Date of this Version
Court Review, Volume 48, Issue 3, 96-106
It would be ideal if we knew the best ways to structure the judicial system, the best processes to use to ensure fairness for litigants, and the best incentives to ensure compliance with the law. Unfortunately, as all of us who work in or with the system and those of us who study such issues well know, we do not. So what should we do?
As social scientists trained to examine the judiciary and judicial processes from the perspectives of economics, law, political science, psychology, and sociology, we suggest that systematic experimentation should be used whenever feasible and warranted to study the operations of the courts for purposes of improving the courts’ functioning. As has been learned in the case of medical procedures and treatments, systematic, experimental, or quasi-experimental study helps to determine what works, what does not, and why. Decades ago, in the face of charges that experimentation in the law would undermine due process and equal treatment, the Federal Judicial Center rebutted these concerns, arguing that rather than thwarting justice, experimentation in the law promotes justice, ensuring an evidentiary basis for court reforms and administrative decision making. Our work operates under this approach to examining potential judicial reforms. In this article, we discuss our use of the methods of science to examine systematically whether there might be a technique that would, without costs that exceeded their benefits, reduce misdemeanants’ failure to appear in court.