Introduction - New Legal Realism

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The Role of Social Science in Law

xxix

ELIZABETH MERTZ


Introduction

Pre
-
Publication version of article published as
:

“Introduction,” in
The Role of Social Science in Law, ed. E.
Mertz (Ashgate 2008)



Should social science play a role in legal decision
-
making? Has social science had any i
mpact

on law to date and, if so, what kind of impact? What is the best way to use social science
knowledge in legal settings? Scholars and legal professionals have long wrestled with these
questions, both in the United States and in other areas of the worl
d. Yet, although the issues
have been widely debated, there is still much work to be done in developing a systematic
analysis of translation between law and the social sciences. This volume introduces some of
the most promising lines of inquiry to date, in

the hope of stimulating further rigorous
attention to this important problem.

Another goal of this collection is to bring together somewhat disparate traditions that
address the intersection of law and social science. On the one hand, legal scholars have
examined the way in which social science is used in legal settings, approaching social science

in
the manner that an ‘insider’ to the legal system might


as a tool that lawyers can use for legal
ends (Monahan and Walker, 2006). As Monahan and Walker expla
in, the ‘principal
alternative
to this “insider” perspective on the relationship of social science to law is the “law

and society”
or “sociology of law” approach which seeks to understand the functioning of
“law” as a social
system’ (2006, p. v, citing Mac
aulay, Friedman and Stookey, 1995; Lempert

and Sanders, 1989)
.

The law and society perspective begins with the social scientist’s goal of

understanding society
(including law), rather than with the lawyer’s goal of achieving speciifc

results. In this sense
, it
stands ‘outside’ the legal system, looking in. Since the 1960s, formal scholarly organizations
in the United States, the UK, Europe, Japan and elsewhere have brought together scholars
from a range of social science disciplines whose common research
fo
cus is on law and legal
institutions. (Garth and Sterling, 1998). In the United States, the Law

and Society Association
has provided a fertile meeting
-
ground for scholars whose methods of

studying law include
everything from the statistical to the experime
ntal to the ethnographic.

This volume seeks to bridge these traditionally distinct ‘insider’ and ‘outsider’ perspectives

to
studying the intersection of law and social science. In doing so, it draws in yet another
approach


one that focuses on studying th
e language of the law. This form of analysis is at
once ‘outside’ the law, because it uses tools from disciplines other than law, and at the same


The Role of Social Science in Law

xxix

time ‘inside’ the law, because it takes seriously the need to understand the way in which
‘insiders’ understan
d and speak about law. It therefore introduces a third vantage
-
point,
insisting that we study the process of interdisciplinary translation itself. The disciplines

that have
paid systematic attention to this issue of translation range from anthropological l
inguistics and
sociolinguistics through law and literature. Thus this volume itself epitomizes a new kind of
translation among disparate traditions, drawing together scholarly approaches that are often
tempted into talking past one another. However, as we
will see, they are often
working at a
similar intersection and can together contribute to a more rigorous and informed

understanding
of what is happening when social science is used in legal decisions.

The sections of this Introduction mirror the organizat
ion of
the volume

[The Role of Social
Science in Law (2008)]
, providing an
explanation of the logic of each part of the book in turn.
The essays reprinted in this collection

represent, of necessity, only a small slice of the wide
array of important relevan
t research. As far as possible, I have sought to remedy this by
featuri
ng additional essays and books t
hroughout this Introduction.
(However, this remedy is
obviously partial; I cite a number of excellent review essays within this Introduction, which I
rec
ommend to those interested in
a broader array of readings.)
Each section of the

volume
concludes with a specifi
c example of how translation issues play out ‘on the ground’.

This emphasis on examining translation in practice is a theme for interdisciplinar
y scholars
interested in a ‘new legal realism’. At a time when there is renewed interest in empirical
research in US law schools, these scholars warn against an unduly simplistic approach to
bridging important differences between law and social science. Ig
noring these differences will

lead to serious analytical mistakes, in which social science findings may be used improperly to
bolster the wrong conclusions. In the arenas addressed by law, where life and death may
literally be at stake, this is no small ma
tter.



1
.
Problematizing and Analysing Translation: The Transparency Myth

Why should lawyers or policy
-
makers care about translation when they turn to social science?

Aren’t social science
f
i
ndings self
-
evident? Or, conversely, why should social scientis
ts worry

about how their studies will be interpreted in legal settings? For that matter, why should
professionals inthese fields converse at all?


Law a
s a discipline bears a very dif
f
i
cult burden. Legal professionals are called upon every
day to cope with

the unruly disputes and problems that emerge from their societies. Social
scientists are also charged with developing ordered frameworks for understanding the social
world around them. But ultimately they do not routinely have to come to normative conclus
ions



conclusions as to what should be done. On the one hand, this means that social scientists
have a luxury; they can take time to stand back and come to more precise conclusions. In the
best cases, they permit what they find ‘on the ground’ to guide th
eir conclusions, rather than
ignoring important facts that might upset their preconceptions. Lawyers, on the other hand,
are


The Role of Social Science in Law

xxix

trained to be advocates. It is their job to discredit facts that might undermine their clients’

cases.
Judges, legislators and some
times law professors, we hope, can stand back a bit further.

But they
often come to the material steeped in a legal framework that poses alternatives in unsubtle
terms


yes or no, guilty or not guilty. Their training and circumstances do not permit the
lu
xury of standing back to survey the scene for very long: people are waiting for their
decisions, often in urgent circumstances. Neither the legal professionals nor the people they
serve are particularly interested in a long
-
winded, heavily
-
hedged or deeply
-
nuanced
explanation of what is going on. They must make choices, come to decisions. From this
perspective, the careful language and lengthy conclusions of social science studies can appear

to
be an extravagance


indeed, an abandonment of social responsib
ility. As Lee Epstein and
Gary King succinctly explain, ‘An attorney who treats a client like a hypothesis would be
disbarred; a Ph.D. who advocates a hypothesis like a client would be ignored.’ (Epstein and
King, 2002, p. 9).


On the other hand, this acti
on framework can work to obscure some crucial issues and
nuances that might be important to legal decision
-
making. In areas such as family law, where

complex social and psychological realities meet the blunt edge of legal procedure, the legal
system has ta
ken increasing note of the shortcomings of its own core approach to
social
problems.
However, as legal professionals then turn to experts in other fields like psychology

and social work (as well as to the relevant empirical research), they move into new w
orlds


worlds for which a standard legal education leaves them poorly equipped. Conversely,
researchers in social science are frequently blissfully unaware of the realities of the legal
universe into which their findings may be dropped. As a consequence,
people on both sides of

this ongoing conversation may proceed unaware of the degree to which they are assuming an

interdisciplinary transparency that doesn’t exist. They may, in fact, be trying to have two very

different conversations. At best, they leave
these exchanges irritated by the limitations that
they perceive in the other person’s understanding (or with a smug sense of the superiority of
their own). At worst, they leave thinking that they have understood one another perfectly.

