How Judges Work: Thinking about Social Science and Law

Abstract

udge Patricia Wald identifies several impediments to judges' making greater use of social science: they lack time to find, read, and make sense of the research; the research is inaccessible to nonspecialists and fails to identify clearly the policy implications; too much exists, and only occasionally does one work stand out; and most research findings are qualified and ambiguous rather than certain. Just as the flukish order in which cases appear and the idiosyncrasies of their fact patterns shape precedent, the timing of research determines whether judges notice it. Judges are more likely to incorporate social science research into their opinions if it fulfills a pressing need and addresses an important shift in thinking. Judge Wald does not debate whether judges do or should make public policy, since she sees making policy choices as inescapable in appellate decision making. Judge Wald further explains that judges are skittish because (1) they fear that higher courts will overturn them for going beyond the law and (2) procedural fairness necessitates that all parties be able to dispute the facts on which judges base their policy choices. A retreat to the myth of legal positivism would defy trends elsewhere. Despite the rhetoric of judicial restraint and states' rights dominant in the United States, from South Africa to Hungary and from the European Court of Justice to the newly established International Criminal Court, polities are granting more, not less, power to judges worldwide to decide contested matters of public policy. I was surprised that Judge Wald gave so little weight to the value of amicus curiae briefs for synthesizing, digesting, and presenting social science data for judges. As one who studies other jurisdictions, particularly the United Kingdom and the European Union, I have argued that English courts' unwillingness to mirror