DOUGLAS CRAWFORD-BROWN [*] I INTRODUCTION Scientists working in the fields of law or policy faced with risk-based decisions find themselves in very different positions epistemologically than those in the routine practice of science. First, risk assessment is an interdisciplinary activity, requiring the piecing together of expertise from many fields. Only a community of scientists could possess so much expertise. It is problematic when a single scientist, or a small group of them, is called upon to speak on behalf of the entire community. Second, science is by nature forward-looking. It is a process by which truth is progressively refined and approached, rather than an end point. In court, or in the policy arena, however, scientists are called on to "freeze" this process in a snapshot that will be regarded as final. Scientists may have little or no experience in this activity. The quality of scientific predictions of risk in the courtroom and policy arena rests in large measure on how these two differences between the normal practice and the legal/po licy practice of science are reconciled. This article considers a variety of issues that arise in reconciling these differences, and the problems that remain with scientific estimates of risk when these are used in decisions. II DEFINITION OF RISK Before turning to the issues arising from risk predictions, a definition of risk is needed. Three schools of thought are prevalent in the field of risk assessment. [1] (1) Objective risk. This school treats risk as an objective property of the world, much like any other scientific concept. Risk is identified with a combination of the probability and the severity of an outcome. [2] Often, the combination is the mathematical product of the probability and the severity, but this operation is not scientifically or logically necessary, as is demonstrated by the fact that there are competing operations in the scientific community such as Quality Adjusted Life Years ("QALY"). [3] (2) Subjective risk. This school treats risk as a subjective property of individuals in a society. Risk is identified as the degree of concern, or dread, expressed by an individual over some situation. It is measured using polls based on expressed or revealed opinions. [4] (3) Psychologistic risk. This school treats risk as a property of epistemological reflection, or analysis of existing evidence. Risk is identified as the degree of evidentiary support for the belief that an adverse effect will occur under certain circumstances. This school shares features with the objective school, such as the recognition that risks are related to probabilities. It is closer, however, to the Bayesian conception of probability because the objective school employs a long-term frequency concept of probability. [5] While some social scientists adhere to the subjective concept of risk, it generally is not the concept employed in the practice of natural science or in legal or policy decisionmaking. The differe
{"title":"Scientific Models of Human Health Risk Analysis in Legal and Policy Decisions","authors":"D. Crawford‐Brown","doi":"10.2307/1192291","DOIUrl":"https://doi.org/10.2307/1192291","url":null,"abstract":"DOUGLAS CRAWFORD-BROWN [*] I INTRODUCTION Scientists working in the fields of law or policy faced with risk-based decisions find themselves in very different positions epistemologically than those in the routine practice of science. First, risk assessment is an interdisciplinary activity, requiring the piecing together of expertise from many fields. Only a community of scientists could possess so much expertise. It is problematic when a single scientist, or a small group of them, is called upon to speak on behalf of the entire community. Second, science is by nature forward-looking. It is a process by which truth is progressively refined and approached, rather than an end point. In court, or in the policy arena, however, scientists are called on to \"freeze\" this process in a snapshot that will be regarded as final. Scientists may have little or no experience in this activity. The quality of scientific predictions of risk in the courtroom and policy arena rests in large measure on how these two differences between the normal practice and the legal/po licy practice of science are reconciled. This article considers a variety of issues that arise in reconciling these differences, and the problems that remain with scientific estimates of risk when these are used in decisions. II DEFINITION OF RISK Before turning to the issues arising from risk predictions, a definition of risk is needed. Three schools of thought are prevalent in the field of risk assessment. [1] (1) Objective risk. This school treats risk as an objective property of the world, much like any other scientific concept. Risk is identified with a combination of the probability and the severity of an outcome. [2] Often, the combination is the mathematical product of the probability and the severity, but this operation is not scientifically or logically necessary, as is demonstrated by the fact that there are competing operations in the scientific community such as Quality Adjusted Life Years (\"QALY\"). [3] (2) Subjective risk. This school treats risk as a subjective property of individuals in a society. Risk is identified as the degree of concern, or dread, expressed by an individual over some situation. It is measured using polls based on expressed or revealed opinions. [4] (3) Psychologistic risk. This school treats risk as a property of epistemological reflection, or analysis of existing evidence. Risk is identified as the degree of evidentiary support for the belief that an adverse effect will occur under certain circumstances. This school shares features with the objective school, such as the recognition that risks are related to probabilities. It is closer, however, to the Bayesian conception of probability because the objective school employs a long-term frequency concept of probability. [5] While some social scientists adhere to the subjective concept of risk, it generally is not the concept employed in the practice of natural science or in legal or policy decisionmaking. The differe","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"43 1","pages":"63-82"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86008588","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}
WARREN NEWTON [*] I INTRODUCTION About ten years ago, after fellowships and clinical experience in a community setting, I had my first experience as a ward attending in a university hospital. [1] We were working with cardiac patients, and I was struck by the common treatment each patient received. No matter what the symptoms, patients received an exercise treadmill, an echocardiogram, and were put on a calcium channel blocker. [2] This was remarkable at the time because there were in excess of thirty randomized controlled trials showing the benefit of beta-blockers, a different class of medicines, to treat patients following a heart attack. Indeed, by 1990, there was initial evidence that calcium channel blockers not only failed to improve outcomes, but actually made them worse. The point is not to criticize the medical culture at that hospital--similar examples can be found at every medical center--but rather to explore why there was so much fondness for calcium channel blockers. One factor was the substantial drug company support of faculty research on silent myocardial ischemia. Another factor was what might be called medical fashion. The most likely explanation, however, was more fundamental. For my cardiology colleagues, it was biologically plausible that calcium channel blockers were better than betablockers. Like beta-blockers, calcium channel blockers reduce heart rate and myocardial wall stress, but they lack the side effects of beta-blockers. In other words, what was important to my colleagues was not the outcome of the critical trials, but our understanding of the mechanisms of disease. This is an example of the tension between rationalism and empiricism in medicine. Rationalism is the search for and emphasis on basic mechanisms of disease, which then color all clinical decisions. Empiricism is defined as the emphasis on the outcomes of individual patients and groups of patients. My thesis is that there is an ongoing and fundamental tension between these two different ways of thinking. While these ways of thinking can be complementary, the tension persists, exploding around specific clinical and legal controversies. Understanding the tension between rationalism and empiricism provides important background in considering the role of expert advice. Part II of this article explores the roots of rationalism and empiricism in the Hippocratic tradition. Using the Flexner report as a text, Part III emphasizes the triumph of the rationalists in the founding of modern medicine. Part IV briefly describes the development of clinical epidemiology and the evidence-based medicine over the last thirty years. Part VI attempts to explicate how this tension illuminates fundamental clinical and policy questions that doctors, the health care system, and the legal system confront today. My goal is not to present a detailed explication of the epistemology of medical science, but rather an intellectual history [3] sketching out what has animated the thinking
