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The Role of Science in Law$

Robin Feldman

Print publication date: 2009

Print ISBN-13: 9780195368581

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195368581.001.0001

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The Repetitions of History

The Repetitions of History

Chapter:
(p.49) chapter iv The Repetitions of History
Source:
The Role of Science in Law
Author(s):

Robin Feldman

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195368581.003.0004

Abstract and Keywords

This chapter traces the instinct to reach for science in American legal doctrine back through the 1800s. It examines both the more formal legal theory movements as well as individual doctrinal moments in which American law reaches for science in an attempt to solve its problems and is disappointed when the solution fails to live up to its promise. The chapter begins by describing various attempts to reconceptualise law as a science in the pre-Civil War period and the failure of those attempts in the wake of the Civil War. It then describes reinvigoration of the “law as science” idea in the 1870s as Christopher Langdell popularizes the notion, leaving an enduring mark on American legal education. The chapter turns to individual doctrinal moments in which American law has reached for science to solve intractable problems and is subsequently disappointed. The examples explored include criminal law doctrines related to finding a defendant not guilty by reason of insanity, civil law doctrines related to the best interests of the child in custody cases, the Supreme Court's desegregation decision in Brown v. Board of Education, the Learned Hand test for negligence liability in tort law, and rate setting in public utility regulation.

Keywords:   lega realism, insanity defence, negligence, American legal doctrine, child custody, Christopher Langdell, civil law doctrines, mental health law, Model Penal Code, legal process

In modern law, one can see many examples in which courts and scholars reach for science when faced with uncomfortable legal dilemmas. We internalize science by borrowing science rules for legal doctrines or we externalize our problems by giving scientists and other experts the power to make legal decisions. Our deference to these pillars of neutral rationality is supposed to bring clarity, certainty, and a resolution that all can respect. The strategy continually fails, however, leaving as much chaos, confusion, and disagreement as before.

Law’s fascination with science reaches back hundreds of years into American legal history. At times, it takes the form of trying to make law into a science or to make lawyers into scientists. At times, it takes the form of simply deferring to scientific fields. Throughout this history, however, the pattern of behavior reflects our doubts about whether law is capable of resolving difficult issues and our eternal hope that science can do it better. The notion of what constitutes (p.50) science and what it would mean to make law more scientific varies across time and among scholars.73 What does not vary is our abiding faith that science will rescue us from the discomfort and uncertainties of law and our continual disappointment.

A. LEGAL THEORY MOVEMENTS

During the first half of the nineteenth century, a number of American legal scholars advocated approaching law as a science.74 To some, the notion meant conceptualizing law as an organized system, rather than a loose collection of precedents. To others, it meant approaching law as an outgrowth of moral science. To still others, it meant law as analogous to natural science. The latter group, in particular, argued that the study of law should follow the methods and reasoning of scientific investigation applied in the natural sciences at the (p.51) time. Observations of law, like the observations of nature, should trace the origins and developmental paths of legal doctrine to identify the enduring and stable principles.

As Bishop explained, laws that govern men in society,“operate steadily, constantly, and uniformly; as does the law which draws the rivulet steadily and constantly down-stream … [a]nd as a particular motion of the stream is not the law of the stream, but only evidence of the law.”75 Therefore, like the natural science taxonomists of the time, legal scholars should engage in an exhaustive and exact study of laws and cases to discover the universal and natural governing principles of human affairs.76 These natural governing principles were supposed to be universally acceptable and understandable to all through“common sense,” given that everyone was presumed to share the experience of perception and that everyone’s perceptions were presumed to be consistent.77 This movement represented reconceptualizing law as analogous to the natural science movement of the time.

(p.52) American legal scholars were not alone in the effort to improve law by treating it as a science. In British jurisprudence, both Jeremy Bentham and William Blackstone advocated such a path in the late eighteenth and early nineteenth centuries. Although their philosophies differed, they were united in their passion for scientific methodology and reasoning through statistical study.78 Blackstone, for example, described law as“a science which distinguishes the criteria of right and wrong” and advocated a deductive system of legal reasoning that would incorporate natural law principles.79 Similarly, Bentham described his own piece, The Principles of Morals and Legislation, as analogous to a math treatise.80

It is important to remember that not all legal scholars who described law in the language of science had the natural sciences in mind. Some scholars during this period used the word“experimental” to mean simply based on experience and“science” to mean any system of knowledge.81 Thus, when British theorist Thomas Macaulay wrote in 1833 that the“science of government is an experimental science,” he was not thinking of laboratory investigations and physics but of organized thought founded on solid experience (p.53) revealed through the historical record.82 As described above, the notion of law as a science has differing meanings for differing philosophers of the time, including the notion of approaching law as a natural science.83

Reconceptualizing law as analogous to natural science failed to bring clarity or universal agreement concerning legal principles for American legal scholars of this period. Among its many problems, scholars following the natural science approach argued strongly in favor of slavery during the Civil War. When those views were discredited in the post-Civil War era, the theoretical approaches were discredited as well.84

Law’s love affair with the natural sciences flourished again in the 1870s and found an institutional home with the arrival of Christopher Columbus Langdell as the dean of Harvard Law School.85 Langdell certainly was not the first to conceptualize law as legal science, but his efforts popularized the notion, leaving an enduring stamp on American legal education.86

Langdell wanted to transform legal education from the teaching of a craft into a scholarly endeavor worthy of a (p.54) place of honor among the great universities of the nation.87 To bring legal education into this fold, Langdell suggested that using scientific methods, scholars could identify fundamental principles and axioms which lawyers could apply to reach the proper solution to any legal problem.88 Cases would be the data set for the scientific inquiry, and from this data set, one could derive the fundamental principles of private law.89

This legal science was not a deductive science, like mathematics, in which a series of true statements can be used to derive another statement that is necessarily true.90 Rather, it was more an inductive field science, like botany, in which one uses a series of examples from the available specimens to derive general principles.91

The notion of law as a clear and structured science also offered relief from the bewildering array of issues emerging in the late 1800s. With industrialization, the range and complexity of the economic transactions regulated by case (p.55) law expanded dramatically.92 This change put tremendous pressure on a legal system that frequently relied on a judge’s understanding of long-standing customs.93 One could not rely on custom in the face of rapid changes in the nature and complexity of societal interactions. Law, conceptualized as a structured science, offered great appeal in times of turmoil and increasing complexity.94

The legal system, however, stubbornly refused to conform to any notion of a rational science. Its treasured data bank of cases failed to reveal a clear structure of higher order principles branching into ancillary rules, despite valiant efforts at analysis.95 In particular, critics pointed out that cases frequently contradicted each other and any apparent guiding principles.96 Later attempts to organize the law into (p.56) restatements and treatises produced great and complex compendiums lacking the simple clarity suggested in the notion of law as a science.97

As law failed to live up to the notion of an inductive natural science, other schools of thought emerged in opposition. For example, the progressives, including scholars like Holmes, Pound, and Cardozo, suggested that legislators were the main instruments of law rather than judges and argued that law could be understood as policies rather than rules. Many progressives felt that although an exact, internal legal science was a chimera, law could be reconstructed as a policy science around social science. Law would not be a deductive science but a science of informed experiment in which appropriate legal actors could use social science to guide them to various policies that could be tested and refined across time.