1.a.
The Transparenc
y Myth: Translation or Transformation?

Scholars from
different traditions have attempted to warn readers of th
e fundamental
communicative mis
f
i
re that can occur when talking across disciplines, particularly when one
of those disciplines is law. This volume

begins with essays from two of these diverse
approaches: ‘law and literature’ at the interpretive end of the sociolegal studies spectrum; and

‘law in social science’
, among the more positivist
of sub
f
i
elds. Interestingly, authors from both
perspectives ag
ree on the need to problematize the process of translation between law and
social science.

James Boyd White, a founding scholar in the field of law and literature, opens our collection

with his essay on ‘Intellectual Integration’ (Chapter 1). He considers
different possible models

for interdisciplinary work. One approach involves simpl
y making the ‘findings’ of one
f
i
eld
available to the other, ‘as though history or economics or philosophy, say, should pass a plate

with the truth on it over to the law, whic
h would then in some unspecified way put it to use’
(p. 14). Of course, as White points out, social science disciplines are themselves internally
divided over the value of particular findings. As discussion develops within a discipline
around a certain top
ic, any particular study is more likely to generate tentative conclusions
than set ‘findings’ which can be interpreted out of context. White also argues against a model

in
which scholars apply the ‘intellectual method’ of one field to the materials of anot
her: ‘the

idea


The Role of Social Science in Law

xxix

is of a discipline as a technology: you learn to run the machine of literary or economic
analysis, then you wheel it up to the new object, called the law, and it goes to work, spitting
out results as a log chipper spits out wood chips’ (p. 1
5). But these methods are not simply
technologies; they emerge from a wider set of disciplinary practices that include learning how

to
frame questions, what sorts of questions are appropriately addressed in certain ways, where

the
limits of certainty l
ie,
and so forth. S
ociologists
who use quantitative methods
do not limit
their training to
statistics; instead, they
engage in coursework, research
,

and writing that teaches
them the

contexts for using statistics.


Both
of
these models
discussed by White
put v
ery light loads on the would
-
be translator


either to pick up neatly
-
packaged findings or to learn a new technology. Let’s think about these
examples as if we were talking about learning a language in the traditional sense


say, a
speaker of Gaelic learn
ing to speak English. Under the ‘findings’ model, it is as if we were
telling that person
that he could simply pick out English words from a dictionary and use them to
speak, without

ever teaching him grammar. The ‘intellectual method’ approach, on the oth
er
hand, might insist that he learn the grammar without much practice in actually using the
language


and certainly
without any
immersion in a setting where the language was in everyday

use. He might come out of that training able to speak in a stilted wa
y, but he would certainly
be making many

mistakes in the process. If our awkward speaker were then put in a powerful

position, the results could be disastrous. Imagine, for example, that you were on trial in a
Gaelic
-
only courtroom, and this fellow was tak
en quite seriously as an able English
-
speaker.
You might find yourself
in jail on the basis of a mistranslated idiom. (And lest this comparison
seem too frivolous, imagine now that a legal scholar who doesn’t fully grasp the tentati
ve
character of social s
cience
f
i
ndings on the death penalty translates them with a misplaced
certainty


and then has a powerful impact on actual legal policy.) In place of the

f
i
ndings’
and ‘intellectual method’ models, White urges tha
t we work
to

achieve a more rigorous form
of
interdisciplinary translation


one with more integrity. He
urges that we think of translation not
as one discipline using or absorbing another, but as two

different discourses that come together
in such a way as to make a third, different discourse


b
lending both to make a new
‘composition’. The downside to this is that it takes much more

work, requiring scholars to
achieve a higher level of comprehension of the discipline to be
translated. The upside is that it
might result in something that does bett
er justice to both of the

disciplinary perspectives
involved.

In Chapter 2 John Monahan and Laurens Walker discuss three ways in which US courts have
attempted to translate social science. To distinguish among these three approaches, the authors
draw upon
the familiar legal categories of ‘fact’ and ‘law’ (
thereby themselves performing a
deft

act of translation into legal categories). Thus, they argue, courts have drawn
on social
science to make law, to determine facts
,

and to provide context (a fact/law mix
ture).

Since 1908
the US Supreme Court has accepted briefs that rely on social science evidence,
and in
subsequent decades ‘research has frequently been invoked by courts to demonstrate the

validity
of empirical assumptions made in the process of modifying

existing law or creating new law’
(p. 25). A famous example of this was the original brief by Louis Brandeis
presenting

research

that indicated

deleterious effects on women from working long hours

(Muller
v.
Oregon,
1908).
Another well
-
known turning
-
point

was the Supreme Court’s reliance, in
Brown
v.
Board of
Education,
on soc
ial science that pointed to
harmful psychological effects of segregation on
black children. In this kind of case, then, the courts turned to social
science for help in making
decision
s about the broad social and psychological truths assumed

in legal doctrines.



The Role of Social Science in Law

xxix


A somewhat different use of social science in court decisions has cent
ered on case
-
spec
if
i
c
questions. For example, in trademark cases, courts are frequently called on to decide

whether

a
new trademark may cause confusion because it resembles an already established trademark.

They have turned to empirical studies by social scientists to help them determine whether a
particular trademark does in fact seem to confuse people.


Fina
lly, Monahan and Walker
discuss how courts have used social science to provide context.
In this third kind of situation,

empirical studies provide a ‘social framework’, drawing on
‘general conclusions from social science research to determine factual issue
s in a specific case’
(p. 33). For example, in cases
involving child sexual abuse, the courts have

considered studies of
sexually
-
abused children’s

behaviour to assess the likelihood that a particular child had been
abused.

Juxtaposing White’s essay with t
hat b
y Monahan and Walker raises a number of questions:
W
here
should we

start the translation process
? Is it useful to employ

the familiar legal categories
as a framework
?

Monahan and Walker desc
ribe a

persistent failure of efforts to
systematize
translati
on
of social science in legal settings. They work from within legal frameworks to
propose an approach that takes better account of the realities of the process. Certainly, without

any guidelines or training, legal professionals may make erratic use of soci
al science research

and are more likely to adopt the imperialist approaches against which James Boyd White
warns us. On the other hand, working within legal categories may do little to budge baseline
orientations and assumptions. Here we encounter a core d
ilemma for woul
d
-
be translators of
all kinds: I
s it even possible to move between two very different languages or approaches
without losing something important?

