Statistics, Not Experts

The legal system should rely much more than it now does on statistical evidence. It should be cautious about the judgments of experts, who make predictable cognitive errors. Like everyone else, experts have a tendency to blunder about risk, a point that has been shown to hold for doctors, whose predictions significantly err in the direction of optimism. We present new evidence that individual doctors\u27 judgments about the ordinary standard of care are incorrect and excessively optimistic. We also show how this evidence bears on legal determinations of negligence, by doctors and others

Causation in Tort: General Populations vs. Individual Cases

To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant’s conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff’s harm by reference to the ordinary standards of causation

Causation in Tort: General Populations vs. Individual Cases

To establish causation, a tort plaintiff must show that it is more probable than not that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant\u27s conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff’s harm by reference to the ordinary standards of causation

Causation in Tort: General Populations vs. Individual Cases

To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant’s conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff’s harm by reference to the ordinary standards of causation

Statistics, Not Memories: What Was the Standard of Care for Administering Antenatal Steroids to Women in Preterm Labor between 1985 and 2000?

We determined the frequency of antenatal corticosteroid use for mothers with threatened premature delivery in 1985, 1990, 1995, and 2000. We next compared published data to the surveyed recollections of 302 obstetricians who were practicing during these years. Two points emerged. First, published reports reveal that the use of antenatal corticosteroids increased steadily, from 8% in 1985 to 20% in 1990, 52% in 1995, and 75% in 2000 (P < .001). Second, “expert” opinions derived from the recollections of practicing obstetricians consistently overestimated the actual use of antenatal corticosteroids during the year in question—31% versus 8% for 1985, 56% versus 20% for 1990, 78% versus 52% for 1995, and 92% versus 72% for 2000 (all Ps < .001). The use of antenatal corticosteroids by obstetricians in the past 15 years reveals a phenomenon that is widely recognized elsewhere—retrospective memories are often wrong, and when they are wrong they are not randomly wrong. Rather, recollections are systematically skewed toward an outcome that, in hindsight, is considered desirable (the "Monday morning quarterback" phenomenon). We offer a simple proposal. In determining the "standard of medical care," the legal system should rely on statistical data about doctors' performance rather than the recollections of experts about doctors’ performance. The fallible memories of isolated experts are a crude second-best, far inferior to the data that they approximate. Widespread adoption of this view by professional physician organizations would dramatically increase the rationality of expert testimony in medical malpractice tort law

Reckoning up: sexual harassment and violence in the neoliberal university

This paper situates sexual harassment and violence in the neoliberal university. Using data from a ‘composite ethnography’ representing twelve years of research, I argue that institutional inaction on these issues reflects how they are ‘reckoned up’ in the context of gender and other structures. The impact of disclosure is projected in market terms: this produces institutional airbrushing which protects both the institution and those (usually privileged men) whose welfare is bound up with its success. Staff and students are differentiated by power/value relations, which interact with gender and intersecting categories. Survivors are often left with few alternatives to speaking out in the ‘outrage economy’ of the corporate media: however, this can support institutional airbrushing and bolster punitive technologies. I propose the method of Grounded Action Inquiry, implemented with attention to Lorde’s work on anger, as a parrhesiastic practice of ‘speaking in’ to the neoliberal institution