In this context, progressives urged that legislators and experts at administrative agencies should apply social science as a guide to the proper policies. Judges, too, could apply social science to fill in the gaps left by legislators in their quest for the right policies, although their role should be limited. Thus, law itself might not be a physical science, but legal actors could operate like social scientists, engaging in a type of informed experiment to find their way to an enlightened path for society.

(p.57) Tucked into the progressive perspective as well as that of Langdellian legal science, one sees a valiant effort to find a way to conceptualize law so that it can be understood as necessarily moving forward, ever closer to what is right and what is good. It is an effort one sees in a variety of legal movements, as well as individual legal scholars even to the present. Steven Winter, for example, explains that the transformative potential of law and legal metaphor ensure that“the violent apparatus of the legal state is never immune from real progress in creating a more tolerant and free society.”98 These efforts reflect a craving for finding a way to define law as necessarily evolutionary toward the good, an effort that is often challenged by the criticisms of the following legal movements.

In the case of the progressives it was the legal realists who followed quickly on their heels, leveling sharp criticisms.99 Legal realists argued that the progressives’ cherished policy science was no more clear or predictable than the rules and axioms of a natural science approach. Legal realists believed that laws and precedents were indeterminate, capable of a myriad of interpretations. Words, according to the legal realists, are inherently open ended.100 Moreover, conflicting rules (p.58) frequently cover the factual circumstance, and no autonomous mechanical rules can clearly govern the conflict.101 Legal realists thought that judges inevitably responded to their own perspectives and prejudices.102 The process of law, according to the legal realists, involved intuitive dispute resolution in light of unconsciously absorbed custom.103

Law’s interrelation with science endured for the realists, but in a slightly different form. For the realists, judges and legal scholars could use social science to better understand themselves.104 Studying themselves would help scholars reveal (p.59) the indeterminate and individualized nature of judging and would help judges better understand and follow their unconscious instincts.105 Legal actors were still analogous to social scientists but the subject of study was themselves.

The legal realists’ faith in social science was also reflected in their devotion to the continued rise of the regulatory state. Both realists and progressives viewed administrative government as the scientific solution to the economic and social crises of the 1920s and 1930s.106 Judges were viewed as lacking the means, the expertise, and perhaps the will to bring about the changes necessary to keep pace with the tremendous upheavals of the time.107

Administrative agencies during this period were given extraordinary discretion in deference to their expertise.108 This deference was justified on grounds both that agency experts were superior in capacity and that their expertise made them more trustworthy. For example, in describing the need for limited judicial oversight, the Supreme Court commented that an agency“deals with a subject that is highly specialized and so complex as to be the despair of judges” (p.60) and is“better staffed for its task than is the judiciary.”109 In another case, the Court expressed its faith in agency experts by noting that“the training that is required, the comprehensive knowledge which is possessed, guards against accidental abuse of its powers or, if the abuse occurs, to correct it.”110 Thus, expertise would make those at agencies the neutral and dependable arbiters of difficult legal dilemmas.

The legal process school, which began to emerge in the late 1930s in response to legal realism, reinforced faith in the administrative state.111 If our perspectives are hopelessly clouded and words are inherently open ended, how are we to function as a legal system? Most importantly, if the legal realists were right that rules are subject to infinite interpretations and that perspectives can never be objective, how can law hope to be anything more than the subjective whims of individual judges? What rational domain is left for law?112

The legal process school offered one response to such unsettling visions of indeterminacy and unconstrained discretion. Legal process argued that law could function best in the realm of choosing the institution or procedure appropriate for resolving a particular question.113 Law might not have a monopoly on finding principles that would yield the right answer or on the wise and selfless neutrality that would lead to a universally acceptable result. Nevertheless, legal actors might be particularly skilled at identifying which (p.61) institutions and processes could function most appropriately for addressing the question at hand.114

Tucked into the legal process perspective was the notion that the legal system has limited competence for addressing some of the issues that come before it. In that terrain, legal actors should simply defer to the experts. This instinct to circumscribe the domain of law by deferring to experts is a theme that echoes in modern manifestations of law and science.

Critics of the legal process school would later suggest that arguments made about one institution can be made for any other institution.115 From this perspective, similar arguments of bias and lack of access can be leveled at any institution in relation to any particular legal question. Thus, the promise of improving law by evaluating and comparing institutions remained unfulfilled.

In general, law’s euphoria over agency expertise, so strong in the 1920s and 30s, soured within a couple of decades. By the 1950s and 60s, Americans had gained experience abroad with the monstrous expressions of administrative power in fascist states as well as experience at home with wartime agencies that more often appeared to be“incompetent bullies” rather than rational, neutral arbiters.116 Agencies (p.62) would remain, along with their powerful influence on the American landscape. Once admitted, the administrative expertise would not be expelled. Nevertheless, the image of an administrative state in which experts would solve the legal system’s intractable problems faded.117

One cannot examine the interrelation of law and social science without paying homage to the law and economics movement. Law and economics is perhaps the most influential school of thought that has specifically tried to merge law with a particular social science, in this case economics.

Law and economics gained prominence in the 1970s.118 The elegance and simplicity of law and economics offered great appeal to a legal academic community still reeling from the devastating critiques of the legal realists and the indeterminacy of legal realism.119 Law and economics can be seen as suggesting a solution to the turmoil that had plagued post-realist legal academics who had been taught that legal rules were essentially no more than policy decisions.120

According to law and economics, the proper role of legal actors is to apply the insights of economics, particularly neoclassical price theory, to legal questions in an effort to craft efficient legal rules that create the proper incentives for (p.63) optimal behavior.121 This will promote satisfaction of the greatest possible level of overall societal wants.122 For example, law and economics scholarship in tort law has suggested that the goal of tort law and regulation should be to create the proper incentives that will force individuals to internalize the consequences that their decisions inflicted on others, thereby minimizing the divergence between private and social costs.123

In one respect, one can think of law and economics as a particular variant of the legal process school. Law and economics scholars treat“the market” as analogous to a separate institution in itself. Legal actors must consider whether the institution of the market is more capable of resolving the problem at hand than courts or administrative agencies.

