JUDGING KNOWLEDGE: THE COURT AS ARBITER OF SOCIAL SCIENTIFIC KNOWLEDGE AND EXPERTISE IN LGBT CUSTODY AND ADOPTION CASES

• Published date: 21 June 2005
• Pages: 3-28
• Date: 21 June 2005
• DOI: https://doi.org/10.1016/S1059-4337(04)35001-5
• Author: Kimberly D. Richman

JUDGING KNOWLEDGE: THE COURT

AS ARBITER OF SOCIAL SCIENTIFIC

KNOWLEDGE AND EXPERTISE

IN LGBT CUSTODY AND

ADOPTION CASES

Kimberly D. Richman

ABSTRACT

In this article, I examine the role of judicial narratives in constructing,

constraining, and delimiting the boundaries of social scientific and expert

knowledge – specifically, in the context of gay and lesbian parents’ custody

and adoption cases. Examining not only the judicial narratives in appellate

cases over the last fifty years in the United States, but also expert reports

and briefs obtained from attorneys in these cases and interviews with

judges, attorneys and litigants, I investigate the roleof judicial narratives in

adjudicating between competing social scientific claims about sexuality and

child welfare, constructing expertise, and ultimately deciding what is valid

knowledge and what is not. I focus specifically on the ways in which judges

credit and discreditsocial scientific evidence, experts, and knowledge claims.

The power of legal actors and particularly judges to police the boundaries of

knowledge and expertise in the context of the custody case and the judicial

narrative is complicated by the observation that this form of social scientific

Studies in Law, Politics, and Society

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ISSN: 1059-4337/doi:10.1016/S1059-4337(04)35001-5

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4 KIMBERLY D. RICHMAN

knowledge is not only the object acted upon and shaped by these power

dynamics, but is also itself a source of power and legitimation.

If knowledge is made, its making can be looked into (Geertz, 1990).

MarianaValverde has written, “the very introduction of social researchers as expert

witnesses indicates that there is no consensus, no common-sense knowledge upon

which juries and judges could unthinkingly rely” (1996, p. 206). While different

forms of knowledge are produced and reproduced everyday in a variety of settings,

the process is perhaps laid most bare in the legal setting, where so much hinges on

competing knowledge claims, a determination of the one “correct” version – and,

indeed, it is the obligation of legal actors to delineate exactly what this is and how

they came to know it. In this article, I investigate the role of judicial narratives in

adjudicating between competing social scientific claims, constructing expertise,

and ultimately deciding what is valid knowledge and what is not. Judges are often

put in the position of deciding, what is “good science?” Valverde notes, “law sets

itself up as adjudicator of contested epistemologies” when it solicits and evaluates

expertise (1996, p. 202). Thus, while judges may not be equipped to evaluate

empirical claims in the way that a social scientist would, they nevertheless have

thepowertodosointheircourtrooms. These evaluations, in turn, are consequential

for not only the production and policing of knowledge, but for the cases themselves

and the lives they involve.

A common theme in recent socio-legal research has been the important role

of judicial language in constructing meaning, not only affecting the discursive

framing of a particular issue, but producing significant social outcomes (McCann,

1994; Phillips & Grattet, 2000). In this article, this theme is extended to the

production and evaluation of social scientific knowledge through legal language

andjudicial decisions, specifically in custody and adoption cases involvinggay and

lesbian parents in the United States. While social scientific expertise can contribute

to the making of law, it is important not to ignore the “agency of lawin producing

relevant scientific knowledge” (Jasanoff, 1995, p. 51). In Matoesian’s words,

“...language is not the mere passive vehicle for the imposition or transmission of

law but actually constitutes and transforms evidence, facts, and rules into relevant

objects of legal knowledge” (2001, p. 3). This potential for the production –

or performance – of legal knowledge, arguably, is particularly potent when the

language examined is that of judges.

Since the Legal Realists’ foundational discussions of the place of academic

scholarship in law in the first half of the twentieth century, judges have come

to accept, often welcome, and sometimes even require the knowledge brought

by social scientists into the courtroom. In fact, expert witnesses have become