in US and Israeli courts to date. What role have social scientists played in mediating data and reconstructing facticity? How has the legal system translated the complex world of social science knowledge? After a brief survey of the wider terrain, in the third section we will focus in on a few “paradigmatic” examples for more in-depth discussion. The final section considers the critical promise of social science, suggesting that a “new legal realism” can emerge from more careful attention to the process of translation between social science and law.

Keywords: adjudication, law and social change, law and knowledge, law and science, law and social science, Daubert, evidence, philosophy of social sciences