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Legal Studies Research Paper Series Paper No. 1142 Introduction, The Role of Social Science in Law, Elizabeth Mertz (ed.) Ashgate (2008)

The Role of Social Science in Law: Introduction Elizabeth Mertz

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ELIZABETH MERTZ

Introduction “Introduction,” in The Role of Social Science in Law, ed. E. Mertz (Ashgate 2008)

Should social science play a role in legal decision-making? Has social science had any impact on law to date and, if so, what kind of impact? What is the best way to use social science knowledge in legal settings? Scholars and legal professionals have long wrestled with these questions, both in the United States and in other areas of the world. Yet, although the issues have been widely debated, there is still much work to be done in developing a systematic analysis of translation between law and the social sciences. This volume introduces some of the most promising lines of inquiry to date, in the hope of stimulating further rigorous attention to this important problem. Another goal of this collection is to bring together somewhat disparate traditions that address the intersection of law and social science. On the one hand, legal scholars have examined the way in which social science is used in legal settings, approaching social science in the manner that an „insider‟ to the legal system might – as a tool that lawyers can use for legal ends (Monahan and Walker, 2006). As Monahan and Walker explain, the „principal alternative to this “insider” perspective on the relationship of social science to law is the “law and society” or “sociology of law” approach which seeks to understand the functioning of “law” as a social system‟ (2006, p. v, citing Macaulay, Friedman and Stookey, 1995; Lempert and Sanders, 1989). The law and society perspective begins with the social scientist‟s goal of understanding society (including law), rather than with the lawyer‟s goal of achieving speciifc results. In this sense, it stands „outside‟ the legal system, looking in. Since the 1960s, formal scholarly organizations in the United States, the UK, Europe, Japan and elsewhere have brought together scholars from a range of social science disciplines whose common research focus is on law and legal institutions. (Garth and Sterling, 1998). In the United States, the Law and Society Association has provided a fertile meeting-ground for scholars whose methods of studying law include everything from the statistical to the experimental to the ethnographic. This volume seeks to bridge these traditionally distinct „insider‟ and „outsider‟ perspectives to studying the intersection of law and social science. In doing so, it draws in yet another approach – one that focuses on studying the language of the law. This form of analysis is at once „outside‟ the law, because it uses tools from disciplines other than law, and at the same time „inside‟ the law, because it takes seriously the need to understand the way in which „insiders‟ understand and speak about law. It therefore introduces a third vantage-point,

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insisting that we study the process of interdisciplinary translation itself. The disciplines that have paid systematic attention to this issue of translation range from anthropological linguistics and sociolinguistics through law and literature. Thus this volume itself epitomizes a new kind of translation among disparate traditions, drawing together scholarly approaches that are often tempted into talking past one another. However, as we will see, they are often working at a similar intersection and can together contribute to a more rigorous and informed understanding of what is happening when social science is used in legal decisions. The sections of this Introduction mirror the organization of the volume [The Role of Social Science in Law (2008)], providing an explanation of the logic of each part of the book in turn. The essays reprinted in this collection represent, of necessity, only a small slice of the wide array of important relevant research. As far as possible, I have sought to remedy this by featuring additional essays and books throughout this Introduction. (However, this remedy is obviously partial; I cite a number of excellent review essays within this Introduction, which I recommend to those interested in a broader array of readings.) Each section of the volume concludes with a specific example of how translation issues play out „on the ground‟. This emphasis on examining translation in practice is a theme for interdisciplinary scholars interested in a „new legal realism‟. At a time when there is renewed interest in empirical research in US law schools, these scholars warn against an unduly simplistic approach to bridging important differences between law and social science. Ignoring these differences will lead to serious analytical mistakes, in which social science findings may be used improperly to bolster the wrong conclusions. In the arenas addressed by law, where life and death may literally be at stake, this is no small matter.

1. Problematizing and Analysing Translation: The Transparency Myth Why should lawyers or policy-makers care about translation when they turn to social science? Aren‟t social science findings self-evident? Or, conversely, why should social scientists worry about how their studies will be interpreted in legal settings? For that matter, why should professionals inthese fields converse at all? Law as a discipline bears a very difficult burden. Legal professionals are called upon every day to cope with the unruly disputes and problems that emerge from their societies. Social scientists are also charged with developing ordered frameworks for understanding the social world around them. But ultimately they do not routinely have to come to normative conclusions – conclusions as to what should be done. On the one hand, this means that social scientists have a luxury; they can take time to stand back and come to more precise conclusions. In the best cases, they permit what they find „on the ground‟ to guide their conclusions, rather than ignoring important facts that might upset their preconceptions. Lawyers, on the other hand, are trained to be advocates. It is their job to discredit facts that might undermine their clients‟ cases. Judges, legislators and sometimes law professors, we hope, can stand back a bit further. But they

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often come to the material steeped in a legal framework that poses alternatives in unsubtle terms – yes or no, guilty or not guilty. Their training and circumstances do not permit the luxury of standing back to survey the scene for very long: people are waiting for their decisions, often in urgent circumstances. Neither the legal professionals nor the people they serve are particularly interested in a long-winded, heavily-hedged or deeply-nuanced explanation of what is going on. They must make choices, come to decisions. From this perspective, the careful language and lengthy conclusions of social science studies can appear to be an extravagance – indeed, an abandonment of social responsibility. As Lee Epstein and Gary King succinctly explain, „An attorney who treats a client like a hypothesis would be disbarred; a Ph.D. who advocates a hypothesis like a client would be ignored.‟ (Epstein and King, 2002, p. 9). On the other hand, this action framework can work to obscure some crucial issues and nuances that might be important to legal decision-making. In areas such as family law, where complex social and psychological realities meet the blunt edge of legal procedure, the legal system has taken increasing note of the shortcomings of its own core approach to social problems. However, as legal professionals then turn to experts in other fields like psychology and social work (as well as to the relevant empirical research), they move into new worlds – worlds for which a standard legal education leaves them poorly equipped. Conversely, researchers in social science are frequently blissfully unaware of the realities of the legal universe into which their findings may be dropped. As a consequence, people on both sides of this ongoing conversation may proceed unaware of the degree to which they are assuming an interdisciplinary transparency that doesn‟t exist. They may, in fact, be trying to have two very different conversations. At best, they leave these exchanges irritated by the limitations that they perceive in the other person‟s understanding (or with a smug sense of the superiority of their own). At worst, they leave thinking that they have understood one another perfectly. 1.a. The Transparency Myth: Translation or Transformation? Scholars from different traditions have attempted to warn readers of the fundamental communicative misfire that can occur when talking across disciplines, particularly when one of those disciplines is law. This volume begins with essays from two of these diverse approaches: „law and literature‟ at the interpretive end of the sociolegal studies spectrum; and „law in social science‟, among the more positivist of subfields. Interestingly, authors from both perspectives agree on the need to problematize the process of translation between law and social science. James Boyd White, a founding scholar in the field of law and literature, opens our collection with his essay on „Intellectual Integration‟ (Chapter 1). He considers different possible models for interdisciplinary work. One approach involves simply making the „findings‟ of one field available to the other, „as though history or economics or philosophy, say, should pass a plate with the truth on it over to the law, which would then in some unspecified way put it to use‟ (p. 14). Of course, as White points out, social science disciplines are themselves internally divided over the value of particular findings. As discussion develops within a discipline around a certain topic, any particular study is more likely to generate tentative conclusions than set „findings‟ which can be interpreted out of context. White also argues against a model in which scholars apply the „intellectual method‟ of one field to the materials of another: „the idea is of a discipline as a technology: you learn to run the machine of literary or economic analysis, then you wheel it up to the new object, called the law, and it goes to work, spitting