{"title":"Rationalism and Empiricism in Modern Medicine","authors":"W. Newton","doi":"10.2307/1192299","DOIUrl":"https://doi.org/10.2307/1192299","url":null,"abstract":"WARREN NEWTON [*] I INTRODUCTION About ten years ago, after fellowships and clinical experience in a community setting, I had my first experience as a ward attending in a university hospital. [1] We were working with cardiac patients, and I was struck by the common treatment each patient received. No matter what the symptoms, patients received an exercise treadmill, an echocardiogram, and were put on a calcium channel blocker. [2] This was remarkable at the time because there were in excess of thirty randomized controlled trials showing the benefit of beta-blockers, a different class of medicines, to treat patients following a heart attack. Indeed, by 1990, there was initial evidence that calcium channel blockers not only failed to improve outcomes, but actually made them worse. The point is not to criticize the medical culture at that hospital--similar examples can be found at every medical center--but rather to explore why there was so much fondness for calcium channel blockers. One factor was the substantial drug company support of faculty research on silent myocardial ischemia. Another factor was what might be called medical fashion. The most likely explanation, however, was more fundamental. For my cardiology colleagues, it was biologically plausible that calcium channel blockers were better than betablockers. Like beta-blockers, calcium channel blockers reduce heart rate and myocardial wall stress, but they lack the side effects of beta-blockers. In other words, what was important to my colleagues was not the outcome of the critical trials, but our understanding of the mechanisms of disease. This is an example of the tension between rationalism and empiricism in medicine. Rationalism is the search for and emphasis on basic mechanisms of disease, which then color all clinical decisions. Empiricism is defined as the emphasis on the outcomes of individual patients and groups of patients. My thesis is that there is an ongoing and fundamental tension between these two different ways of thinking. While these ways of thinking can be complementary, the tension persists, exploding around specific clinical and legal controversies. Understanding the tension between rationalism and empiricism provides important background in considering the role of expert advice. Part II of this article explores the roots of rationalism and empiricism in the Hippocratic tradition. Using the Flexner report as a text, Part III emphasizes the triumph of the rationalists in the founding of modern medicine. Part IV briefly describes the development of clinical epidemiology and the evidence-based medicine over the last thirty years. Part VI attempts to explicate how this tension illuminates fundamental clinical and policy questions that doctors, the health care system, and the legal system confront today. My goal is not to present a detailed explication of the epistemology of medical science, but rather an intellectual history [3] sketching out what has animated the thinking","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"21 1","pages":"299-316"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82780244","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}
In this article we explore alternative strategies for class action reform aimed at improving the cost-benefit ratio of a damage class action regime. Our analysis draws on RAND's recently completed study of contemporary damage class action practice and on the extensive theoretical literature on entrepreneurial litigation. Our goal is to identify mechanisms for enhancing the system's capacity to screen out non-meritorious suits, while preserving access for meritorious actions. While recognizing other concerns related to class actions (such as agency problems between class counsel and class members, and ethical issues), we do not address these problems except as they pertain to the question of screening. Similarly, we do not attempt to discuss the full range of proposals that have been put forward to address the various perceived problems relating to damage class actions, but instead focus on those proposals that are most relevant to the question of screening. The first two strategies we consider would attempt to enhance the system's screening capacity directly, at the front end of the litigation process, by applying a cost-benefit test at the time of certification, or by requiring class members to decide whether to participate at the inception of litigation. We conclude that it is unlikely that judges could apply a cost-benefit test fairly and consistently, and that an opt-in requirement might screen out as many meritorious suits as non-meritorious actions (if not more). The next two strategies would attempt to enhance the system's screening capacity indirectly, at the back end rather than the front end. The first and relatively non-controversial back-end strategy relies on judges to use more vigorously their authority to scrutinize class action settlements and fee award requests. By better calibrating the benefits to class members and financial rewards to class counsel, more rigorous judicial management would drive out "bad" class actions while maintaining access for meritorious lawsuits. The theoretical literature on entrepreneurial litigation and RAND's case study investigations provide the grounding for this strategy. While we believe that increased judicial scrutiny could substantially improve the system's screening capacity, relying solely on judicial discretion for regulatory purposes has some obvious weaknesses?particularly in our federal system, in which parties who cannot satisfy one judge may simply depart that jurisdiction for another whose judges are more congenial. Hence we consider a different and more controversial approach to re-calibrating incentives to file and settle non-meritorious suits: adopting loser-pays attorney fee-shifting for certified damage class actions, with liability on the plaintiffs' side borne by class counsel. Although critics of class actions have proposed other manipulations of financial incentives, such as auctions, to improve the cost-benefit ratio of damage class actions, those who support the use of repre
{"title":"Beyond \"It Just Ain't Worth It\": Alternative Strategies for Damage Class Action Reform","authors":"D. Hensler, Thomas D. Rowe","doi":"10.2139/SSRN.274949","DOIUrl":"https://doi.org/10.2139/SSRN.274949","url":null,"abstract":"In this article we explore alternative strategies for class action reform aimed at improving the cost-benefit ratio of a damage class action regime. Our analysis draws on RAND's recently completed study of contemporary damage class action practice and on the extensive theoretical literature on entrepreneurial litigation. Our goal is to identify mechanisms for enhancing the system's capacity to screen out non-meritorious suits, while preserving access for meritorious actions. While recognizing other concerns related to class actions (such as agency problems between class counsel and class members, and ethical issues), we do not address these problems except as they pertain to the question of screening. Similarly, we do not attempt to discuss the full range of proposals that have been put forward to address the various perceived problems relating to damage class actions, but instead focus on those proposals that are most relevant to the question of screening. The first two strategies we consider would attempt to enhance the system's screening capacity directly, at the front end of the litigation process, by applying a cost-benefit test at the time of certification, or by requiring class members to decide whether to participate at the inception of litigation. We conclude that it is unlikely that judges could apply a cost-benefit test fairly and consistently, and that an opt-in requirement might screen out as many meritorious suits as non-meritorious actions (if not more). The next two strategies would attempt to enhance the