It is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication of legal actors, who may be unable to evaluate research adequately or to understand the limits for particular legal purposes of even well-designed and well-executed studies. For example, decisionmakers increasingly use algorithms that critics argue incorporate questionable factors. Also, researchers themselves may have biases that shape outcomes. And one study, or a handful, is a thin reed on which to base any policy. But skeptics also challenge family law’s turn to empiricism on more fundamental grounds, arguing that emphasis on empirical knowledge may obscure important value competitions in family law or have undue influence on how different values are prioritized. Ultimately, critics raise the concern that the use of empirical knowledge can reinforce bias and harm marginalized families and communities.
This Essay acknowledges these problems but suggests that most concerns can be alleviated by more careful and sophisticated use of science. The application of science to questions of family and juvenile law is a relatively recent phenomenon. Legal actors have already become skillful in the use of this tool, and interdisciplinary teams of legal scholars and researchers have played a key role in the design of research and translation of empirical knowledge to law. This trend holds extraordinary promise as a means to inform regulation in ways that enhance individual and social welfare. The Essay highlights issues on which the introduction of scientific knowledge has resulted in beneficial reforms. First, twenty-first century juvenile justice regulation increasingly has been shaped by developmental science clarifying that teenage offenders differ in important ways from adult counterparts. Second, policies supporting family preservation and healthy child development have gained support from a large body of research on child development as well as programmatic studies. These examples provide lessons for the use of research in this domain.
Finally, the Essay probes the foundational critique of empiricism in family law and argues that the threat may be less severe than critics fear. To be sure, values shape family law and policy, and competing values often cannot be prioritized solely (or even largely) on the basis of empirical knowledge. But values often have empirical content, and accuracy in evaluating the stakes of the value contests is important. Moreover, the evidence does not support the concern that answers offered by empirical studies will be given undue weight in values competitions. The likely alternative—reliance on conventional wisdom and assumptions about the world—is usually inferior as a basis of policy and possibly more likely to result in biased calculations harmful to marginalized families.
Elizabeth S. Scott,
In Defense of Empiricism in Family Law,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss4/4