A recently circulated paper by Richard Lempert (Michigan) will interest many. In it Lempert explores practical challenges that encounter many empirical legal scholars through three case studies. The cover "discusses the use of empirical research for public policy and suggests a number of cautions that should be exercised in generalizing from empirical studies to public policy with a focus on the role of theory and both internal and external validity."As Prof. Lempert notes in his cover: "There are however many dangers in relying on empirical work rather than normative arguments to influence policy. Empirical bring home the bacon is social science and the standards of social science as well as what it determines can change. Methods data availability and to some extent data quality are improving all the time. What was state of the art research yesterday may be perceived as hopelessly flawed tomorrow and reanalyzing even the same data using more modern methods may reveal that the earlier advice was not just unsupported by the data but contrary to the policies that the data properly analyzed suggest." Of course. Prof. Lempert goes on to note that amid this uncertainty "policy makers must act" and as well judges must decide cases.
I agree with the criticisms in the bind. Lempert has to communicate the great hunger among decision makers for data to reduce their uncertainty.
He has to address the lawmaking as massive human experimentation.
All laws need pilot testing in a sequence of enlarging jurisdictions and proofs of safety effectiveness tolerability of unintended consequences.
The people on this blog could run an FDA like institution to advise legal decision makers.
The current reliance is on the word. "reasonable," for guidance. It comes from St. Thomas Aquinas. It means in accordance with the New Testament. If anyone argues it does not violate the Establishment Clause by that meaning then it is void for vagueness. It then means the subjective feelings of the judge violating Equal Protection clauses.
Subjectivity Lempert prefers is lawless in our secular nation.
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Related article:
http://www.elsblog.org/the_empirical_legal_studi/2007/11/empirical-resea.html
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