IDEAS home Printed from https://ideas.repec.org/p/mpg/wpaper/2011_22.html
   My bibliography  Save this paper

Avoiding the Common Wisdom Fallacy: The Role of Social Sciences in Constitutional Adjudication

Author

Listed:
  • Niels Petersen

    (Max Planck Institute for Research on Collective Goods, Bonn)

Abstract

More than one hundred years ago, the U.S. Supreme Court started to refer to social science evidence in its judgments. However, this has not resonated with many constitutional courts outside the United States, in particular in continental Europe. This contribution has a twofold aim. First, it tries to show that legal reasoning in constitutional law is often based on empirical assumptions so that there is a strong need for the use of social sciences. However, constitutional courts often lack the necessary expertise to deal with empirical questions. Therefore, I will discuss three potential strategies to make use of social science evidence. Judges can interpret social facts on their own, they can afford a margin of appreciation to the legislator, or they can defer the question to social science experts. It will be argued that none of these strategies is satisfactory so that courts will have to employ a combination of different strategies. In order to illustrate the argument, I will discuss decisions of different jurisdictions, including the United States, Canada, Germany and South Africa.

Suggested Citation

  • Niels Petersen, 2011. "Avoiding the Common Wisdom Fallacy: The Role of Social Sciences in Constitutional Adjudication," Discussion Paper Series of the Max Planck Institute for Research on Collective Goods 2011_22, Max Planck Institute for Research on Collective Goods.
    • Handle: RePEc:mpg:wpaper:2011_22
    as

    Download full text from publisher

    File URL: http://www.coll.mpg.de/pdf_dat/2011_22online.pdf
    Download Restriction: no
    ---><---

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. Giraudo, Marco, 2020. "Legal Bubbles: A Primer in the Economics of 'Legal Creative Destruction," Department of Economics and Statistics Cognetti de Martiis. Working Papers 202028, University of Turin.

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:mpg:wpaper:2011_22. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no bibliographic references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Marc Martin (email available below). General contact details of provider: https://edirc.repec.org/data/mppggde.html .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.