The Results of Deliberation

When evaluating whether to sue, prosecute, settle, or plead, trial lawyers must predict the future—they need to estimate how likely they are to win a given case in a given jurisdiction. Social scientists have used mock juror studies to produce a vast body of literature showing how different variables influence juror decision making. But few of these studies account for jury deliberation, so they present an impoverished picture of how these effects play out in trials and are of limited usefulness. This Article helps lawyers better predict the future by presenting a novel computer model that extrapolates findings about jurors to juries, showing how variables of interest affect the decisions not only of individuals but also of deliberative bodies. The Article demonstrates the usefulness of the model by applying it to data from an empirical study of the factors that influence juror decisions in acquaintance rape cases. This application first elucidates a tension in criminal law: even if a substantial majority of jurors in a community would vote to convict a defendant, a majority of juries might still acquit. It also demonstrates that certain legal reforms will have a meaningful effect in some areas of the country but not others, suggesting that rape law reform should occur at a local, not national, level

Meta-Evidence and Preliminary Injunctions

The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice. In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, this Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. I demonstrate that much evidence introduced at the preliminary injunction stage is, in fact, meta-evidence. And I show why meta-evidence that initially appears inadmissible under the Rules is often, in fact, admissible. Applying the Rules at the preliminary injunction stage, then, would not exclude nearly as much evidence as courts may have assumed. I offer two proposals for how courts should use the Rules at the preliminary injunction phase. More ambitiously, I suggest courts should apply the Rules with an exception directly tailored to the dangers of limiting admissible evidence when the parties are under time pressure. Alternatively, I suggest that courts simply recognize when evidence is actually meta-evidence and weigh it appropriately. Courts should acknowledge that meta-evidence is probative only to the extent it tends to show the proponent will produce admissible evidence at trial

Binding Hercules: A Proposal for Bench Trials

Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence absurdly inappropriate outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they\u27ve decided to exclude. And ruling on evidentiary motions at trial can take a judge\u27s focus away from the important task of factfinding.In this contribution to the Vanderbilt Law Review\u27s Symposium on Reimagining the Rules of Evidence at 50, I propose that we can do better than the status quo. I suggest that we amend the Federal Rules (1) to more explicitly require judges to rule on the admissibility of evidence at bench trials, (2) to permit them to reserve ruling on motions that arise at trial, while requiring them to resolve motions in limine before trial, and (3) to create a system of bifurcation for only the most harmful evidence that relies on the judges who already often partner with district judges: magistrate judges. I argue that this system will allow the purposes of the rules to be (mostly) satisfied, with (sufficiently) little increased cost and administrative hassle and minimal (enough) interference with the judge’s factfinding process

Theorizing Corroboration

A child makes an out-of-court statement accusing an adult of abuse. That statement is important proof, but it also presents serious reliability concerns. When deciding whether it is sufficiently reliable to be admitted, should a court consider whether the child’s statement is corroborated—whether, for example, there is medical evidence of abuse? More broadly, should courts consider corroboration when deciding whether evidence is reliable enough to be admitted at trial? Judges, rule-makers, and scholars have taken significantly divergent approaches to this question and come to different conclusions.This Article argues that there is a key problem with using corroboration to evaluate admissibility. Corroborated evidence is, indeed, more likely to be reliable than uncorroborated evidence. But that does not mean that corroboration is always a proper admissibility consideration. In fact, if the corroboration simply proves the same material fact as the corroborated evidence, using corroboration to determine the admissibility of the evidence can impede rational truth-seeking through a mechanism this Article calls “structural confirmation bias.”What should courts and rule makers do, then, when a category of evidence is critically important but also presents troubling reliability concerns? This Article offers a theoretical framework for thinking about corroboration that can help rule-makers and judges craft and apply corroboration rules. It first argues that when that type of evidence will typically be introduced by the party with the burden of proof, it is better to require corroboration to sustain a verdict than to require corroboration to admit the potentially unreliable evidence. However, when that type of evidence may be introduced by either party, courts should consider only corroboration that does not trigger “structural confirmation bias.