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out results as a log chipper spits out wood chips‟ (p. 15). But these methods are not simply technologies; they emerge from a wider set of disciplinary practices that include learning how to frame questions, what sorts of questions are appropriately addressed in certain ways, where the limits of certainty lie, and so forth. Sociologists who use quantitative methods do not limit their training to statistics; instead, they engage in coursework, research, and writing that teaches them the contexts for using statistics. Both of these models discussed by White put very light loads on the would-be translator – either to pick up neatly-packaged findings or to learn a new technology. Let‟s think about these examples as if we were talking about learning a language in the traditional sense – say, a speaker of Gaelic learning to speak English. Under the „findings‟ model, it is as if we were telling that person that he could simply pick out English words from a dictionary and use them to speak, without ever teaching him grammar. The „intellectual method‟ approach, on the other hand, might insist that he learn the grammar without much practice in actually using the language – and certainly without any immersion in a setting where the language was in everyday use. He might come out of that training able to speak in a stilted way, but he would certainly be making many mistakes in the process. If our awkward speaker were then put in a powerful position, the results could be disastrous. Imagine, for example, that you were on trial in a Gaelic-only courtroom, and this fellow was taken quite seriously as an able English-speaker. You might find yourself in jail on the basis of a mistranslated idiom. (And lest this comparison seem too frivolous, imagine now that a legal scholar who doesn‟t fully grasp the tentative character of social science findings on the death penalty translates them with a misplaced certainty – and then has a powerful impact on actual legal policy.) In place of the „findings‟ and „intellectual method‟ models, White urges that we work to achieve a more rigorous form of interdisciplinary translation – one with more integrity. He urges that we think of translation not as one discipline using or absorbing another, but as two different discourses that come together in such a way as to make a third, different discourse – blending both to make a new „composition‟. The downside to this is that it takes much more work, requiring scholars to achieve a higher level of comprehension of the discipline to be translated. The upside is that it might result in something that does better justice to both of the disciplinary perspectives involved. In Chapter 2 John Monahan and Laurens Walker discuss three ways in which US courts have attempted to translate social science. To distinguish among these three approaches, the authors draw upon the familiar legal categories of „fact‟ and „law‟ (thereby themselves performing a deft act of translation into legal categories). Thus, they argue, courts have drawn on social science to make law, to determine facts, and to provide context (a fact/law mixture). Since 1908 the US Supreme Court has accepted briefs that rely on social science evidence, and in subsequent decades „research has frequently been invoked by courts to demonstrate the validity of empirical assumptions made in the process of modifying existing law or creating new law‟ (p. 25). A famous example of this was the original brief by Louis Brandeis presenting research that indicated deleterious effects on women from working long hours (Muller v. Oregon, 1908). Another well-known turning-point was the Supreme Court‟s reliance, in Brown v. Board of Education, on social science that pointed to harmful psychological effects of segregation on black children. In this kind of case, then, the courts turned to social science for help in making decisions about the broad social and psychological truths assumed in legal doctrines.

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A somewhat different use of social science in court decisions has centered on case-specific questions. For example, in trademark cases, courts are frequently called on to decide whether a new trademark may cause confusion because it resembles an already established trademark. They have turned to empirical studies by social scientists to help them determine whether a particular trademark does in fact seem to confuse people.

Finally, Monahan and Walker discuss how courts have used social science to provide context. In this third kind of situation, empirical studies provide a „social framework‟, drawing on „general conclusions from social science research to determine factual issues in a specific case‟ (p. 33). For example, in cases involving child sexual abuse, the courts have considered studies of sexually-abused children‟s behaviour to assess the likelihood that a particular child had been abused. Juxtaposing White‟s essay with that by Monahan and Walker raises a number of questions: Where should we start the translation process? Is it useful to employ the familiar legal categories as a framework? Monahan and Walker describe a persistent failure of efforts to systematize translation of social science in legal settings. They work from within legal frameworks to propose an approach that takes better account of the realities of the process. Certainly, without any guidelines or training, legal professionals may make erratic use of social science research and are more likely to adopt the imperialist approaches against which James Boyd White warns us. On the other hand, working within legal categories may do little to budge baseline orientations and assumptions. Here we encounter a core dilemma for would-be translators of all kinds: Is it even possible to move between two very different languages or approaches without losing something important? A recent essay by anthropological linguist Michael Silverstein (2003) suggests that we are in fact not dealing with „translation‟ when we move between law and social science. Silverstein argues that a straightforward kind of equivalence between expressions in two different languages is possible only within a very limited domain. His analysis points to relatively universal aspects of linguistic systems, anchored in grammatical structuring. One example would be the use of a „first-person‟ form to indicate the speaker of an utterance („I‟). Even with this example there are some interesting cross-linguistic variations (for example, the importance of case – „I‟/„me‟/ „mine‟ – in some languages as opposed to others). But Silverstein identifies certain kinds of speech (generally defined functionally and socially as well as formally) that lend themselves to being translated in the most transparent sense. Once we move beyond this limited sphere, Silverstein argues that we are doing something rather different when we attempt to move between languages. Take, for example, the issue of expletives or swearing. Silverstein uses the example of the Tonkawa language, in which one of the most profane things one could say to someone else is: „May you give birth to a wandering ghost.‟ Repeating these words does little to convey the meaning of this expression to an English speaker in the United States today. Conversely, a speaker of Tonkawa might be puzzled to know that an English speaker had just told someone to have sex („fuck you‟). Or he might be confused upon hearing the word „bloody‟ used as an expletive, wondering perhaps whether someone had been injured. Let‟s say, then, that I‟m trying to translate a play, or a poem, from one language into another. I might decide to render „May you give birth to a wandering ghost‟ as „Fuck you‟. Silverstein suggests that this kind of process be referred to as „transduction‟:

