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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

June 2, 2010

Research-based Law

I stated in my last entry that I believed that “evidence-based” law practices as defined as practices that have been shown to be effective through appropriately designed, peer-reviewed scientific statistical analysis would be difficult to obtain in the law. I believed that the law should strive toward becoming “research-based” rather than “evidence-based”. (The two terms are often interchanged in the literature in different fields.)

I define “research-based practice” as a practice developed by using empirical research of a more basic nature, that are components of a larger, or a different but similar, phenomenon being studied. For example, we read research on the efficacy of alcohol treatment on reducing alcohol abuse in individuals not convicted of operating while intoxicated. We then use that research to develop a practice to apply to a population of individuals convicted of operating while intoxicated in an attempt to reduce drunk driving. Although the targeted populations and objectives are different, we infer through this research that the newly designed practice may work in this circumstance also.

“Research-based” practices allow using basic research in areas such as psychology, behavioral economics, sociology, anthropology, and physiology—research often performed in controlled laboratory settings using rats or college freshmen as study subjects; and applying that basic research to legal issues involving human behavior. (Don’t all legal issues involve human behavior?) “Research-based” allows for more creativity, and combines the knowledge of science with the expertise of the practitioner in an attempt to be the most effective practitioner possible.

Further, I reach the conclusion that we as practitioners should be “research-based” rather than the more rigorous “evidence-based” for essentially the same reason my fifth grade nun advised me that I would be better off aiming for purgatory rather than heaven—there would be at least a chance for success.


The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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