Scientific Expert Testimony and Intellectual Due Process

Yale Law Journal

Volumn 107, Issue 6, 1998, Pages 1535-1681

  Brewer, Scott ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; EXPERT WITNESS; HUMAN; JURISPRUDENCE; KNOWLEDGE; PHILOSOPHY; SCIENCE; THEORETICAL MODEL; UNITED STATES;

EXPERT TESTIMONY; HUMANS; JURISPRUDENCE; KNOWLEDGE; MODELS, THEORETICAL; PHILOSOPHY; SCIENCE; UNITED STATES;

EID: 0032037356     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797336     Document Type: Article

References (484)

1. n cannot be solved in whole numbers. Wiles's proof is nearly 200 pages long. See SIMON SINGH, FERMAT'S ENIGMA 256 (1997) (discussing the first efforts of the mathematical community to check Wiles's proof).
2. The advisory committee note to Federal Rule of Evidence 201 makes the point nicely: [E]very case involves the use of hundreds or thousands of non-evidence facts. When a witness in an automobile accident case says "car," everyone, judge and jury included, furnishes, from non-evidence sources within himself, the supplementing information that the "car" is an automobile, not a railroad car, that it is self-propelled, probably by an internal combustion engine, that it may be assumed to have four wheels with pneumatic rubber tires, and so on. The judicial process cannot construct every case from scratch, like Descartes creating a world based on the postulate Cogito, ergo sum. FED. R. EVID. 201 advisory committee's note (citation omitted).
3. If assertions about what the law is are assertions of fact, then there is no legal decision that does not require some judgment about the way the world is, for even what are usually regarded as "purely legal questions," such as questions of law about the interpretation of statutes, are questions about the world. A proper analysis of this issue concerning the "factual" nature of the law combines the doctrinal analysis of rules of evidence, on the one hand, with the jurisprudential analysis of the concept of law, on the other. Legal positivists characteristically treat statements about what the law is as statements of fact. Jules Coleman, for example, asserts that legal positivism is best associated with at least two theses about the nature of law. One is the "negative" thesis that the moral acceptability of a norm is not a necessary condition of its legality. The other is the "positive" thesis that "law is ultimately a matter of social fact in the sense that the authority of the rule of recognition is itself a matter of social convention." Jules L. Coleman, Rules and Social Facts, 14 HARV. J.L. & PUB. POL'Y 703, 716-17 (1991). If law really is a social fact in this sense, then knowledge of what the law is itself is knowledge of a type of fact - i.e., knowledge about the way (part of) the world is. This positivist treatment of law as fact would seem to accord well with the common law view that law is the kind of thing that can be "judicially noticed." See, e.g., Schultz v. Tecumseh Prods., 310 F.2d 426, 433 (6th Cir. 1962) ("'The law of any State of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof.'" (quoting Lamar v. Micov, 114 U.S. 218 (1885))). Nonpositivist accounts, such as Ronald Dworkin's, which view law as interpretive rather than factual, are not easily reconciled with the familiar evidentiary doctrine that law can be judicially noticed. The are, however, ways to explain "interpretive" judgments as factual ones - for example, by treating a statement about what the law is as that interpretation of the relevant legal materials that in fact makes it "the best" it can be. See RONALD DWORKIN, LAW'S EMPIRE 45-113 (1986).
4. If assertions about what the law is are assertions of fact, then there is no legal decision that does not require some judgment about the way the world is, for even what are usually regarded as "purely legal questions," such as questions of law about the interpretation of statutes, are questions about the world. A proper analysis of this issue concerning the "factual" nature of the law combines the doctrinal analysis of rules of evidence, on the one hand, with the jurisprudential analysis of the concept of law, on the other. Legal positivists characteristically treat statements about what the law is as statements of fact. Jules Coleman, for example, asserts that legal positivism is best associated with at least two theses about the nature of law. One is the "negative" thesis that the moral acceptability of a norm is not a necessary condition of its legality. The other is the "positive" thesis that "law is ultimately a matter of social fact in the sense that the authority of the rule of recognition is itself a matter of social convention." Jules L. Coleman, Rules and Social Facts, 14 HARV. J.L. & PUB. POL'Y 703, 716-17 (1991). If law really is a social fact in this sense, then knowledge of what the law is itself is knowledge of a type of fact - i.e., knowledge about the way (part of) the world is. This positivist treatment of law as fact would seem to accord well with the common law view that law is the kind of thing that can be "judicially noticed." See, e.g., Schultz v. Tecumseh Prods., 310 F.2d 426, 433 (6th Cir. 1962) ("'The law of any State of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof.'" (quoting Lamar v. Micov, 114 U.S. 218 (1885))). Nonpositivist accounts, such as Ronald Dworkin's, which view law as interpretive rather than factual, are not easily reconciled with the familiar evidentiary doctrine that law can be judicially noticed. The are, however, ways to explain "interpretive" judgments as factual ones - for example, by treating a statement about what the law is as that interpretation of the relevant legal materials that in fact makes it "the best" it can be. See RONALD DWORKIN, LAW'S EMPIRE 45-113 (1986).
5. I discuss the distinctive philosophical "point of view" at length below. See infra Sections II.B-C.
6. The explanation of how some state of affairs or some condition (e.g., knowledge or truth) is possible is one standard mode of philosophical explanation. For discussion of this mode, see ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS (1981).
7. Norwood Hanson's observation about philosophy of science - "profitable philosophical discussion of any science depends on a thorough familiarity with its history and its present state" - is no less true for philosophical analysis of law. NORWOOD RUSSELL HANSON, PATTERNS OF DISCOVERY: AN INQUIRY INTO THE CONCEPTUAL FOUNDATIONS OF SCIENCE 3 (1958).
8. I confine my analysis to federal doctrines of evidence for two reasons. First, a great many states have adopted rules that are very close to the federal rules and routinely look to federal court decisions under those rules as persuasive authority. Second, the philosophical issues I raise after discussing some basic issues in the doctrines of evidence pertain to any system seeking to bring scientific expert information into the legal decisionmaking process. Focusing on one more-or-less unified jurisdictional system serves to make the philosophical discussion less abstract by showing how it relates directly to an existing set of laws.
9. See FED R. EVID. 702-706.
10. See id. 401-403.
11. See id. 201. These are the main rules, but several others contribute to the effort to effect a reliable transfer of expert information to nonexpert legal decisionmakers, such as the exception to the hearsay rule for learned treatises. See id. 803(18) (concerning admission of learned treatises).
12. 509 U.S. 579 (1993).
13. 347 U.S. 483 (1954).
14. This important relationship between Daubert and Brown has been largely unremarked upon by legal scholars, but not wholly so. Gordon Beggs, for example, observes that since Daubert, scholars have commented extensively on the expanded use of expert evidence . . . [in] the fields of mass tort litigation and criminal law. Less noticed, but no less dramatic, is the parallel increase in the use of expert evidence in federal civil rights litigation. Beginning with the landmark case of Brown v. Board of Education, this trend is reflected in the diverse issues involving expert proof, often novel in nature, which have regularly appeared in the Supreme Court's civil rights decisions. Gordon J. Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 AM. U. L. REV. 1, 2-3 (1995) (footnotes omitted).
15. See FED. R. EVID. 104(a).
16. For a discussion of the logic and pragmatics of maintaining a claim at law, see Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 HARV. L. REV. 923, 998 n.215 (1996).
17. See FED. R. EVID. 104(a).
18. Rule 402 states in full: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." Id. 402.
19. Id. 401. Relevance is to be distinguished from the burden of proof, which is also often referred to in probabilistic terms. The burden of proof is the rule the factfinder uses in assessing whether, given all the evidence that has been admitted, the complaining litigant has proven his assertions.