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We should think seriously of the underlying metaphor of the energy transducer that I invoke, such as a hydroelectric generator. Here, one form of energy [(a) downward … rush of water against turbine blades] is asymmetrically converted into another kind of energy at an energetic transduction site … , harnessing at least some of it across energetic frameworks. In this transducer, two forms of mechanical energy are converted in a functionally regular way into another kind of energy altogether …, of course with some slippage between the two systems of energy organization, due to „ friction‟ , „inefficiencies‟ , „random contingent factors‟, and other tragedies of the laws of thermodynamics and uncertainty. (Silverstein, 2003, pp. 83–84) Many European languages, for example, distinguish between the second-person singular („tu‟ in French, for example) and the second-person plural („vous‟). However, the second-person plural can also be used when speaking to a single person, to indicate respect or formality. How, then, would we transduce the meaning of a shift to „vous‟ in modern-day English? If we retain the same word („you‟), we fail to convey something important. We may have to reach for other aspects of the language – perhaps shifting from an informal to a formal tone in the surrounding speech – to „transduce‟ a core part of the meaning here. But we may have to make an even more dramatic shift in moving between two languages – in fact, a „transformation‟: Sometimes there is no way sufficiently to systematize and limit the transduction of material across functionally intersecting [linguistic] systems. Even trying to play it as safe as we can with the textual stuff with which, by hypothesis, we start, semiotic transformation then occurs. (Silverstein, 2003, p. 92) Silverstein urges that we stay attentive to the ways in which some kind of transformation might be entailed in almost every attempt to translate – although to different degrees. Certainly, when we move across cultures, he notes, we can no longer speak of „translation‟ in the usual sense, because we have to shift so much to find something vaguely resembling an equivalence relationship. (Indeed, the search for equivalence may in and of itself distort, yielding an even more imprecise sense of the differences between the two systems.) James Boyd White makes a very similar point when he notes „that all languages are limited . . . that full translation from one to another is always in a deep sense impossible‟ (White, 1990, p. 81). Here the discourses of science and humanities can, for a moment, touch on a similar point – because in the language of science, to ignore inexactitudes in translation is to miss the boat in terms of scientific accuracy as well as in terms of interpretive adequacy. In sum, any accurate or adequate attempt to move from social science to law (or vice versa) requires systematic attention to the translation process itself. (Although it is beyond the scope of this discussion, I pause to note that this kind of attention is in fact a form of „metalinguistic‟ analysis, about which there is a large and vibrant literature in linguistic anthropology.) Analysis from diverse disciplinary points of view teaches us that this translation process is far from transparent. The important task ahead of us, then, is to develop better understandings of legal and social scientific „transduction‟ – or translation in the more complex sense (I will not use the more complex terminology here, on the theory that it might impede the “translation” that I am attempting). Only from that foundation can we calculate the trade-offs involved in one approach as opposed to another. Although there is reason to be concerned that the average law student or

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lawyer or social scientist has had little opportunity to consider these trade-offs, there are some arenas in which the issue has been more foregrounded than others. In the next section we turn to one such arena – the ongoing discussion between social science and law regarding the death penalty. 1.b. Translation Problems and the Death Penalty

In the second section of Part I we see how important it can be that we recognize the nontransparent relationship between law and social science. I illustrate this point through the lens of a particular example – the death penalty. For many years, social scientists have produced studies that cast serious doubt on the way in which the death penalty is used in the United States. These studies have been ignored by the US Supreme Court, which has proceeded on the basis of an ill-founded assumption of transparent translation. In a classic early essay on this thorny translation issue, Phoebe Ellsworth (1988) reviewed the US Supreme Court‟s use of social science in death penalty cases and concluded that the Court was rejecting sound social science on largely ideological grounds. Although she makes a valid point about the probable motivation behind the Court‟s approach, it is also the case that the Court did not feel a need to question its underlying orientation in dealing with social science. This fundamental issue is not a standard part of law school curricula or legal discourse generally. And yet, as Ellsworth ably demonstrates, the norms for judging studies in social science differ in important ways from standard legal interpretive approaches. In a key death penalty case, Lockhart v. McCree, the Court had to assess a number of social science studies, all reaching the same conclusion: that when jurors are pre-screened to make certain that they don‟t object to imposing the death penalty, they are in fact more likely to convict the defendant. Justice Rehnquist approached the pile of studies in much the way an attorney would approach a stack of evidence that contradicted her position: he went through each one to find flaws and then rejected all but one. The remaining study he deemed insufficient by itself to document a bias on the part of „deathqualified‟ juries. Using this approach to parse social science is likely to generate a very inaccurate assessment of the state of knowledge in a field; no study can cover all possible grounds, and even the soundest studies can be critiqued on some basis or other. That is why it is desirable to compare the results of multiple studies using diverse methods, wherever possible. When many studies come to similar conclusions, including those employing quite different approaches, we have one of the strongest cases that can be obtained in social science for those particular conclusions. Picking the pile of evidence apart bit by bit, without stepping back to examine the larger picture, adheres to a particular legal norm for assessing evidence at the expense of accurate interpretation of social science results. Here we see the dangers of the myth of transparent translation in legal settings. It may be that the Court‟s ideological bias would overcome even a more accurate reception of the existing social science evidence – Ellsworth noted that the Court is quite quick to set the bar at a lower level when the social science presented to it supports the death penalty. But it would at least have to deal in more depth with the information presented if it had to begin by recognizing the quite different standards and norms involved in scientific research. In Silverstein‟s terms, they would have to take account of the extent and the direction of the transformation that they created. The first essay in this section, by John Donohue and Justin Wolfers (Chapter 3), stresses this