Entering the Innovation Twilight Zone: How Patent and Antitrust Law Must Work Together

Patent law and antitrust law have traded ascendancy over the last century, as courts and other institutions have tended to favor one at the expense of the other. In this Article, we take several steps toward stabilizing the doctrine surrounding these two branches of law. First, we argue that an optimal balance between patent rights and antitrust enforcement exists that will maximize consumer welfare, including promoting innovation and economic growth. Further, as Congress is the best institution to find this optimum, courts should enforce both statutes according to their literal text, which grants absolute patent rights but allows for more discretion in antitrust enforcement. Second, we propose three possible reasons for the historical conflict between these regimes: cultural cognition, political economy, and federal court structure. As a result, we propose two stabilizing solutions: research into culturally depolarizing communication techniques and a two-court Innovation Circuit

The Polarizing Impact of Science Literacy and Numeracy on Perceived Climate Change Risks

Seeming public apathy over climate change is often attributed to a deficit in comprehension. The public knows too little science, it is claimed, to understand the evidence or avoid being misled. Widespread limits on technical reasoning aggravate the problem by forcing citizens to use unreliable cognitive heuristics to assess risk. An empirical study found no support for this position. Members of the public with the highest degrees of science literacy and technical reasoning capacity were not the most concerned about climate change. Rather, they were the ones among whom cultural polarization was greatest. This result suggests that public divisions over climate change stem not from the public’s incomprehension of science but from a distinctive conflict of interest: between the personal interest individuals have in forming beliefs in line with those held by others with whom they share close ties and the collective one they all share in making use of the best available science to promote common welfare

The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change

31 pagesThe conventional explanation for controversy over climate change emphasizes impediments to public understanding: limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scien- tifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: the individual level, which is characterized by the citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication

Meta-Evidence and Preliminary Injunctions

The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice.In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, this Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. I demonstrate that much evidence introduced at the preliminary injunction stage is, in fact, meta-evidence. And I show why meta-evidence that initially appears inadmissible under the Rules is often, in fact, admissible. Applying the Rules at the preliminary injunction stage, then, would not exclude nearly as much evidence as courts may have assumed.I offer two proposals for how courts should use the Rules at the preliminary injunction phase. More ambitiously, I suggest courts should apply the Rules with an exception directly tailored to the dangers of limiting admissible evidence when the parties are under time pressure. Alternatively, I suggest that courts simply recognize when evidence is actually meta-evidence and weigh it appropriately. Courts should acknowledge that meta-evidence is probative only to the extent it tends to show the proponent will produce admissible evidence at trial

Meta-Evidence and Preliminary Injunctions

The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice. In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, this Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. I demonstrate that much evidence introduced at the preliminary injunction stage is, in fact, meta-evidence. And I show why meta-evidence that initially appears inadmissible under the Rules is often, in fact, admissible. Applying the Rules at the preliminary injunction stage, then, would not exclude nearly as much evidence as courts may have assumed. I offer two proposals for how courts should use the Rules at the preliminary injunction phase. More ambitiously, I suggest courts should apply the Rules with an exception directly tailored to the dangers of limiting admissible evidence when the parties are under time pressure. Alternatively, I suggest that courts simply recognize when evidence is actually meta-evidence and weigh it appropriately. Courts should acknowledge that meta-evidence is probative only to the extent it tends to show the proponent will produce admissible evidence at trial

Buckling Under Pressure: An Empirical Test of the Expressive Effects of Law

Expressive theories of law assert that law has effects on behavior beyond simple deterrence. This Note tests legal expressivism by analyzing how seatbelt use has changed in response to differing state seatbelt laws. This Note separates the effects of the laws themselves from the effects of changing enforcement levels and finds that the laws have a robust effect on seatbelt use, even controlling for convictions or citations issued. Additionally, this Note finds that a highly publicized seatbelt law in one state can affect seatbelt use in other states. These findings support an expressive function of law