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LAWMAKING AND SOCIAL SCIENCE

Lawmakers have long been aware of the contribution that social scientists can make to the lawmaking process. For example, the so-called Brandeis Brief of 1908, defending the constitutionality of limited working hours for women, is considered an early landmark for the use of social science in lawmaking (Zeisel, 1962). The ideas of the economist John R. Commons (1934) influenced the way most states in the United States deal with compensation for industrial accidents and unemployment. In the historic U.S. Supreme Court decision of Brown v. Board of Education of Topeka (347 U.S. 483 [1954]), the Court drew upon a spectrum of the social sciences—ranging from discrete psychological experiments to broad-ranging economic and social inquiry—in reversing an earlier ruling that had established the separate-but-equal standards in racial matters. Relying on this research, the Court ruled that racial segregation in elementary schools is psychologically harmful. In a famous footnote in its decision, the Court cited a number of social science studies summarizing evidence showing that segregation retards black children’s educational development. In an era increasingly dominated by scientific and technical specialists, it is not surprising that lawmakers may rely on various kinds of research evidence, especially social science evidence (Costanzo et al., 2007).

Efforts to bring social science to bear on lawmaking processes involve the use of quantitative and qualitative social science data and the reliance on the social scientist as an expert witness in specific legal cases. Social science data may be collected and analyzed for academic purposes and later used by one or more sides of a dispute as it was, for example, in Brown v. Board of Education (Gold, 2005). Social science research may also be conducted at the specific request of a party in a dispute. In such instances, the materials may address facts in the case or initiate an intervention in a lawmaking process (for example, the disparate effects of wage garnishment on blacks). Social science research is also undertaken without such a specific request if a social scientist anticipates that the results of the research will influence lawmakers’ decisions (Berk and Oppenheim, 1979).

In addition to conducting research, social scientists can also participate in the lawmaking process as expert witnesses who testify typically for one of the litigants or appear before a legislative body. The demand for such service is evidenced by the various directories of expert witnesses and a growing body of literature on the intricacies of testifying in court or in front of legislative bodies (Brodsky, 2013). At times, social scientists are asked to directly assist either the court or the legislator in the preparation of background documents pertinent to a particular issue or to serve on presidential commissions intended for policy recommendations.

Although social science influences what lawmakers do, the role of social scientists in lawmaking is also controversial. Consider, for example, the controversy that broke out in the late 1960s over reinterpretations of the Equal Educational Opportunity Report, commonly known as the Coleman Report after its principal author, James S. Coleman (1966, 1967). In the late 1960s, Coleman’s data on pupil achievement influenced several important court decisions calling for school busing. With the use of extensive busing to achieve “racial balance” in public schools, social science findings about the effects of integration on black children have been hotly debated (Howard, 1979). In reviewing the studies on busing, David J. Armor (1972) questioned the assumption that school integration enhances blacks’ educational achievement, aspirations, self-esteem, and opportunities for higher education. He contends that it is possible that desegregation actually retards race relations. Other scholars, such as Thomas F. Pettigrew and Robert L. Green (1976), accused Armor of presenting a distorted and incomplete review of a politically charged topic.

The late Daniel Patrick Moynihan (1979), an eminent social scientist and a member of the U.S. Senate from 1977 to 2001, proposed two general reasons why social scientists have been criticized for their involvement in lawmaking processes. First, he pointed out that social science is basically concerned with the prediction of future events, whereas the purpose of the law is to order them. Noted Moynihan (1979:16), “But where social science seeks to establish a fixity of relationships such that the consequences of behavior can be known in advance—or, rather, narrowed to a manageable range of possibilities—law seeks to dictate future performance on the basis of past agreements.” For example, it is the function of the law to order alimony payments; it is the function of social science to attempt to estimate the likelihood of their being paid and of their effect on work behavior and remarriage in male and female parties, or similar probabilities. The second reason Moynihan (1979:19) suggested was that “social science is rarely dispassionate, and social scientists are frequently caught up in the politics which their work necessarily involves.” Social scientists are, to a great extent, involved with problem solving, and the identification of a “problem” usually entails a political statement that implies a solution. Moynihan (1979:19) stated, “Social scientists are never more revealing of themselves than when challenging the objectivity of one another’s work. In some fields almost any study is assumed to have a more-or- less-discoverable political purpose.” Furthermore, there is a distinct social and political bias among social scientists. As a result, social sciences attract many people who are more interested in shaping the future than in preserving the past. Moynihan feels that this orientation coupled with politically liberal tendencies and the limited explanatory power of social sciences results in a weakening of influence on lawmakers. Because social scientists often themselves dispute the meaning of research findings, it is not surprising that lawmakers are, at times, skeptical about social science and social scientists.

 
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