system's screening capacity indirectly, at the back end rather than the front end. The first and relatively non-controversial back-end strategy relies on judges to use more vigorously their authority to scrutinize class action settlements and fee award requests. By better calibrating the benefits to class members and financial rewards to class counsel, more rigorous judicial management would drive out \"bad\" class actions while maintaining access for meritorious lawsuits. The theoretical literature on entrepreneurial litigation and RAND's case study investigations provide the grounding for this strategy. While we believe that increased judicial scrutiny could substantially improve the system's screening capacity, relying solely on judicial discretion for regulatory purposes has some obvious weaknesses?particularly in our federal system, in which parties who cannot satisfy one judge may simply depart that jurisdiction for another whose judges are more congenial. Hence we consider a different and more controversial approach to re-calibrating incentives to file and settle non-meritorious suits: adopting loser-pays attorney fee-shifting for certified damage class actions, with liability on the plaintiffs' side borne by class counsel. Although critics of class actions have proposed other manipulations of financial incentives, such as auctions, to improve the cost-benefit ratio of damage class actions, those who support the use of repre","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"4 1","pages":"137-162"},"PeriodicalIF":0.0,"publicationDate":"2001-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88754204","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 focuses on aggregation and auctions, two key litigation developments in the selection of counsel under the Private Securities Litigation Reform Act of 1995. After reviewing some of the background concerns, including collective action problems presented by the class action structure and issues regarding the award of attorneys fees, the article explains how the lead plaintiff provision, adopted by Congress, addresses these concerns through a model of client empowerment. The article then explains two recent trends: the use of lead counsel groups, in which courts appoint multiple investors and aggregate their holdings, and the use of an auction procedure to select lead counsel and determine counsel fees. The trends deal with facially separate issues, yet they are disturbing for the same reasons. First, both aggregation and lead counsel auctions weaken the relationship between the lead plaintiff and class counsel and specifically reduce the ability of the lead plaintiff to exert control over litigation decisionmaking. Second, both trends lead to serious problems in implementing the lead plaintiff provision. Finally, the trends maintain an active judicial role in supervising the conduct of the litigation. The article challenges the propriety of aggregation and auctions under the PSLRA, arguing that neither development is supported by the statutory text or legislative history. The article further argues that these approaches are inconsistent with and likely to frustrate the objectives of the PSLRA. Courts that appoint groups of unrelated investors as lead plaintiffs will face difficult questions of appropriate group size and composition. Lead plaintiff groups are unlikely to function in accordance with the statutory design; in particular, they are unlikely to select or monitor class counsel effectively. Selection of lead counsel by auction is not an attractive alternative. Lead counsel auctions present substantial issues in design and implementation, and there is little reason to believe that a judicially conducted auction can replicate the market process or result in a selection decision and fee award more appropriate than the decisions made by a suitable lead plaintiff. Finally, the article argues that both developments are based on the mistaken perception that class action abuses can be addressed through judicial oversight. In adopting the lead plaintiff provision, however, Congress expressly rejected this premise. The effect of both aggregation and lead counsel auctions is to maintain judicial empowerment at the expense of client control. This approach undermines the potential for client empowerment to achieve meaningful litigation reform.
{"title":"Aggregation, Auctions, and other Developments in the Selection of Lead Counsel Under the PSLRA","authors":"Jill E. Fisch","doi":"10.2139/SSRN.261580","DOIUrl":"https://doi.org/10.2139/SSRN.261580","url":null,"abstract":"This article focuses on aggregation and auctions, two key litigation developments in the selection of counsel under the Private Securities Litigation Reform Act of 1995. After reviewing some of the background concerns, including collective action problems presented by the class action structure and issues regarding the award of attorneys fees, the article explains how the lead plaintiff provision, adopted by Congress, addresses these concerns through a model of client empowerment. The article then explains two recent trends: the use of lead counsel groups, in which courts appoint multiple investors and aggregate their holdings, and the use of an auction procedure to select lead counsel and determine counsel fees. The trends deal with facially separate issues, yet they are disturbing for the same reasons. First, both aggregation and lead counsel auctions weaken the relationship between the lead plaintiff and class counsel and specifically reduce the ability of the lead plaintiff to exert control over litigation decisionmaking. Second, both trends lead to serious problems in implementing the lead plaintiff provision. Finally, the trends maintain an active judicial role in supervising the conduct of the litigation. The article challenges the propriety of aggregation and auctions under the PSLRA, arguing that neither development is supported by the statutory text or legislative history. The article further argues that these approaches are inconsistent with and likely to frustrate the objectives of the PSLRA. Courts that appoint groups of unrelated investors as lead plaintiffs will face difficult questions of appropriate group size and composition. Lead plaintiff groups are unlikely to function in accordance with the statutory design; in particular, they are unlikely to select or monitor class counsel effectively. Selection of lead counsel by auction is not an attractive alternative. Lead counsel auctions present substantial issues in design and implementation, and there is little reason to believe that a judicially conducted auction can replicate the market process or result in a selection decision and fee award more appropriate than the decisions made by a suitable lead plaintiff. Finally, the article argues that both developments are based on the mistaken perception that class action abuses can be addressed through judicial oversight. In adopting the lead plaintiff provision, however, Congress expressly rejected this premise. The effect of both aggregation and lead counsel auctions is to maintain judicial empowerment at the expense of client control. This approach undermines the potential for client empowerment to achieve meaningful litigation reform.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"13 1","pages":"53-96"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81397017","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}
