66 Pages Posted: 28 Mar 2007
Date Written: March 26, 2007
The American legal system has traditionally established facts through adversarial proceedings, tempered by judicial evidentiary screening. Legal observers, however, have grown increasingly discontented with this approach when dealing with scientific facts. Focusing on public law, we argue here that judges confronting empirical questions should look beyond the claims of dueling, adversarial experts to derive the answers. Scientists themselves do not use such adversarial proceedings, but rather evidence based logic (EBL), an objective method of reviewing existing empirical evidence to determine what science knows and does not know. We propose that judges should incorporate EBL into their gatekeeping functions. EBL leads to scientifically sounder judicial resolutions, discourages the misuse of scientific data, and draws more clearly the line between policy disputes that can and cannot be helped by scientific inquiry. Furthermore, judicial use of EBL respects adversarialism while providing neutral, objective assessments of scientific validity.
Suggested Citation: Suggested Citation
Pfaff, John F. and Guzelian, Christopher P., Evidence Based Policy (March 26, 2007). Fordham Law Legal Studies Research Paper No. 976376. Available at SSRN: https://ssrn.com/abstract=976376 or http://dx.doi.org/10.2139/ssrn.976376