A recent essay by anthropological linguist Michael Silverstein (2003) suggests that we are in
f
act not dealing with ‘translation’ when we move between law and social science. Silverstein
argues that a straightforward kind of equivalence between expressions in two different
languages is possible only within a very limited domain. His analysis points
to relatively
universal aspects of linguistic systems, anchored in grammatical structuring. One
example
would be the use of a ‘first
-
person’ form to indicate the speaker of an utterance (‘I’).

Even with
this example there are some interesting cross
-
linguis
tic variations (for example, the importance
of case


‘I’/‘me’/ ‘mine’


in some languages as opposed to others). But Silverstein identifies
certain kinds of speech (generally defined functionally and socially as well as formally) that
lend themselves to b
eing translated in the most transparent sense.

Once we move beyond this limited sphere, Silverstein argues that we are doing something
rather different when we attempt to move between languages. Take, for example, the issue of
expletives or swearing. Silve
rstein uses the example of the Tonkawa language, in which one of
the most profane things one could say to someone else is: ‘May you give birth to a
wandering
ghost.’ Repeating these words does little to convey the meaning of this expression

to an English
s
peaker in the United States today. Conversely, a speaker of Tonkawa might
be puzzled to
know that an English speaker had just told someone to have sex (‘fuck you’). Or he might

be
confused upon hearing the word ‘bloody’ used as an expletive, wondering
perh
aps whether
someone had been injured. Let’s say, then, that I’m trying to translate a play,

or a poem, from
one language into another. I might decide to render ‘May you give birth to a wandering ghost’
as ‘Fuck you’. Silverstein suggests that this kind of
process be referred to as ‘transduction’:



The Role of Social Science in Law

xxix


We should think seriously of the underlying metaphor of the energy transducer that I invoke,

such as a hydroelectric generator. Here, one form of energy [(a) downward … rush of water
against turbine blades] is asy
mmetrically converted into another kind of energy at an
energetic transduction site … , harnessing at least some of it across energetic frameworks. In
this transducer, two forms of mechanical energy are converted in a functionally regular way
into another
kind of energy altogether …, of course with some slippage between the
two
systems of energy organization, due to ‘ friction’ , ‘inefficiencies’ , ‘random contingent

factors’, and other tragedies of the laws of thermodynamics and uncertainty. (Silverstein,
2003, pp. 83

84)

Many European languages, for example, distinguish between the second
-
person singular (‘tu’

in
French, for example) and the second
-
person plural (‘vous’). However, the second
-
person
plural can also be used when speaking to a single person,
to indicate respect or formality.
How,
then, would we transduce the meaning of a shift to ‘vous’ in modern
-
day English? If
we retain
the same word (‘you’), we fail to convey something important. We may have to reach for other
aspects of the language


perh
aps shifting from an informal to a formal tone in the surrounding
speech


to ‘transduce’ a core part of the meaning here.


But we may have to make an even more dramatic shift in moving between two languages


in
fact, a ‘transformation’:

Sometimes there i
s no way suf
f
i
ciently to systematize and limit the transduction of material

across functionally intersecting [linguistic] systems. Even trying to play it as safe as we can
with the textual stuff with which, by hypothesis, we start, semiotic transformation
then
occurs. (Silverstein, 2003, p. 92)

Silverstein urges that we stay attentive to the ways in which some kind of transformation might

be entailed in almost every attempt to translate


although to different degrees. Certainly, when
we move across culture
s, he notes, we can no longer speak of ‘translation’ in the usual
sense,
because we have to shift so much to find something vaguely resembling an equivalence

relationship. (Indeed, the search for equivalence may in and of itself distort, yielding an even

m
ore imprecise sense of the differences between the two systems.) James Boyd White makes

a
very similar point when he notes ‘that all languages are limited . . . that full translation from
one to another is always in a deep sense impossible’ (White, 1990, p
. 81). Here the
discourses
of science and humanities can, for a moment, touch on a similar point


because in

the language
of science, to ignore inexactitudes in translation is to miss the boat in terms of scientific
accuracy as well as in

terms of interpr
etive adequacy.

In sum, any accurate or adequate attempt to move from social science to law (or vice versa)

requires systematic attention to the translation process itself. (Although it is beyond the scope

of
this discussion, I pause to note that this kind

of attention is in fact a form of ‘metalinguistic’

analysis, about which there is a large and vibrant literature in linguistic anthropology.) Analysis

from diverse disciplinary points of view teaches us that this translation process is far from
transparen
t. The important task ahead of us, then, is to develop better understandings of legal

and
social scienti
f
i
c ‘transduction’


or translation in the more complex sense (I will not
use

the more
complex terminology here
, on the theory that it might impede the
“translation” that I am


The Role of Social Science in Law

xxix

attempting
). Only from that foundation can we calculate the trade
-
offs involved in one approach
as opposed to another. Although there is reason to be concerned

that the average law student or
lawyer or social scientist has had littl
e opportunity to consider

these trade
-
offs, there are some
arenas in which the issue has been more foregrounded than others. In the next section we turn
to one such arena


the ongoing discussion between social science and law regarding the death
penalty.

1.b.
Translation Problems and the Death Penalty

In the second section of Part I we see how important it can be that we recognize the non
-
transparent relationship between law and social science. I illustrate this point through the lens

of
a particular examp
le


the death penalty. For many years, social scientists have produced
studies that cast serious doubt on the way in which the death penalty is used in the United
States. These studies have been ignored by the US Supreme Court, which has proceeded on the
basis of an ill
-
founded assumption of transparent
translation
. I
n
a classic early essay on this
thorny translation issue, Phoebe Ellsworth (1988) reviewed the US Supreme Court’s use of
social science in death penalty cases and concluded that the
Court was

rejecting sound social
science on largely ideological grounds. Although she makes

a valid point about the probable
motivation behind the Court’s approach, it is also the case that the Court did not feel a need to
question its underlying orientation in dea
ling with social
science. This fundamental issue is not
a standard part of law school curricula or legal discourse

generally. And yet, as Ellsworth ably
demonstrates, the

norms for judging studies

in social science differ in important ways from
standard le
gal interpretive approaches. In a key death penalty case,
Lockhart
v.
McCree,
the
Court had to assess a number of social science studies, all reaching the same conclusion: that
when jurors are pre
-
screened to make certain that they don’t object to imposing

the death
penalty, they are in fact more likely to convict the defendant. Justice Rehnquist approached the
pile of studies in much the way an attorney would approach a stack of evidence that
contradicted her positio
n: he went through each one to
f
i
nd flaw
s and then rejected all but one.
The
remaining study he deemed insuf
f
i
cient by itself to d
ocument a bias on the part of ‘
death
-
qualified’ juries.