(p.64) Application of law and economics concepts requires acceptance of certain assumptions.124 Such assumptions include that human wants can be reduced to and accurately measured in economic terms, that human beings are rational actors, and that price theory is accurate and can be applied with specificity to an individual occurrence of human or institutional behavior.125 Most controversial has been the descriptive claim by some law and economics scholars that the legal system inevitably moves toward an efficient result.126 Even some prominent law and economics scholars have questioned the validity of that description.127

Over time, many of the assumptions of law and economics have come under attack.128 Some critics have argued that human beings are not rational actors possessing full and (p.65) complete information.129 Others have argued that human wants cannot be accurately expressed in economic terms.130 Still others have expressed concern that those who engage in law and economics fail to test their hypotheses and conclusions with the degree of rigor that economists demand.131 Finally, an increasing body of literature has argued that institutional interactions are far more complex than the founders of law and economics originally suggested.132 Despite these (p.66) criticisms, law and economics has had a profound influence on modern legal thought. As described above, modern courts and scholars must now try to manage that economic influence and to make economic insights useful within a judicial setting.133

Finally, although less focused on science, one cannot understand twentieth-century legal thought or the current state of legal thought without mention of the critical legal studies (CLS) movement. In addition, understanding the criticisms leveled by the CLS movement is important for understanding the dynamic of what drives us to look for answers in the form of science.

CLS emerged in the 1970s around the same time as law and economics. Unlike the legal realists, CLS scholars did not believe in the complete indeterminacy of language. Rather, CLS argued that even when language and legal rules are crystal clear, law is destined to be inherently contradictory. This contradiction occurs because society is not committed to either a strict rule or a flexible standards approach to the interpretation of law.134 Vacillation between the two inevitably produces instability on every significant issue, and (p.67) no resolution is possible.135 Moreover, the inevitable conflicts cause law to privilege one strain over another for reasons other than objective analysis and logic.

CLS scholars rejected the notion that legal actors could ever objectively study the consequences of alternative legal rules without the distortive effects of the artificial categories that we create and impose on legal questions.136 Nevertheless, some CLS scholarship reads much like a psychological analysis of human beings, following the social science of the time. Unger, for example, waxes poetic on the notion that the self must seek recognition from others to acquire coherence.137 Moreover, many CLS scholars advocated exposure and awareness of the bias of legal actors, wherever possible.138 (p.68) Thus, CLS encouraged legal actors to critically examine themselves as a focus of study, despite the inevitable imperfection of the enterprise.

As described above, none of the efforts to make law into a science or to make law more scientific has proven successful. From Langdellian legal science to the progressives’ policy science, to the most expansive visions of the law and economics movement, legal theories attempts to emulate science have fallen short.

One could argue that many of the failings of the legal theory movements described above can be attributed, in whole or in part, to issues unrelated to their attempts to emulate science. This is certainly true. Nevertheless, incorporation of science did not solve their problems, although it has remained as a tantalizing strategy that legal theorists return to again and again in different forms.

B. DOCTRINAL EXAMPLES

In addition to the more formal movements, our history abounds with individual moments in which we turn to science to solve law’s intractable problems. We are constantly seduced into believing that some new science will provide (p.69) answers to vexing legal questions, and we are constantly disappointed.

Consider criminal law doctrines concerning the circumstances under which a defendant should be found not guilty by reason of insanity. For more than a century, the American test for criminal insanity flowed from an 1843 British case focused on the question of whether the defendant showed a complete lack of cognitive ability at the time of the crime.139

Dissatisfaction with the test swelled in the late 1950s and early 60s, culminating in passage of Section 4.01 of the Model Penal Code.140 The new test was widely accepted, adopted in almost every federal circuit and in many states as well.141 It was hailed as a triumph of science. The test was perceived as embodying the latest advances in psychological knowledge and medical thought, ones that would provide authoritative, neutral grounds upon which we could all agree.142 Science would show us the way through the difficult (p.70) question of whether one should be held criminally accountable for one’s actions.

The honeymoon was remarkably short lived. By the early 1980s, courts and legislatures, reacting to highly publicized cases in which defendants were found not guilty under the new standard, retreated from the Model Penal Code rule with remarkable speed.143 California, for example, which had adopted the Model Penal Code test in a case in 1978, returned to the prior test with a ballot initiative four years later.144

Our embrace of science and our intense disappointment with the Model Penal Code insanity test reflect the problems of trying to import science for drafting legal rules. The question of whom we should hold criminally responsible for their actions is a question of morality and societal values.145 (p.71) Morality is not easy, and no science can take that burden off the shoulders of the law.

One could argue that the abandonment of the Model Penal Code standard reflected popular overreaction to highly publicized cases rather than a carefully considered rejection of the doctrine based on its inadequacies. Even from this perspective, however, to the extent that science was expected to provide an authoritative and neutral resolution behind which society could rally, it was a dismal failure.

The insanity defense is a particularly good example of law’s love affair with science. When struggling to reform the old nineteenth-century test for insanity, courts and scholars not only tried importing science rules to create a test but also tried exporting the problem to scientific experts. For example, two other standards developed in the 1950s and 1960s would have essentially shifted the decision to expert psychiatrists to decide whether the defendant’s behavior fit particular psychiatric diagnoses.146 These were the Durham rule, adopted in a D.C. Circuit case, and the Bonnie Rule, proposed by law professor Richard Bonnie.147

(p.72) Attempts to export the insanity defense problem failed as well, burdened by criticism that these approaches would not properly identify those that society wished to hold morally accountable but rather would open the door to excessive acquittals. The Durham rule was reversed by statute and the Bonnie standard was never adopted.148 In lamenting the failed Durham test, Judge Bazelon, who wrote the Durham opinion, noted that some have described him as“a disappointed lover” after his efforts failed so miserably.149

Our legal history is full of such examples in which law, when faced with difficult and unsettling problems, turns to science for a solution, only to find its hopes dashed. For example, indeterminate sentencing and the development of the juvenile court system also were fueled in part by the belief that social scientists could predict and treat.150 The movement toward indeterminate sentencing came to an abrupt end in the 1970s, among other reasons, because the predictive capacity of social science failed to live up to its (p.73) promise when applied within the justice system.151 Support for the juvenile justice system has cooled, with the failure of the predictive capacity of social science again playing an important role.152 Despite these disappointments, there is once again a resurgence of optimism in the predictive capacity of social science indicated by the increasing prominence of the“dangerousness criterion” as justification for confinement, particularly confinement of individuals who have a history of sexual crimes.153 Again, the legal system asks science to answer whether an individual is imminently dangerous to the community, whether a defendant can be rehabilitated, or whether only incapacitation through incarceration will suffice.

