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Federal judges' perceptionsof social research in judicialdecision‐makingRon Manuto a & Sean Patrick O'Rourke aa Assistant professor in the Department of SpeechCommunication , Oregon State University ,Published online: 21 May 2009.

To cite this article: Ron Manuto & Sean Patrick O'Rourke (1991) Federal judges'perceptions of social research in judicial decision‐making, Communication Reports,4:2, 103-106, DOI: 10.1080/08934219109367530

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COMMUNICATION REPORTS, Volume 4, No. 2, Summer 1991

Federal Judges' Perceptions of SocialResearch in Judicial Decision-Making

RON MANUTO and SEAN PATRICK O'ROURKE*

Social science methods have come to play an ever increasing role in judicial decisions, particularly incivil rights cases. Results of an exploratory survey of the federal judiciary indicated at least two ratherremarkable patterns. Although most federal judges thought knowledge of empirical methods could behelpful, they believed that a workable knowledge of such methods was not essential in either judicialrulings or legal education. Such thinking suggests several serious implications for the character and quali-ty of judicial decisions and, as a result, offers students of communication and the law an important op-portunity to contibute to the futher study of legal argument.

• T h e growing use of the social sciences inlegal decision-making represents an irreversible trend of critical importance for thetheory, education, study, and practice of the law. Students of communication, longinterested in decision-making and argument generally, have just begun to explore howjudges and attorneys establish and validate legal claims (Toulmin, 1958; Crable, 1976;Wiethoff, 1985; van Eemeren, Grootendorst, Blair & Willard, 1987).

From Muller v. Oregon (1907) to the landmark decision in Brown v. Board of Educa-tion (1954), the role of social science evidence in the resolution of legal issues hasbecome pivotal in a growing number of critical cases. Such evidence—social facts de-rived from social research rather than legal method—has become an integral part offederal litigation, especially in cases where essential civil rights issues such as employ-ment discrimination,1 capital punishment,2 and jury selection cases3 have beencontested.4

Lindman (1989) has stated that there is a "mistrust and fear" of the social scienceswith a substantial segment of attorneys and judges. Though perhaps accurate, the claimis largely anecdotal. However, it does suggest that the problems associated with theuse of social research in the law may be deeper and more complex than many original-ly thought and the rather obvious solution of more training may be limited (Kaye, 1986).Very little research into the judiciary's understanding of and attitudes about socialresearch has been conducted and what we do know about judicial knowledge andattitudes towards social research appears to be insufficient. Further, without a reasonableassessment of the judiciary's understanding of, or orientation towards social research,the capacity to demonstrate the nature of the impact on decisions will remainspeculative. It was in the context of these concerns that this exploratory study wasinitiated.

METHOD

During 1988-89, a single-page questionnaire was sent to the judges of the UnitedStates Supreme Court, circuit courts of appeals, and district courts listed in the U. S.Court Directory (1988). The survey was designed to provide more specific informa-tion from the federal judiciary about their knowledge of and attitudes towards well-established concepts and statistical tools of social research.5 Seven hundred forty-two

*Ron Manuto and Sean Patrick O'Rourke are assistant professors in the Department of Speech Communica-tion at Oregon State University.

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104 COMMUNICATION REPORTS

questionnaires were mailed over a three-month period (11 to the Supreme Court, 156to the circuit courts, and 575 to the district courts). The overall rate of response was22% (165), including 2 from the Supreme Court,6 29 from the circuit courts, and 112from the district courts. An additional 22 were returned (8 from the circuit and 14from the district courts) with the categories unmarked. Although all wrote commentsacross the form, several judges did include pages of additional commentary andsuggestions.

The judges were asked to rate the relative importance of seven statistical measures;they were also asked two open-ended questions to assess in whatever way they thoughtnotable the merit of empirical investigation in legal decision-making as well as its rolein pre-legal or legal education.

RESULTS AND DISCUSSION

Generally, the responses revealed two patterns. First, a clear majority of the judgesbelieved that knowledge of social science methods would be helpful to the educationof both lawyers and the judiciary but not essential. Secondly, and not suprisingly inlight of the former trend, only a small number of those judges who responded claimedto have a working knowledge of social research or the various statistical tools.

Among the circuit court judges few in number (1-4) found the concepts and tools"very important" (see Table 1). A sizeable group (20-30%) did find the concepts ofvalidity and reliability, as well as multiple-regression, "somewhat important." Yet, thedominant trend of the responses, including the open-ended comments, suggested alack of knowledge, disinterest, and even hostility towards the relevance of social sciencein the law. However, of those circuit court judges who did hold positive attitudes,specific citations to key cases were given where rulings were based on the results ofsocial research. One judge with positive views concluded that "statistical methods areoften the primary focus of litigation."

TABLE 1Circuit Courts of Appeal

ValidityChi-squaret-testANOVAMultiple-RegressionReliabilityPearson's R

V.I.

10%(3)3%(1)3%(1)0%(0)0%(0)

14%(4)0%(0)

S.I.

34%(10)24%(7)10%(3)0%(0)

38%(11)20%(6)

0%(0)

N = 29Q

6%(2)3%(1)6%(2)

10%(3)6%(2)3%(1)6%(2)

U.I.