JAN BEYEA [*] DANIEL BERGER [**] I INTRODUCTION The Supreme Court's opinions in Daubert v. Merrell Dow Pharmaceuticals, Inc. [1], General Electric Company v. Joiner [2], and Kumho Tire v. Carmichael [3] contain two inconsistent views of science. In some places, the Court views science as an imperfect "process" for refining theories, whereas in other places, the Court views science as universal knowledge derived through "formal logic." The latter view, long out of favor with philosophers and historians of science, comports with the current cultural vision of science and is likely to be adopted by district and appeals court judges, without vigorous "education," or until such time as higher courts recognize that the two views need to be synthesized into a consistent whole. The interpretation of science as seamless logic puts an undue burden on scientific experts who are challenged under Daubert. In fact, Daubert, as interpreted by "logician" judges, can amount to a super-Frye [4] test requiring universal acceptance of the reasoning in an expert's testimony. It also can, in effect, raise the burden of proof in science-dominated cases from the acceptable "more likely than not" standard to the nearly impossible burden of "beyond a reasonable doubt." Instead of relying solely on the second view, courts should combine the two. A synthesis of the two views of science can be achieved by recognizing that subjective assumptions and inferences can never be completely eliminated from expert testimony. As a result, expert testimony always amounts, in effect, to conditional statements. An expert's statements can be considered "reasonable"--or likely, or beyond a reasonable doubt--if, and only if, the assumptions and inferences made by the expert are considered reasonable, or likely, or beyond a reasonable doubt. This "Bayesian" approach [5] may offer a pragmatic synthesis of the tension in the Daubert decisions for science-dominated cases, provided that courts can find ways to judge fairly the reasonableness of underlying scientific assumptions. This article offers a number of proposals to meet this goal, along with other suggestions for reform of the Daubert review process. The gatekeeping function assigned to judges by the Daubert decision and strengthened by the subsequent Supreme Court cases Joiner and Kumho Tire, has been both vilified and praised in the legal literature. [6] This article supports the critics of Daubert, who see science as a contentious process, rather than a catalog of truths, and who argue that courts are now demanding more of individual scientists and engineers than is expected of them in their own research and practice. Moreover this article follows cues about science from world-renowned scientists, including Neils Bohr [7] and Norbert Wiener, [8] and influential philosophers of science, such as Thomas Kuhn, [9] all of whom have written about the limitations of individual scientists and the subjective elements inherent in the scientific
最高法院在Daubert诉Merrell Dow Pharmaceuticals, Inc.[1]、通用电气公司诉Joiner案[2]和Kumho Tire诉Carmichael案[3]中包含了两种不一致的科学观点。在某些地方，最高法院认为科学是提炼理论的一个不完美的“过程”，而在其他地方，最高法院认为科学是通过“形式逻辑”推导出来的普遍知识。后一种观点长期以来不受哲学家和科学史家的青睐，但它符合当前的科学文化观，而且很可能被地区法院和上诉法院的法官所接受，即使他们没有接受有力的“教育”，或者直到高等法院认识到这两种观点需要综合成一个一致的整体。把科学解释为天衣无缝的逻辑，给在道伯特时代受到挑战的科学专家带来了不必要的负担。事实上，正如“逻辑学家”法官所解释的那样，道伯特可以相当于一个超级弗莱[4]测试，要求普遍接受专家证词中的推理。实际上，它还可以将科学主导案件的举证责任从可接受的“可能性大于不可能性”标准提高到几乎不可能承担的“排除合理怀疑”标准。法院不应仅仅依赖第二种观点，而应将两者结合起来。通过认识到主观假设和推断永远不能从专家证词中完全消除，可以实现两种科学观点的综合。因此，专家证词实际上总是条件陈述。专家的陈述可以被认为是“合理的”——或可能的，或超出合理怀疑——当且仅当专家所做的假设和推论被认为是合理的，或可能的，或超出合理怀疑。这种“贝叶斯”方法[5]可能提供了一种实用主义的综合，在科学主导的案件中，Daubert判决的紧张关系，前提是法院可以找到公平判断潜在科学假设合理性的方法。本文提供了一些实现这一目标的建议，以及对Daubert审查过程进行改革的其他建议。在“道伯特案”判决中赋予法官的“把关”功能，在随后的“乔伊纳案”和“锦湖轮胎案”中得到强化，在法律文献中受到了褒贬参半的评价。[6]这篇文章支持道伯特的批评者，他们认为科学是一个有争议的过程，而不是真理的目录，他们认为法院现在对个别科学家和工程师的要求比他们在自己的研究和实践中所期望的要多。此外，本文遵循了世界知名科学家的科学线索，包括尼尔斯·玻尔[7]和诺伯特·维纳[8]，以及有影响力的科学哲学家，如托马斯·库恩[9]，他们都写过关于科学家个人的局限性和科学过程中固有的主观因素的文章。与之竞争的那一派可能被认为是约翰·冯·诺伊曼(John von Neumann)的智力后裔，后者发明了数字计算机的基本方法论。[10]冯·诺伊曼认为科学是一组由逻辑推导出来的普遍事实，从而将科学知识置于一种形式的逻辑结构中，他认为这种结构是基本的和普遍的。[11]本文提出，法院对道伯特要求“无缝逻辑”的解释未能认识到，科学是一个不完美的过程，经常建立在假设和推论之上，而这些假设和推论根本无法通过道伯特似乎要求的形式逻辑方法来证明。第一部分概述了科学哲学的两个相互竞争的学派，并考察了这两个学派在诉讼中所扮演的角色。第二部分将倾向于遵循“形式逻辑”方法的道伯特与科学的“过程”观点区分开来，展示了道伯特方法中的缺陷，以及转向“过程”学派将使道伯特更容易被接受的方式。…
{"title":"Scientific Misconceptions Among Daubert Gatekeepers: The Need for Reform of Expert Review Procedures","authors":"J. Beyea, D. Berger","doi":"10.2307/1192316","DOIUrl":"https://doi.org/10.2307/1192316","url":null,"abstract":"JAN BEYEA [*] DANIEL BERGER [**] I INTRODUCTION The Supreme Court's opinions in Daubert v. Merrell Dow Pharmaceuticals, Inc. [1], General Electric Company v. Joiner [2], and Kumho Tire v. Carmichael [3] contain two inconsistent views of science. In some places, the Court views science as an imperfect \"process\" for refining theories, whereas in other places, the Court views science as universal knowledge derived through \"formal logic.\" The latter view, long out of favor with philosophers and historians of science, comports with the current cultural vision of science and is likely to be adopted by district and appeals court judges, without vigorous \"education,\" or until such time as higher courts recognize that the two views need to be synthesized into a consistent whole. The interpretation of science as seamless logic puts an undue burden on scientific experts who are challenged under Daubert. In fact, Daubert, as interpreted by \"logician\" judges, can amount to a super-Frye [4] test requiring universal acceptance of the reasoning in an expert's testimony. It also can, in effect, raise the burden of proof in science-dominated cases from the acceptable \"more likely than not\" standard to the nearly impossible burden of \"beyond a reasonable doubt.\" Instead of relying solely on the second view, courts should combine the two. A synthesis of the two views of science can be achieved by recognizing that subjective assumptions and inferences can never be completely eliminated from expert testimony. As a result, expert testimony always amounts, in effect, to conditional statements. An expert's statements can be considered \"reasonable\"--or likely, or beyond a reasonable doubt--if, and only if, the assumptions and inferences made by the expert are considered reasonable, or likely, or beyond a reasonable doubt. This \"Bayesian\" approach [5] may offer a pragmatic synthesis of the tension in the Daubert decisions for science-dominated cases, provided that courts can find ways to judge fairly the reasonableness of underlying scientific assumptions. This article offers a number of proposals to meet this goal, along with other suggestions for reform of the Daubert review process. The gatekeeping function assigned to judges by the Daubert decision and strengthened by the subsequent Supreme Court cases Joiner and Kumho Tire, has been both vilified and praised in the legal literature. [6] This article supports the critics of Daubert, who see science as a contentious process, rather than a catalog of truths, and who argue that courts are now demanding more of individual scientists and engineers than is expected of them in their own research and practice. Moreover this article follows cues about science from world-renowned scientists, including Neils Bohr [7] and Norbert Wiener, [8] and influential philosophers of science, such as Thomas Kuhn, [9] all of whom have written about the limitations of individual scientists and the subjective elements inherent in the scientific","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"96 1","pages":"327-372"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81897918","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 question for the present is whether this new development calls for a reconsideration of our rules or methods of discovery. Ideally, a procedural system should be designed so that it can cope with technological (and other) developments without a major overhaul, and perhaps without any revision. For instance, in 1999, the Supreme Court dealt with the thorny problem of interpreting a 1949 amendment to the removal statute in a case involving a “courtesy copy” of the complaint sent by fax. The court noted that Congress could not have foreseen the use of this technology when it amended the statute in 1949 but did not find that fact critical to interpreting the statute suitably for the era of faxed communications. The question whether the advent of the Internet generation calls for a reexamination of other procedural techniques and rules has divided scholars. Although the Supreme Court has noted that the Internet is “a unique and wholly new medium of worldwide human communication,” that does not mean that existing doctrines governing the limits of personal jurisdiction, for example, must be revised to cope with the new technology. Thus, some scholars argue that personal jurisdiction issues raised by Internet activity can be readily analyzed under the existing legal rules while others see the Internet as upsetting the apple cart of contemporary personal jurisdiction rules. This article addresses similar issues about the rules governing discovery. It first sketches the background of the current rules, for this is not the first time someone has argued that the discovery rules are no longer suitable for the challenges of contemporary discovery, particularly in complex cases. The article then examines the ways in which the discovery of electronically stored materials might present qualitatively different problems from those raised by the discovery of hard copy materials. Against that background, it surveys possible courses of action, by rule amendment or otherwise, and concludes that no clear solution has yet emerged. Indeed, as members of the generation that has seen the most vigorous challenge to unfettered discovery, we might conclude that there is really no generation gap because the types of discovery problems that arise with the new technology are analogous to those presented by hard copy discovery.
