The Use of Social Science Evidence in Constitutional Adjudication

The Use of Social Science Evidence in Constitutional Adjudication
Author: Jodi Lazare
Publisher:
Total Pages:
Release: 2013
Genre:
ISBN:

"This thesis examines the practice of judicial reliance on social science evidence in the context of Canadian Charter litigation. It undertakes in-depth readings of two recent trial decisions dealing with prostitution and polygamy, which required the judges to analyze vast amounts of social science empirical data. The argument is that the legal system's prioritization of persuasion, victory and the definitive resolution of disputes prevents it from maximizing the potential contributions that the social sciences can bring to the law and the legal search for truth. The doctrine of stare decisis may also require rethinking. This thesis also explores the idea that adversarial adjudication is ill suited to the balancing of a variety of unsettled issues often required by Charter challenges. This difficulty is compounded by the demonstrated weaknesses of legal education and its failure to equip future lawyers and judges with the non-legal skills required to deal with complex and conflicting empirical data. Last, the thesis looks at another major flaw in Anglo-American adjudication, the party selection of expert witnesses and the necessary bias which results, providing an overview of alternative procedural mechanisms. Overall, the difficulties in combining the law and the social sciences can only be remedied by moving towards a more inquisitorial method of resolving constitutional disputes." --

Avoiding the Common Wisdom Fallacy

Avoiding the Common Wisdom Fallacy
Author: Niels Petersen
Publisher:
Total Pages: 27
Release: 2015
Genre:
ISBN:

More than one hundred years ago, the U.S. Supreme Court started to refer to social science evidence in its judgments. However, this has not resonated with many constitutional courts outside the United States, in particular in continental Europe. This contribution has a twofold aim. First, it tries to show that legal reasoning in constitutional law is often based on empirical assumptions so that there is a strong need for the use of social sciences. However, constitutional courts often lack the necessary expertise to deal with empirical questions. Therefore, I will discuss three potential strategies to make use of social science evidence. Judges can interpret social facts on their own, they can afford a margin of appreciation to the legislator, or they can defer the question to social science experts. It will be argued that none of these strategies is satisfactory so that courts will have to employ a combination of different strategies. In order to illustrate the argument, I will discuss decisions of different jurisdictions, including the United States, Canada, Germany and South Africa.

Extrinsic Evidence, Social Science and Constitutional Adjudication in the United States

Extrinsic Evidence, Social Science and Constitutional Adjudication in the United States
Author:
Publisher:
Total Pages: 27
Release: 1992
Genre:
ISBN:

This document on extrinsic evidence in constitutional adjudication looks at the following points: extrinsic evidence and the identification and correction of constitutional violations; social science and the rational legislature; social science and constitutional violations; criminal law and procedure; education; institutional reform; government responses; extrinsic evidence and the practice of constitutional litigation in the United States; trial procedure; appellate procedure; constitutional notice; and, extrinsic evidence and institutional capacity.

Social Research in the Judicial Process

Social Research in the Judicial Process
Author: Wallace D. Loh
Publisher: Russell Sage Foundation
Total Pages: 811
Release: 1984-09-17
Genre: Social Science
ISBN: 1610443675

"How to inform the judicial mind," Justice Frankfurter remarked during the school desegregation cases, "is one of the most complicated problems." Social research is a potential source of such information. Indeed, in the 1960s and 1970s, with activist courts at the forefront of social reform, the field of law and social science came of age. But for all the recent activity and scholarship in this area, few books have attempted to create an intellectual framework, a systematic introduction to applied social-legal research. Social Research in the Judicial Process addresses this need for a broader picture. Designed for use by both law students and social science students, it constructs a conceptual bridge between social research (the realm of social facts) and judicial decision making (the realm of social values). Its unique casebook format weaves together judicial opinions, empirical studies, and original text. It is a process-oriented book that teaches skills and perspectives, cultivating an informed sensitivity to the use and misuse of psychology, social psychology, and sociology in apellate and trial adjudication. Among the social-legal topics explored are school desegregation, capital punishment, jury impartiality, and eyewitness identification. This casebook is remarkable for its scope, its accessibility, and the intelligence of its conceptual integration. It provides the kind of interdisciplinary teaching framework that should eventually help lawyers to make knowledgeable use of social research, and social scientists to conduct useful research within a legally sophisticated context.

Facts in Public Law Adjudication

Facts in Public Law Adjudication
Author: Joe Tomlinson
Publisher: Bloomsbury Publishing
Total Pages: 325
Release: 2023-10-19
Genre: Law
ISBN: 1509957405

This book explores critical issues about how courts engage with questions of fact in public law adjudication. Although the topic of judicial review - the mechanism through which individuals can challenge governmental action - continues to generate sustained interest amongst constitutional and administrative lawyers, there has been little attention given to questions of fact. This is so despite such determinations of fact often being hugely important to the outcomes and impacts of public law adjudication. The book brings together scholars from across the common law world to identify and explore contested issues, common challenges, and gaps in understanding. The various chapters consider where facts arise in constitutional and administrative law proceedings, the role of the courts, and the types of evidence that might assist courts in determining legal issues that are underpinned by complex and contested social or policy questions. The book also considers whether the existing laws and practices surrounding evidence are sufficient, and how other disciplines might assist the courts. The book reconnects the key practical issues surrounding evidence and facts with the lively academic debate on judicial review in the common law world; it therefore contributes to an emerging area of scholarly debate and also has practical implications for the conduct of litigation and government policy-making.