“I want to read every Supreme Court opinion issued on cases heard this term and next (Fall 2011 and Spring 2012), and to evaluate each opinion’s use of empirical evidence.”

November 17th, 2011

Stay tuned to Professor Pfaff’s posts at Prawfs. I will.

My goals here are fairly modest. First, I want to highlight each instance where the Court makes an unsubstantiated empirical claim, evaluate whether it seems easy to find reliable, rigorous evidence about the particular proposition being made, and to consider the claim’s importance to the case’s outcome. Doing so shouldn’t require that much field-specific knowledge on my part. Second, when the Court does bring real empirical evidence to bear, I do want to consider whether it seems reliable or not, and here the risk of overreach on my part is perhaps a bit stronger. But statistical techniques are not that different across fields, and the Court likely isn’t going to be relying on profoundly complex, cutting-edge empirical studies.

This is interesting:

Does the Court frequently make empirical statements without any validation, or which are actually incorrect? How important are these statements: are they generally used as additional support for a more-doctrinal claim, or are they outcome-determinative? Evaluating the opinions publicly on a blog will be incredibly helpful—I look forward to commenters criticizing my criticisms of the Court’s use of scientific evidence, especially those with statistical training in areas other than mine.

And this:

. I want to think more about how should we handle the “known unknown.” We should expect to encounter situations in which theresimply isn’t any reliable empirical evidence for a particular question, yet the Court has to reach a decision—today. What should it do? Should it make an empirical guess? Can it do so without creating problematic “judicial facts” that take on precedential weight? And is there any way for the Court, if making such a guess, to do so in a way that makes transparent the error cost analysis driving its choice? Perhaps when guessing is problematic the Court should try to rely on more doctrinal solutions, but what if it is the type of case that simply requires a policy judgment to resolve?

These linked books also look good:

Legal Alchemy: The Use and Misuse of Science in the Law, Laboratory of Justice: The Supreme Court’s 200-Year Struggle to Integrate Science and the Law, Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America, and this article and this article.


I’m going to drop him a line.