Legal Process And Social Science Research Paper

1. Legal Realism

Since the rise of American legal realism, early in the twentieth century, courts have, to varying extents, been open to using social science research when that research could help resolve an empirical issue that arose in litigation. Social science research was first urged upon a court in 1908 by Louis Brandeis in Muller s. Oregon (208 US 412), a landmark case dealing with the constitutionality of social welfare legislation limiting to 10 hours the work day of any woman or girl employed in a factory or laundry. Brandeis assembled a substantial body of social science research tending to show the debilitating effect on women and girls of working long hours, and presented this material to the United States Supreme Court in a brief defending Oregon’s statute. In the opinion in Muller upholding the legislation, after referring to the social science materials in a footnote, the Court stated that although they ‘may not be, technically speaking, authorities,’ the studies would nonetheless receive ‘judicial cognizance.’

2. Three Uses Of Social Science In Law

Although the use of what came to be known as ‘Brandeis briefs’ became common in the years after Muller, legal commentators were hard pressed to explain an apparent anomaly: How was it that Brandeis could present research to an appellate court in a written brief, when ‘facts’ were supposed to be introduced at the trial level by the oral testimony of witnesses? This conundrum persisted until Kenneth Culp Davis, in a seminal article published in 1942, distinguished two types of ‘fact.’ The first type, legislative fact, referred to facts that were used by courts to help decide broad questions of law or policy, as Brandeis had used research to help decide the constitutionality of social welfare legislation. The second type, adjudicative fact, referred to facts that were used to decide questions of interest only to the specific parties to a lawsuit, such as whether a particular traffic light was red or green. Davis’ distinction soon became widely accepted and now forms the traditional scheme used by courts and commentators to describe the judicial uses of social science. There are indications that a third use of social science in law has developed, however, and that Davis’ distinction between different types of ‘fact’ may have outlived its usefulness.

2.1 Social Science Used To Make Law

Legislative facts are facts that courts use when they make law (or ‘legislate’), rather than simply apply settled doctrine to resolve a dispute between particular parties to a case. While the determination of adjudicative facts affects only the litigants before the court, the determination of legislative facts influences the content of legal doctrine itself, and therefore affects many parties in addition to those who brought the case. It was Davis’ position in 1942 that ‘[t]he rules of evidence for finding facts which form the basis for creation of law and determination of policy should differ from the rules for finding facts which concern only the parties to a particular case.’ In this manner, Davis justified the Supreme Court’s practice in Muller of disregarding the rules of evidence by accepting ‘facts’ on appeal and in a brief. The rules of evidence did not apply to Brandeis’ social science materials: they were ‘legislative’ facts.

Judicial acceptance of social science research as a form of legislative fact became commonplace throughout American law after Brown vs. Board of Education (347 US 483 (1954)). In that case, the United States Supreme Court cited the published research of numerous social scientists to support its empirical assertion that the segregation of public schools instills in an African American child ‘a sense of inferiority [that] affects the motivation of a child to learn.’ In the five decades since Brown, research has frequently been invoked by courts to demonstrate the validity of empirical assumptions made in the process of modifying existing law or creating new law. In United States vs. Leon (468 US 897 (1984)), for example, the United States Supreme Court considered the question of whether the rule excluding evidenced produced by an illegal search should be modified to admit evidence that the police seized while they were relying in good faith on a search warrant that later proved to be defective. The Court held that whether the rule should be modified to allow such evidence ‘must be resolved by weighing the costs and benefits’ of creating an exception to the rule when the police act in good faith. In the process of weighing these costs and benefits, the Court reviewed six social science studies concerning the effects of the exclusionary rule on the disposition of felony arrests and concluded that the benefits of creating an exception, in terms of increasing the number of guilty criminals brought to justice, outweighed any costs involved.

