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How Judges Work: Thinking about Social Science and Law

Published online by Cambridge University Press:  27 August 2003

Sally J. Kenney
Affiliation:
(skenney@hhh.umn.edu) is a professor of public affairs and law at the Humphrey Institute of Public Affairs at the University of Minnesota, where she also directs the Center on Women and Public Policy. Her research interests include judicial selection, feminist social movements, the European Court of Justice, exclusionary employment policies, and pregnancy discrimination

Extract

Judge Patricia Wald identifies several impediments to judges' making greater use of social science: they lack time to find, read, and make sense of the research; the research is inaccessible to nonspecialists and fails to identify clearly the policy implications; too much exists, and only occasionally does one work stand out; and most research findings are qualified and ambiguous rather than certain. Just as the flukish order in which cases appear and the idiosyncrasies of their fact patterns shape precedent, the timing of research determines whether judges notice it. Judges are more likely to incorporate social science research into their opinions if it fulfills a pressing need and addresses an important shift in thinking. Judge Wald does not debate whether judges do or should make public policy, since she sees making policy choices as inescapable in appellate decision making.

Type
Perspectives
Copyright
© 2003 by the American Political Science Association

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