{"title":"Confronting the Future: Coping with Discovery of Electronic Material","authors":"R. Marcus","doi":"10.2307/1192313","DOIUrl":"https://doi.org/10.2307/1192313","url":null,"abstract":"The question for the present is whether this new development calls for a reconsideration of our rules or methods of discovery. Ideally, a procedural system should be designed so that it can cope with technological (and other) developments without a major overhaul, and perhaps without any revision. For instance, in 1999, the Supreme Court dealt with the thorny problem of interpreting a 1949 amendment to the removal statute in a case involving a “courtesy copy” of the complaint sent by fax. The court noted that Congress could not have foreseen the use of this technology when it amended the statute in 1949 but did not find that fact critical to interpreting the statute suitably for the era of faxed communications. The question whether the advent of the Internet generation calls for a reexamination of other procedural techniques and rules has divided scholars. Although the Supreme Court has noted that the Internet is “a unique and wholly new medium of worldwide human communication,” that does not mean that existing doctrines governing the limits of personal jurisdiction, for example, must be revised to cope with the new technology. Thus, some scholars argue that personal jurisdiction issues raised by Internet activity can be readily analyzed under the existing legal rules while others see the Internet as upsetting the apple cart of contemporary personal jurisdiction rules. This article addresses similar issues about the rules governing discovery. It first sketches the background of the current rules, for this is not the first time someone has argued that the discovery rules are no longer suitable for the challenges of contemporary discovery, particularly in complex cases. The article then examines the ways in which the discovery of electronically stored materials might present qualitatively different problems from those raised by the discovery of hard copy materials. Against that background, it surveys possible courses of action, by rule amendment or otherwise, and concludes that no clear solution has yet emerged. Indeed, as members of the generation that has seen the most vigorous challenge to unfettered discovery, we might conclude that there is really no generation gap because the types of discovery problems that arise with the new technology are analogous to those presented by hard copy discovery.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"253-282"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82944756","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}
CARL TOBIAS [*] The Judicial Conference of the United States Advisory Committee on Civil Rules (the "Advisory Committee"), which has primary responsibility to study the Federal Rules of Civil Procedure (the "Federal Rules") and to formulate recommendations for improvement, recently developed a thorough package of revisions to the Federal Rules that govern discovery. [1] During April 2000, the United States Supreme Court promulgated essentially intact the set of amendments that the Advisory Committee had proposed. [2] Those changes became effective in December 2000. [3] The rule revision entities commissioned discovery studies, developed proposals, and solicited and considered extensive public input on the recommended alterations to the Federal Rules. Despite concerted effort, the efficacy of the new amendments remains unclear, partly because federal district courts have not actually applied them. The revisions, this deficiency in the amendment process, and prospects for its remediation warrant analysis. The efforts to revise the rules commenced several years ago. In 1996, the Advisory Committee appointed a Discovery Subcommittee that it asked to explore the prospect of additional changes to the Federal Rules' discovery provisions, a number of which the Supreme Court had amended as recently as 1993. [4] The Discovery Subcommittee investigated the necessity of further altering the discovery provisions, in part by commissioning several assessments that two expert entities conducted. One of these institutions was the Federal Judicial. Center (the "FJC"), the principal research arm of the federal courts. [5] The second body was the Institute for Civil Justice of the RAND Corporation (the "ICJ"), which had recently completed a comprehensive evaluation of the procedures for reducing expense and delay adopted and enforced by the ninety-four federal district courts under the Civil Justice Reform Act (the "CJRA") of 1990. [6] The FJC and the ICJ collected and analyzed considerable empirical data on the application an d operation of the 1993 revisions of the Federal Rules. [7] The Advisory Committee substantially relied on those studies in formulating a group of proposed amendments to the discovery rules for the consideration of the Judicial Conference Committee on Rules of Practice and Procedure (the "Standing Committee"), [8] which reviews proposals developed by the advisory committees on appellate, bankruptcy, civil, criminal, and evidentiary rules. The Standing Committee instituted few modifications to the Advisory Committee draft and published proposed revisions on which it sought public input. [9] The Standing Committee then evaluated the public comments, minimally changed the suggested alterations, and, in 1999, compiled a final package of proposed amendments for the Judicial Conference, the policymaking arm of the federal courts. [10] The Conference made one modification in the set that the Advisory Committee tendered [11] and submitted the group to
{"title":"A Modest Reform for Federal Procedural Rulemaking","authors":"C. Tobias","doi":"10.2307/1192314","DOIUrl":"https://doi.org/10.2307/1192314","url":null,"abstract":"CARL TOBIAS [*] The Judicial Conference of the United States Advisory Committee on Civil Rules (the \"Advisory Committee\"), which has primary responsibility to study the Federal Rules of Civil Procedure (the \"Federal Rules\") and to formulate recommendations for improvement, recently developed a thorough package of revisions to the Federal Rules that govern discovery. [1] During April 2000, the United States Supreme Court promulgated essentially intact the set of amendments that the Advisory Committee had proposed. [2] Those changes became effective in December 2000. [3] The rule revision entities commissioned discovery studies, developed proposals, and solicited and considered extensive public input on the recommended alterations to the Federal Rules. Despite concerted effort, the efficacy of the new amendments remains unclear, partly because federal district courts have not actually applied them. The revisions, this deficiency in the amendment process, and prospects for its remediation warrant analysis. The efforts to revise the rules commenced several years ago. In 1996, the Advisory Committee appointed a Discovery Subcommittee that it asked to explore the prospect of additional changes to the Federal Rules' discovery provisions, a number of which the Supreme Court had amended as recently as 1993. [4] The