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11 August 2006


Richard Lempert

The late great Yankees (and later Mets) Manager, Casey Stengal is reported to have once said that he dreamed he died and went to heaven. He hadn't been there very long when the Lord approached him and said he had always wanted to have a baseball team and would Casey be the Manager. Casey looked around and saw all the great players, Babe Ruth, Lou Gherig, Cy Young, Christy Mathewson, Willie Mays, Joe Dimagio, Hank Greenberg, Ty Cobb, etc. etc. and said he would be delighted. The new team finished spring training in the peak of condition. The only problem was that apart from intrasquad games there was no one to play.
Just when Casey was bemoaning this fact the phone rang in the dugout. It was Satan, saying he had just organized a baseball team in Hell and wanted to challenge the heavenly team to a game. Casey was thrilled, but he could not help blurting out, "But you don't have a chance; I've got all the players." "No," said the devil, "You don't have a chance; I have all the umpires."
Empirical legal scholars, take note. The law is the umpire. Don't give up on the analsyis of doctrine.

michael webster

This was an interesting piece, but I would have to disagree with the conclusions about the projects suggested -although they are very interesting.

But the real and important work in this field should be to provide empirical support for the rules in the main areas of law, rules which have been largely the product of vicarious strategic reasoning without the benefit of experimental data.

Here are two important areas that this work could be done in.

Criminal Law and the Rules of Evidence - The Rules of Evidence are in part used to exclude statements which are said to be high in prejudicial value, but low in probabtive value. This entire industry has grown without the slighest attempt to verify that the blocked inferences are not made by jurors. In some commonwealth countries, it is actually illegal to obtain these facts. I suspect that it is highly unlikely that the inferences which the rules of evidence block are 1:1 with the inferences that jurors actually make. The social science of framing would provide valuable insight.

2. Tort of Misrepresentation and Misleading Advertising - The elements of this tort include: a material statment and reliance.
Again, what counts after the fact as material and reasonable reliance has been constructed over the centuries by vicarious strategic reasoning without regarding to experimental results. Our disclosure laws, in securities, franchising, and consumer protection all incorporate this highly formal view.

Here is a simple example. The FTC, in the US, regulates the disclosure required for the purchase of a franchise, what material facts must be disclosed by the franchisor before the sale can be completed.

On the first page of the UFOC, uniform franchise offering circular, under the nice FTC logo, the FTC disclaims in large type that it has not checked the facts in the UFOC and encourages the prosepective franchisee to do so, with the help of an attorney or accountant.

Lawyers are surprised to learn that despite this warning, many franchisees thought that the FTC did warrant the facts in the UFOC and that they didn't have an attorney check the facts.

Social scientists would not be surprised that the authority of the FTC logo could outweigh the semantice information in the disclaimer.

Social scientists would not be surprised that near the time of purchase, the prospective franchisee only seeks confirming information and so consults no one, or does so resenting the amount spent as a waste of time.

In conclusion, while the four projects recommended sound interesting, it would be, in my opinion, more helpful to concentrate on the main elements in law and to provide empirical findings on these.

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