Criticism of the concept of legislative fact has been intense. It has been claimed to be largely a negative concept: the usual rules of evidence should not apply to facts introduced for the purpose of making new law. The concept provides little positive guidance for courts as to how they should deal with this type of social science information. Improvements in the manner that courts use social science information to create rules of law may be possible only by abandoning the notion of ‘legislative fact’ and developing a new concept that alters the way in which courts view social science materials. ‘Social authority’ has been proposed by Monahan and Walker (1986) as one alternative to legislative fact as an organizing principle for courts’ use of social science to create or modify a rule of law. Under this rubric, courts would treat social science research relevant to creating or modifying a rule of law as a source of ‘authority’ rather than a source of ‘facts.’ More specifically, courts would treat social science research much as they treat legal precedent under the common law.

2.2 Social Science Used To Determine Facts

Adjudicative facts—also called ‘social facts’—are facts that apply only to the particular parties before the court. They are used to determine (or ‘adjudicate’) what happened in a specific case, and not for some larger purpose, such as to argue that the law should be changed.

One of the most frequent uses of social science research as adjudicative fact involves trademarks. The Lanham Trademark Act (15 USCA Sec. 1127) states that a new trademark will not be registered if it so resembles a trademark already registered to another person ‘as to be likely … to cause confusion.’ A person who sells a product that is likely to cause confusion with an already trademarked product is liable for trademark infringement. Social science research in the form of surveys of consumers or potential consumers to ascertain the degree of confusion between products has been admitted in court for many decades. Initially, such evidence was often successfully challenged as contravening the prohibition against ‘hearsay’ evidence, since the respondents to the surveys were not present in court to testify. In Zippo Manufacturing Co. vs. Rogers Imports (216 F. Supp. 670 (1963)), however, the hearsay objection was definitely laid to rest: ‘The weight of case authority, the consensus of legal writers, and reasoned policy considerations all indicate that the hearsay rule should not bar the admission of properly conducted public surveys.’

A wide variety of social science methodologies are now routinely used by both plaintiffs and defendants in trademark cases to determine the presence of consumer confusion. In Processed Plastic vs. Warner Communications (675 F.2d 852 (7th Cir. 1982)), for example, Warner licenced several toy companies to produce replicas of a unique automobile that figured prominently in a television series that it owned. The Processed Plastic Company, which had no agreement with Warner, began to sell a toy car that Warner claimed looked like the car in its television series. To demonstrate this fact, Warner introduced in court a social science survey of random groups of children questioned at shopping malls that found that 82 percent of the children shown a Processed Plastic car identified it as the car that appeared in Warner’s television series. The court decided that these data showed that Processed Plastic has likely infringed Warner’s trademark rights by creating consumer confusion.

The key to understanding how courts deal with social science research used to determine an adjudicative fact is that, unlike ‘legislative’ facts, adjudicative facts are susceptible to proof by the usual rules of evidence. Evaluating the research for the purpose of admissibility is limited to determining whether it is material, whether it has any probative value, and whether its admission violates any other evidentiary rule. The ultimate weight to be placed on the social science evidence is a matter for the fact-finder.

2.3 Social Science Used To Provide Context

Most of the judicial uses of social sciences fall into one of the two categories originally described by Davis. In recent decades, however, courts have begun to confront uses of social science research that do not conform to the established classification. There are increasing indications that a new, third use of social science in law is emerging. Examples can be found in cases concerning eyewitness identification and sexual victimization.

In State vs. Chapple (660 P.2d 1208 (1983)), the only evidence that the defendant had committed murder was the word of two eyewitnesses. At trial, the expert testimony of a research psychologist was offered by the defendant to counter the testimony of the eyewitnesses. In a proffer of the evidence, the psychologist described published studies on factors such as the speed with which memory decays over time, the effects of stress on eyewitness accuracy, and the relationship between the confidence of a witness and the accuracy of identification. The trial court held the research on the accuracy of eyewitness identification was not a ‘proper subject’ for expert testimony and excluded the expert. However, the Arizona Supreme Court reversed and remanded the case for a new trial, stating that ‘there were a number of substantive issues of ultimate fact on which the expert’s testimony would have been of significant assistance.’