An extreme version of outsourcing legal dilemmas to scientific experts would be allowing a computer system to determine the proper outcome in a case or the proper response to a crime. One need not look to science fiction, however, to find implementation of such a system. The China Daily newspaper reported the adoption of a software program in China that recommends criminal sentencing to the judge in an individual case.154 For example, the program was (p.74) used in the case of a farmer who attacked someone with a knife, injuring his victim slightly in the arm and face. The judge in the case entered the type of crime, the nature of the injury, as well as the fact that the assailant surrendered to police and paid compensation on his own initiative. After three minutes of calculations, the program recommended a 5.4 month prison sentence. The recommendation was not mandatory, however, and the judge imposed a six-month sentence instead. The notion of a computer program dispensing justice is a far cry from the image of law as“the last result of human wisdom acting upon human experience for the benefit of the public.”155

One might object that it is unfair to invoke examples from the Chinese legal system, whose history and operation is quite distinct from that of the American legal system. The Chinese software program, however, is not that far removed from the Federal Sentencing Guidelines, whose rigid formulas were recently rejected as unconstitutional.156

In the context of civil rather than criminal law, the issue of outsourcing legal dilemmas has arisen with the question of what is in the best interests of the child in custody cases. In that arena, courts increasingly lean on experts to decide the underlying issue, an inclination that has proven unsatisfying. As one scholar has noted,“[c]ourts may be only too willing to be relieved of the responsibility of playing (p.75) guessing games about a child’s future if they are persuaded that experts’ crystal balls hold the answer.”157 The problem is not just that we are asking scientists to answer legal questions. The problem is also that we are asking scientists to solve our legal quandaries with predictions about human development that they are unable to provide. Outside extreme circumstances such as abuse or neglect, psychology lacks any methodologically sound empirical evidence allowing predictions concerning various custody arrangements.158

One of the classic examples of outsourcing legal dilemmas can be found in the Supreme Court’s 1954 decision in Brown v. Board of Education.159 The Court held in Brown that segregating black school children constituted a violation of the Fourteenth Amendment. The Court found that school segregation“generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”160 In support of its finding, the Court cited a series of social science studies in an infamous footnote.161 As described in more detail in Chapter VI, the Court’s use of those studies has been sharply criticized on grounds including that the studies were methodologically unsound and that the data did not support the conclusions drawn from them by the authors of the studies or by the Court.

The Supreme Court’s inclination to reach for science in this case, however, is interesting in itself. David Faigman has (p.76) pointed out that the most simple and intriguing explanation of the Court’s choice to invoke social science data in Brown v. Board of Education rather than simply relying on constitutional principle was the difficulty of choosing a constitutional principle on which to rely.162 Although scholars have offered many alternative approaches for supporting the Court’s decision, they generally do not agree on any single one.163 Thus, the Brown case stands as another example in which the Supreme Court, faced with a contentious social issue and difficult doctrinal issues, wrapped its decision in the cloak of scientific authority. Although no one would argue with the outcome in Brown, the scientific wrapping could not solve the Court’s problems. Rather, it has created more problems as legal scholars try to grapple with what to do when the result is favored and the scientific basis disfavored, such as trying to create a separate category of so-called interpretive facts that would somehow be distinct from concrete scientific facts.164 Ronald Dworkin described the category of interpretive facts in the following fashion:

‘We don’t need evidence for the proposition that segregation is an insult to the Black community—we know it; we know it the way we know that a cold causes snuffles.’ It is not that we don’t need to know it nor that there isn’t something there to know. There is a fact of the matter, namely that segregation is an insult, but we need no evidence for that fact—we just know it. It’s an interpretive fact.165

(p.77) Science could not solve our problems in this case, but the importation of science created other problems.

Other examples of law’s unsuccessful attempts to reach for science include legal tests imported into law from economic or social science research that are then far too complex to operate in a legal setting. Such rules remain but are noteworthy mostly due to the legal system’s inability to apply them with any significant degree of accuracy. Consider the Learned Hand test for negligence liability in tort law. The rule asks that we set negligence at the point where, properly internalized, prevention costs don’t exceed accident costs.166 The ordinary machinery of the legal system has no way to measure that level.167

(p.78) One can also look at rate setting in public utilities regulation, which was described in Stephen Breyer’s scholarship prior to joining the bench:

The possibility of court review has led agencies to keep records demonstrating … that [the] decision was rational. … Given the multifaceted nature of most problems, the uncertain quality of the information, and the need to consider a broad range of uncertain factors, many technical decisions … may reflect only an inspired engineering guess. The engineer may not know precisely where or how the decision emerged—even in his own mind—nor can he necessarily write down a justification for the decision at the time he made it. Thus, records for court review are often made ex post. The agency’s lawyers insert into a public record sufficient information to show rational support for each key decision. Cost/benefit analyses are often prepared to support decisions already reached rather than to help determine what future decisions ought to be made.168

In short, in both formal legal theory movements and individual moments, law continually turns to science to solve its problems and is frequently dissatisfied. What is important about this pattern is not just our disappointment but our constant return to the well. The repeated behavior reflects both our vision of law and our vision of science in relation to law. We constantly despair of law’s inability to resolve legal issues to our satisfaction and view science as a source of rescue from our discontent. It is this particular vision that continually gets us into trouble.

Notes:

(73) See Howard Schweber, The “Science” of Legal Science: The Model of the Natural Sciences in Nineteenth Century American Legal Education, 17 LAW & HIST. REV. 421, 421–22 (1999) (comparing differing views of nineteenth century legal scholars concerning the meaning of law as a science); see also Charles Barzun, Common Sense and Legal Science, 90 VA. L. REV. 1051, 1055 (discussing nineteenth-century philosopher’s belief “that they could discover natural legal principles just as Newton had discovered the laws of nature.”); Harold Berman & Charles J. Reid Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 EMORY L.J. 437, 441 (noting that “legal science may refer not only to a systematic body of knowledge about law generated by legal scholars … [but] also to a systematic body of knowledge generated by the law itself, defining its functions and the ways in which it operates.”).

(74) See id. at 422 (explaining the differing views described below). Yearnings to make law into a science did not originate in American legal history. Other traces can be found in early Roman law and in later European Law. See PETER STEIN, ROMAN LAW IN EUROPEAN HISTORY 79, 99 (1999). The focus of this piece, however, is on the repeated appearance of this theme in American legal history.

(75) JOEL P. BISHOP, THE FIRST BOOK OF THE LAW 47 (1868); see also David Dudley Field, Magnitude and Importance of Legal Science, in SPEECHES, ARGUMENTS, AND MISCELLANEOUS PAPERS OF DAVID DUDLEY FIELD 526–27 (A.P. Sprague, ed. 1884) (analogizing the proper study of law to descending from a mountaintop in order to understand the landscape in its vast, varied, and finite details), available at www.heinonline.org.