Using this approach to parse social science is likely to generate a very inaccurate assessment
of the state of

knowledge in a field; no study can cover all possible grounds, and even the
soundest studies can be critiqued on some basis or
other. That is why it is desirable to compare

the results of multiple studies using diverse methods, wherever possible. When man
y studies
come
to similar conclusions, including those
employ
ing

quite different approaches, we have
one of the strongest cases that can be obtained in social science for those particular
conclusions. Picking the pile of evidence apart bit by bit, without
stepping back to examine the
larger picture, adheres to a particular legal norm for assessing evidence at the expense of
accurate interpretation of social science results. Here we see the dangers of the myth of
transparent translation in legal settings. It

may be that the Court’s
ideological bias would
overcome even a more accurate reception of the existing social science

evidence


Ellsworth
noted that the Court is quite quick to set the bar at a lower level when the

social science
presented to it supports

the death penalty. But it would at least have to deal in
more depth with
the information presented if it had to begin by recognizing the quite different

standard
s and
norms involved in scienti
f
i
c research. In Silverstein’s terms, they would have to

take a
ccount of
the extent and the direction of the transformation that they created.



The Role of Social Science in Law

xxix

The first essay in this section, by John Donohue and Justin Wolfers (Chapter 3), stresses this

last danger of which Ellsworth warns: that the death penalty policy in the United

States has
been (and may continue to be)
based on a hasty acceptance of
f
l
awed social science. Dismissing

well
-
founded research is not the only risk that follows from the myth of transparent translation.

Legal scholars may also too readily accept, as sett
led propositions, conclusions that are up for

debate within a

field. Deciphering field
-
specific nuances regarding the questionable nature of
certain findings is another task that is ill
-
suited to schola
rs trained in a discipline center
ed on
advocacy. This
is particularly the case when the stakes are high


when the state’s decision to
imprison or kill its citizens hangs in the balance. Asking that we reach conclusions that are
‘beyond a reasonable doubt’ is surely good policy at all levels in these cases. D
onohue and
Wolfers demonstrate that there is quite a lot of doubt surrounding empirical research
purporting to show that the death penalty deters crime. They express concern about ‘the
potential dangers awaiting those who might wish to short
-
circ
uit the fu
ll process of scienti
f
i
c
inquiry and validation and rush directly to the legislative forum …’
(p. 93).

In
a more optimistic vein, in Chapter 4 Michael Radelet and Marian Borg trace the impact of
social science on public opinion, arguing that, over time,
fi
rmly
-
grounded
social science is
having an effect on public perceptions. They provide a thorough overview of the intersection
between social science and law as regards the death penalty in the United States, reviewing
arguments over
deterrence, incapacitati
on, caprice and bias, cost, miscarriages of justice
,

and
retribution. When

we compare their discussion with that of Donohue and Wolfers, we see a
continuing pattern in which policy concerns have distorted
the
legal reception of relevant
research; many of t
he themes in the more recent debate can be traced back through earlier
discussions summarized
by Radelet and Borg. In their discussion of miscarriages of justice, the
authors also introduce

the Capital Ju
ry Project, an ongoing program

of research examining

the
decision
-
making of capital jurors. In the final essay of the section, David Baldus (Chapter 5)
focuses on the Capital Jury Project as a potential bridge between social science and legal
discourses, and
continues Radelet

and Borg’s optimism about the e
ventual impact of social
science, not only

on the public but also on the judiciary. As a key participant in the ongoing
dialogue between the Supreme Court and the research community, Baldus brings us closer to
the back
-
and
-
forth, highlighting the contrast
ing understandings of the legal and social science
communities

as they struggled to bridge a gap in translation. Together, these last two essays
introduce many

of the major voices and positions on both sides of this gap.

The thoughtful work in this area po
ses some stark questions about the use of social science
in legal decision
-
making. It pushes us to ask what further steps are needed to develop a more
effective process of translation and reminds us of what is at stake. Nevertheless, of course,
translation

issues reach beyond the bounds of law and social science to the wider society as
well (Sarat, 2001).







The Role of Social Science in Law

xxix


2.
Translating Social Science in Legal Settings

In Part II the book begins to focus more specifically on some particular aspects of legal and
social

science discourses that complicate efforts to translate between them.


2.a.
Across Divergent Frames

The initial essay in this section, by Elizabeth Mertz (Chapter 6), draws on in
-
depth linguistic
research in law
-
school class
rooms. Through a comparison of
f
i
rst
-
year contracts classrooms in
eight different law schools, Mertz outlines a core linguistic structure


and accompanying
message


that is imparted in all of the classes. She finds a fundamental resistance in this legal

discourse to a thorough examina
tion of social context. This resistance is created by the forms

of
typification found in legal language.
Of course, on the on the one hand, lawyers might argue
that it is not their job to worry about context in the way that social scientists do. And there

is
some merit to t
his argument. However, if this legally
-
oriented

linguistic system does actively
close off certain kinds of understandings of context, there may be important aspects of
problems that are missed


and this is particularly true when we’re
dealing with the problem of
translating between law and disciplines that take a different approach to the analysis of social
context.

In these instances, it is o
nl
y by moving beyond the more typical structuring

of legal
discourse
that
law
will
be able to
effectively translate more contextually
-
oriented disciplines,
such

as anthropology. In the wider study from which this essay is drawn, Mertz argues that this
and other features of legal language create a premature closure (Mertz, 2007). She urges law
teach
ers and legal scholars to adopt new forms of humility and self
-
questioning that would
permit legal language to become more open to other discourses


including those of the social

sciences.