Similarly, the defendant in State vs. Myers (359 N.W.2d 604 (Minn, 1984)) was found guilty of criminal sexual conduct involving a child. The trial court had allowed the prosecution to introduce a social scientist as an expert witness to describe the behavioral traits ‘typically’ observed in abused children, traits that were also seen in the child complainant. The defense objected to this evidence at trial and appealed. The Minnesota Supreme Court upheld the conviction, however, stating that ‘background data providing a relevant insight into the puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bring to its evaluation is helpful and appropriate.’

In neither of these cases was social science research being used to provide legislative facts. No creation or modification of a rule of law was sought. Rather, in both cases the parties offering the research accepted the applicable legal rules and sought to show that the research would help the jury to decide the specific factual issues being litigated. Yet in neither of these cases was social science research being used to provide adjudicative facts either. The parties to the cases were not involved in the research at all: the experts relied on research studies published before the events that gave rise to the litigation took place.

The way social science was used in Chapple and Myers, however, reflects the defining characteristics of both legislative fact and adjudicative fact. In each case, the research demonstrated the critical component of legislative fact—generality. Just as the research used in Leon focused on the ‘collective’ costs and benefits of changing the exclusionary rule, the research used in Chapple focused on ‘general factors’ affecting all eyewitnesses. Similarly, the research in Myers concerned ‘general characteristics’ that were ‘typically observed’ in groups of abused children. In each case, the research used also possessed the critical component of adjudicative fact—specificity. Just as the research used in Processed Plastic spoke only to whether consumers were confused between two given products, the studies in Chapple were used only to challenge the testimony of eyewitnesses to a particular crime, and the research in Myers was used only to show that the named victim was, in fact, abused.

The research used in these cases and many like them is thus neither wholly legislative nor wholly adjudicative fact but has the essential elements of both of the conventional categories. Walker and Monahan (1987) have proposed a third category, termed social framework, to denote the use of general conclusions from social science research to determine factual issues in a specific case.

3. Future Directions

At the end of beginning of the twenty-first century, social science in the legal process is being transformed in two ways. First, the law of scientific evidence is very rapidly developing. In 1993, the United States Supreme Court, in Daubert vs. Merrell Dow Pharmaceuticals (509 US 579), for the first time decided the legal standard for the admissibility of scientific evidence.

The Rules of Evidence … assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

The Court offered ‘some general observations’ on how judges should evaluate the validity of scientific research. Among other things, judges should consider whether a scientific theory or technique has been ‘tested,’ whether it has been ‘subjected to peer review and publication,’ whether it has a ‘known or potential rate of error,’ and whether it is ‘generally accepted’ in the scientific community. In a subsequent case, Kumho Tire Company vs. Carmichael (119 S. Ct. 1167 (1999)), the Court held that these concerns apply not just to ‘scientific’ expert testimony, but to all forms of expert testimony.

The second development in this area is the rapid rise in the availability of material to train lawyers and judges in the uses of scientific evidence, including social science evidence. Shortly after Daubert, the Federal Judicial Center (1994) published a Reference Manual that provided guidance for the admissibility of statistical evidence and the findings from social surveys. Subsequently, a three-volume work, Modern Scientific Evidence (Faigman et al. 1997), offered detailed analyses, from both legal and social scientific perspectives, of all of the issues discussed above. As the authors of this latter work note, ‘Daubert, perhaps represents nothing more, or less, than that henceforth the legal culture must assimilate the scientific culture.’

Bibliography:

1. Davis K C 1942 An approach to problems of evidence in the administrative process, Harvard Law Review 55: 364–425
2. Faigman D L, Kaye D H, Saks M J, Sanders J 1997 Modern Scientific Evidence. West group, St. Paul, MN
3. Federal Judicial Center 1994 Reference Manual on Scientific Evidence. West Group, St. Paul, MN
4. Monahan J, Walker L 1986 Social authority: Obtaining evaluating and establishing social science in law. University of Pennsylvania Law Review 134: 477–517
5. Walker L, Monahan J 1987 Social frameworks: A new use of social science in law. Virginia Law Review 73: 559–598