Science Magazine has a fascinating and fairly damning piece that takes a critical look at how the legal profession conducts (or I should say doesn’t conduct) research.
In the article, “Overcoming obstacles to experiments in legal practice,” the authors note that despite advancements in empirical legal studies, “judges, lawyers, and legal services providers often fail to subject their own practices to empirical study or to be guided by empirical data.”
The authors, experts in law, medical research, ethics, and policy, are Holly Fernandez Lynch, a professor in the department of medical ethics and health policy at the University of Pennsylvania; Jim Greiner, faculty director of Harvard Law’s Access to Justice Lab; and I.Glenn Cohen, from Harvard’s Center for Health Law, Policy, Biotechnology, and Bioethics.
The trio rightly point out that a fundamental barrier to empirical study is ethics. Research that could violate a client’s rights would certainly be a barrier. However, the authors note that another hurdle is perceived professional obligations. There’s certainly room here for lawyers, courts, and law schools to conduct research by forcing themselves to step outside their comfort zone.
By way of comparison, the authors look to biomedical research and the ethical framework that has developed in that field. They note that medical researchers also abide by strict ethics codes, yet have developed research methods to advance the science and profession in the interests of patients.
Why can’t the legal profession do the same? Afterall, we wouldn’t trust medical science if it was still based simply on observation and experience. We expect doctors to rely on an evidence-based approach, grounded in research.
The authors cite examples of instances in which proposed research into evictions and bail have been rejected because the legal professionals argue that “they ‘already know’ the difference it makes to have bail posted, it is wrong to randomize ‘lifesaving’ legal ‘treatments.'”
This attitude is pervasive and lacks a fundamental understanding of research and how ethical, randomized legal research can be accomplished just as it has for generations in medicine, where a person’s very life is at stake.
Evidence-based research is sorely needed to improve access to justice.