Legal practice within the United States has a major policy function, seeking to address systemic issues with legal interventions to achieve an intended outcome. While the practice of law has traditionally been perceived as an arena to resolve disputes between individual parties, legal practice often includes issuing widespread rulings that govern jurisdictions as a whole. Moreover, specific areas of law, namely criminal and regulatory legal practice, seek to achieve a similar systemic goal: using the law to shape future behavior. However, the present use of evidence in the legal system may not best perpetuate this goal. When adjudicating cases, relevant legal sources and evidence are applied to a particular case after the events giving rise to a legal cause of action have occurred. 

Many jurisdictions use this ex-post method of reasoning even when addressing policy issues or attempting to influence future behavior. Yet, where law seeks to influence future behavior, an ex-ante approach, or the advance use of empirical evidence to inform specific outcomes, would likely be more effective to achieve intended policy outcomes.

In its attempt to shape future behavior, legal practice is functionally similar to other major fields in public administration, public policy, and developmental practice. However, in contrast to law, these fields have effectively utilized Evidence Based Practice (“EBP”) as a tool to address systemic and behavioral problems and ensure that interventions are effective. EBP entails a decision making process that relies upon the best available empirical data to inform future practice. Originating in medicine, EBP has been translated for use in other fields, notably public policy and developmental practice. 

However, where law seeks to shape future behavior, the use of EBP has not been clearly established to ensure the law is effective in achieving an ex-ante behavioral function. Consequently, when shaping legal interventions to influence future behavior, legal practice does not presently rely on empirical evidence detailing which interventions would likely be effective at producing intended outcomes. As EBP has proven useful in improving practice in the aforementioned fields, it could likewise be utilized ex-ante by legal practitioners in shaping future behavior to more effectively influence policy outcomes. 

This research seeks to understand the use of EBP as the basis for law’s ex-ante behavioral function. In order to do so, it will primarily look to the legal practitioners who are employed to achieve behavioral change. Specifically, the research will assess how behavioral legal practicioners themselves think about the effectiveness of their work, with specific regard to whether they attempt to achieve ex-ante behavioral goals. Research will further evaluate the means by which behavioral lawyers seek to achieve ex-ante goals, and to what extent these means are aligned with empirical evidence on how law can (and cannot) effectively shape behavior.