(76) See Schweber, supra note 73, at 450–51; see also Daniel Mays, Whether Law is a Science: An Introductory Lecture Delivered to the Law Class of Transylvania University, on the 8th of November, 1832, 369 (1832) (arguing that “[C]ases are useful; but their greatest use is, that they serve to illustrate principles. If they are read and not resolved into elementary principles, the profit of the reading is not worth the time it occupies”), available at www.heinonline.orgwww.heinonline.org.

(77) See Schweber, supra note 73, at 442–45 (describing the influence of Scottish Common Sense theory on Baconism and the influence of Baconism on nineteenth century American legal thought).

(78) See John McEldowney, The Environment, Science, and Law, in REECE, supra note 53, at 111.

(79) Albert W. Alschuler, Rediscovering Blackstone, 145 U. PA. L. REV. 1, 55 (1996); see also 1 WILLIAM BLACKSTONE, COMMENTARIES 27; McEldowney, supra note 78, at 112.

(80) See M. LOBBAN, THE COMMON LAW AND ENGLISH JURISPRUDENCE 1760–1850, 155 (1991); see also Charles L. Barzun, Note, Common Sense and Legal Science, 90 VA. L. REV. 1051, 1079–88 (2004) (examining Gulian Verplanck’s Essay on the Doctrine of Contracts as an example of inductive reasoning used to derive principles of contract law from personal moral intuition legal philosophy in the nineteenth century).

(81) See BOSTON STUDIES, supra note 4, at 7.

(82) See id. at 207–08.

(83) See supra text accompanying notes 74–77.

(84) See Schweber, supra note 73 at 455–56; see also Michael V. Hernandez, A Flawed Foundation: Christianity’s Loss of Preeminent Influence on American Law, 56 RUTGERS L. REV. 625, 709 (noting that “a biblical worldview, anti-Darwinism, and natural science were direct casualties of the Civil War.”).

(85) See Grey, Langdell’s Orthodoxy, supra note 13, at 1.

(86) See ROGER BERKOWITZ, THE GIFT OF SCIENCE: LEIBNIZ AND THE MODERN LEGAL TRADITION, 121 (2005) (noting that Langdell should be remembered for his popularization efforts rather than his innovativeness or originality and that he was but a link in a chain of tradition stretching back two centuries and across the Atlantic).

(87) See Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. REV. 1627, 1629 (1993).

(88) See Bix, Positively Positivism, supra note 13, at 892; Grey, Langdell’s Orthodoxy, supra note 13, at 5. Publications at the time included THE SCIENCE OF LAW (1874) (containing a foldout chart of The Scheme of a Body of Laws for the Modern State); S. AMOS, THE SCIENCE OF LAW 119 (1874) (noting that law is composed of elements as permanent add universal as the elements of human nature itself); and E. CAMPBELL, THE SCIENCE OF LAW, ACCORDING TO THE AMERICAN THEORY OF GOVERNMENT 6 (arguing that “the principles of justice are a definite body of immutable principles, and hence constitute a true science”). See Veilleux, supra note 13, at nn.44–48 and accompanying text (describing these and other scholarly publications of the late 1800s).

(89) See Veilleux, supra note 13, at 1975.

(90) See Bix, supra note 13, at 892 (noting that Langdell’s analyses were not deductive); see also Philip Kitcher, Believing Where We Cannot Prove, in KLEMKE, supra note 49, at 81–82 (describing deductive reasoning).

(91) See Bix, supra note 13, at 892; SIMON BLACKBURN, THE OXFORD DICTIONARY OF PHILOSOPHY 192 (1994) (describing inductive reasoning).

(92) See Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV., 1365, 1403 (1997).

(93) See id; cf. McEldowney, supra note 78, at 111 (noting that the English common law tradition, which was based on providing suitable remedies in an individual case, offered only solutions that were narrowly defined and limited by procedure and form).

(94) See CHRISTOPHER C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS viii–ix (1871) quoted in Stephen M. Feldman, The New Metaphysics: The Interpretive Turn in Jurisprudence, 76 IOWA L. REV. 661, 661 n.5 (1991) (arguing that “[l]aw, considered as a science, consists of certain principles or doctrines. … If these doctrines could be so classified and arranged that each should be found in its proper place, and nowhere else, they would cease to be formidable from their number.”).

(95) As Austin noted in his lectures on jurisprudence, “[i]deal completeness and correctness … is not attainable … though the system had been built and ordered with matchless solicitude and skill.” See 2 AUSTIN, LECTURES ON JURISPRUDENCE 997–98 (5th ed. 1885).

(96) See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. LAW. REV. 809 (1935) (noting that the practice of legal reasoning often ignores facts and practical consequences and rather is based on the manipulation of legal concepts in certain approved ways.); see also KELMAN, supra note 13, at 46 (noting that one of the most entertaining sports that critics of Langdellian legal science engaged in was to tweak their treatise-writing, rule-collecting Formalist forbearers for announcing that they had discovered legal rules that were, on inspection, utterly vacuous and question begging).

(97) See Grey, Modern American Legal Thought, supra note 13, at 500 (describing the collaboration between Langdellians in writing the first Restatements, and noting the legal realist critiques of these Restatements as well as the treatises of the era); Arnold, Institute Priests and Yale Observers—A Reply to Dean Goodrich, 84 U. PA. L. REV. 811, 820 (1936) (criticizing restatements).

(98) See REECE, supra note 53, at 13.

(99) See Stephen M. Feldman, The Transformation of an Academic Discipline: Law Professors in the Past and Future (or Toy Story Too), 54 J. LEGAL EDUC. 471, 482–83 (2004) (noting the development of progressive legal theories such as those of Roscoe Pound around the turn of the twentieth century, and the emergence of Legal Realism in the 1920s and 1930s).

(100) See Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L. REV. 1259, 1263 (1947) (noting that people’s annoyance with the way judges sometimes interpret apparently simple statutory language is based on the false assumption that each verbal symbol refers to one and only one specific subject, and a denial of the wide range of ambiguities a word may have that can only be resolved through consideration of context and background); Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 528 (1947) (noting that words are symbols of meaning, but unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision); see also KELMAN, supra note 13, at 12–13 (describing the Realists).

(101) See KELMAN, supra note 13, at 45; Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 606–14 (1908) (warning against the cyclical petrifaction of the common law where longstanding legal doctrines are unexamined and mechanically applied, and ultimately fail to respond to the human conditions and complexities of present day life).

(102) See, e.g., Karl N. Llewellyn, “Law and the Modern Mind”: A Symposium, 31 COLUM. L. REV 82, 83 (1931) (reviewing JEROME FRANK, LAW AND THE MODERN MIND (1930)) (contrasting the myth that the great bulk of a judge’s work is “mere routine application of accepted rules” with the reality that no different from witnesses, a judge’s perception of “the facts” varies according to temperament and circumstance, and a judge’s selection, stress, and arrangement of “the facts” can make the most peculiar case look routine).

(103) See Grey, Langdell’s Orthodoxy, supra note 13, at 503.