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last danger of which Ellsworth warns: that the death penalty policy in the United States has been (and may continue to be) based on a hasty acceptance of flawed social science. Dismissing well-founded research is not the only risk that follows from the myth of transparent translation. Legal scholars may also too readily accept, as settled propositions, conclusions that are up for debate within a field. Deciphering field-specific nuances regarding the questionable nature of certain findings is another task that is ill-suited to scholars trained in a discipline centered on advocacy. This is particularly the case when the stakes are high – when the state‟s decision to imprison or kill its citizens hangs in the balance. Asking that we reach conclusions that are „beyond a reasonable doubt‟ is surely good policy at all levels in these cases. Donohue and Wolfers demonstrate that there is quite a lot of doubt surrounding empirical research purporting to show that the death penalty deters crime. They express concern about „the potential dangers awaiting those who might wish to short-circuit the full process of scientific inquiry and validation and rush directly to the legislative forum …‟ (p. 93). In a more optimistic vein, in Chapter 4 Michael Radelet and Marian Borg trace the impact of social science on public opinion, arguing that, over time, firmly-grounded social science is having an effect on public perceptions. They provide a thorough overview of the intersection between social science and law as regards the death penalty in the United States, reviewing arguments over deterrence, incapacitation, caprice and bias, cost, miscarriages of justice, and retribution. When we compare their discussion with that of Donohue and Wolfers, we see a continuing pattern in which policy concerns have distorted the legal reception of relevant research; many of the themes in the more recent debate can be traced back through earlier discussions summarized by Radelet and Borg. In their discussion of miscarriages of justice, the authors also introduce the Capital Jury Project, an ongoing program of research examining the decision-making of capital jurors. In the final essay of the section, David Baldus (Chapter 5) focuses on the Capital Jury Project as a potential bridge between social science and legal discourses, and continues Radelet and Borg‟s optimism about the eventual impact of social science, not only on the public but also on the judiciary. As a key participant in the ongoing dialogue between the Supreme Court and the research community, Baldus brings us closer to the back-and-forth, highlighting the contrasting understandings of the legal and social science communities as they struggled to bridge a gap in translation. Together, these last two essays introduce many of the major voices and positions on both sides of this gap. The thoughtful work in this area poses some stark questions about the use of social science in legal decision-making. It pushes us to ask what further steps are needed to develop a more effective process of translation and reminds us of what is at stake. Nevertheless, of course, translation issues reach beyond the bounds of law and social science to the wider society as well (Sarat, 2001).

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2. Translating Social Science in Legal Settings In Part II the book begins to focus more specifically on some particular aspects of legal and social science discourses that complicate efforts to translate between them.

2.a. Across Divergent Frames

The initial essay in this section, by Elizabeth Mertz (Chapter 6), draws on in-depth linguistic research in law-school classrooms. Through a comparison of first-year contracts classrooms in eight different law schools, Mertz outlines a core linguistic structure – and accompanying message – that is imparted in all of the classes. She finds a fundamental resistance in this legal discourse to a thorough examination of social context. This resistance is created by the forms of typification found in legal language. Of course, on the on the one hand, lawyers might argue that it is not their job to worry about context in the way that social scientists do. And there is some merit to this argument. However, if this legally-oriented linguistic system does actively close off certain kinds of understandings of context, there may be important aspects of problems that are missed – and this is particularly true when we‟re dealing with the problem of translating between law and disciplines that take a different approach to the analysis of social context. In these instances, it is only by moving beyond the more typical structuring of legal discourse that law will be able to effectively translate more contextually-oriented disciplines, such as anthropology. In the wider study from which this essay is drawn, Mertz argues that this and other features of legal language create a premature closure (Mertz, 2007). She urges law teachers and legal scholars to adopt new forms of humility and self-questioning that would permit legal language to become more open to other discourses – including those of the social sciences. In Chapter 7 David Nelken raises the opposite concern: that the social sciences may not be achieving an adequate understanding of law, so that attempts at translation across disciplinary divisions become truncated. He poses this problem as the flip-side of a widely acknowledged concern in the sociolegal studies community about the „pull of the policy audience‟. In a widely cited essay, Austin Sarat and Susan Silbey warned that this „pull‟ might warp social scientists‟ critical capacities when they are attempting to translate their research for policymakers: Research which addresses the policy elite of the liberal state speaks with a particular voice, one that is instrumental, rational, and programmatic; attempting to speak with certainty, its presentation is limited, if not singular. In particular, the pull of the policy audience leads sociologists of law to ignore perspectives inconsistent with its epistemology, or purposes. (Sarat and Silbey, 1988, p. 131) Sarat and Silbey urge researchers to be more aware of the distortions involved in this translation process. They leave sociolegal researchers with an interesting dilemma, which calls to mind an admonition by James Boyd White that translation always involves losses as well as gains: arguably the only way to escape distorted translation in this case is for researchers to avoid a language that could be understood by policy elites. This obviously has its downside for social scientists who feel a broader social responsibility to make their research available in ways that might improve public policies. Yet there is no way of engaging with the discourses of law and

