1. Monahan, John & Walker, Laurens, “Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law” (1986) 134:3 U. Pa. L. Rev. 477.Google Scholar

2. Monahan, John & Walker, Laurens, “Social Science Research in Law: A New Paradigm” (1988) 43 Am. Psychologist 465.Google Scholar

3. Ibid. at 466–67; Monahan & Walker, supra note 1 at 488.

4. See, for example, Monahan, John, “Empirical Questions Without Empirical Answers” (1991) 1991:4 Wise. L. Rev. 569 at 577 [hereinafter Monahan & Walker 1991); and John Monahan & Laurens Walker,”Judicial Use of Social Science Research After Daubert” (1994) 2 Shepard’s Expert and Scientific Evidence Quarterly 327 at 331; and Laurens Walker & John Monahan, “Daubert and the Reference Manual: An Essay on the Future of Science in Law” (1996) 82 Virginia L. R. 837 [hereinafter Walker & Monahan 1996]Google Scholar

5. 113 S. Ct. 2786(1993).

6. Walker, & Monahan, 1996, supra note 4 at 838Google Scholar. For Monahan & Walker, the 1994 publication of the Reference Manual on Scientific Evidence which provides judges with “a primer on methods and reasoning of selected areas of scientific evidence” and suggests questions that will help judges to identify contentious issues, should give even further encouragement forjudges to receive scientific evidence: see ibid., and Federal Judicial Center, ed., Reference Manual on Scientific Evidence (St. Paul, MN: West Publishing Co., 1994) at 3.

7. Walker, & Monahan, 1996, ibid Google Scholar. at 839,857. Monahan and Walker believe that the abovementioned “random sampling” techniques and use of “inferential statistics” will be particularly helpful in “mass tort” cases, while “simulation” research should be particularly instructive for “jury instruction” issues.

8. Ibid. at 839, 841,848.

9. Walker, & Monahan, , supra note 2 at 466Google Scholar.

10. Tomkins, Alan J. & Cecil, Joe S., ‘Treating Social Science Like Law: An Assessment of Monahan and Walker’s Social Authority Proposal” (1994) 2 Shepard’s Expert and Scientific Evidence Quart. 343 at 384. Tomkins and Cecil are particularly concerned that the social authority concept expects judges to obtain and evaluate social science evidence without assistance from lawyers, and that it “fosters fossilization of social science” and “promotes legal fictions about the content and durability of social science findings”: ibid. at 349–50. Owing to space constraints, this article will only tangentially address Tomkins and Cecil’s first concern. To the extent that this article mainly challenges Monahan and Walker’s working assumption that social science research findings can be conceptually likened to rules of law, it shares Tomkins and Cecil’s other concerns that “views about social realities” not become “fossilized”, in the sense of becoming “virtually embedded in stone”, and that judges not be encouraged to promote “a pretense of fact or social reality” in the service of legal ends: ibid. at 382–83. Tomkins and Cecil imply that “institutionalizing the status of social science evidence” as analogous and identical to law will “facilitate” such problems and is generally wrongheaded: ibid. at 349 and 384. This article clearly agrees with Tomkins and Cecil in this important respect. Instead of demonstrating how Monahan and Walker’s model could benefit, however, by providing a greater role for lawyers in the process of obtaining and evaluating social science evidence, this article will endeavour to show how the very terms by which Monahan and Walker propose that social science research should be evaluated makes their model impracticable. This analysis should also reinforce Tomkins and Cecil’s view that Monahan and Walker’s analogy between social science and law is conceptually misguided. Canadian courts need to take this view seriously before they consider importing Monahan and Walker’s influential analyses wholesale from the United States of America: see, for example, Madam Justice L’Heureux-Dubé’s decision in Willick v. Willick (1994), 6 R.F.L. (4th) 161 (S.C.C.) at 190Google Scholar.

11. Walker, & Monahan, , supra note 2 at 466Google Scholar; Monahan & Walker, supra note 1 at 478.

12. Walker, & Monahan, , supra note 2 at 468Google Scholar. Monahan and Walker say, “At least four tests for evaluating the influence of prior cases can be gleaned from the jurisprudential literature: (a) Cases decided by courts higher in the judicial structure have more weight than lower court decisions; (b) well-reasoned cases have more weight than poorly reasoned cases; (c) cases involving facts closely analogous to those in the present case have more weight than cases involving different facts; and (d) cases already approved by other courts have more weight than cases that have not met with such approval.”

