Suppressed Evidence

FROM THE ARCHIVES (Daily Nebraskan columns)

Suppressed Evidence

Legal system fails to consider outside knowledge when crafting rules

Jeremy Patrick (jhaeman@hotmail.com)

April 24, 2000

"The notion that truths external to the mind may be known by intuition or consciousness, independently of observation and experience, is, I am persuaded, in these times, the great intellectual support of false doctrines and bad institutions."
-- John Stuart Mill, "Autobiography"

"Example 27: O conveys to 'A for life, then to A's children for their lives, then to B.' The remainder to B is vested upon creation. Observe that B's remainder may vest in possession at the death of A's afterborn children, which may be too remote; but the remainder is valid because it is vested in interest now."
If the paragraph above makes no sense to you, do not feel bad; I've spent a year studying it in law school, and it makes no sense to me, either.
As the end of my first year of law school approaches, I feel obligated to share with you the sum total of wisdom I have gained: Law is an arbitrary set of rules based on tradition, an ignorance of outside research and the conscious or subconscious social and political views of the rule-maker. The bulk of everything else seems to be window-dressing, pretty words and the occasional glimpse of common sense.
The problem begins early. From the first day of classes, law students are taught with what is called the Socratic Method. Assigned textbooks contain only appellate cases, and each class period a student is called upon to discuss a case, tell why it turned out the way it did, how it relates to other cases and how far the rule of the case should be extended.
This is how the law has been taught since the advent of formal legal education, and this is still the extent of one's initial legal training. Thus, from the very beginning, a law student is taught that the answers to all questions of law and policy are contained solely within the pages of moldering cases.
Consider an example: the question is whether the law should affirmatively impose a duty to rescue a dying person when it can be done with little or no cost to the potential rescuer (imagine a beach-goer who sees an infant drowning in two feet of water).
Point: Such a duty would provide a social benefit. Namely, that imperiled persons would be more likely to be rescued by bystanders. Counter-Point: Such a duty would cause potential victims to act more recklessly (because they know they will be rescued) and would deter potential rescuers from putting themselves in a position where they might have to undertake such a rescue.
The correct answer? Nobody knows. Western Europe says there should be a duty; the United States says there should not be. Without some empirical, hard evidence of the actual incentive effects, each side is engaging in little more than idle speculation.
The great legal realist Karl Llewellyn once said, "Law is to the community what law does. What picture of this doing can you find in all this study of appellate courts alone?" Unfortunately, he said this many decades ago; it seems legal education has changed little since.
This failure to extend the law beyond appellate casebooks is common throughout law school. Rarely do we see what influences a trial judge or a jury to make a decision, never do we see why a legislature crafted a particular legal rule and most importantly, rarely do we integrate research from outside fields that could be tremendously valuable in deciding if the current rule is correct. Imagine the contributions the fields of sociology, psychology, economics, etc. could make to our understanding of how certain legal rules will actually influence events in the real world.
Instead of an interdisciplinary approach, however, NU's law school is located on East Campus, isolated from the other departments both geographically and intellectually. The existence of a joint-degree program and one elective class on law and behavioral science is not sufficient to inculcate a broad social-science perspective in the vast majority of law students.
This narrow view that law itself contains all the answers starts in law school and continues as the student enters the legal profession. Eventually, it impacts how the rules themselves are made, as the law student becomes a judge or legislator.
For example, states often adopt pattern jury instructions gleaned from appellate cases without testing through empirical research how well actual jury members would understand them compared to rival versions; thus, judges are forced to determine the adequacy of the instructions merely on the words alone.
Another startling example of this problem is the American Law Institute. The ALI is an "elite" group (membership is by invitation only) of 3,500 practitioners, judges and legal scholars from around the country. The main focus of the ALI is promulgating what are called Restatements. Originally designed merely to collect and express the current case law in a cohesive manner by codification into legal rules, the Restatements have become powerful trend-setters of legal principle.
Although not officially binding on any court, the Restatements have proven tremendously influential and have been cited tens of thousands of times in court opinions. The ALI has slowly evolved into a national quasi-legislature.
The problem is that the ALI is composed solely of lawyers. Thus, when the institute debates what rules of corporate law should be adopted, it does so without the direct participation of expert economists; when it decides what sort of damages should be recoverable for "economic distress," it does so without the benefit of mainstream psychologists and psychiatrists taking part in the voting.
Scholars in other fields are trained to support their assertions with data from research studies, experiments, computer models, etc. Some legal scholars use this kind of research in publications for legal journals.
Many lawyers, however, who are masters of using evidence to buttress their arguments in front of a jury become judges who buttress their legal pronouncements only with abstract reasoning and copious citations to other legal cases. These cases themselves include little more than abstract reasoning and citations to even more legal cases.
Hundreds of years ago, law was thought to be a science, and judges believed all legal rules could be logically derived from other rules. We know now that this simply isn't so. When the legal profession realizes this and does a better job of integrating knowledge from outside fields beginning on the first day of law school, it will truly have moved to the 21st century.
Law can be a powerful tool for achieving justice and equality. Unfortunately, it can also be a tool of selfishness and oppression. It is our responsibility to ensure that the individuals wielding this tool are guided by the very best knowledge available.

(c) 2001 Daily Nebraskan Online (www.dailyneb.com)