In Chapter 7 David Nelken raises the opposite concern: that the so
cial sciences may not be
achieving an adequate understanding of law, so that attempts at translation across
disciplinary
divisions
become truncated. He poses this problem as the f
l
ip
-
side of a widely acknowledged

concern in the sociolegal studies community

about the ‘pull of the policy audience’. In a
widely cited essay, Austin Sarat and Susan Silbey warned that this ‘pull’ might warp social
scientists’ critical capacities when they are attempting to translate their research for policy
-
makers:

Research whic
h addresses the policy elite of the liberal state speaks with a particular voice,

one
that is instrumental, rational, and programmatic; attempting to speak with certainty, its
presentation is limited, if not singular. In particular, the pull of the policy
audience leads
sociologists of law to ignore perspectives inconsistent with its epistemology, or purposes.
(Sarat and Silbey, 1988, p. 131)

Sarat and Silbey urge researchers to be more aware of the distortions involved in this translation

process. They lea
ve sociolegal researchers with an interesting dilemma, which calls to mind
an
admonition by James Boyd White

that translation always involves losses as well as gains:

arguably the only way to escape distorted

t
ranslation in this case is for researchers to
avoid

a


The Role of Social Science in Law

xxix

language that

could be understood by policy elites. This obviously has its downside for social
scientists who feel a broader social responsibility to make their research available in ways that
might
improve public
policies. Yet there is no way of e
ngaging with the discourses of law and
public

policy without some kind of transformation. John Brigham and Christine Harrington
make this point in an essay that notes the correlation between an ‘overriding concern with
policy
formation’ and ‘the omission o
f social relations’ in many sociolegal accounts of law
(Brigham

and Harrington, 1989, pp. 54

55). They urge more attention to relational and
institutional contexts.

Nelken, then, takes up where these critiques end and asks about the potentially distorting
effect on law of using social science. Anticipating Silverstein’s (2003) pointed distinction
between translation and transformation, Nelken asks social scientists to be more self
-
conscious

about the imposition of their categories on legal phenomena


urgin
g that these scholars pay
systematic attention to differences and ‘incommensurabilities’ between the legal system and
the academy. He stresses that this is at once a practical and a theoretical problem, and goes on

to
talk quite specifically about the vari
ous ways in which this problem can be addressed.

Edward Rubin (Chapter 8) also provides a careful delineation of the distinctive character of

legal knowledge, which he describes as having a contingently prescriptive stance. On the one

hand, this means that

there is a fundamental difference between law and social science that
cannot be wished away: the social sciences simply ‘cannot supply standard legal scholarship
with a methodology’ (p. 221). This stance does not, however, mean that law is an autonomous

f
ield



or that law
can never
productively
draw upon, or learn from, other disciplines. In fact,
when law moves
outside of the purely prescriptive to make judgments about the world around it,
it can usefully

draw on empirical research. However, Rubin cautio
ns that the translation
between law and social science must take more precise account of the differences among them.



The section concludes with a counterexample, albeit presented in a very optimistic
framework


the US Supreme Court’s imprecise attem
pt to provide guidelines for translating
science, in the series of cases developing from
Daubert.
In Chapter 9 Joseph Sanders, Shari
Diamond and Neil Vidmar freely admit that the Court demonstrates a profound ignorance
about social science epistemology, bu
t end on the hopeful and pragmatic observation
that the
Court’s blunder might yet yield positive results. They suggest that, despite its ‘relatively
unsophisticated view of science’, it may in the end have struck a ‘reasonable balance between

a
realist and

a social constructionist view of science’ (p. 237). However, in a somewhat
contrasting key, Jonathan Yovel and Elizabeth Mertz (2004) critique the Court’s inclusion of

two
conflicting epistemological stances without any apparent awareness of the contradic
tions

involved. In all of these essays, we see a more detailed outline of the divergent frames
characterizing legal and social science discourses


painting a picture of where the obstacles to
productive translation lie.

2.b.
Discrimination in the Civil La
w Context

Debates over discrimination in the United States offer us an interesting window on the
complex issues involved in translating between social science and law. In contrast with many

of
the death penalty cases, a number of civil cases involving disc
rimination have resulted in the
Supreme Court’s absorption of available social science information.


This section begins with Edmond Cahn’s well
-
known 1955 essay ‘Jurisprudence’, which


The Role of Social Science in Law

xxix

disputes the idea that the Supreme Court should (or did) rely on social

science evidence in
Brown
v.

Board of Education.
Cahn usefully raises the question of a potential incompatibility

between law and social science. Taking Nelken’s concern about the potentially distorting
impact of social science on law even further, Cahn a
rgues against using psychological research
as a foundation for decisions about discrimination. He famously objects that he would not like
to see any Ameri
cans’ rights ‘rest on any such
f
l
imsy foundation as some of the scien
ti
f
i
c
demonstrations
in these rec
ords’ (p. 249). He
f
i
ercely defends the idea that the Court’s
decision actually rested on the ‘common knowledge’ that segregation degraded
and injured
African
-
American children. The scientific findings simply restated something that

was obvious
on other te
rms. He expresses a strong concern about letting the ‘latest fashions of
psychological literature’ (p. 258) control fundamental legal rights and launches a critique of
the studies’ methodology that, in some respects, has proved to be correct. And yet, the
underlying proposition that the studies purported to document has by now been demonstrated

using other methodologies, leaving us with an interesting question about the role of social
science as itself a changing institution.



In an essay that actually in
troduces a number of
other
articles on the subject, Deborah Jones
Merritt (Chapter 11) concludes that the justices in

Brown
appropriately used social science as

one
piece of a
larger

puzzle,

regardless of the methodological issues involved in the pertinent

studies:
‘I believe that the Justices who decided
Brown
looked at the society around them and knew it
was not equal. The social science evidence helped them perceive and articulate the nature of
that inequality’ (p. 263). In a similar way, Merritt argues,

social science can continue to shed
light on current cases involving affirmative action and other remedies for discrimination. Since
Merritt’s essay was published, the Supreme Court has decided two key cases on afifrmative
action involving admissions proc
esses at the University of Michigan.
(Grutter
v.

Bollinger,
Gratz
v.

Bollinger).
True to Merritt’s prediction, the Court took careful

account of empirical
evidence presented in amicus briefs. For example, in
Grutter,
the Court
takes note of research
dem
ons
trating the educational bene
f
i
ts of diversity in the student body.

It also speci
f
i
cally
comments on studies showing that this kind of diversity ‘better prepares students for an
increasingly diverse workforce and society, and better prepares them
as pro
fess
ionals’.
Interestingly, the Court here also looks to briefs submitted by business and military leaders
which made the same point


perhaps illustrating Cahn’s idea that the Court can and will
combine forms of ‘ common knowledge’ wi
th social science
f
i
nding
s in making decisions.

(This cheerful

picture is complicated by another possible scenario, in which social science
contradicts common sense, supporting a position that is unpopular but accurate.)

