In recent years, scholars have begun to use social science tools to analyze court opinions. These scholars have justifiably criticized traditional legal research for its focus on a few cases that may not be representative and its fascination with arcane matters that do not affect real people with real legal problems. Zirkel lawyers, and prospective plaintiffs as well. However, their enthusiasm for the “outcomes analysis” technique seems misguided.
Of fundamental concern is the outcomes analysts’ assumption that simply counting the number of successful and unsuccessful plaintiffs will be useful to prospective plaintiffs. Although the odds are clearly against the plaintiff in sex discrimination cases, plaintiffs who believe that their cause is just and that they will prevail are not swayed evidence in the form of written admissions of discriminatory practices—plaintiffs are much more likely to prevail.
Two different approaches offer more useful applications of social science tools in analyzing sex discrimination cases. One is a process called “policy capturing,” in which the researcher reads each opinion; identifies variables discussed in the opinion, such as the regularity of employer evaluations of the plaintiff’s performance, training of evaluators, and the are limited to the period covered, they assist potential plaintiffs and defendants in assessing their cases.
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