Socio Legal Theories

The Depression and New Deal era is often seen as both the raison d`être and the culmination of the use of the social sciences in policy-making and the science of legal realism (Schlegel, 1995; Twining, 2012). Many of the early legal realists (primarily from Yale and Columbia law schools) entered the Roosevelt administration, advocating for regulation and legislation (in securities, banking, corporate regulation, labor, and welfare) based on social science studies. During this period, empirical data were also compiled for legal reform (criminal law) and judicial procedure reform (Menkel-Meadow and Garth, 2010). Empirical studies may be commissioned to examine a particular policy issue (Wheeler, 1988), for example: when I was asked to examine the effectiveness of judicial mediation and arbitration by comparing them to disputes, or to assess user satisfaction with certain dispute resolution procedures within organizations (e.g., World Bank, the UN and the International Red Cross) for which I have conducted such [unpublished] studies; however, see Creutzfeldt, 2018, for a published comparative study on a form of dispute resolution [Ombuds] and Hazel Genn, 2010, for mediation in the UK). Alternatively, researchers may examine a legal phenomenon, such as whether modified plea rules (as is now required in civil rights cases in the United States) have affected case submissions and outcomes (Hannon, 2008), and such studies may ultimately have an impact on rule-making or changes to the law. I will not go into here the arguments I have advanced in many places (see, for example, Menkel-Meadow, 2007) that, for any modern legal education, rigorous education in the constitutive social sciences that make up law should influence and influence it, and the evaluation of its effects should be essential. As our knowledge of law and legal institutions and their effectiveness increases through the study of more places of norms and rules (internal and “from below”), as well as from the outside (top-down for policy initiatives) and through the lenses of many more multidisciplinary fields (including hybrid fields such as urban planning), decision theory, artificial intelligence, cultural studies), no modern lawyer, judge, civil servant or bureaucrat should use only the “doctrine” of law. Study or know without understanding anything about how this doctrine is used (or not). Nor should they assume that their “experiential knowledge” is superior to independent empirical results.

For those who are “outside” the law (or the enforcer), it is even more important to know how the law is still so far removed from the law (or justice) in action in the books. In many areas of legal and social policy, we need all the data and help we can get to know what is happening on the ground and what policy or advocacy interventions are working or not working – think of current global migration issues; displacement and loss of labour; “Crimmigration”; the persistence of discrimination and inequality based on race, ethnicity, gender and class; human rights violations and their implementation; whether “rights” and legal movements are effective in bringing about more social change; and how the use of technology will change our legal and social relationships, perhaps forever. I look forward to many more studies that use many different methods to uncover the latest forms of Durkheim`s epiphanies, which should shed light on what the law promises us and when it fails. In the United States, social law experts have been asked to investigate issues such as civilian participation in police decision-making; what procedures should be applied in the various regulatory matters; the impact that the media might have on legal decision-making (think of the “CSI” effect – jurors demanding more technical and forensic evidence after many years of television broadcasts exaggerating the validity of that evidence; see Goehner, Lofaro, & Novak, 2004; Kopacki, 2013); which legal interventions are most effective in ensuring compliance (e.g. health and safety); and which measures are most effective in the areas of social protection, family law and immigration policy (Sarat and Ewick, 2015). In other cases, lawyers call on social scientists as experts (as in statistical evidence of workplace discrimination and public health cases) or to gather data arguments for modern “Brandeis briefs.” Unlike many jurisdictions where the judge appoints a single expert to advise the court, American antagonism (Kagan, 2003) has spawned the “battle of competing experts” in many judicial and administrative proceedings, including health and medical sciences, weapons forensics, accident mapping, and a variety of (less common) social science issues. Thus, in some cases, empiricism is alive and well in our trials (even though trials are extremely rare these days – less than 2% of all cases filed in our federal court system end up in a trial [Galanter, 2004], although experts are always abandoned at pre-trial discovery and their reports are factored into court decisions and motions). Some have criticized the methodological weaknesses of much of what is considered empirical legal research (Epstein & King, 2002), insisting that all law students and judges be better informed and trained in rigorous assessments of data analysis.