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public policy without some kind of transformation. John Brigham and Christine Harrington make this point in an essay that notes the correlation between an „overriding concern with policy formation‟ and „the omission of social relations‟ in many sociolegal accounts of law (Brigham and Harrington, 1989, pp. 54–55). They urge more attention to relational and institutional contexts. Nelken, then, takes up where these critiques end and asks about the potentially distorting effect on law of using social science. Anticipating Silverstein‟s (2003) pointed distinction between translation and transformation, Nelken asks social scientists to be more self-conscious about the imposition of their categories on legal phenomena – urging that these scholars pay systematic attention to differences and „incommensurabilities‟ between the legal system and the academy. He stresses that this is at once a practical and a theoretical problem, and goes on to talk quite specifically about the various ways in which this problem can be addressed. Edward Rubin (Chapter 8) also provides a careful delineation of the distinctive character of legal knowledge, which he describes as having a contingently prescriptive stance. On the one hand, this means that there is a fundamental difference between law and social science that cannot be wished away: the social sciences simply „cannot supply standard legal scholarship with a methodology‟ (p. 221). This stance does not, however, mean that law is an autonomous field – or that law can never productively draw upon, or learn from, other disciplines. In fact, when law moves outside of the purely prescriptive to make judgments about the world around it, it can usefully draw on empirical research. However, Rubin cautions that the translation between law and social science must take more precise account of the differences among them. The section concludes with a counterexample, albeit presented in a very optimistic framework – the US Supreme Court‟s imprecise attempt to provide guidelines for translating science, in the series of cases developing from Daubert. In Chapter 9 Joseph Sanders, Shari Diamond and Neil Vidmar freely admit that the Court demonstrates a profound ignorance about social science epistemology, but end on the hopeful and pragmatic observation that the Court‟s blunder might yet yield positive results. They suggest that, despite its „relatively unsophisticated view of science‟, it may in the end have struck a „reasonable balance between a realist and a social constructionist view of science‟ (p. 237). However, in a somewhat contrasting key, Jonathan Yovel and Elizabeth Mertz (2004) critique the Court‟s inclusion of two conflicting epistemological stances without any apparent awareness of the contradictions involved. In all of these essays, we see a more detailed outline of the divergent frames characterizing legal and social science discourses – painting a picture of where the obstacles to productive translation lie. 2.b. Discrimination in the Civil Law Context Debates over discrimination in the United States offer us an interesting window on the complex issues involved in translating between social science and law. In contrast with many of the death penalty cases, a number of civil cases involving discrimination have resulted in the Supreme Court‟s absorption of available social science information. This section begins with Edmond Cahn‟s well-known 1955 essay „Jurisprudence‟, which disputes the idea that the Supreme Court should (or did) rely on social science evidence in Brown v. Board of Education. Cahn usefully raises the question of a potential incompatibility between law and social science. Taking Nelken‟s concern about the potentially distorting

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impact of social science on law even further, Cahn argues against using psychological research as a foundation for decisions about discrimination. He famously objects that he would not like to see any Americans‟ rights „rest on any such flimsy foundation as some of the scientific demonstrations in these records‟ (p. 249). He fiercely defends the idea that the Court‟s decision actually rested on the „common knowledge‟ that segregation degraded and injured African-American children. The scientific findings simply restated something that was obvious on other terms. He expresses a strong concern about letting the „latest fashions of psychological literature‟ (p. 258) control fundamental legal rights and launches a critique of the studies‟ methodology that, in some respects, has proved to be correct. And yet, the underlying proposition that the studies purported to document has by now been demonstrated using other methodologies, leaving us with an interesting question about the role of social science as itself a changing institution. In an essay that actually introduces a number of other articles on the subject, Deborah Jones Merritt (Chapter 11) concludes that the justices in Brown appropriately used social science as one piece of a larger puzzle, regardless of the methodological issues involved in the pertinent studies: „I believe that the Justices who decided Brown looked at the society around them and knew it was not equal. The social science evidence helped them perceive and articulate the nature of that inequality‟ (p. 263). In a similar way, Merritt argues, social science can continue to shed light on current cases involving affirmative action and other remedies for discrimination. Since Merritt‟s essay was published, the Supreme Court has decided two key cases on afifrmative action involving admissions processes at the University of Michigan. (Grutter v. Bollinger, Gratz v. Bollinger). True to Merritt‟s prediction, the Court took careful account of empirical evidence presented in amicus briefs. For example, in Grutter, the Court takes note of research demonstrating the educational benefits of diversity in the student body. It also specifically comments on studies showing that this kind of diversity „better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals‟. Interestingly, the Court here also looks to briefs submitted by business and military leaders which made the same point – perhaps illustrating Cahn‟s idea that the Court can and will combine forms of „ common knowledge‟ with social science findings in making decisions. (This cheerful picture is complicated by another possible scenario, in which social science contradicts common sense, supporting a position that is unpopular but accurate.) In Chapter 12 Susan Fiske and her co-authors offer their assessment of how appropriate it was for the American Psychological Association to submit a brief (which they also coauthored) to the Supreme Court in the Price Waterhouse case. In this case, the trial court had concluded that the „big-eight‟ accounting firm of Price Waterhouse violated anti-discrimination laws in refusing to advance a female employee for partnership. The lower court specifically noted that the evidence of gender prejudice in the case was obvious as a matter of „common sense‟, but added that here „common sense is confirmed by the literature on the problem of sex stereotyping which suggests that making evaluators aware of the risks of biased evaluations and inquiring as to whether the generalizations are supported by concrete incidents can be effective in eliminating or minimizing stereotyping‟ (Price Waterhouse, 1985, p. 1120, n. 15). The Supreme Court opinion echoed this emphasis, stating that „we are tempted to say that Dr. Fiske‟s expert testimony was merely icing on Hopkins‟ cake. It takes no special training to discern sex stereotyping in a description of an aggressive female employee as “requiring a course at charm school”‟ (Price Waterhouse, 1989, p. 1793). How, then, are we to understand the role of social science research in these legal conclusions – or the nature of the translation process that has occurred? The courts here seem to be quite

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insistently echoing Cahn‟s original idea – that social science works best in legal settings when it merely reinforces judges‟ common-sense understandings. This emphasis may reflect a fundamental tension delineated by Yovel and Mertz: … the tension is between the democratic reluctance to delegate adjudicative facticity to expert discourse, on the one hand – and on the other hand, society‟s interest in adjudication that is based on the „best available‟ knowledge rather than fragmentary „lay notions‟ (whose political or ideological character hides behind conceptions of „common sense‟ or „experience‟) (Yovel and Mertz, 2004, p. 410)[EM NOTE: This particular idea is Yovel‟s] One resolution of this tension, apparent here, is for judges to employ their common sense when extra-legal judgement is required – but to also maintain receptivity to social science expertise as an additional source of information. This resolution makes some sense (or perhaps I should say common sense!). It balances the potential contribution of social science experts against the core legal values that judges as professionals are trained to protect. On the other hand, it leaves some important questions unanswered. In these situations, judges are specifically drawing on extra-legal expertise. Why, then, should their „common sense‟ be given a privileged place? (See also Levi and Valverde, this volume, Chapter 15 on this point.) One response might be that, unlike social scientists, judges have been selected as representatives of the society they help to regulate. Another might be that they have to combine knowledge of the society around them with legal considerations and larger policy concerns and so are better placed than academics to assess the wider legal frameworks and normative issues in play. (Social scientists, after all, are generally encouraged to study normative judgment rather than to engage in it as a practice.) However, judges are in fact not only experts themselves, but also are generally elite members of society. This means that their own „common-sense‟ understandings are socially situated. So, we are drawn back to Merritt‟s idea that social science may play a role in helping judges to „perceive and articulate‟ aspects of the society around them – and perhaps even to understand something as „common sense‟ that might be emerging at the fringes of that society. When this occurs, it will, of course, be thought of as „obvious‟, but in many cases this „obvious‟ fact has not previously been recognized by apparently similarly situated judges. For example, the „obvious‟ character of segregation as an injury to black school children had gone unrecognized for many decades before Brown, as had the „obviously‟ biased effects of sex stereotyping on female workers before Price Waterhouse. Sociologists, with their usual emphasis on broader social and institutional contributions to legal change, might well say that this shift in perceptions by the elite justices on the Court was primarily the result of social changes and political pressures. But even if that is true, it remains possible that social science provided a language that eased the translation of this shift into professional discourses generally, and then into legal language in particular. Unfortunately, there is a significant downside to this apparently happy picture. For if the core screening mechanism for the judiciary remains its „common sense,‟ and if the judiciary is composed primarily of elites, then there will probably be socially derived differences in the courts‟ ability to take in new information, even if it is well-founded. For example, the same process of stereotyping condemned in Price Waterhouse (and other socially situated biases in understanding) will be at work in many arenas, and the courts may be more resistant to seeing this in some arenas than others. To make this more concrete, it may be easier to persuade courts to combine the learning of social science and „common sense‟ when they are dealing