13. This expression is borrowed from M.J. Saks, “Judicial Attention to the Way the World Works” (1990) 75:4 Iowa L.R. 1011.

14. Paciocco, David M., “Evaluating Expert Opinion Evidence for the Purpose of Determining Admissibility: More Recent Lessons from the Law of Evidence” (paper prepared for the Criminal Law Intensive Study Program at the National Judicial Institute, Canada, 1995) at IGoogle Scholar.

15. Monahan, & Walker, , supra note 2 at 467Google Scholar.

16. Davis, K.C., “An Approach to Problems of Evidence in the Administrative Process” (1942) 55:3 Harv. L. Rev. 364Google Scholar.

17. Ibid. at 402.

18. Even Monahan and Walker recognize that “the distinction between legislative fact and adjudicative fact has achieved widespread acceptance” by American judges: Monahan and Walker, supra note 1 at 483–84. Davis’ distinction has not only been applied in both American and Canadian administrative and constitutional reviews, but has spawned the following scholarship: K.L. Karst, “Legislative Facts in Constitutional Litigation” (1960) Sup. Ct. Rev. 75; J.G. Kohn, “Social Psychological Data, Legislative Fact, and Constitutional Law” (1960) 29:1 Geo. Wash. L. Rev. 136; Note, “Social and Economic Facts—Appraisal of Suggested Techniques for Presenting Them to the Courts” (1948) 61:3 Harv. L. Rev. 692; PC. Davis, ‘“There is a Book Out…’: An Analysis of Judicial Absorption of Legislative Facts” (1987) 100:7 Harv. L. Rev. 1539; B. Strayer, Judicial Review of Legislation in Canada (Toronto, ON: University of Toronto Press, 1968); R. Dworkin, “Social Sciences and Constitutional Rights—the Consequences of Uncertainty” (1977) 6:4 J. Law and Ed. 3; P.W. Hogg, “Proof of Facts in Constitutional Cases” (1976) 26:4 U.T.L.J. 386; K. Swinton, “What do the Courts Want from the Social Sciences?” ch. 8 in R.J. Sharpe, ed., Charter Litigation (Toronto, ON: Butterworths, 1987); A. Woolhandler, “Rethinking the Judicial Reception of Legislative Facts” (1988) 41:1 Vand. L. Rev. 111; R. Roesch et al., “Social Science and the Courts: The Role of Amicus Curiae Briefs” (1991) 15:1 Law & Human Behav. I; J.F. Jackson, “The Brandeis Brief—Too Little, Too Late: The Trial Court as a Superior Forum for Presenting Legislative Facts” (1993) 17:1 Am. J. Trial Advocacy 1; and C. Nowlin, “Where is the Rhyme in the “Reasoned Apprehension of Harm” Doctrine?” (1999) 57:6 The Advocate 843.

19. For the present purpose it suffices to say that legislative fact evidence usually takes the form of economic calculations or forecasts, sociological or demographic data, and cultural or historical knowledge. The Supreme Court of Canada has defined legislative facts as “those that establish the purpose and background of legislation, including its social, economic and cultural context”: Danson v. Ontario (A.G.), [1990] 2 S.C.R. 1086 at 1099. The rules for admitting such evidence into court are generally relaxed: see Dan Kiselbach, “Preparing and Tendering Section 1 Charter Evidence: Little Sister’s Book and Art Emporium v. The Minister of Justice (Vancouver, BC: Department of Justice, 1995).

