Empirical Analysis of Law

From its earliest appearance in American courts in 1655, when one Dr. Brown offered his "scientific" opinion that a group of crime victims had been bewitched by the accused, scientific evidence of all types has been used as a tool in legal analysis. The role of behavioral science in law has evolved over the centuries, and its role has both reflected and informed the evolution of jurisprudential theory. Contemporary issues in constitutional law, public policy and regulation, and the adjudication of a wide range of civil and criminal questions, have relied extensively on social science evidence. Empirical methods also are widely used in formulating litigation strategy. Despite its now common use in several domains of legal analysis, scientific evidence poses fundamental issues for the law. What is its role in adjudicating factual claims? When and how can behavioral science be applied to adjudicate constitutional questions? When is this evidence reliable and under what standards? When are these facts relevant and how shall they be weighed by fact finders? Does legal analysis using the tools of empirical analysis lead to different conclusions than might a doctrinal analysis? This course will address these challenges.

Empirical analysis is a methodological alternative to doctrinal analysis in law, requiring skills that often are not central in legal education. We examine the role of behavioral science in law as a tool for legal analysis, litigation, and the development of legal theory. As a discipline within law, the course focuses on the interactions of substantive law, legal analysis, scientific evidence, and scientific methods.

The course develops in five sections. First, we briefly review origins and history of social science, and then analyze recent cases such as Daubert v Merrill that have had significant impacts on the federal rules of evidence and state law. In the next section, we review basic concepts of social science methods through examples students will recognize as common questions in law and policy. We then examine a series of critical questions about scientific evidence and inference. Critical elements in this training include social science perspectives on causal inference, and the elements of scientific inquiry that determine the reliability of scientific evidence. We analyze current developments in the regulation of social science research, and their impacts on both social science knowledge. We conclude this section with an analysis of the standards for scientific evidence in the courtroom.

In the third section, we consider how social science contributes to the determination of adjudicative facts. Social science is often used to resolve the factual bases of several types of cases, including trademark disputes and complex torts. Case examples include establishing whether trademark or copyright infringement has occurred, the extent and severity of damages in complex tort cases, determination of community standards in obscenity cases, and the factual basis in equal protection rights in discrimination cases. In this section, we also assess the relatively new and rapidly developing area of social science as context for decisions and case findings. For example, we consider how social science informs issues such as school desegregation instruments or the validity of syndrome evidence in criminal cases.

The fourth section of the course will examine the contributions and role of social science in establishing legislative facts that influence constitutional law. We will examine several landmark cases that have used social science to provide evidence on constitutional questions, such as Muller, Brown, McClesky, Leon, a series of discrimination cases, and Williams. Cases will address topics including gender and racial discrimination, juries, criminal procedure, civil commitment, and voting rights.

Finally, we review how social science can be used in planning and conducting litigation: choosing a venue, selecting jurors, assessing the potential contributions and weaknesses of experts, and creating jury instructions.