Pub Date : 2017-06-01DOI: 10.1628/093245616X14664894246848
Chulyoung Kim
The legal community has been debating the question of who should select and provide expert witnesses at trial: the litigant or the judge? Using a persuasion-game framework, I show that there is a trade-off. On the one hand, the litigant is willing to consult an expert even when the judge is reluctant to appoint her own experts due to high costs. On the other hand, given the same amount of expert advice, the judge can make a more accurate decision when using a court-appointed expert's advice at trial. I show that the cost of expert advice is an important factor in this trade-off and, therefore, in the argument for the reform toward a centralized system for expert witnesses.
{"title":"Centralized versus Decentralized Institutions for Expert Testimony","authors":"Chulyoung Kim","doi":"10.1628/093245616X14664894246848","DOIUrl":"https://doi.org/10.1628/093245616X14664894246848","url":null,"abstract":"The legal community has been debating the question of who should select and provide expert witnesses at trial: the litigant or the judge? Using a persuasion-game framework, I show that there is a trade-off. On the one hand, the litigant is willing to consult an expert even when the judge is reluctant to appoint her own experts due to high costs. On the other hand, given the same amount of expert advice, the judge can make a more accurate decision when using a court-appointed expert's advice at trial. I show that the cost of expert advice is an important factor in this trade-off and, therefore, in the argument for the reform toward a centralized system for expert witnesses.","PeriodicalId":190252,"journal":{"name":"LSN: Evidence (Public Law - Courts) (Topic)","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129841892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Evidential value is measured by a likelihood ratio. This ratio has two components, the probability, or probability density, of the evidence if the prosecution proposition is true and the probability (density) of the evidence if the defence proposition is true. It takes the form of a single value, even if these probabilities are subjective measures of belief of the reporting forensic scientist.
{"title":"Reframing the Debate: A Question of Probability, Not of Likelihood Ratio","authors":"A. Biedermann, S. Bozza, F. Taroni, C. Aitken","doi":"10.2139/ssrn.2846500","DOIUrl":"https://doi.org/10.2139/ssrn.2846500","url":null,"abstract":"Evidential value is measured by a likelihood ratio. This ratio has two components, the probability, or probability density, of the evidence if the prosecution proposition is true and the probability (density) of the evidence if the defence proposition is true. It takes the form of a single value, even if these probabilities are subjective measures of belief of the reporting forensic scientist.","PeriodicalId":190252,"journal":{"name":"LSN: Evidence (Public Law - Courts) (Topic)","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115279549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
During the investigation of the 2015 San Bernardino shooting, the government asked a district court to order Apple to draft code that would bypass the password protection system of one of the shooters’ iPhones. A number of experts opined that the All Writs Act (AWA) and the Communications Assistance for Law Enforcement Act (CALEA) prohibited the court from issuing the order. This request was preceded by the holding of a New York District Court, which found that those statutes indeed did protect Apple from such compulsion. Although sympathetic to Apple, I argue that those experts and the New York court misinterpreted CALEA, and that the government’s interpretation of that statute was correct. The court’s ultimate ruling in favor of Apple, however, was the right one based on the discretionary factors governing the AWA’s applicability, set forth by the United States Supreme Court in United States v. New York Telephone Co.
{"title":"Breaking iPhones Under CALEA and the All Writs Act: Why the Government Was (Mostly) Right","authors":"S. Morrison","doi":"10.2139/SSRN.2808773","DOIUrl":"https://doi.org/10.2139/SSRN.2808773","url":null,"abstract":"During the investigation of the 2015 San Bernardino shooting, the government asked a district court to order Apple to draft code that would bypass the password protection system of one of the shooters’ iPhones. A number of experts opined that the All Writs Act (AWA) and the Communications Assistance for Law Enforcement Act (CALEA) prohibited the court from issuing the order. This request was preceded by the holding of a New York District Court, which found that those statutes indeed did protect Apple from such compulsion. Although sympathetic to Apple, I argue that those experts and the New York court misinterpreted CALEA, and that the government’s interpretation of that statute was correct. The court’s ultimate ruling in favor of Apple, however, was the right one based on the discretionary factors governing the AWA’s applicability, set forth by the United States Supreme Court in United States v. New York Telephone Co.","PeriodicalId":190252,"journal":{"name":"LSN: Evidence (Public Law - Courts) (Topic)","volume":"126 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121244346","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the issue of the appropriate scope of review of economic evidence enshrined in the discretionary assessments of utility regulators in the US and the UK. It advances a balance of institutional competencies approach to the question of the degree of deference owed to the regulatory agency’s economic assessments. In doing so, it revisits the doctrinal positions advanced in the US and the UK for the substantive review of administrative discretion, so as to become attuned to the challenges posed by economic evidence. Drawing on insights from political science and economics, the suggested approach illuminates the institutional disadvantages of the courts that may warrant a high degree of deference. At the same time, however, it remains sensitive to the polycentric elements of regulatory disputes as well as to a number of institutional realities that may attenuate the weight of such comparative institutional disadvantages.