In Chapter 12 Susan Fiske and her co
-
authors offer their as
sessment of how appropriate it
was for the American Psychological Association to submit a brief (which they also co
-
authored) to the Supreme Court in the
Price Waterhouse
case. In this case, the trial court had
concluded that the ‘big
-
eight’ accounting fir
m of Price Waterhouse violated anti
-
discrimination

laws in refusing to advance a female employee for pa
rtnership. The lower court spec
if
i
cally
noted that the evidence of gender prejudice in the case was obvious as a matter of ‘common
sense’
, but added
that

here ‘common sense is con
f
i
rmed by the literature on the problem of sex

stereotyping which suggests that making evaluators aware of the risks of biased evaluations
and inquiring as to whether the generalizations are supported by concrete incidents can be
effective in eliminating or minimizing stereotyping’

(Price Waterhouse,
1985, p. 1120, n. 15).

The Supreme Court opinion echoed this emphasis, stating that ‘we are tempted to say that Dr.
Fiske’s expert testimony was merely icing on Hopkins’ cake. It takes

no special training to
discern sex stereotyping in a description of an aggressive female employee as “requiring a
course at charm school”’
(Price Waterhouse,
1989, p. 1793).



The Role of Social Science in Law

xxix

How, then, are we to understand the role of social science research in these lega
l conclusions



or the nature of the translation process that has o
ccurred? The courts here

seem to be

quite
insistently echoing Cahn’s original idea


that social science works best in legal settings

when it
merely reinforces judges’ common
-
sense under
sta
ndings. This emphasis may re
f
l
ect a
fundamental tension delineated by Yovel and Mertz:

… the tension is between the democratic reluctance to delegate adjudicative facticity
to
expert discourse, on the one hand


and on the other hand, society’s interest in

adjudication

that is based on the ‘best available’ knowledge rather than fragmentary
‘lay notions’ (whose political or ideological character hides behind conceptions of
‘common sense’ or ‘experience’) (Yovel and Mertz, 2004, p. 410)
[EM NOTE: This
particu
lar idea is Yovel’s]

One resolution of this tension, apparent here, is for judges to employ their common sense when

extra
-
legal judgement is required


but to also maintain receptivity to social science expertise

as
an additional source of information. Thi
s resolution makes some sense (or perhaps I should

say
common sense!). It balances the potential contribution of social science experts against the
core legal values that judges as professionals are trained to protect. On the other hand, it
leaves
some imp
ortant questions

unanswered
. In these situations, judges are specifically drawing on
extra
-
legal expertise. Why, then, should their ‘common sense’ be given a privileged place?
(See also Levi and Valverde, this volume, Chapter 15 on this point.) One respons
e might be
that,
unlike social scientists, judges have been selected as representatives of the society they help
to

regulate. Another might be that they have to combine knowledge of the society around them
with legal considerations and larger policy concer
ns and so are better placed than academics to
assess the wider legal frameworks and normative issues in play. (Social scientists, after all, are
generally enc
ouraged to study normative judg
ment rather than to engage in it as a

p
ractice.)
However, judges ar
e in fact not only experts themselves, but also are generally elite

members of
society. This means that their own ‘common
-
sense’ understandings are socially situated.


So, we are drawn back to Merritt’s idea that social science may play a role in helping j
udges
to ‘perceive and articulate’ aspects of the society around them


and perhaps even to
understand something as ‘common sense’ that might be emerging at the fringes of that society.
When this occurs, it will, of course, be thought of as ‘obvious’, but
in many cases
this
‘obvious’ fact has not previously been recognized by apparently similarly situated judges.

For
example, the ‘obvious’ character of segregation as an injury to black school children had gone
unrecognized for many decades before
Brown,
as
had the ‘obviously’ biased effects of sex
stereotyping on female workers before
Price Waterhouse.
Sociologists, with their usual
emphasis on broader social and institutional contributions to legal change, might well say that
this shift in perceptions by th
e elite justices on the Court was primarily the result of social
changes and political pressures. But even if that is true, it remains possible that social
science
provided a language that eased the translation of this shift into professional discourses

ge
nerally,
and then into legal language in particular.

Unfortunately, there is a sign
if
i
cant downside to this apparently happy picture. For if the
core screening mechanism for the judiciary remains its ‘common sense,’ and if the judiciary is
composed primari
ly of elites, then there will probably be socially derived differences in the
courts’ ability to take in new information, even if it is well
-
founded. For example, the same
process of stereotyping condemne
d in

Price Waterhouse
(and other socially situated
b
iases in
understanding) will be at work in many arenas, and the courts may be more resistant

to seeing


The Role of Social Science in Law

xxix

this in some arenas than others. To make this more concrete, it may be easier to persuade
courts to combine the learning of social science and ‘common se
nse’ when they are dealing
with young children or white women at certain points in history than when they are dealing
with stereotypes of African
-
American criminals who are convicted murderers. Interrogating
this difference in resistance to the findings of

social science requires that we
look at the
institutional and social settings within which acts of translation transpire. Fiske and

her co
-
authors come to a balanced conclusion, explaining both that social science research can be
well
-
suited for use in co
urts, and that care is necessary in these attempts at translation between
fields. (These authors also provide a fascinating transcript excerpt illustrating some of the
detailed differences between how lawyers and social scientists talk, pointing to core
di
fficulties
involved in translating the cautious, hedged speech of empirical researchers in the

assertive,
bottom
-
line language of the courtroom.)




3.
Professional, Institutional
,

and Wider Sociocultural Contexts of Translation


In Part III
of the vo
lume,
we turn to examine in more detail the impact of institutional and social
contexts on

translation between law and social science, and we see that translation occurs across
a variety

of contexts, reaching far beyond appellate opinions. As we move into
this broader
context, we must confront some of the institutional and professional issues involved in the
translation
process (Brigham and Harrington, 1989). These kinds of issues arise both in law and
in social

science.

3.a
. Legal

Decisions in Diverse Sett
ings

The first section in Part III begins with Bryant Gart
h’s frank discussion of the dif
f
i
culties
involved in using social science to address problems as they are framed by lawyers


in this
case, in attempts to improve the civil justice system. His essay

(Chapter 13) pushes us to think

about the institutional relationships between law and social science research


who poses the
questions, where and how are the translations performed, and with what expectations? Garth
clea
rly delineates how

differing profe
ssional understandings can lead to failures

in translation.
He concludes that if lawyers are to make the best possible use of social science

information, they
need to listen to the frames and not just the results available from social science. This is far
more challenging than si
mply absorbing social science ‘
f
i
ndings’ and applying them to pre
-
formed legal questions


but, as both Garth and White would tell us, in the long run it is
probably a far more worthwhile endeavour.

