Social Science in Law

Professors Alschuler & Epstein

Law 649

Spring 2008

For this seminar, you will write a 25-page research paper. It should be typed, doubled-spaced, using a 12-point font and Bluebook citation style. Students will be assigned one hour of one class session to present their paper. Deadlines are as follows:

  • 1.14.2008: one-paragraph topic proposal due. We will use this to determine your faculty supervisor.

  • One Week Before Your Presentation: first draft of paper due. Via email, we'll distribute the paper to all class members.

  • Two Weeks After Your Presentation: second draft of paper due.

  • TBA: final draft due

The papers for this seminar may address any issue related to social science research in law, and the instructors will be liberal in construing the word "related."  Most papers will probably be based on library research.  A student may pick a topic that has been of interest to social scientists and see what they have had to say about it.  Then the student may (1) consider how legal decision makers have used or misused the social science evidence and/or (2) consider what relevance the social science evidence has to legal issues.

A few students may prefer to do original social science research, though the limited time available precludes ambitious projects.  A work of original research could be based on interviews of police officers, judges, prosecutors, public defenders, private attorneys, or other actors in the legal system or on a simple opinion survey.

Examples of possible topics include:

  • Social Science Research and the Law of Evidence. The Supreme Court gave us Daubert but violates Daubert frequently by citing published empirical work. When, if ever, is it appropriate for courts to take judicial notice of research that has not been presented at trial by expert witnesses subject to cross-examination? When, if ever, is it appropriate for judges rather than juries to address issues of "legislative" fact? If the law of evidence conflicts with everyday judicial practice, which should yield?

  • The Use of Experts to Present Social Science Evidence. Is there any way to present social science research to courts without battles of high-priced experts? What should be the role of court appointed experts? Or of panels of experts who draft instructions for courts to give juries?

  • Social Science Evidence in the Opinions of Justices Blackmun and Powell. Justice Blackmun was a fan of social science evidence; Justice Powell, a skeptic. Did either of them get it right?

  • Divorce and Child Custody Cases. Does joint custody work? Does divorce mediation disadvantage women?

  • Domestic Violence. What works and what doesn't? Peace bonds? Mandatory arrest? Forcing reluctant victims to testify?

  • Television Violence. Is it harmful, and if it is, so what?

  • Pornography. Is it harmful, and if it is, so what?

  • Brandeis Briefs. Does the original Brandeis brief now look like hokum? Does the Brandeis brief in Brown v. Board look better? Has there ever been a good one?

  • Polygraph Evidence. Is it hokum?

  • Legal Realism and Social Science Research. The legal realists of the 1920s and 1930s talked a great game, but did they ever do anything useful?

  • The Eugenic Movement. What evidence, if any, led progressives to support forced sterilization and other eugenic measures?

  • Liquor Prohibition. Did it really fail?

  • Gender Differences in Moral Reasoning. Does the evidence support or rebut Carol Gilligan?

  • Racial Disparities in the War on Drugs. How great are they, and what explains them?

  • Eyewitness Identification. What do we know about it, and what can we do to make it more reliable?

  • Community Team Policing. Does it reduce crime?

  • Drunk Driving. What works and what doesn't?

  • Gun Control. What works and what doesn't?

  • Alternative Dispute Resolution. Does it increase litigant satisfaction and provide other benefits? When, if ever, is it appropriate?

  • Discovery Abuse. How common is it, and what, if anything, can be done about it?

  • Lookism. How common is discrimination against fat people, short people, and people regarded as physically unattractive? What, if anything, should be done about it?

  • Welfare Reform. Has it worked?

  • The Comprehensibility of Jury Instructions. How bad are current jury instructions, and have efforts to address the problem accomplished anything?