{"title":"Economic Evidence in Regulatory Disputes: Revisiting the Court-Regulatory Agency Relationship in the US and the UK","authors":"Despoina Mantzari","doi":"10.1093/OJLS/GQV035","DOIUrl":"https://doi.org/10.1093/OJLS/GQV035","url":null,"abstract":"This article examines the issue of the appropriate scope of review of economic evidence enshrined in the discretionary assessments of utility regulators in the US and the UK. It advances a balance of institutional competencies approach to the question of the degree of deference owed to the regulatory agency’s economic assessments. In doing so, it revisits the doctrinal positions advanced in the US and the UK for the substantive review of administrative discretion, so as to become attuned to the challenges posed by economic evidence. Drawing on insights from political science and economics, the suggested approach illuminates the institutional disadvantages of the courts that may warrant a high degree of deference. At the same time, however, it remains sensitive to the polycentric elements of regulatory disputes as well as to a number of institutional realities that may attenuate the weight of such comparative institutional disadvantages.","PeriodicalId":190252,"journal":{"name":"LSN: Evidence (Public Law - Courts) (Topic)","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126887038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The history of the admissibility standard for expert testimony in American courtrooms reveals that the standard has gradually increased to a high level since a series of important decisions by the Supreme Court. Whether such a stringent standard for expert testimony is beneficial or detrimental to the American justice system is still under fierce debate, but there has been scant economic analysis of this issue. This paper attempts to fill the gap by presenting a game-theoretic argument showing that a stringent admissibility standard operates to increase the judicial decision's accuracy under certain situations. More precisely, when the judge faces uncertainty regarding an expert's quality, the admissibility standard may provide the judge with information about the quality of expert testimony, thereby increasing the accuracy of the judicial decision by mitigating the judge's inference problem. I show the ways in which this effect dominates at trial and discuss related issues.
{"title":"An Economic Rationale for Dismissing Low-Quality Experts in Trial","authors":"Chulyoung Kim","doi":"10.2139/ssrn.2760822","DOIUrl":"https://doi.org/10.2139/ssrn.2760822","url":null,"abstract":"The history of the admissibility standard for expert testimony in American courtrooms reveals that the standard has gradually increased to a high level since a series of important decisions by the Supreme Court. Whether such a stringent standard for expert testimony is beneficial or detrimental to the American justice system is still under fierce debate, but there has been scant economic analysis of this issue. This paper attempts to fill the gap by presenting a game-theoretic argument showing that a stringent admissibility standard operates to increase the judicial decision's accuracy under certain situations. More precisely, when the judge faces uncertainty regarding an expert's quality, the admissibility standard may provide the judge with information about the quality of expert testimony, thereby increasing the accuracy of the judicial decision by mitigating the judge's inference problem. I show the ways in which this effect dominates at trial and discuss related issues.","PeriodicalId":190252,"journal":{"name":"LSN: Evidence (Public Law - Courts) (Topic)","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114381245","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The role of intent in federal antitrust cases has been characterized as “unsettled” and “controversial.” Many lower courts, scholars, and practitioners recognize that intent evidence is relevant in antitrust cases. But jurists and scholars oriented by neoclassical economic theory disagree. Using the developments in the behavioral economics literature, this Article reexamines the relevancy of intent evidence in civil antitrust cases. The analysis is organized around two issues: First is intent legally relevant in civil antitrust cases? Second if intent evidence is relevant, for what purpose? Intent evidence, this Article concludes, is relevant. The behavioral economics experiments confirm what many have long accepted: intent matters. Greed does not always motivate us. Greed is not necessary for a market economy to thrive. Competition need not be zero-sum warfare. But the literature has two important implications. First, intent may be helpful, but to a lesser degree than some courts and scholars assume, in assessing the likely anti-competitive effects. Second, intent evidence can be more important than courts may otherwise assume under neoclassical theory. People rely on intent when coding and punishing behavior as unfair and unreasonable, which in turn can promote a market economy and overall societal welfare.
{"title":"Is Intent Relevant?","authors":"M. Stucke","doi":"10.2139/ssrn.1992761","DOIUrl":"https://doi.org/10.2139/ssrn.1992761","url":null,"abstract":"The role of intent in federal antitrust cases has been characterized as “unsettled” and “controversial.” Many lower courts, scholars, and practitioners recognize that intent evidence is relevant in antitrust cases. But jurists and scholars oriented by neoclassical economic theory disagree. Using the developments in the behavioral economics literature, this Article reexamines the relevancy of intent evidence in civil antitrust cases. The analysis is organized around two issues: First is intent legally relevant in civil antitrust cases? Second if intent evidence is relevant, for what purpose? Intent evidence, this Article concludes, is relevant. The behavioral economics experiments confirm what many have long accepted: intent matters. Greed does not always motivate us. Greed is not necessary for a market economy to thrive. Competition need not be zero-sum warfare. But the literature has two important implications. First, intent may be helpful, but to a lesser degree than some courts and scholars assume, in assessing the likely anti-competitive effects. Second, intent evidence can be more important than courts may otherwise assume under neoclassical theory. People rely on intent when coding and punishing behavior as unfair and unreasonable, which in turn can promote a market economy and overall societal welfare.","PeriodicalId":190252,"journal":{"name":"LSN: Evidence (Public Law - Courts) (Topic)","volume":"25 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132025792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：