Cornell Law Review Volume 96 Issue 4

Comment: Evidence-Based Law by Jeffrey J. Rachlinski

I would like to commence with some preliminary analytical reflections on Professor Rachlinski’s fascinating essay.  The issue he presents is whether and to what extent can and should empirical methods be used in the context of legal studies.  In a way, this question touches upon the relationship between law and reality, or the relationship between the normative and the factual worlds—the ought and the is.  Law generally determines what is right and what is wrong.  Because values such as right and wrong cannot be measured by empirical methods, we might therefore conclude that empirical methods are not at all pertinent to legal studies.  But as we know, this is not the case. Law is connected by an intricate network to reality and facts, to which empirical methods could very well apply.  By definition, every legal norm relates to a certain set of circumstances to which it should be applied, and the role of the law is to shape behavior in the context of these circumstances.


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