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1991 Wis. L. Rev. 569 (1991)
Empirical Questions without Empirical Answers

handle is hein.journals/wlr1991 and id is 583 raw text is: ARTICLES
EMPIRICAL QUESTIONS WITHOUT
EMPIRICAL ANSWERS
JOHN MONAHAN* AND LAURENS WALKER**
Empirical questions often lie at the heart of law. Courts increasingly turn
to social science for assistance in answering these questions, but find that rele-
vant research is frequently nonexistent or inadequate. This Article explores the
chasm between what the law needs and what social science provides. The au-
thors identify three types of legal questions to which social research could be
brought to bear. social facts, social authority, and social frameworks. Social facts
pertain only to the dispute between the parties to a lawsuit. Social authority
relates to empirical assumptions that underlie a rule of law. Social framework
refers to the use of general research results to provide a context for assisting the
jury in deciding a specific factual issue. This Article documents the problems
courts encounter when empirical questions do not have empirical answers, and
offers recommendations on how courts should proceed in the absence of data.
When social facts are at issue, evidentiary rules govern and the party with the
burden of proof is disadvantaged by a failure to produce relevant empirical
evidence. When the empirical proposition is in the nature of social authority
underlying a legal rule, the course of action courts should take depends upon
whether the rule was created in the common law or is the product of legislation.
In the former case, candid judicial speculation is appropriate. In the latter case,
the standard for judicial review of state action will dictate the result. Finally,
when a social framework is at issue, the law of jury instructions controls. If no
valid research exists, there is nothing on which to instruct a jury.
I. INTRODUCTION
Since the triumph of Legal Realism, American courts have been
frank to acknowledge that empirical questions often lie at the heart of
law. These questions range from the profound to the mundane: Does
the death penalty deter murder? Does the design of a toy car confuse
young consumers? Over the past fifty years, courts have increasingly
turned to the social sciences for help in answering these empirical ques-
tions. While rarely determinative in themselves, social science studies
have often constituted important evidence of contested facts or mod-
em authority' for creating legal rules.
* Henry and Grace Doherty Professor of Law, University of Virginia.
** T. Munford Boyd Professor of Law and Class of 1963 Research Professor of Law,
University of Virginia. We are grateful to our colleagues Lynn Baker, Richard Bonnie, David
Faigman, John Jefflies, Michael Klarman, Harold Krent, Jay Koehler, Dan Ortiz, George
Rutherglen, Michael Saks, Ross Thompson, David Wexler and J. Harvie Wilkinson, III for
their comments on drafts of this article, and to our students, Craig Burns, Tony Coughlan,
Deborah Jenkins and Heidi Morrison for their research. This article was written while John
Monahan was a Fellow at the Center for Advanced Study in the Behavioral Sciences. He is
grateful for the support of the John D. and Catherine T. MacArthur Foundation.
1. Modern authority is the phrase used by the United States Supreme Court in
Brown v. Board of Education, 347 U.S. 483, 494 (1954), to refer to social science research.

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