Translating Data into Constitutional Analysis
Quantitative analysis has become more common in legal scholarship in the past 15 years, but that shift hasn’t carried over to constitutional law — and some scholars wonder if it is a missed opportunity.
That was the focus of a two-day, invitation-only conference organized by Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law; Lecturer in Law Lee Epstein; and New York University Law Professor Barry Friedman.
“It remains unproven, but certainly there seem to be lots of examples where empirical inquiry would be enlightening to constitutional law,” Stone said. “Obvious examples include whether the death penalty deters; whether same-sex couples produce less healthy, emotionally or otherwise, children; whether large campaign contributions corrupt our elected officials; whether voter ID laws substantially burden the right to vote, or whether they substantially prevent fraud; whether torture produces reliable confessions, and so on.”
The conference brought together about 20 experts to discuss the impact, and potential difficulties, of incorporating empiricism into scholarship on these and other constitutional issues. The organizers deliberately kept the group small — mostly empiricists and constitutional law scholars — to foster in-depth, engaging debates rather than focusing on presentations for a more general audience.
“The challenge,” Stone said after the conference, “is to find a way to make empirical data both sufficiently definitive and sufficiently understandable to make it useful to judges. What they naturally worry about is that they will rely on data that later turns out to be wrong.”
Effective communication emerged as an issue early in the discussions, with panelists noting that empirical results present challenges because they can often be interpreted in more than one way.
For example, Epstein said, different advocacy groups examining death penalty cases might look at how many states handle something in a particular way.
“There are facts there — look at the state law and see. But then they’ll debate, what is the proper denominator?” Epstein said. “Is the denominator the states that have the death penalty? Or all states? And that, of course, changes the fraction. They’ll take a fact and then find a way to parse it to support their case.”
Richard A. Posner, Senior Lecturer in Law and a judge on the Seventh Circuit Court of Appeals, devoted a lunchtime keynote to discussing how judges might receive and view empirical research.
“It is important to be realistic about judges because otherwise you won’t know how to communicate with them and make your empirical findings usable by judges,” Posner said. “Judges are influenced by facts, but of course only facts they understand. They don’t know how to evaluate statistical or otherwise systematic empirical work. Or to be more precise, they don’t know how to extract fact or truth from social scientific research.”
He added, though, that should a case hinge on empirical evidence a judge could request a supplemental brief explaining the work.
Some argued that empirical data was more likely to be used to support, rather than inform and guide, a decision.
“The premise that underlies a lot of what we’re talking about is that the justices might follow the data, when in fact what they do is come to a conclusion and then gather up what data supports that,” said Lecturer in Law Adam Liptak, who covers the U.S. Supreme Court for the New York Times. “The figure of speech I like to think about is they treat data as a drunk treats a lamp post — not for illumination, but for support.”
For the organizers, the discussions represented an important first step.
“This conference began what will be a long and complex process of translating empirical data into constitutional analysis,” Stone said. “We brought together first-rate constitutional scholars with first-rate empiricists. We’ll see what they come up with.”