Event Description
Science has an enormous role to play in constitutional cases. Oddly, this scientific function has been largely overlooked by both courts and commentators; there has been little systematic analysis of how science has been, and how it should be, integrated into constitutional decision making. Yet, even the most casual inspection of constitutional cases quickly reveals the overwhelming presence of scientific hypotheses — ordinarily in the form of factual assertions — that are amenable to empirical test. Indeed, many of the most famous constitutional decisions contain robust scientific questions worthy of intensive study. Does segregated schooling contribute to psychological injuries and lowered self-esteem among black school children? (Brown v. Board of Education of Topeka). At what point-in-time in a pregnancy does a fetus become "viable," that is, able to survive outside the mother's womb? (Roe v. Wade). These examples are merely the tip of an enormous empirical iceberg.
Prof. Faigman's talk focused primarily on why judges and constitutional scholars appear so uninterested in the scientific premises that underlay their constitutional judgments. The answer appears to involve a number of factors, including an overwhelming lack of training in science and its methods (particularly statistics); a fetishistic attachment to the normative, historical, and philosophical underpinnings of constitutional doctrine; and an intense fidelity to a jurisprudence of continuity, which rejects the implicit promise of progress inherent in science. He also explored what this profound lack of scientific curiosity and fundamental innumeracy has meant for constitutional doctrine. Using specific examples, Prof. Faigman considered the empirical hypocrisy that pervades much of constitutional law, ranging from Abrams v. United States to Young v. American Mini Theatres. Finally, he asked what is to be done. Is it possible, and is it desirable, to have a scientifically rational and empirically sophisticated constitutional jurisprudence?
Commentators
Eugene Borgida, PhD
Eugene Borgida is Professor of Psychology and Law at the University of Minnesota and a Morse-Alumni Distinguished Professor of Psychology. In addition, Borgida is an Adjunct Professor of Political Science, and has served as Co-Director of the Center for the Study of Political Psychology, which he co-founded. Borgida received a B.A. with high honors in psychology and sociology from Wesleyan University, and his Ph.D. in psychology from the University of Michigan. He has served as Associate Dean and Executive Officer of the College of Liberal Arts, and as chair of the Psychology Department. Borgida’s research has been funded by NSF, NCI, NIH, NIMH, and The Pew Charitable Trusts. He received the Distinguished Teacher Award from the College of Liberal Arts and the system-wide Morse-Alumni Award for Outstanding Contributions to Undergraduate Education. Borgida is an elected Fellow of the AAAS, an APS Fellow, and a Fellow in several APA divisions. At APA, he has served as President of Division 9 (SPSSI) and currently represents Division 8 (SPSP) on the APA Council of Representatives. He has served on the Board of Directors for the APS, the Social Science Research Council, and is Past Vice President of the Federation of Associations in Behavioral & Brain Sciences.
Susanna Blumenthal, PhD, JD
Prof. Susanna Blumenthal is a scholar of American legal history whose research and writing focuses on the historical relationship between law and the human sciences. She is the author of Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard University Press, 2016) as well as numerous essays and law review articles, appearing in Harvard Law Review, UCLA Law Review, and Law and History Review.