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with young children or white women at certain points in history than when they are dealing with stereotypes of African-American criminals who are convicted murderers. Interrogating this difference in resistance to the findings of social science requires that we look at the institutional and social settings within which acts of translation transpire. Fiske and her coauthors come to a balanced conclusion, explaining both that social science research can be well-suited for use in courts, and that care is necessary in these attempts at translation between fields. (These authors also provide a fascinating transcript excerpt illustrating some of the detailed differences between how lawyers and social scientists talk, pointing to core difficulties involved in translating the cautious, hedged speech of empirical researchers in the assertive, bottom-line language of the courtroom.)

3. Professional, Institutional, and Wider Sociocultural Contexts of Translation

In Part III of the volume, we turn to examine in more detail the impact of institutional and social contexts on translation between law and social science, and we see that translation occurs across a variety of contexts, reaching far beyond appellate opinions. As we move into this broader context, we must confront some of the institutional and professional issues involved in the translation process (Brigham and Harrington, 1989). These kinds of issues arise both in law and in social science.

3.a. Legal Decisions in Diverse Settings The first section in Part III begins with Bryant Garth‟s frank discussion of the difficulties involved in using social science to address problems as they are framed by lawyers – in this case, in attempts to improve the civil justice system. His essay (Chapter 13) pushes us to think about the institutional relationships between law and social science research – who poses the questions, where and how are the translations performed, and with what expectations? Garth clearly delineates how differing professional understandings can lead to failures in translation. He concludes that if lawyers are to make the best possible use of social science information, they need to listen to the frames and not just the results available from social science. This is far more challenging than simply absorbing social science „findings‟ and applying them to preformed legal questions – but, as both Garth and White would tell us, in the long run it is probably a far more worthwhile endeavour. In Chapter 14 Robert Burns discusses translation within the institutional setting of trials, where he finds parallels among normative theory, interpretive social science, and quantitative social science. His essay suggests how legal professionals could incorporate social science frameworks without abandoning some of their own priorities. On a more profound level, Burns proposes that the US trial should be understood as a complex process of translation – indeed, transformation – in which jurors take in the many narratives with which they are presented and deliver a form of truth: „the trial can illuminate the practical truth of a human situation by allowing the juror to dwell in the tensions among its linguistic performances and cope

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practically with the constellation he or she sees for the first time‟ (pp. 343–4). He does acknowledge that these institutionally created possibilities are also severely constrained by social and institutional limitations, such as bureaucratic rules that limit juries‟ access to information or the economic inequalities that favour the wealthy in court. On the other hand, he reminds us that the jury trial has the potential of providing an important source of social and practical wisdom in an often overbureaucratized, inhuman system of justice. By contrast, Ron Levi and Mariana Valverde (Chapter 15) highlight the problems that arise when the legal system fails to permit scientiifc knowledge to supplant folk „wisdom‟ about issues such as drunkenness. Their study focuses on how Canadian law has dealt with liquor licensing and drunk driving, devolving power over legal translation to police officers and liquor inspectors. For example, they document the way in which police evidence on intoxication, which might generally be excluded as non-expert opinion, is admissible as a form of common-sense knowledge. However, like the US judges whose common-sense knowledge has governed legal decisions, these police officers are themselves socially situated in particular ways. We can see here the way in which concepts such as „common sense‟ themselves help to perpetuate the myth of transparent translation. In Chapter 16 David Wilkins points to another failure of translation, and one he views as having ethical consequences for the legal profession: he argues that a more ethical practice of law requires better empirical knowledge than currently exists and examines the institutional reasons for law‟s resistance to gaining this knowledge. His essay bridges social science and legal approaches because it includes the kind of strong prescriptive element that is common in legal scholarship – but his policy recommendation is that law schools incorporate and perform empirical research on the legal profession. Like Garth, Wilkins pushes us to think about the institutional and professional settings surrounding incorporation of social science into law, but here the focus is on legal education, an important meeting-point for academic and legal knowledge. Interestingly, Wilkins anticipates several recent attempts to bring empirical study into the heart of the law school curriculum – attempts variously described as „new legal realism‟, „empirical legal studies‟, or simply as educational reform (Erlanger et al., 2005; Sullivan et al., 2007 (Carnegie Foundation Report)). These efforts range from using empirical research on teaching to improve legal education through incorporating social science into the law school curriculum itself. There have also been thoughtful calls for the incorporation of institutional perspectives in the study and teaching of law, ranging from use of micro-institutional analysis to the „new institutionalism‟. 3.b Family Violence

The two essays in this section demonstrate the ways in which institutional, professional, and social factors shape legal translations of social science (and would-be social science) knowledge. In particular, they focus on the issue of family violence, an arena in which social attitudes towards gender, family, children, sex, emotion and many other deeply cultural concepts come into play. And this does not happen in an institutional vacuum; the impact of many aspects of social structure is evident at all points. These essays take this complex situation one step further, asking what happens when all of these factors intersect with the institutions of law and social science. Renée Römkens‟ essay (Chapter 17) provides a fascinating, if distressing, example of the politics of social science as they play out in a case involving a battered woman who killed her husband. She concludes that institutional constraints in the legal profession‟s approach to social

