How Judges Work: Thinking about Social Science and Law

Extract

Judge 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.