Author:Sutherland, Carolyn

CONTENTS I Introduction II Judicial Approaches to Interdisciplinarity in the United States and Australia III Categorising Judicial Use of Social Science Evidence IV Approaches to Social Science in Labour Law Cases A Judicial Reliance on Intuition B Judicial Reference to Social Science Studies V Conclusion I INTRODUCTION

This article explores how Australian courts make use of social science information in labour law cases. When making decisions involving labour law, judges are often called upon to make assumptions about 'the way the world works'. (1) But very little is known about how judges access information to test these assumptions, nor about how judges evaluate this information. If courts fail to deal properly with the historical, economic, social, and other contexts relevant to their decision-making, mistakes may be made in determining legal outcomes. Identifying the relevance of social science information to the issues that are determined in labour law cases and understanding the extent to which judges draw upon this information is, therefore, important when evaluating the role of courts in the application and development of labour law.

Social and economic factors will often play a significant, even decisive, role in the determination of labour law cases. Consequently, judges may need to be provided with additional information to support their decision-making about these issues. For example, in many types of labour law disputes, the court's task is to determine the reasonableness of the employer's actions by weighing up the needs of the employer's business against the needs of the employee, an exercise which requires the court to understand both the commercial needs of the business and the social and economic needs of the worker. (2)

In deciding whether or not an employer's conduct in a given labour law case is 'reasonable, judges will typically need to draw on their own understanding of the business context and of human behaviour. For example, in deciding whether a decision to require a worker to be present at the workplace full-time is 'reasonable', a judge may be influenced by their own experience of flexible working arrangements in the workplace, their view of the nature of full-time work, and their own expectations of themselves as fulltime workers. These experiences of a single individual are unlikely to account for the broader experience of workers and employers in the wider community. In order to access this wider field of experience, judges may need to draw on evidence from the social sciences. Similarly, in deciding whether a worker is an employee or a contractor running an independent business, a judge may benefit from a broader survey of modern business practices than the anecdotal accounts drawn from common law cases.

In decisions made under labour law statutes to determine whether a decision or requirement is 'reasonable' or 'fair', and in common law determinations about the status of a worker, judges are expected to make decisions based on an intuitive assessment of a wide range of factors. In making these assessments, it is important that judges are aware of the potential for bias. As Deborah Merritt points out in her discussion of the widespread use of social science evidence in discrimination cases in the United States ('US'): '[i]t is difficult for individuals to overcome their own prejudice or even to see that it exists ... Social science is one of the tools we have for overcoming bias, for showing people that the world is not the way they think it is'. (3) It is particularly important that judicial prejudice is addressed in labour law cases where a legislative requirement of 'reasonableness' or 'fairness' is designed to challenge bias in workplace decision-making.

In an article published in 1990, American scholar Michael Saks explores the recognition and use of extra-legal knowledge by courts to improve their understanding of 'the way the world works'. (4) Quoting an evidence text, Saks points out that when judges are creating rules, they must 'act either upon knowledge already possessed or upon assumptions, or upon investigations of the pertinent general facts, social, economic, political, or scientific'. (5) He therefore concludes that 'not only do judges take into account knowledge of the way the world works, they are unable to do otherwise.' (6) The 'facts' of which Saks speaks here are usually identified as 'legislative' facts serving courts to create law, (7) and are often distinguished from the 'adjudicative' facts in dispute between the parties in the particular case. (8) Social science materials may assist judges to determine both 'adjudicative' and 'legislative' facts. (9)

In the US, social science evidence is regularly drawn upon in labour law cases, particularly in the area of discrimination law. In gender discrimination cases, courts allow experts to draw on social science studies to identify the general factors that contribute to systemic bias in the treatment of workers and then to identify those factors in the particular workplace as evidence of less favourable treatment of female workers. (10) For example, in Dukes v Wal-Mart Stores Inc ('Walmart'), in deciding to certify as a class action a sex discrimination claim brought on behalf of more than 1.5 million female employees of Wal-Mart, a US District Court relied on a sociologist's 'social framework analysis' of Wal-Mart's human resources policies and practices. (11) Having identified through this analysis that Wal-Mart allowed decisions about pay rises and promotions to be based on the subjective views of individual managers, a practice that is linked to biased outcomes in social science studies, the sociologist had concluded that this practice contributed to disparity in the pay and promotion outcomes of men and women at the company. (12)

Given the lack of scholarship on the use of extra-legal knowledge in Australian labour law cases, a preliminary objective of this article is to establish that courts may need to access extra-legal knowledge to expand their knowledge of 'the way the world works. It is also important to consider which disciplinary fields may provide this information and to explore the capacity of courts to engage adequately with disciplines and methodologies in which judges have little (if any) training, particularly social science fields such as economics, anthropology, statistics, psychology, and behavioural science. For the purpose of this discussion, the term 'social science' is used in a broad sense to encompass disciplines that provide insights about the way the world works.

Part II of this article examines judicial approaches to interdisciplinarity in the US and Australia by first considering the evolution of legal training and scholarship in both countries, and then by exploring Australian studies that analyse judicial use of extra-legal information in cases outside the field of labour law. Part III investigates the various categories used by scholars and courts in the US to explain judicial use of social science material and the approaches taken by Australian scholars to conceptualise these issues. Part IV examines selected Australian labour law cases where judicial intuition, rather than social science information, has underpinned decision-making, and rare cases where judicial decision-making has either been informed by social science studies or by an awareness of the need for such studies. Part V reflects on the importance of social science disciplines as a source of information for judicial decision-makers in the field of labour law and suggests some preliminary steps that could be taken to increase the level of engagement with these disciplines in legal education programs and labour law scholarship.


The major body of literature examining how judges deal with social science and other sources of extra-legal knowledge comes from the US. John Monahan and Laurens Walker have observed that there has been a substantial change in judicial and scholarly attitudes towards the use of social science since the publication of their influential text, Social Science in Law: Cases and Materials, in 1985. (13) But these developments of recent decades should be viewed against a much longer history of concern about the 'trade school-apprenticeship' model of training in US law schools. (14) The push to incorporate more 'theoretical' or 'inter-disciplinary' courses into the law curriculum (even if such courses were relatively narrowly conceived in the form of subjects on comparative law, diplomatic and constitutional history, and jurisprudence) began in the late nineteenth century and eventually came to the fore as a major aspiration in the 1920s and 1930s. (15) The events of the Great Depression raised awareness within law schools that not all law graduates were ending up in law firms but were instead taking up positions in politics and the public service. (16) As a consequence, in 1935 Karl Llewellyn declared that it was no longer sufficient to supplement the law curriculum with theoretical and interdisciplinary courses. He instead urged law schools to 'integrate the background of social and economic fact and policy, course by course' into the existing curriculum. (17) By the early 1940s, Kenneth Culp Davis had begun seriously to explore the mixed and confusing distinction(s) between law and fact with an analysis which now underpins the broad general approach to this subject matter. (18)

The accounts of these developments suggest that US law schools have a long history of recognising the importance of interdisciplinary and theoretical approaches to the legal curriculum. This acknowledgement of the importance of non-legal disciplines in legal training has inevitably influenced the practices of courts.

When Monahan and Walker first published Social Science in Law: Cases and Materials, in 1985, the use of social...

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