(104) See Karl N. Llewellyn, Some Realism about Realism: Responding to Dean Pound, 44 HARVARD LAW REVIEW 1222 (1931) (serving as a classic example of social scientific self-examination through the employment of statistical, textual analysis upon the then-emerging writings of perceived new legal realists in order to discover if indeed a common school of legal realists exists); FRANK, supra note 5, at 178–80 (using psychology to explain that the wish for things certain and secure is an infantile, regressive tendency and to advocate that judges recognize that all rules and standards are fictions, to appreciate law’s dynamic qualities, and to struggle against the drag of childish nostalgia for the over-secure and serene); see also Grey, Modern American Legal Thought, supra note 13, at 510 (describing the legal realists).

(105) See Grey, Modern American Legal Thought, supra note 13, at 501; see also LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 16 (1996) (noting that legal realists debunked the law as an effort to improve it by treating it as a tool of social policy).

(106) See Reuel E. Schiller, Reining in the Administrative State: World War II and the Decline of Expert Administration, in DANIEL R. ERNST & VICTOR JEW, TOTAL WAR AND THE LAW 185, 201 (2002) [hereinafter Decline of the Expert Administration].

(107) See KALMAN, supra note 105, at 18.

(108) See Schiller, Decline of the Expert Administration, supra note 106, at 286–88; Reuel E. Schiller, Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism 1945–1970, 53 VAND L. REV. 1389, 1404 (2000) (describing New Deal era judicial deference to administrative agencies) [hereinafter Changing Definitions].

(109) See Dobson v. Commissioner, 320 U.S. 242, 245 (1943).

(110) See Perkins v. Lukens Steel Co., 310 U.S. 113, 127–28 (1940).

(111) See Bix, supra note 13, at 896 (describing the legal process school as a response to legal realism); KALMAN, supra note 104, at 19 (discussing the timing of the emergence of the legal process school).

(112) See, id. at 896 (describing discomfort in the wake of the legal realist critique).

(113) See KELMAN, supra note 13, at 6.

(114) See Bix, supra note 13, at 897; Calabresi, supra note 13, at 2143–44 (describing the legal process school using the issue of ownership of body parts); see also Schiller, Changing Definitions, supra note 108, at 1402 (noting that process theorists such as Bickel, Wechsler, Wellington, Sachs, and Hart, suggested each branch of government undertake tasks for which it is best suited).

(115) See KELMAN, supra note 13, at 190–91 (describing critical legal studies critiques of the legal process school and what he calls the deification of process); cf. Edward L. Rubin, The New Legal Process, The Synthesis of Discourse, and the Microanalysis of Institutions, 10 HARV. L. REV. 1393, 1400–01 (outlining criticisms by critical legal studies on the legal process school).

(116) See Schiller, Decline of the Expert Administration, supra note 106, at 201.

(117) See generally Schiller, Decline of the Expert Administration, supra note 106 (describing the disenchantment with the administrative state and the imposition of due process requirements and court supervision).

(118) See KELMAN, supra note 13, at 114.

(119) See KELMAN, supra note 13, at 118 (noting that the so-called Chicago school of law and economics brought a message of simplicity to an academic and social world in search of simplicity); see also Ugo Mattei, The Rise and Fall of Law and Economics: An Essay for Judge Guido Calabresi, 64 MD. L. REV. 220, 235 (noting that characteristics such as relative simplicity, political ambiguity, and universality helped fuel the spread of law and economics).

(120) See KELMAN, supra note 13, at 125.

(121) See Hovenkamp, Antitrust, supra note 68, at 224 (noting that an important difference between the neoclassical market efficiency model, used by law and economics scholars, and earlier economic models is that the neoclassical model claims a much greater ability to distinguish between efficient and inefficient policies); Hovenkamp, Positivism, supra note 13, at 822; Epstein, supra note 60, at 1170; see also Katz, supra note 13, at 2238 (noting that positive law and economics sees law merely as a set of constraints within which individual citizens maximize).

(122) Robert McGee, Legal Ethics, Business Ethics, and International Trade: Some Neglected Issues, 10 CARDOZO J. INT’L & COMP. L. 109, 113 (“the criterion for judging whether acts and institutions are just or good is whether they maximize the wealth of society.”) (citing RICHARD POSNER, THE ECONOMICS OF JUSTICE, 115 (rev. ed. 1983)); see also Hovenkamp, Positivism, supra note 13, at 825–26; see also Avery Wiener Katz, Positivism and the Separation of Law and Economics, 94 MICH. L. REV. 2229, 2248 (1996) (comparing Bentham’s nineteenth-century utilitarian that a reasonable comparison of utility across society was possible and would achieve the greatest good for the greatest number of people); cf. Jane Rutherford, The Myth of Due Process, 72 B.U.L. Rev. 1, 56 (observing that “the most conservative law and economics devotees would reduce all legal questions to one of efficiency.”).

(123) See Epstein, supra note 60, at 1172.

(124) See Hovenkamp, Antitrust, supra note 68, at 226–29 (listing basic assumptions of the neoclassical market efficiency model upon which the law and economics school is based).

(125) But see Hovenkamp, Positivism, supra note 13, at 827 (suggesting that the profit-maximization hypothesis is probably not verifiable in any universal sense).

(126) See Epstein, supra note 60, at 1169–70 (describing Posner); Grey, Langdell’s Orthodoxy, supra note 14, at 51 (noting that Posner finds “efficiency,” with all the connotation of approval that term carries in his theory, in the content as well as the methods of Langdellian private law).

(127) See Epstein, supra note 60, at 1170 (arguing that the positive theory of an efficient common law utterly fails to explain why, with transaction costs in decline and information more readily available, judicial regulation should be expected to increase); see also John J. Donohue III, The Law and Economics of Tort Law: The Profound Revolution, 102 HARV. L. REV. 1047, 1049–50 (1989) (reviewing William M. Landes and RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987)) (comparing Landes and Posner view that tort law is efficient and serves to minimize accident losses and prevention costs with Shavell’s more cautious and qualified approach).

(128) See Katz, supra note 13, at 2241 (arguing that methodological reductionism is a model, not a metaphysical truth, and, like all models, aesthetic and pragmatic considerations influence the decision to use it).

(129) See CASS R. SUNSTEIN, BEHAVIORAL LAW AND ECONOMICS (2000); William J. Barnes, Revenge on Utilitarianism: Renouncing a Comprehensive Economic Theory of Crime and Punishment, 74 IND. L.J. 627 (1999) (noting that the “rational actor” assumption makes it difficult for law and economics scholars to produce sound theories in criminal law); Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1545 (1998) (asserting that rational actors often depart from law and economics’ central presumptions of utility maximization, stable preferences, rational expectations, and optimal processing of information as a consequence of bounded rationality, bounded willpower, and bounded self-interest); see also Daniel A. Farber, Playing the Baseline: Civil Rights, Environmental Law, and Statutory Interpretation, 91 CLMLR 676 (1991) (reviewing CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE (1990)); Katz, supra note 13, at 2229 (citing scholars who are critical of law and economics’ rational choice theory, including Mark Kelman, Choice and Utility, 1979 WIS. L. REV. 769 (1979)); Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121 (1990).

