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Courts' citation and reference to social science in legal opinions involving gay individuals
Abstract
The interaction of law and social science can assume a variety of forms; one of the most interesting of these concerns the use of social scientific information in legal opinions. While the "evolution" of courts' use of social science has been erratic and controversial, the current trend has been for increased incorporation of this information. A number of issues pervade the judicial use of social science, including the relevance and accuracy of social science, resistance and ignorance by jurists, and judges' inability to obtain and evaluate social science. Further, there are tensions inherent in the role of social science vis-a-vis both traditionally legal questions and values. The empirical literatures on courts' use of social science are methodologically diverse and inchoate. Researchers have studied this phenomenon utilizing quantitative "citation count," qualitative, content analysis, survey, and "case study" methodologies. The focus of the instant research was to determine whether citations to social science, in the form of publications, experts, or generalized bodies of knowledge, varied across four substantive contexts involving gay litigants: child custody and visitation, employment discrimination, first amendment, and criminal sodomy cases. Additionally, the effect of four other case factors was examined: the presence of a minor, a constitutional analysis or a nexus analysis, and whether homosexuality was conceptualized in moral terms. Finally, two qualitative measures, degrees of detail and reliance, were employed. The results indicated that there was a relatively high number of gay "rights" opinions which contained at least one social scientific citation. While the four samples did not differ significantly in total number of citations to social science, they did vary in the frequency of citations to social scientific experts. In addition, the presence of a minor and of a nexus analysis significantly affected the incidence of citations to social science. The qualitative data demonstrated that courts provided little detail in their social scientific citations and that they did not rely very heavily upon the cited social science. The implications of these results were examined in light of the theoretical/historical and empirical literatures. Finally, some suggestions for future research efforts were provided.
Subject Area
Social psychology
Recommended Citation
Falk, Patricia J, "Courts' citation and reference to social science in legal opinions involving gay individuals" (1988). ETD collection for University of Nebraska-Lincoln. AAI8818618.
https://digitalcommons.unl.edu/dissertations/AAI8818618