20. Monahan, & Walker, , supra note 2 at 466–67Google Scholar.

21. Ibid. at 467.

22. Ibid.; Monahan, & Walker, , supra note 1 at 490–491Google Scholar.

23. Monahan, & Walker, , supra note 2 at 467Google Scholar.

24. Ibid.; Monahan, & Walker, , supra note 1 at 491Google Scholar.

25. Monahan, & Walker, , supra note 2 at 467Google Scholar.

26. Saks, M. J., supra note 13 at 1018Google Scholar. At this point it is worth noting that Monahan and Walker’s “social authority” concept is part of a broader evidentiary classification scheme. As Saks explains, Monahan and Walker see three uses to which social science research is put in court, and have assigned a label for each function: ibid. at 1018–26. So, Monahan and Walker distinguish “social authority” from “social framework” and “social fact”. A social science research conclusion can be treated as a matter of social fact where it involves a particular application of a recognized social science methodology, ultimately rendering some matter of fact which bears no necessary relevance “beyond the particular case for which it was intended”: Monahan & Walker, supra note 2 at 469. Monahan and Walker have in mind here the use of social science surveys in trademark cases to help courts determine the consuming public’s ability to distinguish between competing products. They also refer in this context to the courtroom use of opinion surveys regarding community standards of tolerance in obscenity cases: ibid. Presumably then, if a witness were to introduce a survey purporting to establish that consumers confuse the trademark for “McDonnell’s” with “McDonald’s”, or a survey tending to show that a group of citizens are offended by Bertolucci’s Last Tango in Paris, this would be “social fact” evidence.

Social framework evidence refers to psychological and behavioral research conclusions that help the trier of fact determine factual issues of relevance only to the litigating parties. Psychological evidence relating to visual perception under stress, memory capacity over time, and behavioral evidence pertaining to abused children are examples of this category of evidence: Monahan & Walker, supra note 2 at 470. So-called “syndrome” evidence such as “battered-wife” evidence or “repressed memory” syndrome evidence could also be classified as social framework evidence. Ample scholarship and analyses have been written on the use of social framework evidence, both in Canada and the United States. For recent Canadian analyses, see, for example, Joan Brockman, “Social Authority, Legal Discourse, and Women’s Voices” (1992) 21:2 Man. L. J. 213; Neil Vidmar, “How Many Words for A Camel? A Perspective on Judicial Evaluation of Social Science Evidence” in M.T. MacCrimmon & M. Ouellette, eds, Filtering and Analyzing Evidence in an Age of Diversity (Montreal, PQ: Themis, 1995); and Paciocco, supra note 14.

27. Monahan, & Walker, , supra note 2 at 466–67; Monahan & Walker, supra note 1 at 478. It is worth remarking here that, by Davis’ definition of “legislative facts”, social science evidence that tends to establish legislative facts will always be relevant to creating or modifying a rule of lawGoogle Scholar.

28. Monahan, & Walker, , supra note 2 at 466Google Scholar.

29. Ibid. at 469–71.

30. As already mentioned, Monahan and Walker also believe that the form in which judges obtain social science research in court is a troubling issue. Monahan and Walker argue that such information should be presented to court in Brandeis-style briefs rather than by oral testimony, as this will be relatively less costly to litigants, and presumably, therefore, more fair to indigent litigants: ibid. at 467. This article does not have space to address the empirical accuracy of this claim, but see Tomkins & Cecil, supra note 10 at 364–68, which suggests that it is highly contentious.

31. Mohan, R.V. (1994), 89 C.C.C. (3d) 402 (S.C.C.) at 411Google Scholar.

32. Monahan, & Walker, , supra note 4 at 578, n. 49Google Scholar; Monahan & Walker, supra note 2 at 468. Insofar as the proposition is put forth as a rule for the admissibility of scientific evidence (see Monahan and Walker 1991, supra note 4 at 592), Monahan and Walker consider it to be an improvement over the so-called “general acceptance” or Frye rule, named after Frye v. U.S., 293 F. 1013, 54 App. D.C. 46 (1923).

33. Monahan, & Walker, , supra note 2 at 467Google Scholar; Monahan and Walker, supra note 1 at 490–91.

34. Faigman, David L., “Making the Law Safe for Science: A Proposed Rule for the Admission of Expert Testimony” (1996) 35:3 Washburn L. J. 401 at 407Google Scholar.

35. See Weisburd, David, “Good for What Purpose? Social Science, Race, and Proportionality Review in New Jersey”, ch. 7 in Ewick, P., Kagan, R. A., & Sarat, A., eds., Social Science, Social Policy, and the Law (New York: Russell Sage Foundation, 1999)Google Scholar. As Weisburd explains, “Simply defined, a proportionality review examines a case that results in a death penalty sentence and compares it with similar cases. Death sentences in this context are proportional if other similar cases have led to death penalty sentences. Cases are disproportionate if other similar cases did not result in a death sentence.” Ibid. at 261.