(130) See Hovenkamp, Positivism, supra note 13, at 836 (arguing that Limiting welfare to wealth maximization amounts to a hopelessly impoverished view of well-being); Nussbaum, supra note 13, at 1636 (citing Amartya Sen and describing the difficulty of measuring human welfare).

(131) See Hovenkamp, Positivism, supra note 13, at 822v23 (criticizing inadequate hypothesis testing and noting that the danger of dissolving into a kind of “mathematically supported storytelling” is of particular concern in law & economics).

(132) Ian Ayres, Playing Games with the Law, 42 STAN. L. REV. 1291 (1990) (explaining that game theory challenges law and economics’ presumption that market competition is efficient because under certain assumptions markets can fail to promote social welfare); Michael S. Jacobs, The New Sophistication in Antitrust, 79 MINN. L. REV. 1 (1994) (noting that the post-Chicago school builds on the industrial organization approach by challenging that broad generalizations of price theory are inappropriate when small numbers of firms act strategically to exploit market imperfections to the disadvantage of their competitors; Steven C. Salop, Anticompetitive Overbuying by Power Buyers, 72 ANTITRUST L.J. 669 (2005) (noting that companies have been known to engage in predatory “overbuying” whereby inputs are purchased solely to deny it to rivals and then discarded); see also Epstein, supra note 60, at 1174 (a prominent law and economics scholar concluding that the study of legal doctrine and theory has to be enriched with a greater appreciation of institutional arrangements).

(133) See supra text accompanying notes 68–72 (offering perspectives on current debates in antitrust law).

(134) See KELMAN, supra note 13, at 45.

(135) See id. at 15 (describing the clash between law’s affinity for rules and its attraction to legal standards).

(136) See KELMAN, supra note 13, at 275; see also David M. Trubek, Where the Action is: Critical Legal Studies and Empiricism, 36 STAN. L. REV. 575, 617–18 (1984) (describing the CLS view that empirical researchers who spend years analyzing the answers to complicated surveys about disputes are like madmen wandering in an asylum that they themselves have constructed).

(137) See ROBERTO M. UNGER, KNOWLEDGE AND POLITICS 59–60 (1975) (“To deal with the dissolving effect the lack of a finite and coherent system of ends has on its sense of identity, [an individual] must secure the approval of others.”); ROBERTO M. UNGER, PASSION: AN ESSAY ON PERSONALITY 97 (1984) (“[people] require not simply an exchange of particular advantages and a recognition of their membership in well-defined communities but also a more radical acceptance of their own selves. They want a sign that there is a place for them in the world, a place where they can undertake certain limited experiments in self-knowledge … without risking material and moral disaster.”).

(138) See KELMAN, supra note 13, at 275 (noting that abandoning those distortions that we can identify a surely a move towards transformation); David M. Trubek, Where the Action is: Critical Legal Studies and Empiricism, 36 STAN. L. REV. 575, 591 (1984) (observing that while critical legal studies scholars seek to show relationships between the world views embedded in modern legal consciousness and domination in capitalist society, they also want to change that consciousness and those relationships. Thus, the analysis of legal consciousness is part of a transformative politics); David S. Caudill, Disclosing Tilt: A Partial Defense of Critical Legal Studies and a Comparative Introduction to the Philosophy of the Law-Idea, 72 IOWA L. REV. 287 (1987) (noting that a significant CLS goal is to raise awareness of unexamined, assailable preferences); see also G. Edward White, The Inevitability of Critical Legal Studies, 36 STAN. L. REV. 649 (1984) (noting that CLS’ examination of values extends beyond the individual preferences of legal actors, but also attacks the collective value system of legal culture as a whole); KELMAN, supra note 13, at 275 (noting that abandoning those distortions that we can identify surely a move towards transformation).

(139) See Julie E. Grachek, The Insanity Defense in the Twenty-First Century: How Recent United States Supreme Court Case Law Can Improve the System, 18 IN. L.J. 1479, 1483 (2006) (describing history of the modern insanity defense and the M’Naghten test); see also M’Naghten’s Case, 10 Clark & Fin. 200, 210, 8 Eng. Rep. 718, 722 (1843).

(140) Model Penal Code § 4.01(1) (1962) (imposing the standard that the defendant was not responsible if, as a result of mental defect or disease, the defendant lacked substantial capacity to appreciate the criminality of the act or to conform conduct to the requirements of the law).

(141) See People v. Drew, 22 Cal. 3d 333, 345 (1978)

(142) See, e.g., People v. Drew, 22 Cal. 3d 333, 345–47 (1978); United States v. Freeman, 357 F.2d 606, 622 (2nd Cir. N.Y. 1966) (discussing the development of MPC § 4.01); United States v. Chandler, 393 F.2d 920, 926 (4th Cir. Va. 1968) (noting that the new test “substantially meets all of the criticism of the old rules and remedies their presently apparent deficiencies”); Blake v. United States, 407 F.2d 908, 915 (5th Cir. Fla. 1969) (concluding “that [the substantiality type standard of MPC § 4.01] is an appropriate case for adopting a definition of insanity which will serve as a vehicle to enable the court and jury to give effect to the defense of insanity in terms of what is now known about diseases of the mind.”).

(143) See PAUL APPLEBAUM, ALMOST A REVOLUTION: MENTAL HEALTH LAW AND THE LIMITS OF CHANGE 163–209.

(144) Cf. People v. Drew, 22 Cal. 3d. 333, 345 (1978) (adopting the Model Penal Code standard) with People v. Skinner, 39 Cal. 3d. 765, 768, 776 (1985) (interpreting the 1982 California ballot initiative as intending to return to the M’Naghten standard).

(145) See, e.g., State v. Wilson, 700 A.2d 633, 640 (Conn. 1997) (“the proper test must incorporate principles of societal morality”); United States v. Segna, 555 F.2d 226, 233 (9th Cir. Ariz. 1977) (holding that “the district court must … instruct on the issue if the record contains evidentiary support for the defendant’s theory that, although he realized the offending act was illegal, because of mental disease he possessed a false belief that the act was morally justified (emphasis added)”); see also Richard E. Redding, The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century, 56 AM. U. L. REV. 51, 85 (2006) (noting shifts in insanity rules in light of the acquittal of John Hinckley for shooting President Reagan under the Model Penal Codes standard); cf. Kaganas, supra note 54, at 244–245 (citing the differences among medical definitions of mental illness, legal definitions of insanity and jury verdicts and noting that “[w]hatever the precise test the law may lay down, the sane are divided from the insane according to juries’ and judges’ ideas about moral responsibility and ‘folk psychology.’ It is ‘lay truth’ rather than ‘law’s truth’ or ‘medical truth’ which ultimately prevails.”).

