Case Western Reserve Law Review Volume 21 | Issue 3 1970 Systems Theory and Judicial Behavioralism Ovid C. Lewis Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Ovid C. Lewis, Systems Theory and Judicial Behavioralism, 21 Case W. Res. L. Rev. 361 (1970) Available at: https://scholarlycommons.law.case.edu/caselrev/vol21/iss3/4 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 19701 Systems Theory and Judicial Behavioralism Ovid C. Lewis* There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.- Hamlet, Act I, Sc. 5 line 166. I. INTRODUCTION D ISTINGUISHED judicial behavioralist not long ago observed that just as most sciences have progressed from mere speculation (theory without facts) to empiricism (facts without theory) and finally to maturity (theory empirically verified), so too has analysis of judi- cial behavior moved from the traditional approach, i.e., philo- THE AUTHOR: OVID C. LEWs (B.A., sophical, analytical, historical, J.D., Rutgers, The State University; L.LM., Columbia University) is a Pro- and sociological jurisprudence fessor of Law at Case Western Reserve (theory without facts), to legal University and is a member of the New realism (facts without theory) Jersey and Federal Bars, and finally to judicial behavior- alism (theory empirically veri- fied) . Although it surely smacks of hyperbole,2 the statement re- flects the current demand for an infusion of scientific methods into analysis of judicial behavior. Indeed, we find that demands are be- * Submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the Faculty of Law, Columbia University. 1See Schubert, Introduaction to JUDICIAL BEHAVIOR 1, 2-3 (G. Schubert ed. 1964). For a more charitable evaluation of the realists, see Rumble, Rule - Skepticism and the Role of the Judge: A Study of American Legal Realism, 15 J. PUB. L. 251 (1966). It is now dear that the theoretical and empirical dimensions are inextricably interrelated. See A. KAPLAN, THE CONDuCT OF INQUIRY 54-62 (1964); Bierstedt, A Critique of Empiricism in Sociology, 14 Am. SOCIOLOGICAL REV. 584 (1949); Meadows, Model Systems, and Science, 22 AM. SOCIOLOGICAL REV. 3 (1957); Merton, The Bearing of Empirical Research Upon the Development of Social Theory, 13 Am. SOCIOLOGICAL REv. 505 (1948); Sewell, Some Observations on Theory Testing, 21 RURAL SOCIOLOGY 1 (1956). 2 Sociological jurisprudence, for example, has long evinced an interest in both theory (the law-in-books) and facts (the law-in-action). See T. CowAN, AMERiCAN JURIS- PRUDENCE READER 135-246 (1956); Page, Professor Ehrlich's Czernowitz Seminar of Living Law, in 1914 PROCEEDINGS: AMERICAN ASSOCIATION OF LAW SCHOOLS 46; Nussbaum, Fact Research in Law, 40 CoLUM. L. REV. 189 (1940). CASE WESTERN RESERVE LAW REVIEW [Vol. 21: 361 ing made with increasing frequency for an application of the scien- tific approach to all aspects of legal processes and institutions. This is justified, since given the increasing interaction of law and science, it clearly does behoove both lawyers and scientists to try to understand better the other's perspective. This intersection of law and science, as Professor David Cavers has noted,3 is today es- pecially apparent in at least the following areas: (1) In determining both adjudicative and legislative facts, the courts more and more turn to science for answers, e.g., in cases involving personal injury, patent law, and criminal responsibility. 4 (2) Scientific and tech- nological developments that require reexamination and modifica- tion of legal doctrine.5 For example, the technology that enables the uninvited to invade our lives by keeping an extensive and per- manent record of our daily existence has great significance for the law of privacy." The use of computers, one of the prodigious prog- eny of scientific technology, necessitates a reexamination of innu- merable areas of the law,7 as does the rapid development of com- munication sciences.8 The legal problems portended by genetic manipulation, cloning, ESB, hallucinogenic drugs, organ transplants, and medical experimentation are staggering.9 (3) Science pro- duces new hazards which law must necessarily limit and control. Consider the dangers presented by new and potent drugs,' ° pesti- 3 See Cavers, Law and Science: Some Points of Confrontation, in LAW AND THE SOCIAL ROLE OF SCIENCE 5 (H. Jones ed. 1967). See also Caldwell, Jurisprudencein InterdisciplinaryEnvironments, 8 JURIMETRICS J. 1 (1968). 4 See Korn, Law, Fact, and Science in the Courts, 66 COLUM. L. REv. 1080 (1966); Note, The Criminal Trial Process - Fight for Truth, 19 CASE W. RES. L REV. 713 (1968). Judges are not entirely hospitable to these developments. See, e.g., York, Austern Notes Judicial Hostility to Prohahility, -ARv. L. RECORD, Dec. 12, 1968, at 3. See also Solomon, Jurimetrics, 8 JURIMETRICS J. 7 (1968). 5 See Symposium - The Impact of Science and Technology on International Law, 55 CALIF. L. REv. 419 (1967). 