[EL] social science and the law (was Invisible voters versus imaginary fraud)

[Doug Hess]

Not sure if this helps, but Gary King at Harvard and Lee Epstein at
Wash U (St. Louis) co-authored a few articles on the low quality of
empirical reasoning in law journals, legal training, etc.

Even if one doesn't agree with their views--which perhaps are summed
up by their quoting of Fred Rodell who stated in the 1930s "that there
were two problems with legal writing: “One is its style. The other is
its content.”"--their articles are a riches of references.

Here are the links:

1. Their first article "Rules of Inference":
http://gking.harvard.edu/files/rules.pdf
2. Replies to respondents http://gking.harvard.edu/files/rules-reply.pdf
3. Their suggestions for modify legal education, law journals, etc.
(also addressed in the first article):
http://gking.harvard.edu/files/infra.pdf

Here's the abstract from the first article:

"Although the term “empirical research” has become commonplace in
legal scholarship over
the past two decades, law professors have in fact been conducting
research that is empirical—that
is, learning about the world using quantitative data or qualitative
information—for almost as long
as they have been conducting research. For just as long, however, they
appear to have been proceeding
with little awareness of, much less compliance with, many of the rules
of inference, and
without paying heed to the key lessons of the revolution in empirical
analysis that has been taking
place over the last century in other disciplines. The tradition of
including some articles devoted exclusively
to the methodology of empirical analysis—so well represented in
journals in traditional
academic fields—is virtually nonexistent in the nation’s law reviews.
As a result, readers learn considerably
less accurate information about the empirical world than the studies’
stridently stated, but
overly confident, conclusions suggest. To remedy this situation both
for the producers and consumers
of empirical work, this Article adapts the rules of inference used in
the natural and social
sciences to the special needs, theories, and data in legal
scholarship, and explicates them with extensive
illustrations from existing research. The Article also offers
suggestions for how the infrastructure
of teaching and research at law schools might be reorganized so that
it can better support the
creation of first-rate empirical research without compromising other
important objectives."

-Doug Hess


From: Lorraine Minnite <lminnite at gmail.com>
To: law-election at department-lists.uci.edu
Date: Fri, 31 Aug 2012 12:44:24 -0400

Subject: [EL] Invisible voters versus imaginary fraud

Nate makes a lot of good points here, however, I'd like to ask a
different question that lurks beneath the surface of some of the
conflicting recent court decisions in these cases, and that is, what to
do with judges who misunderstand the social science evidence in front of
them.  This was the case in Pennsylvania, and also in one of the earlier
Georgia voter ID court opinions.  In both, conclusions from survey data
were rejected on clearly mistaken grounds regarding the science of
survey sampling and misunderstandings about reliability and statistical
inference.  My recollection from the Georgia case was that expert
testimony from a literacy expert was found not credible because the best
national survey data we have on the literacy rates of Americans was
based on a representative  sample that did not include any respondents
from Georgia.  In the Pennsylvania case, the judge's opinion about Matt
Barreto's expert testimony and survey findings was rejected as "biased"
and based on the judge's misunderstanding of statistical inference.  I
haven't read the recent Texas decision carefully enough yet to know
whether this problem is evident in that opinion as well.

I am aware of Armand Derfner's work and the work of other scholars on
the difficulties associated with treating social science data as
evidence in voting rights and other civil rights cases.  I'm curious
about what weight we should attach to court opinions in which judges
make these kinds of mistakes.

Lori Minnite

>
>     "Voter ID cases: Invisible voter versus imaginary fraud"
>     <http://electionlawblog.org/?p=39460>
>
> Posted on August 31, 2012 8:28 am
> <http://electionlawblog.org/?p=39460> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> Must-read Nate Persily column
> <http://www.cnn.com/2012/08/31/opinion/persily-voter-id-laws/index.html>
> for CNN.
>