Vol. 10 No. 7 (July 2000) pp. 424-427.

THE USE OF SOCIAL SCIENCE DATA IN SUPREME COURT DECISIONS by Rosemary J. Erickson and Rita J. Simon. Urbana: The University of Illinois Press, 1998. 190 pp. Cloth $32.95. ISBN: 0-252-2355-2. Paper $15.95.

Reviewed by Candace McCoy, School of Criminal Justice, Rutgers University - Newark,

If you teach a course on Law and Society or Law and Politics to graduate students trained in statistics and social science methodology, inevitably their frustrated cries arise, "Why don't courts use the considerable insights of social science in resolving cases?" Your jaded reply, "Because they don't have to." This response is based both on the fact that legal methodology is a self-contained cosmology requiring no data other than that provided by stare decisis, and on the political reality that courts are structured so as to permit judges and juries to accept or reject the truthfulness of evidence as they wish and as the democratic process permits. Furthermore, the flexibility and shifting empirical truths of social science are more attuned to changeable policies reflected in legislation and public administration than to the moral standards that case law sets out to uphold. Finally, you say to your students, courts are powerful players in politics, and judges will fashion their own work and decisions in the way they want because, frankly, they have the power to do so and outsiders like social scientists can do little to force their way unbidden into the process.

Your next point is also probably somewhat jaded, "Anyway, do you really want the adversarial system with its game playing lawyers and tendentious judges to use your carefully objective studies as just more make-weight to help one litigant prevail over another?" When the U. S. Supreme Court uses social science, it usually just bolsters a position already decided through legal advocacy, with little regard for the quality of data and methods of the studies used (For class, the arguments are nicely set out in a casebook on social sciences and the law, Monahan and Walker [1994]). This gives the social scientist pause. As seekers of truth, scientists are not inclined toward the adversarial method. But of course courts seek truth, too -- though of a different kind, through different means.

Now come the petitioners Erickson and Simon to demonstrate the difference in truth seeking methods between the law and social science, and perhaps to urge the more frequent and careful use of social science by the courts. However, like the good social scientists they themselves are, the authors never take that second step in prescribing what courts SHOULD do, preferring instead to describe the "clash of cultures" between law and social science, to examine how social science finds its way into court, to understand the conditions under which it is used, and to determine how powerful it is in influencing case outcomes. In this they succeed nicely. However, they do not explore in any depth the questions of whether social science should be used more often in appellate decision-making, and, if so, how its quality will be evaluated. They apparently leave these issues for judges to

Page 425 begins here

decide without the benefit of the authors' expert opinions.

The book begins with an excellent but brief chapter contrasting the epistemology of law with that of social science. Erickson and Simon say that truth in law derives from the structure of legal institutions, while social scientists rely on empirical observation. What a jury finds to be true in a specific set of facts is by definition true, and furthermore it is final. Of course an appellate court can then look at a different aspect of the case - the law, rather than the facts - using the self-referential methodology of case law interpretation, which rests on a normative and prescriptive framework of principles predetermined to be true. Truth comes from the law itself. Social science, by contrast, begins its analysis not with facts of particular cases but with accurate observation of a whole group of cases (Social scientists see forests, you tell the students, while lawyers see trees). Using inductive logic -- from the general to the specific -- a social scientist eventually arrives at a version of truth expressed most clearly in terms of the probability of something occurring or having particular characteristics. However, the judge is a deductive logician, moving from the specific case to the general law, trying to fit the facts of a case into the case law of generations.

Erickson and Simon say that the tension and unease between lawyers and social scientists flow from this fundamental divergence in methods of truth seeking (That, you tell the students, plus the fact that lawyers tend to fear statistics and sociologists tend to dislike lawyers). The authors should have concluded this discussion with the classic PEOPLE v. COLLINS point about why social science probabilities can never be used to demonstrate truth in a trial: group characteristics might not in truth fit a particular case. Put another way, social science cannot with certainty state where any particular person or case with a given set of characteristics falls within a pattern of generally observable group characteristics. Example: A dread locked black person playing Bob Marley music while driving a car with out-of-state plates on an interstate highway is in fact more likely to be carrying marijuana for sale than an elderly white driver with a car whose license plate holder indicates it was purchased in a nearby town. Sociological probability is clear, but probable cause absent some observable "guilty" action is not. This particular black person might defy the probabilities and, in truth, be driving to her grandmother's funeral. The white retiree might have been hired to smuggle dope by a drug gang that knows the strategic value of manipulating appearances. To deny that these are the general probabilities, says sociological empirical observation, is to sacrifice the truth of knowable trends to the uneasy silence of political correctness. However, sociologists themselves are the first to say that no individual case can or should be judged on the general characteristics of the group. To do so is to fall into what they call "the ecological fallacy." In trials, as lawyers understand, probabilities don't matter but the particular facts do.

