Document Type

Article

Publication Date

1-1-2013

Abstract

"[A]s a general rule," writes Pulitzer Prize-winning journalist Edward Humes, "courts don't do science very well."' Susan Haack, a professor of law and philosophy, elaborates on why this may be true, offering several reasons for "deep tensions" between science and law. The reasons offered by Haack may be less of a concern where the dispute involves litigation against the government on significant questions of public policy. Recent decisions assessing the constitutionality of laws restricting minors' access to violent video games therefore offer an opportunity to examine how well the courts handled scientific evidence in a situation lacking some of the usual tensions between science and law.

In July 2000, the American Academy of Pediatrics and five other medical groups, including the American Medical Association, issued a Joint Statement on the Impact of Entertainment Violence on Children, which said that "well over 1000 studies... point overwhelmingly to a causal connection between media violence and aggressive behavior in some children."' The debate about this conclusion, says Professor Craig Anderson, one of the leading media violence researchers, should have been over by 1975. The American Academy of Pediatrics agrees.

While there is less research on video game violence specifically, these organizations and researchers claim that violent video games pose similar or even worse problems than other forms of violent media. Yet courts at all levels, including the United States Supreme Court in Brown v. Entertainment Merchants Ass'n, found the research on video game violence inadequate to justify laws restricting minors' access to violent video games. Were the courts not understanding the science? Were they putting too much weight on the views of "a handful of vocal critics" of the science?

In part, Douglas Gentile, Muniba Saleem, and Craig Anderson think there was a problem of translation, a problem of communication (or miscommunication) between media violence researchers and the courts. The goal of translation in this context should be to generate useful information for the courts, which would mean the information is understandable, accurate, and as complete as necessary for the courts to render a sensible decision.

This Article is a case study of translation in the courts, one that seeks to identify ways in which lawyers and judges-there were no juries in these cases-may have miscommunicated or misunderstood the science. On the whole, the courts did a mediocre job of assessing the scientific evidence. An improved understanding of the science by the judges would not necessarily have changed the outcomes in these cases, however. Personally, I agree with the outcomes. The First Amendment's heavy thumb on the scale led to a consistent and appropriate result: a string of defeats for the government. But in other cases, similar failures of translation might lead to the wrong outcome. The video game violence cases reinforce the conclusion that there are significant challenges to good judicial decision-making involving scientific evidence, but the higher quality analysis by the one judge who presided over a trial suggests that courts may better understand scientific evidence when they rely less on lawyers to translate it.

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