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science ironically rob it of objectivity. When more novel social science approaches come into internal conflict with the dominant approaches in their field, Römkens argues that the law is skewed in favour of the approach with the most conservatively formulated, institutionally powerful foundation. On the other hand, in the case she analyses, she finds that the court does manage to incorporate some of the insights generated by a newer social scientific perspective – albeit with considerable ambivalence. This permits the court to balance a traditional maledominated perspective with an approach that does better justice to some aspects of women‟s lives. The possibility that courts and judges can take a cutting-edge role in resisting traditional views of gender roles becomes even clearer in Justice Williams‟s essay (Chapter 18). Here, however, instead of taking the lead in accepting new forms of legitimate social science, Williams argues against the use of a created „syndrome‟ that actually plays on old prejudices against women. Use of this stereotype may have actually the perverse effect of silencing children and women who report child sexual abuse, particularly at the time of divorce. Williams is also here rejecting a US import, which he fears will have a negative effect on Canadian decisions in child custody cases. No book on social science in law would be complete without including the voice of a legal actor charged with performing this translation task. Here we have a fresh, urgent perspective from „the trenches‟. Together, Williams and Römkens challenge us to think about the complicated interface of institutional, social and professional influences on the translation of social science in legal settings.

4. Informed and Critical Translations In this final part of the volume, we consider the potential of social science as a source of information and critique for law. 4.a. Information and Critique

The first two essays in this section – by scholars who are experts in the intersection of law with their respective disciplines – raise cautions about the use of psychology and anthropology as sources for information in law, and note the large potential distortions involved. In Chapter 19 Shari Seidman Diamond, a noted psychologist of law, warns that courts and legislatures have often relied on clearly flawed research when they turn to social science. She focuses in particular on cases involving deceptive advertising and criminal sentencing. In a compelling re-study, for example, she shows that oversimplistic measures of public opinion have been used to justify raising criminal sentences. When more complicated and contextualized research is performed, it seems that, in particular instances, the public in fact favours less severe sentences than do judges. Like Burns, Diamond suggests that an informed layperson may provide more democratic and just decisions than many legal professionals. There is an obvious and disturbing corollary to this proposition, however, in a society that is becoming increasingly bureaucratized (and in which judges are increasingly called on to serve as gatekeepers for social science information). In Chapter 20 legal anthropologist Lawrence Rosen gives a similarly unsettling account of

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the way in which law has absorbed expert testimony from his social science field. He highlights in particular the unfortunate effects of the adversarial format within which these translations from anthropology have occurred. The either/or formula imposed on anthropological experts frequently forces them to distort a more complex reality. For example, testifying that a particular Native American group is or is not „acculturated‟ may quite clearly be inaccurate – whichever polarity is accepted. Susan Staiger Gooding has poignantly described the impossible situation in which Native American witnesses themselves have been placed in US courts – for example, when they are called on to select one family line over another as primary to their heritage, where in reality they would trace their identity to both (Gooding, 1994, pp. 1225–26). The final essay in this section, by Susan Silbey and Austin Sarat (Chapter 21), suggests that social science can and should move beyond providing information to offering critique, arguing that it is possible to be both empirically sound and critical. They worry that the field of lawand-society might lose its critical distance if does not periodically step back and re-examine accepted premises. They accept that „there is a physical and social world ordered by rules and norms that are knowable‟ – this is the import of the „science‟ in social science (p. 499). To this they add two more important assertions: that it is important for social scientists to also take account of their own positions as observers, and that they should remain open to the creative and contingent aspects of social and legal life. We are left with a final translation question: when the social science study of law moves in this direction, to what degree can it be in any kind of productive conversation with those at the centre of law? We began with the idea that translation per se may be doomed to fail, that we will inevitably be involved in a transformation. But are there degrees of incommensurability in this process: are there some differences that are more difficult to bridge in any sensible way than others? Mertz‟s essay (Chapter 6) answers this question somewhat pessimistically as regards anthropology and a central form of legal discourse (see also Riles, 2006). 4.b. Law, Social Science, and Social Struggle

There are many works in the law-and-society tradition that have examined the frequently ambivalent stance taken by legal translations of social science in situations of social struggle. All of the themes of this volume come together in such settings; it becomes important to consider the background (metalinguistic) theories of translation as well as the institutional and social foundations at work here. Classic work in this area by Martha Fineman and Joel Handler clearly demarcated the intensely political stakes and processes that can be implicated in legal translations of social science. Fineman, for example, has analysed how empirical studies have been used to paint single mothers as deviant (Fineman, 1995). She has also tracked the impact of the professional discourses of social work on core legal attitudes towards the divorce process (Fineman, 1991). Joel Handler (1990) similarly points out the complicity of social scientists of many stripes, including liberal economists, in the construction of legal ideologies that have had disastrous effects on single and working mothers. The three final essays, then, provide examples of the intersection of social science translations in law with social struggle. In all three essays, we find that putatively neutral legal translations of social science research end up having clear political implications. When unexamined, this political dynamic can rob empirical research of any critical or even informational potential. At the same time, research that takes critical and careful account of its context can provide important alternative understandings of law and politics „on the ground‟. For example, John Hagan, Wenona Rymond-Richmond and Patricia Parker (Chapter 22) contrast the evidence for

