Science_-_6_March_2020

sciencemag.org SCIENCE

By H. Fernandez Lynch,^1 D. J. Greiner,^2

I. G. Cohen^3

T

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, these

RESEARCH ETHICS AND LAW

Overcoming 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