36. Ibid..

37. Ibid. at 262. Weisburd characterizes Professor Baldus as a “well-known proponent of social science applications in the law”. Emphasis added.

38. The first death penalty case to receive evidence based on this report is State of New Jersey v. Marshall 130 N.J. 109 (1992) [hereinafter Marshall).

39. See Baldus, D.C. & Woodworth, G.G., “Proportionality: The View of the Special Master” (1993) 6:3 Chance 9Google Scholar; and Weisberg, H. I., “Proportionality: An Alternate View” (1993) 6:3 Chance 18Google Scholar.

40. Weisberg, ibid. at 24. This quotation is reproduced in Weisburd, supra note 35 at 276.

41. Weisburd, ibid.

42. It is not insignificant in this respect that Weisburd notes, after reviewing subsequent cases to have received statistical evidence on proportionality of the kind Baldus presented as “strongest” in Marshall that a new special master appointed in 1996 and yet another state expert “strongly criticized” the approach: ibid. at 284.

43. Little Sister’s Book and Art Emporium v. Canada (Minister of Justice) (1996), 18 B.C.L.R. (3d) 241 (B.C.S.C.) [hereinafter Little Sister’s].

44. Although some of his research can aptly be described as controversial, Dr. Malamuth is hardly considered a non-member of the broader social scientific community. In light of the evidence introduced into Little Sister’s Justice Smith found Dr. Malamuth to be a “leading researcher in the field” of pornography’s effects on human behavior.

45. Transcript of Proceedings at Little Sister’s trial (Oct. 13, 1994).

46. Ibid. at 35.

47. Ross argues that a specific genre of sexually explicit lesbian writing and imagery is “radically” specific or “sui generis” in B.L. Ross, “‘It’s Merely Intended for Sexual Arousal’ *Interrogating the Indefensibility of Lesbian Smut” in B. Cossman et al., Bad Attitude/s On Trial: Pornography, Feminism, and the Butler Decision (Toronto, ON: University of Toronto Press, 1997). The present author unreservedly disagrees: see C. Nowlin, From Big Brother to Little Sister’s: A Century of Much Expert Ado About Obscenity in Constitutional Reviews (Doctoral dissertation, Simon Fraser University, 1998).

48. R. v. Times Square Cinema Lid. (1971), 4 C.C.C. (2d) 229 (Ont. C.A.) [hereinafter Times Square Cinema].

49. John M.H. Lamont, “Public Opinion Polls and Survey Evidence in Obscenity Cases” (1973) 15:2 Crim. L. Q. 135.

50. Ibid. at 151. The impugned film in Times Square Cinema was in fact “Vixen”.

51. Ibid. at 152.

52. Ibid.

53. See R. v., Pipeline News (1971), 5 C.C.C. (2d) 71. (Alta. Dis. Ct.)Google Scholar

54. Note that this is precisely the kind of evidence Monahan and Walker associate with their concept of “social fact” evidence.

55. Pipeline News, supra note 53 at 84–85.

56. The questions that need asking here include: Are there significantly more or fewer married Edmontonians than married Canadians? Are there significantly more or fewer children in Edmonton than in Canada as a whole? Are there significantly more or fewer women in Edmonton than in Canada as a whole? Are there significant more or fewer Baptists in Edmonton than in Canada as a whole? Hopefully the reader appreciates that this line of questioning could continue almost ad infinitum.

57. Gilligan, C., In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982)Google Scholar.

58. See, for example, MacKinnon, C. A., “Not A Moral Issue” (1984), 2:2 Yale L. & Pol’y. Rev. 321; and MacKinnon, C. A., Toward A Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989)Google Scholar.

59. Monahan & Walker, supra note 2 at 467.

60. Transcript of Proceedings at Little Sister’s trial (Oct. 20, 1994) at 90.

61. See Transcript of Proceedings at Little Sister’s trial (Nov. 14, 1994).

62. Fuller, J. & Blackley, S., Restricted Entry: Censorship on Trial, ed. by Pollak, N. (Vancouver, BC: Press Gang Publishers, 1995) at 110–11 Google Scholar.

