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Recent studies show that, over the past decade, judges and lawyers have begun to cite to empirical studies in their work with increasing regularity. However, the use of empiricism is still not common in many areas of the law. In this article, Tracey L. Meares draws on her background in criminal justice to highlight three major objections to the use of empiricism in criminal law and procedure: (1) much of the empirical evidence used by courts is flawed and courts are not equipped to deal with complicated social scientific data; (2) the use of empiricism decreases public acceptance in the criminal justice system, which in turn, prevents an individual from internalizing legal rules (“less information is better”); and (3) empirical information is irrelevant to the normative goals of criminal law and procedure. After fully analyzing these objections, the author presents various counterarguments that underscore the importance of using empiricism in the creation and interpretation of criminal law and procedure.
Professor Meares dismisses the first critique as merely an objection to bad social science and argues for the use of critical review as one of the mechanisms by which courts could screen social science research. The author responds to the “less information is better” objection by attacking it on moral grounds and by demonstrating how the use of empirical evidence can lead to higher levels of legitimacy and to greater compliance with the law. Finally, the author disposes of the third objection by arguing that the use of empirical studies makes criminal justice decisions more transparent and allows us to hold decision makers accountable for their actions.
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