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genocide in Darfur uncovered by their analysis with the UN Commission of Inquiry on Darfur‟s denial that genocide has occurred. They give us a detailed description of how legal evidentiary burdens might affect the reception of social science evidence, but conclude with suggestions as to how an effective translation might be attained. Wendy Espeland‟s essay on the Yavapai struggle to retain their land (Chapter 23) is, for the most part, a tale of the failure of legal translation. Espeland describes an ongoing battle over Yavapai water rights – a struggle which culminated in an eventual confrontation between the rational decision framework used by the US Bureau of Reclamation (a framework heavily steeped in techniques of commensuration) and the Yavapai‟s own conception of the significance of their land and history. When the categories and options proferred by the government failed to do justice to this conception, the Yavapai went outside the channels provided by law, turning to political discourse and the public media. Espeland challenges us to think about the limits of translation – about times when it might be necessary to abandon a conversation with law in favour of other avenues for struggle. Like Espeland, Jacqueline Urla (Chapter 24) provides a telling example of the non-neutral character of seemingly „objective‟ technologies like surveys and statistics. In a fascinating counterpoint to the tale of the Yavapai, Basque speakers have turned the commensuration machinery of the contemporary bureaucratic state to their advantage: „In turning language into countable things, militants and moderates have found an authoritative means of documenting Basque cultural and linguistic marginalization and of managing competing language rights‟ (p. 593). Of course, this does not come without a price attached – the dramatic alternation of previously uncountable aspects of people‟s identity. Yet Urla stresses the double-edge of this conversion, analysing this appropriation as a form of resistance. 4 We see in these essays the inevitably political context that awaits social science translations in legal and other governmental settings. Leaving this context unanalysed, as Römkens previously observed, ironically guarantees that legal attempts at objectivity will be rendered less objective. This irony points us towards the necessity of combining critical perspectives with empirical research when we are studying the translation of social science in law.

Conclusion It should be obvious that I agree fully with David Nelken in his observation that there is much work still to be done in systematically analysing the process of translation itself in this domain. The essays in this volume come from traditions that all too rarely interact with each other; yet there is much to be learned from their pooled insights. Neither social scientists nor legal professionals benefit from the myth of transparent translation. Careful analysis of the very different epistemologies, institutional settings, goals and languages involved can only improve interdisciplinary communication. From the social scientists‟ perspective, if a core goal is achieving better understandings of law, then it is clearly important to proceed with an accurate sense of the internal categories that organize legal experience. From legal professionals‟ point of view, achieving good results from the use of social science requires at least some sophistication about the systems of knowledge behind them. Neither of these is possible unless we transcend the myth that we are speaking the same language and move beyond the somewhat arrogant assumption that we can effortlessly pick up each other‟s professional

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knowledge. Translation of this kind will inevitably, as we noted at the outset, involve transformation and, indeed, loss. But it is possible to move forward with some care, developing more systematic analyses not only of the kinds of losses and transformations involved, but also of the gains to be had from a more informed and critical conversation.

The Role of Social Science in Law References Brigham, John and Harrington, Christine (1989), „Realism and Its Consequences: An Inquiry into Contemporary Sociological Research‟, International Journal of the Sociology of Law, 17, pp. 41– 62. Ellsworth, Phoebe (1988), „Unpleasant Facts: The Supreme Court‟s Response to Empirical Research on Capital Punishment‟, in Kenneth Haas and James Inciardi (eds), Challenging Capital Punishment: Legal and Social Science Approaches, London: Sage, pp. 177–211. Epstein, Lee and King, Gary (2002), „The Rules of Inference‟, University of Chicago Law Review, 69, pp. 1–133. Erlanger, Howard, Garth, Bryant, Larson, Jane, Mertz, Elizabeth, Nourse, Victoria and Wilkins, David (2005), „Introduction: New Legal Realist Methods‟, Wisconsin Law Review, pp. 335–63. Fineman, Martha (1991), The Illusion of Equality: The Rhetoric and Reality of Divorce Reform, Chicago: University of Chicago Press. Fineman, Martha (1995), The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies, New York: Routledge. Garth, Bryant and Sterling, Joyce (1998), „From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State‟, Law & Society Review, 32, pp. 409–71. Gooding, Susan Staiger (1994), „Place, Race, Names: Layered Identities in United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor‟, Law & Society Review, 28, pp. 1181–230. Handler, Joel (1990), „“Constructing the Political Spectacle”: Interpretation of Entitlements, Legalization, and Obligations in Social Welfare History‟, Brooklyn Law Review, 56, pp. 899–974. Lempert, Richard and Joseph Sanders (1989), An Invitation to Law and Social Science: Deserts, Disputes, and Distri bution, Philadelphia, PA: University of Pennsylvania Press. Macaulay, Stewart, Friedman, Lawrence and Stookey, John (1995), Law & Society: Readings on the Social Study of Law, New York: W.W. Norton. Mertz, Elizabeth (2007), The Language of Law School: Learning to ‘Think Like a Lawyer’, Oxford: Oxford University Press. Monahan, John and Walker, Laurens (2006), Social Science in Law: Cases and Materials (6th edn), New York: Foundation Press. Riles, Annelise (2006), „Anthropology, Human Rights, and Legal Knowledge: Culture in the Iron Cage‟, American Anthropologist, 108, pp. 52–65. Sarat, Austin (2001), When the State Kills: Capital Punishment and the American Condition, Princeton, NJ: Princeton University Press. Sarat, Austin and Silbey, Susan (1988), „The Pull of the Policy Audience‟, Law & Policy 10, pp. 97– 168. Schieffelin, Bambi and Charlier Doucet, Rachelle Doucet (1994), „The “Real” Haitian Creole: Ideology, Metalinguistics, and Orthographic Choice‟, American Ethnologist, 21, pp. 176–200. Silverstein, Michael (2003), „Translation, Transduction, Transformation: Sliding “Glossando” on Thin Semiotic Ice‟, in Paula Rubel and Abraham Rosman (eds), Translating Cultures: Perspectives on Translation and Anthropology, Oxford: Berg, pp. 75–108. Sullivan, William M., Colby, Ann, Wegner, Judith Welch, Bond, Lloyd and Shulman, Lee S. (2007), Educating Lawyers: Preparation for the Profession of Law, Report for the Carnegie Foundation for the Advancement of Teaching, San Francisco: Jossey Bass.

The Role of Social Science in Law White, James Boyd (1990), Justice as Translation: An Essay in Cultural and Legal Criticism, Chicago: University of Chicago Press. White, James Boyd (1992), „Translation as a Mode of Thought‟, Cornell Law Review, 11, pp. 1388–97. Yovel, Jonathan, and Mertz, Elizabeth (2004), „The Role of Social Science in Legal Decisions‟, Blackwell Companion to Law and Society, ed. Austin Sarat, Oxford, Blackwell, pp. 410–31.

Cases Cited Brown v. Board of Education, 347 US 483 (1954). Gratz v. Bollinger, 539 US 244 (2003). Grutter v. Bollinger, 539 US 306 (2003). Lockhart v. McCree, 476 US 162 (1986). Muller v. Oregon, 208 US 412 (1908).