Re: Economists barred from court?

[andie nachgeborenen <andie_nachgeborenen@xxxxxxxxx>]

--- Peter Dorman <dormanp@xxxxxxxxxxxxx> wrote:
> 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

No, Daubert (now the revised Fed R. Evid. 702) is not
crude positivism. I should explain that I am both a
lawyer and a trained and published philosopher of
science (PhD Michigan). I think Daubert,w hich I know
up-close and personal, is fine. A grad school
classmate of mine who is now a law professsor wrote an
article defending Daubert as representaive of
post-positivist, modern phil of sci. That is a more
accurate statement of the case.

 The account of Daubert below is not entirely
accurate. Daubert requires that expert testimony be
reliable and based on fact. The Daubert factors are
expressly not required as necesasry if there are other
indicia of reliability. Daubert expressly replaces
general acceptance (the old Frye test) because that
was too restrictive. As a law clerk I myself expressly
allowed evidence based on heterodox economics in; I am
sure I am not the only one to do so.

If Daubert is a defense weapon, and I suspect it is,
it is because firms like mine probably have the money
to hire better experts, but I've seen enough shoddy
stuff from the defense side to say with confidence
that plaintiff's attorneys ought to be able to fight
using Daubert too. A lot of times it doesn't require
an expert on the other side, all you have to do is
read the expert report and show that it's not based on
fact or a reliable method. I am writing a motion
taking apart a piece of expert testimony by a U of C
biz school whore who will say anything for money. You
don't need an econ degree to do it, just some
understanding of statistics and an operative bullshit
detector.

jks

>
> 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
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