6 See A. WESTIN, PRIVACY AND FREEDOM 349-65 (1967); Ruebhausen & Brim, Privacy and BehavioralResearch, 65 COLUM. L REv. 1184 (1965). 7 See COMPUTERS AND THE LAW 85-116 (R. Bigelow ed. 1966); R. McBRIDE, THE AUTOMATED STATES: COMPUTER SYSTEMS AS A NEW FORCE IN SOCIETY (1967); Mermin, Computers, Law and Justice: An Introductory Lecture, 1967 WIS. L REV. 43. 8 See COMMUNICATION SCIENCES AND LAW: REFLECTIONS FROM THE JURIMET- RiCs CONFERENCE (L. Allen & M. Caldwell eds. 1965) [hereinafter cited as JURRMET- RICS CONFERENCE]. 9 For a good bibliography, see LAw AND THE SOCIAL ROLE OF SCIENCE 168-69 (H. Jones ed. 1967). See also Symposium - Science Challenges the Law, 19 CASE W. RES. L. REV. 5 (1967); Symposium - Reflections on the New Biology, 15 U.C.L.A.L. REv. 267 (1968). 10 See B. BARBER, DRUGS AND SOCIETY 115-61 (1967). 19701 JUDICIAL BEHAVIORALISM cides and pollution,1 weather modification, 2 and most terrifying of all - nuclear power. 3 (4) Government through law in allocat- ing only certain portions of scarce resources to science, significantly effects the scientific enterprise.' 4 The law schools have begun to react, albeit slowly, to these de- mands. Legal literature is replete with suggestions for injecting more social science into the law school curriculum. 15 Recently the Special Commission on the Social Sciences, established by the Na- tional Science Board in 1968, recommended incorporation of more social science material in law curricula, appointment of social sci- entists to law school faculties, and increased collaboration between the law-trained and social science professionals. 6 The vigorous reaction of legal scholars to the challenge of the intersection of law and science is manifest in the proliferation dur. ing the last two decades of literally thousands of studies that pur- " See Reitze, Pollution Control. Why Has It Failed?, 55 A.3.AJ. 923 (1969); Train, Crimes Against the Environment, TRIAL, Aug./Sept. 1969, at 19. 12 See generally WEATHER MODIFICATION AND THE LAW (H. Taubenfeld ed. 1968); Oppenheimer, The Legal Aspects of Weather Modification, 1958 INS. LJ. 314; Taubenfeld, Weather Modification and Control. Some International Legal Implica- tions, 55 CALIF. L REv. 493 (1967); Pierce, Legal Aspects of Weather Modification Snowpack Augmentation in Wyoming, 2 LAND & WATER L. REV. 273 (1967). 13 The elaborate precautions necessary to avert the danger of disaster created by storage of the waste products of atomic fusion reactors are dramatically described by Lord Ritchie-Calder: At Hanford [Washington] ... live atoms are kept in tanks constructed of carbon steel, resting in a steel saucer to catch any leakage. These are enclosed in a reenforced [sic] concrete structure and the whole construction is buried in the ground with only the vents showing. In the steel sepulchers, each with a million gallon capacity, the atoms are very much alive. Their radioactivity keeps the acids in the witches' brew boiling. In the bottom of the tanks the temperature is well above the boiling point of water. There has to be a cool- ing system, therefore, and it must be continuously maintained. In addition, the vapors generated in the tanks have to be condensed and scrubbed, other- wise a radioactive miasma would escape from the vents. Some of the elements in those high-level wastes will remain radioactive for at least 250,000 years. It is most unlikely that the tanks will endure as long as the Egyptian Pyramids. Ritchie-Calder, Polluting the Environment, 2 THE CENTER MAGAZINE, May 1969, at 7, 12. 14 See generally Symposium - Science and Public Policy, 27 PUB. AD. REV. 95 (1967). 5 1 See, e.g., S. Fox, SCIENCE AND JuSTIcE (1968); Hazard, Challenges to Legal Education, in THE PATH OF LAW FROM 1968: PROCEEDINGS AND PAPERS AT THE HARVARD LAw SCHOOL CONVOCATION HELD ON THE 150TH ANNIVERSARY OF ITS FOuNDING 185-94 (1968); Haskell, Some Thoughts About Our Law Schools, 56 GEO. LU. 897, 904-05 (1968); Massel, Science and Technology and the Future Law School Curriculum, 44 DENVER LJ. 36, 40-41 (Special Issue, Fall 1967); Traynor, What Domesday Books for Emerging Law?, 15 U.C.L.A.L. REV. 1105 (1968). 16See SPECIAL COMMISSION ON THE SOCIAL SCIENCES, NATIONAL SCIENCE BOARD, KNOWLEDGE INTO ACTION: IMPROVING THE NATION'S USE OF THE SOCIAL SCIENCES xiii, 23 (1969). CASE WESTERN RESERVE LAW REVIEW [Vol. 21: 361 port to analyze scientifically some aspect of the legal process.'" 8 Many of these studies are subsumed under the rubric "jurimetrics,"' a term coined in 1949 by Lee Loevinger.' 0 It is highly debatable, however, whether all these studies are appropriately denominated "scientific, ' "20 although the most frequently offered definition of jurimetrics is the "scientific investigation of legal problems."'" The lack of understanding of what constitutes science is exemplified when one considers some of the arguments proffered for justifying jurimetric ventures as scientific.