Law and Social Science L6172 M,W 1:20 – 2:35 WJH 104 Professor Jeffrey Fagan JG Office Hours M,W 10: :00 www2.law.columbia.edu/fagan/courses/law_socialscience

Social Science and Case Law  Napster (Copyright, IP)  Roper v Simmons (Death penalty)  NAACP v Acusport et al. (Product liability, nuisance)  Zamora v CBS (Tort)  Soto v New Jersey, 324 N.J.Super. 66, 734 A.2d 350 (Racial profiling)  Rios v Steamfitters Local 638, 860 F.2d 1168 (EEO)  Casteneda v Partida, 430 U.S. 482 (Juror exclusion)  In re Agent Orange Litigation (Tort)  September 11 th Victim Compensation Fund (tort)

What Kind of Course is This?  There are two kinds of LSS courses  A “law and society” course examines law as social system through the lens of social science disciplines: what people conceive law to be what people conceive law to be what is the role of law in human interaction what is the role of law in human interaction the interaction between norms and law the interaction between norms and law how laws are constructed and enforced how laws are constructed and enforced how law changes in response to culture and social norms how law changes in response to culture and social norms how different cultures construct laws around similar social issues how different cultures construct laws around similar social issues E.g., “how do ranchers settle cattle-grazing disputes in Montana?” E.g., “how do ranchers settle cattle-grazing disputes in Montana?”  These courses also are concerned with law as social control, both formal control and more informal controls where legal norms are enforced through social mechanisms.  This would be a valuable course for the Law School, but this course isn’t a Law and Society course.

Social Science in Law  The second type of course would be a course in “social science in law”  In this course, we apply social science as a tool for legal analysis. It views law from a legal perspective, whereas the former type of course might view it from the social science perspective.  Its primary question is – what does social science have to offer for the law? The answers lie in the four areas outlined in the course description

What the Course Isn’t  The course isn’t organized by area of the law (torts, criminal law, etc.) or by social science discipline (sociology, economics, anthropology, psychology)  This isn’t a course on scientific evidence, although the validity and reliability of scientific evidence is a critical foundation of the course  The Course is organized into four areas that illustrate the application of social science methods to problems in law

Four Components of the Course  Determining Facts Torts Torts Trademarks, copyright infringement Trademarks, copyright infringement Obscenity cases Obscenity cases  Making Law Constitutional Law (1 st, 5 th, 6 th, 8 th, 14 th ) Constitutional Law (1 st, 5 th, 6 th, 8 th, 14 th )  Setting Context Regulation Regulation Syndrome defenses Syndrome defenses  Litigation Jury selection Jury selection Venue motions Venue motions

What We Will Do  Review the role of social science in modern jurisprudence as an historical trajectory from the 19 th century Progressives whose work informed the Sociological Jurisprudence movement, to the Legal Realists of the 1930s, Critical Legal Theory, and Legal Postivism.  Assess Case Law that has shaped Federal Rules of Evidence, and that in turn controls the admission of social science evidence and the experts that proffer it

 We then begin an analysis of the structure of social science knowledge  Causal reasoning and causal inference are central in both social science and law, we will review philosophical and epistemological perspectives on causal inference  Social science basic training. The goal is to train students to critically analyze social science evidence, and to interpret social science evidence to assess its probative value for litigation. A condensed MA course in social science methods A condensed MA course in social science methods  We then begin our examination of social science in case law, through the four domains of “facts.”

Expectations  Grades will be based on: Written memos (2) (20%) Written memos (2) (20%) Case presentation, including write-up (mandatory, no grade) Case presentation, including write-up (mandatory, no grade) Final Exam (80%) Final Exam (80%)  Everyone reads all the cases  Full participation is expected. If not forthcoming, then it will be elicited  A couple of speakers

Scientific Standards and the Law  Daubert v Merrill Pharmaceuticals has raised the stakes for social science in the courtroom. Daubert was the first case to formally address the question of how science can influence law Daubert was the first case to formally address the question of how science can influence law Daubert established the bases for standards for the admissibility of scientific evidence in the courtroom. Daubert established the bases for standards for the admissibility of scientific evidence in the courtroom. Daubert made the first part of this course -- on social science methods -- an essential part of legal training. Daubert made the first part of this course -- on social science methods -- an essential part of legal training. For example, judges must now articulate substantive rationales for decisions on evidenceFor example, judges must now articulate substantive rationales for decisions on evidence

 Method is now a threshold criterion for the admissability and probative value of scientific evidence in the courtroom Standing of methods pursuant to critical review of scientific community Standing of methods pursuant to critical review of scientific community Peer review of findings Peer review of findings Generalizability to legal question at hand (probative value and materiality) Generalizability to legal question at hand (probative value and materiality) Precedent (not unlike the law) Precedent (not unlike the law)

 Over the course, then, we will ask when science is sufficient to establish bright line legal rules (legislative facts) VS social facts that settle disputes (adjudicative facts)  The most critical part of this analysis, then, will not only be how the facts are used, but just how good are the facts themselves  But science, like law, will still produce conflicting results, and that is the challenge for the course: Opinions conflict, sometimes dependent on methods used, sometimes based on accumulation of knowledge or facts, sometimes based on differences in methods Opinions conflict, sometimes dependent on methods used, sometimes based on accumulation of knowledge or facts, sometimes based on differences in methods To make it even more complicated, science changes over time, just as does the law To make it even more complicated, science changes over time, just as does the law