Behavioral and social facts in legal decision making

Abstract

Behavioral and Social Facts in Legal Decision Making provides a coherent framework for thinking about the social science and legal decision making interface. It takes as its premise that valuable lessons may be learned by examining a variety of legal decisions and their relationship to pertinent social and behavioral facts. It describes and explains these lessons in three parts. Section I introduces this relationship by demonstrating that behavioral and social factual knowledge can be critical in legal decision making, that the knowledge may have multiple sources, and that it can be used to address a variety of issues, interests and concerns held by various parties with an interest in the legal decision. Having established that the relationship between social science and legal decision making is an important one, Section II shows how and why behavioral and social facts can be used in legal decision making. Five primary uses are illustrated. First, behavioral and social facts can be used to identify and evaluate legal assumptions. Second, behavioral and social facts can be used by legal decision makers to establish social and legal policy. Third, behavioral and social facts can be used to settle factual disputes. Fourth, behavioral and social facts can be used to help resolve constitutional issues. Finally, behavioral and social facts can be used to educate legal decision makers so that they can make more effective and informed decisions. Despite the many potential benefits of using behavioral and social facts in legal decision making, Section III acknowledges that the relationship does not always work out as anticipated. Deficiencies may exist within either the behavioral and social facts or the legal decision maker. For example, the legal decision maker may choose to ignore relevant behavioral and social facts. Other problems may exist: The behavioral and social facts may not yet exist, or if they do exist, they may not directly address the specific issues with which the legal decision maker is concerned. Finally, the behavioral and social facts may suffer from methodological or statistical flaws that limit their application.