63. See Arvay’s cross-examination of Marshall in Transcript of Proceedings at Little Sister’s trial (Nov. 14, 1994) at 35–60.

64. R. v. Jacob, [1992] O.J. No. 165. (Div. Ct.)

65. R. v. Arnold, [1993] O.J. No. 471. (Div. Ct.)

66. The rule had just previously been confirmed by a higher court in Ontario.

67. Arnold, ibid. at 8.

68. Jacob, supra note 64 at 10.

69. For example, it is fair to ask: Will the shape or size of a woman’s naked breasts affect their erotic appeal? Will the age of the woman baring her breasts affect the erotic appeal of the woman’s breasts? Is the erotic appeal the same as between a topless woman riding a bicycle alongside her male and female friends at a nudist camp, and a table- or lap-dancer doing her dance in a strip club? As far as erotic appeal is concerned, does it matter whether the bare-breasted woman is crying or appears vulnerable, or whether she is laughing or appears proud and confident? Will a female patient’s bare breasts be erotically appealing to her doctor while he or she checks them for signs of cancer in the privacy of his or her office? Will a woman’s breasts be erotically appealing as she ‘streaks’ across a stage on which a music concert is being performed?

70. Monahan & Walker 1991, supra note 4 at 579–80. Emphasis in original.

71. Canadian Centre for Justice Statistics, Corrections Utilization Study: A Review of the National and International Literature and Recommendations for a National Study on Recidivism (Ottawa, ON: Statistics Canada, 1997) at 58.

72. Walker, N., Aggravation, Mitigation and Mercy in English Criminal Justice. (London: Blackstone Press Limited, 1999) at 19 Google Scholar. Emphasis in original.

73. Dany Lacombe provides a good historical and critical analysis of the way public perceptions of the liberating or harmful effects of pornography shifted in Canada since the 1960s, in response to the kinds of research conducted and the policies of the political parties in power from the 1960s onward. See D. Lacombe, Blue Politics: Pornography and the Law in the Age of Feminism (Toronto, ON: University of Toronto Press, 1994).

74. For laboratory research analyses see, for example, N. M. Malamuth & E. Donnerstein, “The Effects of Aggressive-Pornographic Mass Media Stimuli” in L. Berkowitz, ed., Advances in Experimental Social Psychology, vol. 15 (New York: Academic Press, 1982) at 103–36; D. Linz, S.D. Penrod & E. Donnerstein, “The Attorney General’s Commission on Pornography: The Gaps Between ‘Findings’ and ‘Facts’” (1987) 1987:4 Am. Bar. Found. Res. J. 713; E.I.. Donnerstein, D. Linz, & S. Penrod, The Questions of Pornography: Research Findings and Policy Implications (New York: The Free Press, 1987); and W. A. Fisher & A. Barak, “Pornography, Erotica and Behavior: More Questions than Answers” (1991) 14:1/2 Int’l. J. L. and Psych. 65.

75. See Fisher & Barak, ibid.

76. See, for example, the Supreme Court of Canada decisions in Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927 and RJR-MacDonald Inc. v. Canada (A.G.) (1995), 127 D.L.R. (4th) 1 (S.C.C.), and this author’s analysis of the relevant social science evidence considered in these decisions in Nowlin, supra note 18.

77. Of course Monahan and Walker expect that, once a high or appellate court has evaluated some body of social scientific research, the finding of empirical fact made there will subsequently be treated as “authoritative” by lower courts. It is in this sense that Tomkins and Cecil refer to the “fossilization” of social science research findings. Yet Monahan and Walker also recognize that sometimes the authoritative status of the relevant research will be thrown into question by “new research”: Monahan and Walker, supra note 2 at 467–68. Whereas Tomkins and Cecil want to make such new research readily available in court, this article proposes that competing social science research findings will in fact be routinely available to litigants. If so, and if Monahan and Walker’s broad analogy between social science and law is institutionalized, then judges will find themselves more often than not asking if, as opposed to assuming that, certain research findings are trustworthy.

