Cornell Law Review Volume 96 Issue 4

Evidence-Based Law

Numerology is sweeping the professions. In the past decade, both medicine and business have witnessed a radical growth in efforts to subject common wisdoms to empirical testing, which has come to be called evidencebased medicine (or business). The rise of empirical legal scholarship suggests that law will soon face, or is already facing, a similar movement. With an increase in available data and user-friendly desktop statistical packages, any law professor (or student) can test any theory—from the deterrent effect of the death penalty to the existence of the litigation explosion. This trend is surely all to the good in all three disciplines. False myths are a nuisance that can mislead physicians into erroneous treatment, support costly business practices, and produce misguided legal reform. But medicine and business each have a relatively unified mission—the treatment of patients and the production of profits—meaning that their theories are either right or wrong. Law, however, lacks this uniformity of purpose. It is often politics by other means that sorts winners and losers, rather than right and wrong, thereby clouding the normative environment. What is accepted fact in medicine and business is contestable in law. Law’s political nature does not render empirical testing of widely held myths a hopeless misadventure but complicates the hope (and the value) of creating an evidence-based law.

 

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