sciencemag.org SCIENCEBy H. Fernandez Lynch,^1 D. J. Greiner,^2
I. G. Cohen^3T
he importance of evidence-based pol-
icy rooted in experimental methods
is increasingly recognized, from the
Oregon Medicaid experiment to the
efforts to address global poverty that
were awarded a 2019 Nobel Prize. Over
the past several decades, there have been at-
tempts to extend this scientific approach to
legal systems and practice. Yet, despite prog-
ress in empirical legal studies and
experimental social policy research,
judges, lawyers, and legal services
providers often fail to subject their
own practices to empirical study or
to be guided by empirical data, with
a particular aversion to randomized
controlled trials (RCTs) ( 1 ). This is
troubling, as many questions fun-
damental to legal practice and those
it affects, such as allocation of attor-
ney services, bail decisions, and use
of mandatory mediation, could and
should be informed by a rigorous
evidentiary foundation. Although
there are practical obstacles to un-
dertaking legal practice RCTs, they
have also been stymied by cultural
barriers within the legal profes-
sion. Whereas medical practitioners
are expected to subject their practices to
randomized study and rely on the data pro-
duced, the default in legal practice is to rely
on experience, common wisdom, and profes-
sional judgment, often in settings in which
clients face constraints on their freedom. To
address ethical concerns stemming from this
cultural difference, we draw on lessons from
biomedical and policy research, as well as ex-
periences of the Access to Justice Lab (A2JL),a leading institution promoting the use of
RCTs to inform legal practice.
RCTs in law face funding challenges, a
dearth of lawyers trained in experimental
methods, and blanket roll-out of new laws
and legal interventions across entire popula-
tions in a manner that often precludes ran-
domization. But the most fundamental chal-
lenges are ethical. When field RCTs of legal
practice interventions have been proposed,
practitioners have sometimes raised con-
cerns about violating both perceived profes-sional obligations and the individual rights
of research subjects. Institutional review
boards (IRBs), responsible for assessing the
permissibility of research, also sometimes
exhibit difficulty applying familiar research
ethics concepts to nonmedical settings, a
phenomenon exhibited toward social science
research more broadly. Ethical objections
have posed real barriers to A2JL’s work (see
the table), which have occasionally been re-
solved through education and negotiation,
but have more often led to abandonment of
important, ethical studies.
There have been growing calls to system-
atize and expand efforts to subject legislative
and regulatory interventions to randomized
experimentation ( 2 ), as well as increasing at-tention to the ethics of policy experiments
more broadly ( 3 – 6 ). We build on this work,
but because our goal is to highlight objec-
tions rooted in concerns over randomization
in lieu of the individual judgments of legal
professionals, the principles of biomedical
research ethics are the best starting point
for potential solutions. The medical profes-
sion has been able to manage many ethical
concerns raised by RCTs and to create an
evidence-based culture, a portent of what the
legal profession could achieve. The ethics of
clinical research have also developed in a way
that addresses the traditional fiduciary obli-
gations of physicians, whereas perspectives
regarding the obligations of legal practitio-
ners seem to be generating erroneous resis-
tance to legal practice RCTs.
Although there are differences between
medical and legal settings, including the
role of democratic authority, protected legal
rights, and the unavoidably coercive nature
of the criminal justice system, many ethical
challenges facing field RCTs of legal practice
interventions, including those related to ran-
domization and consent, are familiar in bio-
medical research. Therefore, we seek to apply
lessons from that context to law—
and to identify novel ethical consid-
erations where further attention is
warranted. Research ethics regula-
tions will not always apply to legal
practice RCTs, depending on insti-
tutions and funding. Nonetheless,
public trust, researcher obligations,
and pragmatic considerations all de-
mand that ethical principles be both
clarified and upheld.EVIDENCE-BASED LEGAL PRACTICE
The core idea of evidence-based
medicine is that because few medi-
cal interventions are so obviously
safe and effective that they can be
adopted without testing, patient
care should be guided by scientific
evidence. Although observational
studies and historical controls can be superior
to anecdote, randomization and contempora-
neous controls help minimize confounders
and support causal conclusions. As a result,
RCTs are rightly regarded by the medical pro-
fession as essential to quality care, albeit with
their own methodological constraints.
These same concepts apply to legal prac-
tice but have not been widely endorsed by
the legal profession, even when stakes are
high, with implications for freedom (e.g.,
incarceration), safety (e.g., protection from
domestic violence), and access to resources
essential to fundamental human needs (e.g.,
legal assistance in securing government ben-
efits). Although legal practitioners may rely
on certain guidelines when available, theseRESEARCH ETHICS AND LAWOvercoming obstacles to
experiments in legal practice
The biggest ethical concern is failing to
seek reliable evidence to guide the legal profession
POLICY FORUM
(^1) Department of Medical Ethics and Health Policy, Perelman
School of Medicine; Leonard Davis Institute of Health
Economics, University of Pennsylvania, Philadelphia, PA, USA.
(^2) Access to Justice Lab, Harvard Law School, Cambridge, MA,
USA.^3 Petrie-Flom Center for Health Law Policy, Biotechnology,
and Bioethics, Harvard Law School, Cambridge, MA, USA.
Email: [email protected]
INSIGHTS
PHOTO: ICEDMOCHA/SHUTTERSTOCK
1078 6 MARCH 2020 • VOL 367 ISSUE 6482
Published by AAAS