Thursday, April 16, 2020

The Evidence-Based Mindset for Legal Scholarship: A Key to Critical Thinking

When I was writing my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, But Newton Asked Why, I discovered that one of the essential aspects of critical thinking was grounding statements, ideas, arguments, and conclusions with rigorously-evaluated  evidence.  I noted that "Students inability to support a conclusion should tell them that their conclusion may be faulty."  Students (and others) should develop a habit of checking to see whether their work is solidly based in evidence.

Today, I found a term for this habit: the evidence-based mindset.  (From a lecture by Steven Pinker.)  All legal scholars should adopt this mindset.

Adam Lamparello has written an article that demonstrates why legal scholars need to adopt this mindset, especially those scholars who do studies based on sociological or scientific methods. (The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education)  The article declares, "Empirical research methods and statistics should be incorporated into legal scholarship and the law school curriculum, preferably in the legal writing curriculum. . . .  Law students (and legal scholars) should be more like social scientists. They should learn to conduct empirical research and to distinguish between credible and flawed empirical research, (particularly regarding methodological flaws) because doing [so] is imperative to making persuasive and credible arguments. After all, how can lawyers be effective social justice advocates if they are not well-versed in social science research? Moreover, the legal writing classroom is an appropriate environment in which to teach empirical research and statistical methods because it is where students learn how to research, write, communicate, and formulate persuasive arguments. Ultimately, that should be the goal of legal education."

Lamparello asserts, "recent empirical studies by social psychologists strongly suggest that implicit bias is not predictive of biased behavior. In fact, the science regarding implicit bias’s connection to biased behavior is so flawed that social psychologists doubt its validity and question the utility of policies that attempt to link implicit bias to biased behavior. You wouldn’t know this from reading the many law reviews articles concerning implicit bias, or from the orientation sessions where law students are taught to believe that implicit bias is the sine qua non of biased behavior."  He continues, "Ultimately, before legal scholars and law school administrators can credibly claim that implicit bias predicted biased behavior, they must address the substantial body of social science research, particularly by social psychologists, concluding that they are wrong."  He then goes into the details about the flaws in implicit bias theory.  He concludes, "Quite frankly, it seems that legal scholarship in this area is driven by personal agendas rather than an honest search for truth."

Thomas Abt presented a lecture on urban violence in Steven Pinker's Rationality class at Harvard that demonstrates the importance of making policy-based decisions based on the evidence-based mindset.  (here)  He defines evidence as "Information about a question that is generated through systematic data collection, research, or program evaluation using accepted scientific methods that are documented and replicable."  (Note that he uses critical thinking criteria within this definition.)  He notes that the benefits of of evidence-informed policy are objectivity, accuracy, consistency, and transparency.   He adds that the key to the scientific method is that you show your work.  (I strongly recommend you watch the entire video.)

In sum, law professors need to adopt an evidence-based mindset for legal scholarship and use the proper critical tools for their area of study.  (The caveat is, of course, that the evidence -based mindset is not appropriate for all areas of legal scholarship.)  Using evidence, rather than relying on unreliable intuition, will lead to more accurate results.  Our intuition may make us think that implicit bias theory is true, but the evidence-based mindset may show that our intuition has lead us astray.  Beware of the confirmation bias.

(Scott Fruehwald)   

https://lawprofessors.typepad.com/legal_skills/2020/04/the-evidence-based-mindset-for-legal-scholarship.html

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