Re: Economists barred from court?

["Devine, James" <jdevine@xxxxxxx>]

Title: RE: [PEN-L] Economists barred from court?

also, the voir dire process also is likely to exclude those who can judge the value of science. When I was being considered for a civil suit jury one time (in a case involving alleged accounting fraud), it seemed that anyone with significant education about high school was excluded.

------------------------
Jim Devine jdevine@xxxxxxx &  http://bellarmine.lmu.edu/~jdevine

> -----Original Message-----
> From: Peter Dorman [mailto:dormanp@xxxxxxxxxxxxx]
> Sent: Friday, June 27, 2003 12:21 PM
> To: PEN-L@xxxxxxxxxxxxxxxx
> Subject: Re: [PEN-L] Economists barred from court?
>
>
> This is also an example of the consequences of pop philosophy of
> science.  A crude positivism that would have no takers at all among
> specialists in the field rules the courtroom.  But don't worry about
> economics.  All heterodox types will be excluded from the hearing, and
> the judge will rule that neoclassical doctrine is "generally
> accepted".
>  Not a problem.
>
> Peter
>
> ps: My bugaboo has been the hedonic value of life literature, which
> plays a big role these days in policy and litigation, but is, in my
> opinion, indisputably junk science.
>
> Eugene Coyle wrote:
>
> > This column from the WSJ, 6/27/03 leads to two thoughts.
> >
> > First, the law somehow always gets twisted to favor
> business over people.
> >
> > Second, I don't see how orthodox economists will be allowed
> to testify
> > in court if judges are competent.
> >
> > Gene Coyle
> >
> >
> >
> > SCIENCE JOURNAL
> > By SHARON BEGLEY
> >
> > 'Junk Science' Ban Also Keeps
> > Jurors From Sound Evidence
> >
> > Ellen Relkin was sure that "junk science" played no part in
> her case.
> > Her client, Lisa Soldo, a healthy mother of a newborn, suffered a
> > massive intracranial hemorrhagic stroke at age 28, soon
> after starting
> > on a drug prescribed to suppress lactation, and was left
> severely brain
> > damaged. Ms. Relkin, at attorney with the Manhattan law firm Weitz &
> > Luxenberg, thought science showed that this tragedy was no
> coincidence.
> > At the very least, she figured a jury should hear the evidence.
> >
> > None ever did. Thanks to a landmark Supreme Court decision
> handed down
> > 10 years ago Saturday, science in the courtroom has
> undergone a radical
> > overhaul.
> >
> > True, some very bad science has been kept out. Says Jerome Kassirer,
> > former editor of the New England Journal of Medicine, "It
> was pitiful
> > how people with few credentials, who made a career out of courtroom
> > testimony, were hired to be expert witnesses. That's much
> rarer now."
> >
> > But legitimate scientific evidence has also become rarer. Judges are
> > dismissing testimony by physicians as anecdotal, setting
> standards for
> > scientific evidence higher than what doctors and
> researchers use, and
> > barring testimony when scientists in different disciplines
> disagree. In
> > some cases backed by legitimate science, science-and-law
> scholars told
> > me, judges have ruled that the evidence wasn't good enough, or
> > unambiguous enough, for a jury to hear, and so have
> dismissed the case
> > before trial.
> >
> > Plaintiff attorneys deplore the situation, while corporate lawyers
> > generally applaud it. The surprise is how few saw it
> coming. In its 7-2
> > decision in Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme
> > Court ruled that, to be admissible, expert testimony must
> be based on a
> > testable theory or method that had passed peer review, had
> a known error
> > rate and standards, and reflected "generally acceptable" science. It
> > instructed judges to be gatekeepers, barring testimony that
> falls short.
> > At the time, the ruling was seen as a blow to business, as
> it "rejected
> > a strict standard" that kept "dubious scientific evidence"
> out of the
> > courts, reported this newspaper.
> >
> > As a matter of law, Daubert applies to civil and criminal
> cases. But few
> > criminal defendants can afford a pretrial "Daubert
> challenge" to expert
> > testimony, says Margaret Berger of Brooklyn Law School. So faulty
> > science still finds its way into criminal cases. Example:
> Prosecutions
> > in some child sexual-abuse cases still rely on therapist
> interviews that
> > can be badgering and suggestive, which produce misinformation.
> >
> > The real impact has been in civil cases involving claims of
> harm from a
> > pharmaceutical or other chemical. In these cases, some
> judges have ruled
> > that without epidemiological studies, plaintiffs cannot
> prove causation.
> > Others have ruled that doctors' testimony -- that a patient
> developed
> > heart trouble after taking a drug, got better after stopping it and
> > relapsed after going back on it -- doesn't pass Daubert muster.
> >
> > That, says Dr. Kassirer, shows ignorance of how science works: "In
> > medicine, we make judgments about cause and effect based on
> all kinds of
> > evidence -- biological plausibility, physiology, animal
> studies and case
> > reports. There are many valid ways to assess causality; this kind of
> > information ought to go to a jury."
> >
> > Several judges have thrown out cases in which epidemiology
> fails to find
> > a twofold increase in risk from the chemical at issue, even though
> > journals publish papers that take seriously risks below
> this arbitrary
> > cutoff. Others have found inadmissible models commonly used by
> > scientists to assess exposure.
> >
> > Some judges see scientific disagreement as proof the science is
> > unreliable. That's what Ms. Relkin faced in her Parlodel
> case. In 1994,
> > with many young women on the drug having had heart attacks,
> strokes or
> > seizures, and under pressure from the FDA, Sandoz (now part
> of Novartis)
> > stopped selling Parlodel as a lactation suppressant.
> >
> > Soon after receiving the case in 1998, a Pennsylvania judge
> empanelled
> > three independent experts to assess the reliability of the
> scientific
> > evidence on Parlodel. They split. The pharmacologist said
> the science
> > was sound; the neurologist and epidemiologist said it wasn't, though
> > both acknowledged that other qualified experts could
> disagree with that.
> > This year, the judge threw out the case, ruling that no
> jury should have
> > to evaluate the conflicting scientific testimony.
> >
> > Many legal scholars say cases in which qualified experts
> disagree are
> > exactly the kind that should go to a jury. Steven Milloy, an adjunct
> > scholar at the libertarian Cato Institute, disagrees: "I think the
> > science should be very settled before it's allowed into
> evidence. Jurors
> > just aren't able to decide these questions."
> >
> > What's undisputed is that, to the relief of business, "Daubert has
> > dramatically changed the way law is practiced," says
> Richard Meserve,
> > president of the Carnegie Institution of Washington and
> co-author of a
> > Daubert brief 10 years ago. "By imposing discipline on the
> introduction
> > of scientific evidence, it has been enormously beneficial."
> >
> > In his Daubert dissent, Chief Justice William Rehnquist
> warned the new
> > guidelines would turn judges into "amateur scientists." With judges
> > ruling on whether scientific evidence is correct and
> credible (a role
> > the justice system normally assigns to juries), he gets points for
> > prescience.
>