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24 April 2006

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William Henderson

Jeremy,

You raise some excellent points. To be sure, ELS is really social science methodology applied to legal problems and legal institutions. Perhaps the novelty is that legal academics are doing a larger share of the research.

One of the exciting possibilities of ELS is that it can be a wedge for more applied social science, primarily because our students often go on to positions of leadership in goverment and business. But this requires the weaving of social science into the curriculum. If it lays flat on the pages of JELS, we are missing an opportunity.

By the way, I am really glad to have your article, which I just downloaded. Many thanks.

Jeremy A. Blumenthal

Good points! I'll comment only on the first part, and look forward to resonating strategies:

In an article a few years ago, http://ssrn.com/abstract=355280 , I pointed out that in fact there have been calls and efforts to incorporate empirical and social scientific research into the American legal system throughout the 20th century. Even before the turn of the century European research on child suggestibility and forensic evidence (e.g., fingerprinting, ballistics, etc.) was being discussed and applied. In the early years of the 20th century Hugo Munsterberg vociferously advocated the incorporation of empirical research on eyewitness testimony, though such calls were effectively shut down by a law review response from Wigmore.

As I mention, and Prof. Schlegel discusses in more detail, in the late 1920’s Yale researchers Hutchins and Schlesinger (law and psychology, respectively) published in both law reviews and psychological journals, looking at the cognitive and behavioral underpinnings of evidence law and calling for specific experimental work to test legal assumptions about evidentiary rules.

The 1930’s saw judges more willing to look to extralegal sources, including taking judicial notice of empirical research when it had not been conducted, in at least obscenity case. Polygraph evidence became more common, and researchers were even conducting jury simulation studies (e.g., late 30’s / early 40’s) - with results quite similar to today’s.

The 1950’s saw empirical work in the context of work on insanity. In the 1960’s and especially the 1970’s empirical legal work burgeoned in the social sciences, with lots of emphasis on jury decision-making, eyewitness testimony, child suggestibility, and other work. Such efforts have continued until now.

So as wonderful as the “turn” to ELS is - and I’m a big proponent - we also need to take into account the work in other disciplines that’s been going on for quite some time. One terrific thing about the recent move in legal academia is that law profs are familiar with many more areas than simply juries and eyewitnesses, which have been the staples of psychological work for years. This has broadened the perspective on what’s amenable to empirical legal research - as many here have said, though, I think it’s important to communicate across disciplines, in order to help take advantage of social scientists’ expertise in methodology, data analysis, familiarity with existing literatures, etc.

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