Empirilegal Analysis: Commencement of a Dialogue, or a Battle?


As disciplines, law and science involve different ways of doing essentially the same thing: render the best possible decision based on existing information. In their efforts to accomplish this shared goal, law and science use different methods and speak different languages. In recent years, however, law and science have been increasingly working in the same arenas. Naturally, this can lead to tension because of the ways in which the two disciplines differ. Sometimes this tension demonstrates itself as outright conflict as it did when Epstein and King came out with their controversial “Rules of Inference” in which they criticized legal scholars for misusing scientific methods to examine subjects in law. Legal scholars did not hesitate to respond vehemently by criticizing Epstein and King’s own misuse of scientific methods despite their being empirical scholars. In his response, one legal scholar response alluded to the fact that an opportunity had been lost for a meaningful dialogue. This paper uses that scholar’s allusion as a starting point for a commentary on how a battle could be turned into a dialogue by shedding light on the cultural differences between law and science. This commentary will review the Epstein and King paper as well as the resulting three formal responses. It will conclude with the suggestion that a battle ensued instead of a dialogue because of an incongruence between the cultures and languages that form the foundations of law and science.


Legal Profession

Date of this Version

March 2006