Same Old, Same Old: Scientific Evidence Past and Present

For over twenty years, and particularly since the Supreme Court\u27s Daubert\u27 decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about junk science ? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics

Fighting Legal Innumeracy

An old joke quips that lawyers go to law school precisely because they never liked math or were never good at math – and that therefore medical school (or these days, Wall Street) was not an option. While this tired joke may have a kernel of truth, I want to suggest that we should be very wary of internalizing it. Numeracy is a fundamental skill for any intelligent, engaged participant in society, and we lawyers ignore it at our peril. The term “innumeracy” was coined by Douglas Hofstadter in a 1982 article in Scientific American and perhaps made famous by John Allen Paulos. In his book, Paulos observes that while readers frequently condemn grammatical errors, wild mathematical ones often pass undetected. If this observation is true for anybody, it is definitely true for lawyers. Playing gotcha with typos is practically the official sport of the bench and bar. Yet, lawyers and courts notoriously make incorrect numerical calculations – sometimes caught, sometimes not – but generally without the same snarky rebukes.The primary focus of Hoftstadter and Paulos, however, is on the inability of the public to grapple with numbers. Accordingly, they stress the importance of estimation and orders of magnitude. For example, just how big is a billion dollars, or a trillion dollars? Or more trivially – though not so for aspiring management consultants – how many ping-pong balls will fit into a backyard swimming pool? I want to recast the numeracy problem to be a bit more lawcentric. For lawyers, numeracy should be less about numbers per se and more about statistical inference or how to interpret and understand scientific or social scientific studies

Constitutional Risks to Equal Protection in the Criminal Justice System

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk\u27s focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop expertise in response. Additionally, because one need not confine the constitutional risk perspective to equal protection, it may usefully be extended to inform other constitutional doctrines, such as facial challenges and prophylactic rules. In extending constitutional risk, however, one should remember that shifting to a risk-based view of constitutional law represents a genuine policy decision. Never have laws protected every individual against every risk - to do so is neither practical nor possible. Therefore, one must determine which risks are substantial enough to warrant a remedy. Even more crucially, one must decide if constitutional risk is a transsubstantive doctrine, or whether only some constitutional harms are serious enough to require a more systemic and nuanced look. All this remains for another day

Structural Laws and the Puzzle of Regulating Behavior

This Article offers a new way of thinking about over criminalization. It argues that in regulating behavior, legislatures have relied excessively on statutory prohibitions and ex post enforcement by police and prosecutors. Regulation by fiat alone is often inadequate; proscriptive laws need accompanying structural ones that can cabin behavior and help alter existing social norms. After developing a theoretical framework for distinguishing fiat from structure, the Article tackles the puzzling question why legislatures persist in focusing almost exclusively on fiat-based measures despite the availability of more effective structural ones. The answer turns out to be surprisingly complex, ranging from institutional inertia, to attitudes about liberty, to political considerations. Applying these theoretical arguments, the Article then turns to three concrete examples: tax evasion, speeding, and music piracy. Tax evasion offers an uncommon chance to observe the successful implementation of structural laws, whereas speeding illustrates the more typical scenario in which a fixation on fiat yields low compliance rates, opportunities for arbitrary and discriminatory enforcement, and public disrespect for the law. Music piracy presents a contemporary debate at the crossroads between fiat and structure, and the Article explores the ramifications of the two choices. The Article concludes with some broader questions about the desirability and the future of structural regulation

Same Old, Same Old: Scientific Evidence Past and Present

For over twenty years, and particularly since the Supreme Court\u27s Daubert decision in 1993, much ink has been spilled debating the problem of scientific evidence in the courts. Are jurors or, in the alternative, judges qualified to assess scientific reliability? Do courts really need to be concerned about junk science ? What mechanisms can promote better decision making in scientific cases? Even a cursory scan of the literature shows the recent explosion of interest in these issues, precipitating new treatises, hundreds of articles, and countless conferences for judges, practitioners, and academics. To this literature, Professor Tal Golan adds Laws of Men and Laws of Nature, a welcome and much-needed book-length work on the history of scientific evidence. The book, which derives from Golan\u27s doctoral dissertation, can be roughly divided into two principal parts: The lion\u27s share concentrates on nineteenth-century developments in England and the United States, often in the context of business-related civil litigation. The remainder looks at fin de siecle America, more narrowly focusing on the relationship between the legal system and three then-emerging technologies: blood microscopy, x-rays, and lie detectors. An epilogue attempts to tie these historical discussions to the modern day Frye-Daubert debates, but it is largely an afterthought and is appropriately separated as such

Changing Scientific Evidence

A number of high-profile toxic tort cases, such as silicone breast implants, have followed a familiar and disturbing path: Early studies suggest a link between a suspected substance and a particular illness. Based on these initial studies, lawsuits are brought and juries award large judgments to various plaintiffs. Then later, more comprehensive studies find no evidence of a causal link. How should the legal system cope with this problem in which new scientific evidence calls into question previous findings of liability? These erroneous judgments seriously harm social welfare and legitimacy. Beneficial products are needlessly discontinued or are made more expensive, and public confidence is undermined by decisions entirely at odds with science. This Article observes that in a subset of cases, the legal system\u27s traditional emphasis on speedy dispute resolution and finality is brought into direct conflict with science\u27s culture of incremental study and constant reevaluation. The resulting timing mismatch is at the root of the changing scientific evidence problem. To alleviate it, the Article suggests the use of two alternative procedural devices. Courts could stay proceedings for a fixed period of time when additional confirmatory studies were anticipated. Alternatively, courts could address changing scientific evidence after final judgment through an expansion of post-judgment relief. Either of these options would enable courts to be more accommodating to the scientific process, while simultaneously spurring scientists to better serve legal inquiry

Completing the Quantum of Evidence

In Evidentiary Irony and the Incomplete Rule of Completeness, Professors Daniel Capra and Liesa Richter comprehensively catalog the many shortcomings in current Federal Rule of Evidence 106 and craft a compelling reform proposal. Their proposal admirably solves the identified problems, keeps the rule reasonably succinct, and furthers the accuracy and fairness goals of the rules of evidence. In this Response, we focus on Capra & Richter\u27s proposal to formally recognize a trumping power in Rule 106, which would allow an adverse party to offer a completing statement even if it would be otherwise inadmissible under the rule against hearsay

Selected Legal Applications for Bayesian Methods

This dissertation offers three contexts in which Bayesian methods can address tricky problems in the legal system. Chapter 1 offers a method for attacking case publication bias, the possibility that certain legal outcomes may be more likely to be published or observed than others. It builds on ideas from multiple systems estimation (MSE), a technique traditionally used for estimating hidden populations, to detect and correct case publication bias. Chapter 2 proposes new methods for dividing attorneys' fees in complex litigation involving multiple firms. It investigates optimization and statistical approaches that use peer reports of each firm's relative contribution to estimate a "fair" or consensus division of the fees. The methods proposed have lower informational requirements than previous work and appear to be robust to collusive behavior by the firms. Chapter 3 introduces a statistical method for classifying legal cases by doctrinal area or subject matter. It proposes using a latent space approach based on case citations as an alternative to the traditional manual coding of cases, reducing subjectivity, arbitrariness, and confirmation bias in the classification process

Being Pragmatic About Forensic Linguistics

This article aims to provide some legal context to the Authorship Attribution Workshop (“conference”). In particular, I want to offer some pragmatic observations on what courts will likely demand of forensic linguistics experts and tentatively suggest what the field should aspire to in both the short and long run