More on the Empirical Turn

My latest post for the CBA National Magazine’s blog has now been published. Continuing on the topic of the “empirical turn” in Charter litigation exemplified by decisions such as Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, I argue that the courts’ reliance on social science evidence can be dangerous because the science in question is often affected by ideological bias.

I have recently blogged about the inextricable mixing of advocacy and social scientific expertise manifested in the evidence submitted in Trinity Western University v. Nova Scotia Barristers’ Society, 2014 NSSC 395. But there, at least, the advocacy was manifest. The problem which I now discuss is more subtle, and therefore more dangerous. As I explain in my post, even social science that does not look like advocacy, to its authors or even to outside observers, can be tainted by political or ideological bias.

This is not just speculation or conjecture ― my post is largely based on a paper by a group of social psychologists, including the celebrated Jonathan Haidt. (If you want to see him in action, watch this recent talk at NYU; it’s some of prof. Haidt’s comments, mostly in the Q&A, that set me off on this topic.) Of course, you may think that there is something ironic about using a paper written by a bunch of social scientists to attack the use of social science evidence. But, as I have already explained, I am not saying that we should give up on social science evidence altogether. Rather, we should be aware of the dangers that it brings, and adjust our procedures to deal with them as best we can. Both lawyers and judges, I argue, have an important role to play in this regard.

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