In Chapter 14 Robert Burns discus
ses translation within the institutional setting of trials,
where he finds
parallel
s

among normative theory, interpretive social science
,

and quantitative

social science. His essay suggests how legal professionals could incorporate social science
framework
s without abandoning some of their own priorities. On a more profound level, Burns
proposes that the US trial should be understood as a complex process of translation


indeed,
transformation


in which jurors take in the many narratives with which they ar
e presented and


The Role of Social Science in Law

xxix

deliver a form of truth: ‘the trial can illuminate the practical truth of a human situation by
allowing the juror to dwell in the tensions among its linguistic performances and cope
practically with the conste
llation he or she sees for the
f
i
rst time’ (pp. 343

4). He does
acknowledge that these institutionally created possibilities are also severely constrained by
social and institutional limitations, such as bureaucratic rules that limit juries’ access to
information or the economic inequal
ities that favour the wealthy in court. On the other hand,
he reminds us that the jury trial has the potential of providing an important source of social and
practical wisdom in an often overbureaucratized, inhuman system of justice.

By contrast, Ron Levi
and Mariana Valverde (Chapter 15) highlight the problems that arise
when the legal system fails to permit scientiifc knowledge to supplant folk ‘wisdom’ about
issues such as drunkenness. Their study focuses on how Canadian law has dealt with liquor
licensi
ng and drunk driving, devolving power over legal tr
anslation to police of
f
i
cers and
liquor inspectors. For example, they document the way in which police evidence on
intoxication, which might generally be excluded as non
-
expert opinion, is admissible as a
form

of
common
-
sense knowledge. However, like the US judges whose common
-
sense knowledge

has
governed l
egal decisions, these police of
f
i
cers are themselves socially situated in particular

ways.
We can see here the way in which concepts such as ‘common sens
e’ themselves help to

perpetuate the myth of transparent translation.

In Chapter 16 David Wilkins points to another failure of translation, and one he views as
having ethical consequences for the legal profession: he argues that a more ethical practice of

law requires better empirical knowledge than currently exists and examines the institutional
reasons for law’s resistance to gaining this knowledge. His essay bridges social science and
legal approaches because it includes the kind of strong prescriptive e
lement that is common in
legal scholarship


but his policy recommendation is that law schools incorporate and perform
empirical research on the legal profession. Like Garth, Wilkins pushes us to think about the
institutional and professional settings surr
ounding incorporation of social
science i
nto law, but
here the focus is on legal education, an important meeting
-
point for academic and

legal
knowledge. Interestingly, Wilkins anticipates several recent attempts to bring empirical
study
into the heart of t
he law school curriculum


attempts variously described as ‘new legal

realism’,
‘empirical legal studies’, or simply as educational reform (Erlanger
et al.,
2005;
Sullivan

et
al.,
2007 (Carnegie Foundation Report)). These efforts range from using empirical

research on
teaching to improve legal education through incorporating social science into the law school
curriculum itself. There have also been thoughtful calls for the incorporation of institutional
perspectives in the study and teaching of law, ranging

from use of micro
-
institutional analysis
to the ‘new institutionalism’.

3.b
Family Violence

The two essays in this section demonstrate the ways in which institutional, professional, and
social factors shape legal translations of social science (and would
-
be social science)
knowledge. In particular, they focus on the issue of family violence, an arena in which social
attitudes towards gender, family, children, sex, emotion and many other deeply cultural
concepts come into play. And this does not happen in a
n institutional vacuum; the impact of
many aspects of social structure is evident at all points. These essays take this complex
situation one step further, asking what happens when all of these factors intersect with the
institutions of law and social scie
nce.

Renée Römkens’ essay (Chapter 17) provides a fascinating, if distressing, example of the


The Role of Social Science in Law

xxix

politics of social science as they play out in a case involving a battered woman who killed
her
husband. She concludes that institutional constraints in the legal

profession’s approach to

social
science ironically rob it of objectivity. When more novel social science approaches come

into
internal conflict with the dominant approaches in their field, Römkens argues that the law

is
skewed in favour of the approach wi
th the most conservatively formulated, institutionally
powerful foundation. On the other hand, in the case she analyses, she finds that the court does

manage to incorporate some of the insights gene
rated by a newer social scienti
f
i
c perspective



albeit wi
th considerable ambivalence. This permits the court to balance a traditional male
-
dominated perspective with an approach that does better justice to some aspects of women’s
lives.

The possibility that courts and judges can take a cutting
-
edge role in resis
ting traditional
views of gender roles becomes even clearer in Justice Williams’s essay (Chapter 18). Here,
however, instead of taking the lead in accepting new forms of legitimate social science, Williams

argues against the use of a created ‘syndrome’ tha
t actually plays on old prejudices against
women. Use of this stereotype may have actually the perverse effect of silencing children and

women who report child sexual abuse, particularly at the time of divorce. Williams is also here
rejecting a US import,
which he fears will have a negative effect on Canadian decisions
in
child custody cases. No book on social science in law would be complete without including

the
voice of a legal actor charged with performing this translation task. Here we have a fresh,

ur
gent
perspective from ‘the trenches’. Together, Williams and Römkens challenge us to think about
the complicated interface of institutional, social and professional influences on the translation
of social science in legal settings.



4. Informed and Criti
cal Translations

In this final part of the volume, we consider the potential of social science as a source of
information and critique for law.

4.a.
Information and Critique

The first two essays in this section


by scholars who are experts in the intersec
tion of law with

their respective disciplines


raise cautions about the use of psychology and anthropology as
sources for information in law, and note the large potential distortions involved. In Chapter 19
Shari Seidman Diamond, a noted psychologist of l
aw, warns that courts and legislature
s have
often relied on clearly
f
l
awed research when they turn to social science. She focuses in
particular on cases involving deceptive advertising and criminal sentencing. In a compelling
re
-
study, for example, she sho
ws that oversimplistic measures of public opinion have been
used to justify raising criminal sentences. When more complicated and contextualized research
is performed, it seems that, in particular instances, the public in fact favours less severe
sentences

than do judges. Like Burns, Diamond suggests that an informed layperson may
provide more democratic and just decisions than many legal professionals. There is an obvious
and disturbing corollary to this proposition, however, in a society that is becoming
increasingly bureaucratized (and in which judges are increasingly called on to serve as


The Role of Social Science in Law

xxix

gatekeepers for social science information).

