If a Supreme Court justice stumbled upon our blog, I would not be surprised if the subject matter bored her. Despite the tremendous value that the mind sciences could add to our legal jurisprudence – as we have been highlighting for almost a complete semester (!) – the typical justice appears unconcerned about what science has to say about the doctrine that the Court creates. Moreover, even if the justice were interested in a certain scientific topic, it is doubtful that the justice would take the time to understand the topic thoroughly enough to employ the science in her judicial decision-making. In fact, the entire enterprise of law appears to be deliberately non-scientific: judges, advocates, and scholars engage in the practice of argument, but rarely pay attention to whether their arguments are scientifically valid.
Professor David L. Faigman, however, is a rare breed of legal scholar: He is numerate. That is, he has a social scientific background, he understands science, and he cares deeply about the plague of innumeracy that has infected the field of law. In Legal Alchemy: the Use and Misuse of Science and the Law, for example, Professor Faigman suggests (perhaps somewhat facetiously) that scientifically-challenged juris doctors should enroll in “Innumerates Anonymous,” a twelve step program to cure innumeracy:
- I am an innumerate.
- The law needs the best science available or that could be made available.
- As a/an _____ (insert one: practicing attorney, professor, judge, administrator, legislator, or other), it behooves me to become familiar with science and the scientific culture in order to fulfill my professional obligations. . . .
- I don’t have to be a scientist to understand the rudiments of science.
- I have the ability and motivation to learn about science.
- Science is deeply fascinating and genuinely fun.
- I am not afraid to seek help from bona fide experts in relevant fields, but I will not abdicate my responsibility to them.
- I am willing to attend continuing education programs to help me, and if necessary and when relevant and useful, I will read published reference materials on science.
- I will not label something “science” when it is merely the product of advocacy and has not been tested.
- I will endeavor to understand the nuts and bolts of the scientific method and not simply the conclusory testaments offered by scientists or those pretending to that title.
- I will call on all experts to provide the best information that hteir methods or methods that could be employed can deliver.
- I am now a sophisticated consumer of science.
To be sure, Professor Faigman outlines the twelve-step program to illustrate a broader point – i.e., that the average lawyer should seek to familiarize herself with science. He is not calling on the ABA to promulgate an innumeracy rehab program, or require science CLE credits as a professional requirement for bar membership. Nonetheless, the reality remains that the average practitioner is likely stuck at Step 1 (innumeracy), unprepared to move on to Step 2 (recognizing the value of science to the law).
As Professor Faigman goes on to explain, “the philosophy behind this twelve-step program is to reach the twelfth step when the legally trained generalist feels prepared for the task of intelligently integrating scientific knowledge into legal decision-making.” Still, he cautions, the “goal is not to turn lawyers into scientists. They must merely be good consumers of science.”
Interesting idea . . . but let’s play Devil’s Advocate. Would the “Innumerates Anonymous” improve legal practice and legal decision-making?
For one, we could argue that the program is offensive. Many students applied to law school because they were averse to science and afraid of numbers – how dare you force them to understand such dark magic now! More seriously, though, we could argue that the program won’t change anything. At the end of the day, the law is a normative endeavor. The law is an expression of society’s moral judgments about how people should behave, about how people should be regulated, and so forth. It is irrelevant whether or not the science jives with the law’s normative thrust. If the science comports with the proposed legal rule, then the rule-maker will showcase the sophisticated research and herald the rule as backed by actual, empirical data. Yet, if the science undermines an assumption of the proposed legal rule, the rule-maker will ignore the research and shoo away the pesky data. In the domain of law, science can aspire to be no more than a tool for the disingenuous rule-maker. See, e.g., McKlesky, where the Court shooed away the pesky Baldus study and upheld the constitutionality of the death penalty.
Moreover, incorporation of science into the law could be itself be harmful. The prevailing science of an era could point to a policy prescription that, a half-century later, we realize was injurious to society – in a tangible, physical sense or in an intangible, atmospheric sense. See, e.g., Plessy v. Ferguson, where the Court relied on the prevailing thinking to constitutionalize the shameful doctrine of “separate but equal.” Indeed, imagine how much more shameful the decision would have been had it received the legitimizing, calcifying touch of “science.”
Professor Faigman would, I’m certain, have an eloquent counter to the argument above. But my point is that perhaps we shouldn’t be so quick to jump to the conclusion the more science = better law.
Put differently, perhaps we shouldn’t be so quick to assume that the this blog is “value added” to the legal system. Perhaps Law & [X] isn’t necessarily better than Law alone, even where X = the Mind Sciences. Just a thought …
Therefore, if I had the chance to interview Professor Faigman, I would ask him:
1) What do you think of our blog? Is this blog the sort of interdisciplinary exercise that law students should engage in so that they might be better “consumers of science”? Do you think that participation in the workshop will change how we participants practice law?
2) What do you think of the course, Analytical Methods for Lawyers, offered by Harvard Law School as an elective? Is that the sort of course that law students should take so that they might be better prepared to employ scientific reasoning as practicing lawyers? Do you think that a crash-course in analytical methods will make much of a difference?
3) Should law schools enter the fray and impose compulsory “analytical” or “empirical” course requirements? That is, should HLS require Analytical Methods as a condition for graduation? After all, we have a pro bono requirement – why not add another requirement that is critical to the cultivation of noble lawyering habits (assuming, of course, that numeracy is a noble lawyering habit)?
4) Related to the above: Rather than forcing 1L students to take International Law and Public Law, should Dean Kagan have forced 1L students to take Analytical Methods?
5) Do you sense that the law has lately become much less hostile toward science? Anecdotally, it seems that a higher percentage of law students enter law school with scientific or analytical backgrounds. English and history majors are no longer in the majority, it seems; rather, political science, economics, and even engineering majors are quite common. Meanwhile, law professors are becoming more interested in interdisciplinary scholarship, research, and collaboration. See, e.g., The Situationist.