(146) See Michele Cotton, A Foolish Consistency: Keeping Determinism Out of the Criminal Law, 15 B.U. Pub. Int. L.J. 1, 7–8 (2005) (“because the Durham rule more closely adhered to psychiatry’s deterministic description of human behavior, it unsurprisingly exonerated more defendants than other rules.”); Elyn R. Saks, Competency to Refuse Psychotropic Medication: Three Alternatives to the Law’s Cognitive Standard, 47 U. MIAMI L. REV. 689, 761 n.80 (1993) (discussing “concerns about applying a broad cognitive standard [such as that of the Bonnie test] rather than a volitional standard to cases”).

(147) See Amy D. Gundlack-Evans, State v. Calin: The Paradox of the Insanity Defense and Guilty but Mentally Ill Statute, Recognizing Impairment Without Affording Treatment, 51 S. DAKOTA L. REV. 122, 136–37 (2006); see also Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954); Richard J. Bonnie, The Moral Bliss of the Insanity Defense, 69 A.B.A. J. 194, 196–97 (1983); cf. Saks, supra note 151; Cotton, supra note 146.

(148) See Gundlack-Evans, supra note 146, at 137 (noting that “the Bonnie standard was never adopted, and the Durham rule was abrogated by statute”); see also United States v. Cohen, 236 U.S. App. D.C. 36 (D.C. Cir. 1984) (noting that D.C. Code § 24–301 “represented a conscious and direct congressional response to [Durham] … Congress believed that the Durham test would “result in a flood of acquittals by reason of insanity and fear[ed] that these defendants would be immediately set loose.”).

(149) Richard Bonnie, Morality, Equality, and Expertise: Renegotiating the Relationship between Psychiatry and the Criminal Law, 12 BULL. AM. ACAD. PSYCHIATRY & L. 5–6 (1984); see David Bazelon, Veils, Value and Social Responsibility, 37 AM. PSYCHOLOGIST 115, 115 (1982). Following that period, lawyers and commentators have been wary of the use of expert testimony by psychologists as a replacement for the statutory measures of elected officials. See GARY B. MELTON & JOHN PETRILA, PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS 3 (2007).

(150) See CHRISTOPHER SLOBOGIN & GARY MELTON, PSYCHOLOGICAL EVALUATIONS FOR THE COURTS 251, 418–19.

(151) See FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL 8 (1981) (stating that the California sentencing act of 1976 was “representative of a spate of legislative proposals, enacted or advocated throughout the country … [attacking] the indeterminate sentence, the parole function, the uses of probation in cases of serious criminality, and even allowances of “good time” credit in the prisons.”).

(152) See SLOBOGIN, supra note 150, at 420–21.

(153) See Christopher Slobogin, The Civilization of the Criminal Law, 58 VAND. L. REV. 121(2005) (describing the resurgence of the dangerousness criterion for confinement outside of the traditional incapacitation regimes and arguing in favor of a more forthright adoption of such an approach with individual prevention as the predominant goal of the criminal justice system).

(154) Liu Li, Software Helps Judges Mete Out Sentences, CHINA DAILY (Sept 7, 2006) available at http://www.chinadaily.com.cn/cndy/2006-09/07/content_683080.htm http://www.chinadaily.com.cn/cndy/2006-09/07/content_683080.htm; see also Nate Anderson, China Tests Computer-Aided Sentencing, ARS TECHNICA (September 14, 2006), http://arstechnica.com/news.ars/post/20060914-7745.html http://arstechnica.com/news.ars/post/20060914-7745.html.

(155) See GEORGE BIRKBECK HILL, JOHNSONIAN MISCELLANIES, Vol. 1, 223 (quoting eighteenth-century British author Samuel Johnson); cf. BERKOWITZ, supra note 86, at ix (quoting Immanuel Kant’s description of law as the rational feeling of man’s connection with the ideal of justice).

(156) See United States v. Booker and Unites States v. FanFan, 125 S. Ct. 738 (2005).

(157) See LOIS A. WEITHORN, PSYCHOLOGY AND CHILD CUSTODY DETERMINATIONS 160 (1987).

(158) See id. at 161.

(159) See Brown v. Board of Ed., 347 U.S. 483 (1954).

(160) See id. at 494; see also David Faigman, Normative Constitutional Fact-Finding: Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 566–73 (1991) (describing Brown v. Board).

(161) See Brown v. Board, 347 U.S. at 494 n.11.

(162) See Faigman, supra note 160, at 567–68.

(163) See id.

(164) See Ronald Dworkin, Social Sciences and Constitutional Rights—The Consequences of Uncertainty, 6 J.L. & EDUC. 3, 5 (1977) (quoting Cahn, Jurisprudence, 30 N.Y.U. L. REV. 150, 157–58 (1955)); see also Faigman, supra note 160, at 560–70 (discussing Dworkin’s views of Brown v. Board).

(165) Dworkin, supra note 164, at 5.

(166) See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. N.Y. 1947) (proposing that liability should be established where the burden of adequate precautions is less than the injury multiplied by the probability of the injury’s occurrence); see also Tsachi Keren-Paz, An Inquiry into the Merits of Redistribution through Tort Law: Rejecting the Claim of Randomness, 16 CAN. J.L. & JURIS. 91, 95 (stating that “[t]he Learned Hand formula and its progeny exculpate the defendant from liability when the prevention cost exceeds the expected accident cost.”); cf. Edward C. Lyons, Balancing Acts: Intending Good and Foreseeing Harm—The Principle Of Double Effect in the Law of Negligence, 3 GEO. J.L. & PUB. POL’Y 453, 500 (2005) (“there is no moral indignation in the case in which the cost of prevention would have exceeded the cost of the accident.” (quoting Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUDIES 29, 33 (1972)).

(167) See James M. Anderson, The Missing Theory of Variable Selection in the Economic Analysis of Tort Law, 2007 UTAH L. REV. 255, 257 (2007) (noting that there are a nearly infinite number of accident-reducing inputs a court can consider, so decisions over which to consider in the analysis have a central effect on tort analysis); cf. Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis” Rather than an “Empirical Proposition”?, 16 CREIGHTON L. REV. 565, 646 (1983) (observing that “[i]f one is supposed to ‘balance’ the ‘competing interests’ before deciding whether to apply the exclusionary rule, how does one do so without measuring imponderables or comparing incommensurables?”).

(168) See STEPHEN J. BREYER, REGULATION AND ITS REFORM 117 (1982).