78. Roth v. Goldman 172 F.2d 788 (C.A. 2d Cir. 1949) at 796

79. Karst, supra note 18 at 102. Citations omitted.

80. Tomkins & Cecil, supra note 10 at 378.

81. R. Dworkin et al., “Assisted Suicide: The Philosophers’ Brief (1997) XLIV:5 The New York Review of Books 41 at 46.

82. R. v. Sharpe (1999), B.C.J. No. 2581 (B.C.C.A.)Vancouver Reg. No. CA 025488) (B.C.C.A.), at para. 65. Emphasis added.

83. Monahan and Walker believe that the ultimate test for determining whether courts should treat social science materials as law-like rather than as matters of fact is pragmatic or utilitarian. They say that the “better classification is the one that proves the most useful” and add, “[l]ike all classification decisions, this is ultimately an empirical question”: Monahan and Walker, supra note 2 at 467. More specifically, they state that “[t]he proper test is the fairness and efficiency of the practices that result from our classification, as compared with those flowing from ‘legislative fact’”: ibid. (references omitted); see also Monahan and Walker, supra note 1 at 494–95. This article has tried to show generally that Monahan and Walker’s social authority proposal is impracticable, and in that sense inefficient. Certainly both Monahan and Walker’s models have their inefficiencies: see, for example, Davis, supra note 18, in relation to the legislative fact model, and Tomkins & Cecil, supra note 10, in relation to the social authority proposal. As regards the question of fairness, this article shares Tomkins and Cecil’s view that, to the extent that Monahan and Walker’s law-like treatment of social science research could realistically minimize or discourage cross-examination of social science research conclusions in court, it generally jeopardizes procedural fairness: see Tomkins & Cecil, ibid. at 366–68, 377. A more comprehensive examination of this general issue is beyond the scope of this article.

84. Wittgenstein, L., On Certainty, trans, by Paul, D. & G.E.M. Anscombe (Oxford: Basil Blackwell, reprint 1979)Google Scholar.

85. Lewontin, R.C., “Sex, Lies and Social Science” (1995) XLIl:7 The New York Review of Books 24 at 28–29 Google Scholar. See also Laumann, E.O., Gagnon, J.H., Michael, R.T. & Michael, S., The Social Organization of Sexuality: Sexual Practices in the United States (Chicago, IL: University of Chicago Press, 1995)Google ScholarPubMed.

86. See, for example, Cornell, D., The Imaginary Domain: Abortion,Pornography, and Sexual Harassment (New York: Routledge, 1995)Google Scholar; and Smith, J. C., The Neurotic Foundations of Social Order: Psychoanalytic Roots of Patriarchy (N.Y.: New York University Press, 1990)Google Scholar.

87. Neither should the argument that psychoanalytic propositions or generalizations are not falsifiable necessarily affect the cogency of those propositions. Drawing from Karl Popper’s Conjectures and Refutations: The Growth of Scientific Knowledge, Alan Gold criticizes Freudian psychoanalytic theory for postulating “internal processes and hidden events” that can never be falsified because they cannot be tested: A. Gold, “When “Experts” Speak, Should Judges Listen? Some Basic Science Lessons” (1999) 57:6 The Advocate 885 at 898. It is worth noting what Saks has said about the controversial “psychological parent theory”, which is rooted in psychoanalytic theory and used in family law litigation. He observed, “Clearly this is a matter on which courts ought not to be content with taking the authors’ word that the psychological parent hypothesis is correct. Yet ignoring the hypothesis is no guarantee of better decisions. Courts, as so often is the case, cannot escape their duty to inquire, to learn, and to think”: Saks, supra note 13 at 1016, n. 20. Emphasis added.

88. Cahn, E., “Jurisprudence” (1955) 30 N.Y.U. L. Rev. 150 at 161Google Scholar. The “Social Science Statement” was a formally prepared report about the psychological impact of segregation on black school children. It was signed by 32 fellow experts in areas of sociology, anthropology, psychology, and psychiatry: see “The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement” (1953) 37:6 Minn. L. Rev. 427.

89. Dworkin, R., “Social Sciences and Constitutional Rights—the Consequences of Uncertainty” (1977) 6:4 J. L. and Ed. 3 at 5Google Scholar.

90. See Nowlin, supra note 18.