Empirical Research for Law & Policy: A Cautionary Tale Through Three Case Studies

A recently circulated paper by Richard Lempert (Michigan), Empirical Research for Public Policy: With Examples from Family Law and Advice on Securing Funding, will interest many.  In it Lempert explores practical challenges that confront many empirical legal scholars through three case studies.  The paper "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 paper: "There are, however, many dangers in relying on empirical work, rather than normative arguments, to influence policy. Empirical work 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.

Comments

[Supremacy Claus]

I agree with the criticisms in the article. Lempert has to address 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.