an active field of scholarly endeavour.
502
As has been noted, experiments by
their nature yield more reliable results than field studies, but suffer from a
potential problem. Findings from a law laboratory may not easily or naturally
translate into explanations of how law works in the world at large.
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Problems with Legislative Impact Analysis
Complexity and uncertainty would make policy choices hard enough even if
they could be made purely on technical grounds. But policies are not made
in a vacuum. Rather, they typically emerge from a maelstrom of political
energy, vested interests and lobbying. Commonly, those with special interests
will try to align their demands with the public interest. The average person
(voter) rationally doesn’t do the hard work necessary to find out whether
that is correct or not, but often feels intuitively supportive.
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Introduction
There are problems in practice with legislative impact analysis. While legislative
impact analysis may be perfect in principle, it can fail in the real world. In fact,
two explanations have already been considered. (i) The question of causation
–
both causation in general and causation in law - is complex so that causation
can be difficult to predict before it happens or difficult to identify after it
happens. Complexity breeds uncertainty. (ii) Our knowledge of behavioural
science is incomplete. Consequently people’s reaction to change is often
unpredictable.
There are, however, two further problems that need to be considered here. (i)
The forces of irrationality can overrule attempts to make law making rational.
___________________
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There is a good general account contained in Volume 4 of the University of
Illinois Law Review (2002). The articles in Volume 4 consist of papers given at a
conference entitled “Symposium: Empirical And Experimental Methods In Law”
that was held at the University. Papers in this volume consist of the following -
McAdams; Ulen, (2002A), McAdams; Ulen (2002B) Seidman (2002), Heise (2002),
Meares (2002), Ulen (2002), Croson (2002),Clermont; Eisenberg, (2002), Harcourt
(2002), Picker,
(2002), Korobkin (2002), Schwartz (2002), Brinig (2002), Coglianese
(2002), Ginsburg (2002), Klerman (2002).
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There is an interesting use of experimental law in the sport of rugby union.
After rugby union became professional, and players fitter and faster, there were
problems because the game was becoming dull and play was hindered by
numerous interruptions. In an attempt to overcome these problems the authorities
drew up some new laws. Before seeking to introduce them the authorities gave
them a trial in some games played at Stellenbosch University in South Africa in
2006. When the new laws seemed to make the game less dull, they were
introduced into the Super Fourteen rugby competition played in the southern
hemisphere. These new laws were only partially successful.
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Banks (2009) p 7
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