Discovery Subcommittee investigated the necessity of further altering the discovery provisions, in part by commissioning several assessments that two expert entities conducted. One of these institutions was the Federal Judicial. Center (the \"FJC\"), the principal research arm of the federal courts. [5] The second body was the Institute for Civil Justice of the RAND Corporation (the \"ICJ\"), which had recently completed a comprehensive evaluation of the procedures for reducing expense and delay adopted and enforced by the ninety-four federal district courts under the Civil Justice Reform Act (the \"CJRA\") of 1990. [6] The FJC and the ICJ collected and analyzed considerable empirical data on the application an d operation of the 1993 revisions of the Federal Rules. [7] The Advisory Committee substantially relied on those studies in formulating a group of proposed amendments to the discovery rules for the consideration of the Judicial Conference Committee on Rules of Practice and Procedure (the \"Standing Committee\"), [8] which reviews proposals developed by the advisory committees on appellate, bankruptcy, civil, criminal, and evidentiary rules. The Standing Committee instituted few modifications to the Advisory Committee draft and published proposed revisions on which it sought public input. [9] The Standing Committee then evaluated the public comments, minimally changed the suggested alterations, and, in 1999, compiled a final package of proposed amendments for the Judicial Conference, the policymaking arm of the federal courts. [10] The Conference made one modification in the set that the Advisory Committee tendered [11] and submitted the group to","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"128 2","pages":"283-287"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1192314","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72486325","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}
In the roughly five years since the Private Securities Litigation Reform Act of 1995 became law, courts and commentators have devoted considerable attention to two questions relating to the requirement, set forth in section 21D(b)(2), that a complaint alleging securities fraud must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." Those questions concern: (1) What constitutes "the required state of mind" in suits under section 10(b) and Rule 10b-5? And (2) Are facts indicating a defendant had a motive and the opportunity to engage in fraud, standing alone, sufficient to create a strong inference that that defendant acted with the required state of mind? Courts and commentators have devoted far less attention to what I call the Basis Requirement - the portion of section 21D(b)(1) that requires a plaintiff to specifying not only "each statement alleged to have been misleading" and "the reason or reasons why the statement is misleading," but also, with respect to every allegation made on information and belief, "all facts on which that belief is formed." This article argues that issues relating to the Basis Requirement in the long run will prove to be far more significant than the issues relating to motive, opportunity and degrees of recklessness that have preoccupied courts and commentators to date. A threshold question is the amount and quality of corroborating information a plaintiff must include in her complaint. The article explains why, in order to implement Congress' goal of discouraging the filing and prosecution of speculative claims of securities fraud, courts must adopt an interpretation of the Basis Requirement similar to that adopted by the Ninth and First Circuits in In re Silicon Graphics Securities Litigation and Greebel v. FTP Software, respectively. Only by doing so will courts prevent plaintiffs from continuing to make speculative allegations of fraud and then relying on the discovery process to seek evidence to support their claims. The article next highlights two additional holdings in Greebel: (1) A court must consider the nature of the corroborating information plaintiff has provided when evaluating whether plaintiff has pled facts sufficient to create a strong inference of scienter. (2) The Reform Act effectively rejects the notice pleading philosophy reflected in Conley v. Gibson by requiring plaintiffs in securities fraud actions to plead facts that give rise to a strong, rather than merely a reasonable, inference of scienter. Using the analytic framework created by Greebel and Silicon Graphics, the article then considers two cases currently pending in courts in the Second and Third Circuits. The first is Novak v. Kasaks, in which the Second Circuit reversed and remanded a district court decision granting a motion to dismiss. The article points out that the Second Circuit's opinion is rather muddled, but can be reconciled with Silicon Graphics and Gr
自1995年《私人证券诉讼改革法案》(Private Securities Litigation Reform Act of 1995)成为法律以来的大约5年时间里，法院和评论员对与第21D(b)(2)条规定的要求有关的两个问题给予了相当大的关注，即指控证券欺诈的投诉必须“以具体事实陈述，从而有力地推断被告的行为符合所要求的精神状态”。这些问题涉及:(1)根据第10(b)条和规则10b-5，什么构成诉讼中“所需的精神状态”?(2)表明被告有动机和机会进行欺诈的事实是否足以形成一个强有力的推论，即被告的行为具有所需的精神状态?法院和评论员很少关注我所说的基础要求——第21D(b)(1)条的一部分，它要求原告不仅要指定“每一个被指控具有误导性的陈述”和“该陈述具有误导性的原因或原因”，而且，对于每一个关于信息和信念的指控，“形成该信念的所有事实”。本文认为，从长远来看，与基础要求有关的问题将被证明比迄今为止法院和评论员所关注的与动机、机会和鲁莽程度有关的问题要重要得多。一个门槛问题是原告在其申诉中必须包括的确证信息的数量和质量。这篇文章解释了为什么为了实现国会的目标，即阻止证券欺诈的投机性索赔的提交和起诉，法院必须采用类似于第九和第一巡回法院在硅图形证券诉讼和格林贝尔诉FTP软件案中所采用的基础要求的解释。只有这样，法院才能防止原告继续提出欺诈的投机性指控，然后依靠发现程序寻求证据来支持他们的主张。这篇文章接下来强调了grebel案的两个额外主张:(1)法院在评估原告是否提供了足够的事实以形成强有力的科学推断时，必须考虑原告提供的佐证信息的性质。(2)《改革法》实际上拒绝了康利诉吉布森案中反映的通知辩护哲学，要求证券欺诈诉讼中的原告就能够产生强有力而不仅仅是合理的科学推理的事实进行辩护。使用由grebel和Silicon Graphics创建的分析框架，文章随后考虑了目前在第二和第三巡回法院悬而未决的两个案件。第一起是诺瓦克诉卡萨克案，在该案中，第二巡回法院推翻并发回了地方法院批准驳回动议的判决。文章指出，第二巡回法院的意见相当混乱，但可以与Silicon Graphics和Greebel的意见保持一致。文章还指出，第二巡回法院对诺瓦克案的解释是否如此，将为下级联邦法院在解释《改革法案》的抗辩要求时采用统一的方法还是分散的方法提供一个重要的指示。(文章还指出，在这篇文章完成后，诺瓦克收到了一份调卷令的申请。)第二个案例是In - re Cell Pathways, Inc。证券诉讼，被告向第三巡回上诉法院请求法院颁令撤销一项明显不正确的地方法院判决，驳回他们的驳回动议。正如诺瓦克案一样，第三巡回法院如何处理这一请愿书，将为下级联邦法院将采取何种方式来解释和执行《改革法案》的抗辩要求提供一个重要的指示。文章最后讨论了在证券集体诉讼中对原告施加这些严格的辩护要求的一些潜在的政策后果。文章指出，评估《改革法案》的影响在很大程度上是一个经验问题，而且，由于解释《改革法案》抗辩要求的第一批上诉判决是在相对较近的时间发布的，而且几个巡回法院的法律格局仍不明朗，关于该法案的抗辩要求——假设它们被统一解释——是否使证券欺诈的受害者难以获得适当救济，还需要几年的时间才能获得足够的数据来支持任何知情的结论。