In Chapter 20 legal anthropologist Lawrence Rosen gives a similarly unsettling account of
the way in which law has absorbed

expert testimony from his social science field. He highlights

in particular the unfortunate effects of the adversarial format within which these translations
from anthropology have occurred. The either/or formula imposed on anthropological experts
frequen
tly forces them to distort a more complex reality. For example, testifying that a particular

Native American group is or is not ‘acculturated’ may quite clearly be inaccurate


whichever

polarity is accepted. Susan Staiger Gooding has poignantly described
the impossible situation

in
which Native American witnesses themselves have been placed in US courts


for example,

when they are called on to select one family line over another as primary to their heritage,
where in reality they would trace their identit
y to both (Gooding, 1994, pp. 1225

26).

The final essay in this section, by Susan Silbey and Austin Sarat (Chapter 21), suggests that
social science can and should move beyond providing information to offering critique, arguing
that it is possible to be bo
th empirically sound and

critical. They worry that the
f
i
eld of law
-
and
-
society might lose its critical distance if does not periodically step back and re
-
examine
accepted premises. They accept that ‘there is a physical and social world ordered by

rules an
d
norms that are knowable’


this is the import of the ‘science’ in social science (p. 499). To this
they add two more important assertions: that it is important for social scientists to also take
account of their own positions as observers, and that they
should remain open to
the creative
and contingent aspects of social and
legal life. We are left with a
f
i
nal translation

question: when
the social science study of law moves in this direction, to what degree can it
be in any kind of
productive conversation

with those at the centre of law? We began with the

idea that translation
per se
may be doomed to fail, that we will inevitably be involved in a transformation. But are
there degrees of incommensurability in this process: are there some differences that ar
e more
difficult to bridge in any sensible way than others? Mertz’s
essay (
Chapter 6) answers this
question somewhat pessimistically as regards anthropology and a central form of legal
discourse (see also Riles, 2006).

4.b.
Law, Social Science, and Social
Struggle

There are many works in the law
-
and
-
society tradition that have examined the frequently
ambivalent stance taken by legal translations of social science in situations of social struggle.

All
of the themes of this volume come together in such settin
gs; it becomes important to consider
the background (metalinguistic) theories of translation as well as the institutional and social
foundations at work here. Classic work in this area by Martha Fineman and Joel
Handler
clearly demarcated the intensely pol
itical stakes and processes that can be implicated

in legal
translations of social science. Fineman, for example, has analysed how empirical studies have
been used to paint single mothers as deviant (Fineman, 1995). She has also
tracked the impact
of the p
rofessional discourses of social work on core legal attitudes towards

the divorce process
(Fineman, 1991). Joel Handler (1990) similarly points out the complicity of social scientists of
many stripes, including liberal economists, in the construction of le
gal ideologies that have had
disastrous effects on single and working mothers.

The three final essays, then, provide examples of

the intersection of

social science translations

in law with social str
uggle. In all three essays, we
f
i
nd that putatively neutr
al legal translations

of
social science research end up having clear political implications. When unexamined, this
political dynamic can rob empirical research of any critical or even informational potential. At
the same time, research that takes critical
and careful account of its context can provide


The Role of Social Science in Law

xxix

important alternative understandings of law and politics ‘on the ground’. For example, John
Hagan, Wenona Rymond
-
Richmond and Patricia Parker (Chapter 22) contrast the evidence for
genocide in Darfur uncovered

by their analysis with the UN Commission of Inquiry on
Darfur’s denial that genocide has occurred. They give us a detailed description of how legal
evidentiary burdens might affect the reception of social science evidence, but conclude with
suggestions as

to how an effective translation might be attained.

Wendy Espeland’s essay on the Yavapai struggle to retain their land (Chapter 23) is, for the
most part, a tale of the failure of legal translation. Espeland describes an ongoing battle
over
Yavapai water
rights


a struggle which culminated in an eventual confrontation between

the
rational decision framework used by the US Bureau of Reclamation (a framework heavily
steeped in techniques of commensuration) and the Yavapai’s own conception of the
significanc
e of their land and history. When the categories and options proferred by the
government failed to do justice to this conception, the Yavapai went outside the channels
provided by law, turning to political discourse and the public media. Espeland challenge
s us
to
think about the limits of translation


about times when it might be necessary to abandon a

conversation with law in favour of other avenues for struggle.

Like Espeland, Jacqueline Urla (Chapter 24) provides a telling example of the non
-
neutral
cha
racter of seemingly ‘objective’ technologies like surveys and statistics. In a fascinating
counterpoint to the tale of the Yavapai, Basque speakers have turned the commensuration
machinery of the contemporary bureaucratic state to their advantage: ‘In turn
ing language into

countable things, militants and moderates have found an authoritative means of documenting

Basque cultural and linguistic marginalization and of managing competing language rights’ (p.
593). Of course, this does not come without a price a
ttached


the dramatic alternation
of
p
reviously uncountable aspects of people’s identity. Yet Urla stresses the double
-
edge of this

conversion, analysing this appropriation as a form of resistance.
4

We see in these essays the inevitably political context
that awaits social science translations

in
legal and other governmental settings. Leaving this context unanalysed, as Römkens
previously observed, ironically guarantees that legal attempts at objectivity will be rendered
less objective. This irony points u
s towards the necessity of combining critical perspectives
with empirical research when we are studying the translation of social science in law.


Conclusion

It should be obvious that I agree fully with David Nelken in his observation that there is much
wo
rk still to be done in systematically analysing the process of translation itself in this domain.
The essays in this volume come from traditions that all too rarely interact with each other; yet
there is much to be learned from their pooled insights. Neith
er social scientists nor legal
professionals benefit from the myth of transparent translation. Careful analysis of the very
different epistemologies, institutional settings, goals and languages involved can only improve
interdisciplinary communication. Fro
m the social scientists’ perspective, if a core goal is
achieving better understandings of law, then it is clearly important to proceed with an accurate
sense of the internal categories that organize legal experience. From legal professionals’ point
of vie
w, achieving good results from the use of social science requires at least some
sophistication about the systems of knowledge behind them. Neither of these is possible unless


The Role of Social Science in Law

xxix

we transcend the myth that we are speaking the same language and move beyond the
somewhat arrogant assumption that we can effortlessly pick up each other’s professional
knowledge. Translation of this kind will inevitably, as we noted at the outset, involve
transformation and, indeed, loss. But it is possible to move forward with some c
are,
developing more systematic analyses not only of the kinds of losses and transformations
involved, but also of the gains to be had from a more informed and critical conversation.



The Role of Social Science in

Law



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Cases Cited

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347 US 483 (1954).


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Muller
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