6%(2)6%(2)

10%(3)10%(3)10%(3)6%(2)6%(2)

Unsure

41%(12)63%(18)68%(18)80%(23)45%(13)55%(16)86%(25)

V.I. = Very ImportantS.I. = Somewhat ImportantQ. = QuestionableU.I. = Unimportant

By comparison, the district court judges responded in strikingly similar ways (seeTable 2). However, there was a greater recognition of the importance of validity, reliabil-ity, and multiple-regression analysis (25-39%). Yet, as with the circuit court judges,the overwhelming majority (43-98% in various categories) were either unaware of theconcepts or had no response. If representative, such results could raise serious questions

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SUMMER 1991 105

TABLE 2District Courts

N = 112V.I. S.I. Q. U.I. Unsure

Validity 6% (7)Chi-squaret-testANOVAMultiple-regression 9.8%(11) 29%(33)Reliability 13%(15) 18.7%(21Pearson's R 1.8%(2) 5%(6)

1.8%(2) 10%(4%(5) 11.6S4%(5) 11.651%(1) 9.853.5%(4) 13%(2.7%(3) 10%(1.8%(2) 11.65

12) 62%(70)>6(13) 70%(78)£(13) 72%(81)£(11) 87.5%(98)15) 43.7%(49)12) 54%(6l)£(13) 79.8%(89)

about the quality of judicial decisions since empirical proof is typically central andmore directly involved at the trial court level.

Admittedly, the most serious limitation of this report involved the sample itself.We initiated the study with the rather ambitious purpose of acquiring as complete anaccount of federal judicial attitudes as possible. The overall response rate was 22%.Though indicative of some trends we believe critical (the ideas of 165 federal judgesshould not be taken lightly), we do not claim that the number of responses was represen-tative of the whole. The federal judiciary is a fairly discrete population, the characterand composition of which undergoes constant change. As younger judges move intothe system, attitudes toward the role and relevance of social research might (and perhapsshould) change.

Ironically, it will take empirical inquiry to discover whether such a change doesoccur. At this point there have been no similar or comprehensive attempts to gain in-sight into the thought of judges on these issues. Among those judges who held positiveattitudes towards social research, there was a recognition of the importance of a workingknowledge of the concepts and statistical measures. Even though most judges relegatedsuch knowledge to a minor place in adjudication, it was difficult to understand thepersistent and open hostility towards the social sciences by a small number of circuitand district court judges, particularly when so many critical civil rights cases hingeon empirical facts.

Part of the difficulty may be explained by a confusion between facts and values(in this context, legal principles). The methods of the social sciences cannot arrive atconclusions about the wisdom and/or justice of legal rules; they merely attempt to pro-vide more certain data, especially in those cases where factual claims are at issue.7 Ifone concern of the judiciary involves a displacement of its function, it is unwarranted.The ultimate meaning or use of social facts is still (and will invariably be) a judicialperogative. Any change in legal policy or doctrine comes not from social research butby its judicial intrepretation. In light of these concerns, then, this study did stronglysuggest the need for further inquiry into how uninformed and/or negative attitudestoward statistical proof may influence the outcome of judicial decision-making.

NOTES

1. See, International Board of Teamsters v. U.S., 431 U.S. 324 (1977); Seger v. Smith, 738 F.2d. 1249(D.C. Cir. 1984).

2. See, Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); McCleskeyv. Kemp, 481 U.S. 279 (1987).

3. See, Lockhart v. McCree, 476 U.S. 162 (1986).

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4. The role of the social sciences in the law presents several controversial and complex epistemo-logical questions, which while central to the thrust of this report are beyond its scope. For a more thoroughexamination, see, Wallace D. Loh's Social Research in the Judicial Process (cited below).

5. Baseline definitions and explanations, as well as their potential applications, were drawn from E.Babbie, The Practice of Social Research (1986) and L. Freeman, Elementary Applied Statistics (1968).

6. The two Supreme Court responses were bipolar. One judge claimed that knowledge of social sciencemethods and tools was necessary and the other simply said not on all accounts.

7. We are not dealing here with a question of "true" or "false" but one of corroboration based onprobability. True and false are non-empirical concepts which can easily lead a researcher or evaluatorastray. For a more complete discussion, see, K. Popper, The Logic of Scientific Discovery (1959).

REFERENCESBabbie, E. (1986). The practice of social research. Belmont, CA: Wadsworth.Brown v. Board of Education, 347 U.S. 483 (1954).Crable, R. E. (1976). Models of argumentation and judicial judgment. JAFA, 12, 113-20.Freeman, L. (1968). Elementary applied statistics. New York: John Wiley.Kaye, D. H. (1986). Is proof of statistical significance relevant? Washington L.R., 61, 1333-65.Loh, W. D. (1984). Social research in the judicial process: Cases, readings and text. N.Y.: Russell Sage.Muller v. Oregon, 208 U.S. 412 (1907).Popper, K. R. (1959). The logic of scientific discovery. New York: Basic Books.Toulmin, S. (1958). The uses of argument. Cambridge: Cambridge University Press.U.S. court directory. (May, 1988). Washington, D.C.: U.S. Government Printing Office.van Eemeren, F. H., Grootendorst, R., Blair, J. A. and Willard, C. A. (1987). Argumentation: across the

lines of disciplines. Foris, Dordrecht and Providence.Wiethoff, W. E. (1985). Critical perspectives on Perelman's philosophy of legal argument. JAFA, 22, 88-95.

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