{"title":"Pleading Securities Fraud","authors":"E. Weiss","doi":"10.2139/SSRN.245769","DOIUrl":"https://doi.org/10.2139/SSRN.245769","url":null,"abstract":"In the roughly five years since the Private Securities Litigation Reform Act of 1995 became law, courts and commentators have devoted considerable attention to two questions relating to the requirement, set forth in section 21D(b)(2), that a complaint alleging securities fraud must \"state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.\" Those questions concern: (1) What constitutes \"the required state of mind\" in suits under section 10(b) and Rule 10b-5? And (2) Are facts indicating a defendant had a motive and the opportunity to engage in fraud, standing alone, sufficient to create a strong inference that that defendant acted with the required state of mind? Courts and commentators have devoted far less attention to what I call the Basis Requirement - the portion of section 21D(b)(1) that requires a plaintiff to specifying not only \"each statement alleged to have been misleading\" and \"the reason or reasons why the statement is misleading,\" but also, with respect to every allegation made on information and belief, \"all facts on which that belief is formed.\" This article argues that issues relating to the Basis Requirement in the long run will prove to be far more significant than the issues relating to motive, opportunity and degrees of recklessness that have preoccupied courts and commentators to date. A threshold question is the amount and quality of corroborating information a plaintiff must include in her complaint. The article explains why, in order to implement Congress' goal of discouraging the filing and prosecution of speculative claims of securities fraud, courts must adopt an interpretation of the Basis Requirement similar to that adopted by the Ninth and First Circuits in In re Silicon Graphics Securities Litigation and Greebel v. FTP Software, respectively. Only by doing so will courts prevent plaintiffs from continuing to make speculative allegations of fraud and then relying on the discovery process to seek evidence to support their claims. The article next highlights two additional holdings in Greebel: (1) A court must consider the nature of the corroborating information plaintiff has provided when evaluating whether plaintiff has pled facts sufficient to create a strong inference of scienter. (2) The Reform Act effectively rejects the notice pleading philosophy reflected in Conley v. Gibson by requiring plaintiffs in securities fraud actions to plead facts that give rise to a strong, rather than merely a reasonable, inference of scienter. Using the analytic framework created by Greebel and Silicon Graphics, the article then considers two cases currently pending in courts in the Second and Third Circuits. The first is Novak v. Kasaks, in which the Second Circuit reversed and remanded a district court decision granting a motion to dismiss. The article points out that the Second Circuit's opinion is rather muddled, but can be reconciled with Silicon Graphics and Gr","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"28 1","pages":"5-52"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80160491","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}
JEFFREY W. STEMPEL [*] I INTRODUCTION One need not be a charter member of the Critical Legal Studies Movement ("CLS") to see a few fundamental contradictions in litigation practice in the United States. [1] A prominent philosophical tenet of the CLS movement is that law and society are gripped by a "fundamental contradiction" and simultaneously seek to embrace contradictory objectives. [2] Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. [3] Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. [4] One Change--the narrowing of the scope of discovery--could have a substantial adverse impact. Its presence on the roster of new amendments demonstrates the degree to which discovery has been blamed unfairly for society's--and the legal profession's--general disgust with litigation. At the same time, the discovery process is never seriously rehabilitated but rather only adjusted in ways that fail to address its fundamental (but manageable) problems in the context of civil litigation. [5] Simultaneously, a litigant's ability to obtain information significantly shrinks, favoring disputants who would provide less information. For the most part, this group is comprised of defendants, particularly products liability and statutory rights defendants. [6] Rulemaking is viewed on the one hand as an apolitical procedure and on the other hand as a "disguised outcry for tort reform." [7] Historically, trial judges in the United States have been vested with great discretion over almost all aspects of litigation--in particular, discovery. [8] Since the Federal Rules of Civil Procedure were enacted in 1938, the default has been broad-based "relevant-to-the-subject-matter" discoverability, but judges have always had ample discretion to alter this rule. For much of the long-running debate about discovery, the prevailing view seemed to be that the wise discretion of judges would save us from the potential evils and abuses of discovery (and other litigation evils). [9] Judges were viewed as Solomon-like, able to resolve discovery disputes by contextual decisionmaking on a case-by-case basis. [10] By the 1990s, however, this school of thought seemed to have given way to the view that judges needed to be saved from their own discretion, which was not used frequently enough to limit discovery, or at least subject to a more restrictive default rule. [11] This prong of the "trend," if one can call it th at, encompasses not only civil discovery, but also pleadings and motion papers, as well as criminal sentencing. Another--perhaps equally strong--modern trend continues to accord trial judges substantial discretion. This second trend continues the significant departure from default rules and reins in only highly idiosyncratic judicial discretion expressed
{"title":"Ulysses Tied to the Generic Whipping Post: The Continuing Odyssey of Discovery “Reform”","authors":"J. Stempel","doi":"10.2307/1192312","DOIUrl":"https://doi.org/10.2307/1192312","url":null,"abstract":"JEFFREY W. STEMPEL [*] I INTRODUCTION One need not be a charter member of the Critical Legal Studies Movement (\"CLS\") to see a few fundamental contradictions in litigation practice in the United States. [1] A prominent philosophical tenet of the CLS movement is that law and society are gripped by a \"fundamental contradiction\" and simultaneously seek to embrace contradictory objectives. [2] Civil litigation, particularly discovery, is no exception: New amendments to the discovery rules are the latest example of this contradiction. [3] Although the new changes are not drastic, they continue the post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system. [4] One Change--the narrowing of the scope of discovery--could have a substantial adverse impact. Its presence on the roster of new amendments demonstrates the degree to which discovery has been blamed unfairly for society's--and the legal profession's--general disgust with litigation. At the same time, the discovery process is never seriously rehabilitated but rather only adjusted in ways that fail to address its fundamental (but manageable) problems in the context of civil litigation. [5] Simultaneously, a litigant's ability to obtain information significantly shrinks, favoring disputants who would provide less information. For the most part, this group is comprised of defendants, particularly products liability and statutory rights defendants. [6] Rulemaking is viewed on the one hand as an apolitical procedure and on the other hand as a \"disguised outcry for tort reform.