Nonetheless, appellate cases are another matter. Relying on case law as the measure of truth is more like the social scientists' use of observation and measurement of groups of people engaged in types of behavior. That is because the law is a norm derived from experience - Holmes was right on this. The experience of trying hundreds, thousands, millions of cases and matching them to a prescribed rule, which has itself developed from that experience, is

Page 426 begins here

akin to observing and categorizing all the cases so as to create a sociological typology. The difference is that the sociologist does not evaluate them as good or not depending on the pre-existing prescriptive legal norm. Furthermore, say Erickson and Simon, the sociologist expects any observed truth to change as more data and knowledge are gathered, while the lawyer is more unyielding in applying new cases to a supposedly unchanging law. However, any appellate judge knows that old law must be applied to new social conditions. It is not overtly activist decision making to look to the insights of empirical studies to understand those conditions.

Erickson and Simon could have concluded their comparison of these different methodologies and epistemologies with the general principle that most judges, lawyers, sociologists, political scientists, and economists would probably agree on: "appellate courts should use social science in understanding how groups of people really behave, not how judges assume they behave, but social science should not be the basis for decision. The basis for deciding cases must always be the law." The remainder of the book demonstrates that this is in fact the general approach the U.S. Supreme Court takes. In Chapter Two, the authors describe how social science gets into court: through expert witnesses in trials and amicus curiae briefs to the Supreme Court. These are very different devices. After a quick overview of the effects of Federal Rules of Evidence 702-705 and the DAUBERT case - about which there is a large literature in the law reviews and is better covered there - the authors give some examples of how social scientists' expertise is used in trials. They then do the same in describing the dynamics of amicus briefs, through which appellate courts receive information directly from advocates who cite social science studies to support the outcome they favor. The remainder of the book is a careful examination of a body of case law in which the researchers look for evidence of these experts' and amicus curiae influence on Supreme Court decision-making.

The authors mined 35 cases from the U. S. Supreme Court reported in the years 1972-1992, all involving women's rights. Why women's rights? Because many more of these cases reached the courts beginning in the 1970s and that decade also marked an increase in the use of social science data in the courtroom, say the authors. They used these cases to explore five research questions: 1.) whether the use of social science by the Supreme Court depended on such data being introduced at trial, 2.) whether social science data is used more often in majority or minority opinions, 3.) whether there is a difference in the kind of data used in Supreme Court opinions depending on whether it came from expert opinion at trial or from amicus curiae briefs, 4.) whether some kinds of social science data are more influential on the Court than others, and 5.) whether courts used data in a manner consistent with the standards of the social sciences community.

Choosing to examine cases on abortion, sexual harassment, and sex discrimination for evidence of the Justices' use of social science is entirely consistent with the historical roots of the "Brandeis brief." The authors give a succinct overview of MULLER v. OREGON (1908) and how Louis Brandeis used survey data, opinion from the social scientific community, a collection of statutes from countries scattered across the globe, and medical opinion to argue forcefully for the interests of women - sort of. If social science is to be found anywhere in court opinions, it should

Page 427 begins here

be in case law tracking and causing the great changes of the past three decades in women's rights. However, the story of the Brandeis brief should, again, give social scientists pause. Brandeis used his extra-legal data to argue that women were weaker than men and needed workplace protection in the form of shorter hours, meaning less money and more home duties (To be fair, reformers saw this as one small step in the right direction of shorter workweeks for ALL workers). This is scarcely the typical use of social science described in the cases this book covers, but it underscores the fact that social science in women's rights case law has been used to advocate the passions of the day, not to achieve an objective understanding of women's roles and rights.

The work reported here will be of great interest to scholars and policymakers who specialize in women's rights, because it tells the story of major Supreme Court cases in that field with a plausible compilation of the influences brought to bear on the arguments. It shows how Supreme Court policymaking is quite different from legislative policymaking - but is policymaking nonetheless. The authors do not venture into the thickets of debate on proper judicial role versus legislative role, leaving fights over activism or the lack of it to other scholars. They simply chronicle the cases, the content of the transcripts, and the data presented in the briefs. That is considerable work and a significant contribution to the literature on women's rights in the courts (There has been some similar work done in the past, springing from the same questions about the proper role of social science. See a very thorough law review treatment of the tension between social science and the law, and the same approach of examining the use of social science in Supreme Court cases - in this instance, cases on parental consent to minors' abortions [Pine 1988]).

One conclusion of this book is scarcely surprising: "the Supreme Court uses social science data in its decisions, but the Court gives far more weight to its decisions in previous cases" (p.149). Well, it had to be said, even if commonsensical, because Erickson and Simon are good social scientists bound to record their observations in their lab notebooks just so they can show their work and move on to the next experiment, for which the previous finding provides the building block. They quickly move on to consider the "major issue...not the veracity or quality of the data but the appropriateness of using social science data at all." It wouldn't be fair to their royalties to recount here their findings on each research question, but the finding most germane to the larger issue of appropriate use of social science is that "Data are used in the courtroom in a manner consistent with the standards of the legal community, not the social sciences community." This may be another unremarkable finding, but its implications deserve careful thought. Students: discuss.

REFERENCES:

Monahan, John and Laurens Walker. 1994. SOCIAL SCIENCE IN LAW: CASES AND

MATERIALS, 3rd ed. Westbury, New York: Foundation Press.

Pine, Rachel N. 1988. "Speculation and Reality: The Role of Facts in Judicial

Protection of Fundamental Rights", UNIVERSITY OF PENNSYLVANIA LAW REVIEW.

136: 655-727.