\" [7] Historically, trial judges in the United States have been vested with great discretion over almost all aspects of litigation--in particular, discovery. [8] Since the Federal Rules of Civil Procedure were enacted in 1938, the default has been broad-based \"relevant-to-the-subject-matter\" discoverability, but judges have always had ample discretion to alter this rule. For much of the long-running debate about discovery, the prevailing view seemed to be that the wise discretion of judges would save us from the potential evils and abuses of discovery (and other litigation evils). [9] Judges were viewed as Solomon-like, able to resolve discovery disputes by contextual decisionmaking on a case-by-case basis. [10] By the 1990s, however, this school of thought seemed to have given way to the view that judges needed to be saved from their own discretion, which was not used frequently enough to limit discovery, or at least subject to a more restrictive default rule. [11] This prong of the \"trend,\" if one can call it th at, encompasses not only civil discovery, but also pleadings and motion papers, as well as criminal sentencing. Another--perhaps equally strong--modern trend continues to accord trial judges substantial discretion. This second trend continues the significant departure from default rules and reins in only highly idiosyncratic judicial discretion expressed ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"60 1","pages":"197-252"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82604447","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}
JOSEPH SANDERS [*] I INTRODUCTION In the summer of 1999, the United States Supreme Court issued the last in a trilogy of 1990s cases dealing with the question of the admissibility of expert testimony in federal courts. [1] In Kumho Tire Co. v. Carmichael, [2] the Court was asked to decide if the judicial gatekeeping role it set forth in the first of these three cases, Daubert v. Merrell Dow Pharmaceuticals, [3] applied only to "scientific" knowledge or to all expert testimony. The court concluded that all expert testimony must be both relevant and reliable before it can be admitted, but that the specific factors set forth in Daubert to judge the reliability of scientific evidence may be supplemented and perhaps replaced by other factors when expert testimony is based on "technical" or "other specialized" knowledge. [4] The opinion explicitly recognized that not all expert testimony can be judged by a single standard because not all experts know things in exactly the same way. [5] This point had been colorfully made five years earlier in the Sixth Circuit's opinion in Berry v. City of Detroit. [6] In Berry, while wrestling with the admissibility of the expert testimony of a "sociologist cum sheriff" [7] as to whether the disciplinary practices of the Detroit police department demonstrated a policy of deliberate indifference to the rights of the citizenry, thus giving rise to municipal liability under 42 U.S.C. [sections] 1983, the Sixth Circuit made the following comparison between scientific and nonscientific expert testimony: The distinction between scientific and non-scientific expert testimony is a critical one. By way of illustration, if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have. [8] How do aeronautical engineers and beekeepers know what they know? How does their knowledge differ and how is it the same? The insight of the Berry opinion is that a satisfactory answer to the legal question of admissibility is in part contingent upon our understanding of the nature of expert knowledge. But this alone is not enough. Admissibility standards are also influenced by the organization of the legal system itself. In this article, I attempt to shed some light on di
1999年夏天，美国最高法院发布了20世纪90年代关于联邦法院专家证词可采性问题的三部曲中的最后一部。[1]在Kumho Tire Co. v. Carmichael一案中，[2]法院被要求决定它在这三个案件中的第一个案件(道伯特诉梅雷尔陶氏制药公司案)[3]中提出的司法守门人的角色是否只适用于“科学”知识，还是适用于所有专家证词。法院的结论是，所有的专家证词必须既相关又可靠，才能被接受，但是，当专家证词基于“技术”或“其他专业”知识时，Daubert案中规定的判断科学证据可靠性的具体因素可以被补充或可能被其他因素所取代。[4]该意见明确承认，并非所有专家的证词都可以用单一标准来判断，因为并非所有专家都以完全相同的方式了解事情。[5]五年前，在第六巡回法院审理的贝里诉底特律市案中，这一观点已经得到了生动的阐述。[6]在贝里一案中，在与“社会学家兼治安官”的专家证词的可采性作斗争时[7]，底特律警察局的纪律处分是否表明了一种故意漠视公民权利的政策，从而导致了《美国法典》1983年第42条规定的市政责任，第六巡回法院对科学和非科学专家证词进行了以下比较:区分科学和非科学的专家证词是一个关键问题。举例来说，如果有人想向陪审团解释大黄蜂是如何飞行的，航空工程师可能是一个有用的证人。由于飞行原则具有一定的普遍性，专家可以将一般原则应用于大黄蜂的情况。可以想象，即使他从未见过大黄蜂，只要他熟悉它的组成部分，他仍然有资格作证。另一方面，如果有人想证明大黄蜂总是迎风而飞，一个根本没有受过科学训练的养蜂人，如果他的结论有适当的基础，也可以成为一个可以接受的专家证人。这个基础与他的正式训练无关，而是与他的第一手观察有关。换句话说，养蜂人对飞行原理的了解并不比陪审员多，但他见过的大黄蜂比陪审员多得多。[8]航空工程师和养蜂人是怎么知道他们所知道的呢?他们的知识有什么不同，又有什么相同?贝里一案的见解是，对可采性这一法律问题的满意答案部分取决于我们对专家知识本质的理解。但仅靠这一点是不够的。可采性标准也受到法律体系本身组织的影响。在这篇文章中，我试图阐明专家(和非专家)了解事物的不同方式，然后就这应该如何影响专家证词可采性的法律评估提出一些想法。[9]在第二部分中，我回顾了导致锦湖案的法律发展。我特别强调Frye[10]和Daubert[11]测试中反映的可采理性的替代方法，以及锦湖决定将非科学证据纳入Daubert的保护罩。[12]第三部分解决了两个问题:关于科学知识，法律的隐含认识论是什么?科学知识与其他形式的认识有何不同?我认为，虽然各个知识领域之间可能存在差异，比如依赖个人“经验”作为判断的基础，以及各个领域将自己与政治、经济和社会压力隔离开来的能力，但学科内部的差异往往与学科之间的差异一样大。…
{"title":"Kumho and How We Know","authors":"J. Sanders","doi":"10.2307/1192317","DOIUrl":"https://doi.org/10.2307/1192317","url":null,"abstract":"JOSEPH SANDERS [*] I INTRODUCTION In the summer of 1999, the United States Supreme Court issued the last in a trilogy of 1990s cases dealing with the question of the admissibility of expert testimony in federal courts. [1] In Kumho Tire Co. v. Carmichael, [2] the Court was asked to decide if the judicial gatekeeping role it set forth in the first of these three cases, Daubert v. Merrell Dow Pharmaceuticals, [3] applied only to \"scientific\" knowledge or to all expert testimony. The court concluded that all expert testimony must be both relevant and reliable before it can be admitted, but that the specific factors set forth in Daubert to judge the reliability of scientific evidence may be supplemented and perhaps replaced by other factors when expert testimony is based on \"technical\" or \"other specialized\" knowledge. [4] The opinion explicitly recognized that not all expert testimony can be judged by a single standard because not all experts know things in exactly the same way. [5] This point had been colorfully made five years earlier in the Sixth Circuit's opinion in Berry v. City of Detroit. [6] In Berry, while wrestling with the admissibility of the expert testimony of a \"sociologist cum sheriff\" [7] as to whether the disciplinary practices of the Detroit police department demonstrated a policy of deliberate indifference to the rights of the citizenry, thus giving rise to municipal liability under 42 U.S.C. [sections] 1983, the Sixth Circuit made the following comparison between scientific and nonscientific expert testimony: The distinction between scientific and non-scientific expert testimony is a critical one. By way of illustration, if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have. [8] How do aeronautical engineers and beekeepers know what they know? How does their knowledge differ and how is it the same? The insight of the Berry opinion is that a satisfactory answer to the legal question of admissibility is in part contingent upon our understanding of the nature of expert knowledge. But this alone is not enough. Admissibility standards are also influenced by the organization of the legal system itself. In this article, I attempt to shed some light on di","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"14 1","pages":"373-416"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78913790","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}
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