20. The modern, statutorily enacted Federal Rules of Evidence have eliminated the handy reference to the distinction between materiality and relevance that was a centerpiece of the common law of evidence (though they fortunately have not eliminated the effective legal significance of the distinction itself). In the common law system, evidence was said to be "relevant" if it tended to establish the point for which it was offered. It was "material" if the point for which the evidence was offered actually bore on issues in the case. See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE RULES 62 (2d ed. 1993). Under Rule 401, however, the requirement that the fact proved must be "of consequence to the determination of the action," FED. R. EVID. 401, effectively assimilates the judgment of materiality (in the common law sense of the term) into the judgment of relevance. Thus, under the newer rules, a lawyer no longer makes separate objections regarding the relevance (whether the proffered evidence tends to establish the point for which it was offered) and materiality (whether the proffered evidence bears on issues in the case). Instead, there is simply a uniform objection on grounds of irrelevance, which could really be either an objection that the evidence is not relevant or that it is not material (in the common law senses of these terms) or both. See John R. Schmertz, Relevancy Under 401: A Dual Concept, LITIGATION, Spring 1988, at 12, 12. Because of this "underdeterminative" quality of the objection under the Federal Rules of Evidence on grounds of irrelevance, it would be far more useful to maintain the old common law concepts of materiality and relevance for both ease of reference and clarity and accuracy of evidential analysis. I use the basic concepts of materiality and relevance (in their older, common law sense) to articulate the concept of "rational pertinence." See infra Section V.B.
21. The modern, statutorily enacted Federal Rules of Evidence have eliminated the handy reference to the distinction between materiality and relevance that was a centerpiece of the common law of evidence (though they fortunately have not eliminated the effective legal significance of the distinction itself). In the common law system, evidence was said to be "relevant" if it tended to establish the point for which it was offered. It was "material" if the point for which the evidence was offered actually bore on issues in the case. See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE RULES 62 (2d ed. 1993). Under Rule 401, however, the requirement that the fact proved must be "of consequence to the determination of the action," FED. R. EVID. 401, effectively assimilates the judgment of materiality (in the common law sense of the term) into the judgment of relevance. Thus, under the newer rules, a lawyer no longer makes separate objections regarding the relevance (whether the proffered evidence tends to establish the point for which it was offered) and materiality (whether the proffered evidence bears on issues in the case). Instead, there is simply a uniform objection on grounds of irrelevance, which could really be either an objection that the evidence is not relevant or that it is not material (in the common law senses of these terms) or both. See John R. Schmertz, Relevancy Under 401: A Dual Concept, LITIGATION, Spring 1988, at 12, 12. Because of this "underdeterminative" quality of the objection under the Federal Rules of Evidence on grounds of irrelevance, it would be far more useful to maintain the old common law concepts of materiality and relevance for both ease of reference and clarity and accuracy of evidential analysis. I use the basic concepts of materiality and relevance (in their older, common law sense) to articulate the concept of "rational pertinence." See infra Section V.B.
22. FED. R. EVID. 403.
23. The dispute began in the lower federal courts as an issue about the admissibility of plaintiff-proffered expert scientific evidence that the "morning sickness" drug Bendectin caused birth defects. The trial court denied the evidence's admissibility for failing to satisfy the Frye "general acceptance" test for the admissibility of novel scientific evidence and granted summary judgment for the defendant pharmaceutical company. See Daubert v. Merrell Dow Pharms., Inc., 727 F. Supp. 570, 575-76 (S.D. Cal. 1989), aff'd, 951 F.2d 1128 (9th Cir. 1991), vacated and remanded, 509 U.S. 579 (1993). According to the Frye test, a court should admit "expert testimony deduced from a well-recognized scientific principle or discovery" only when "the thing from which the deduction is made [is] sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). After the Ninth Circuit affirmed the lower court's decision in Daubert, the Supreme Court granted certiorari on the question whether the Federal Rules of Evidence, adopted long after Frye, had in some way displaced the Frye test. See Daubert v. Merrell Dow Pharms., Inc., 506 U.S. 914 (1992), granting cert. to 951 F.2d 1128 (9th Cir. 1991).
24. The Rule reads: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional admissions]. In making its determination it is not bound by the rules of evidence except those with respect to privileges. FED R. EVID. 104(a); see also CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 190 & n.1 (1995).
25. Rule 201 reads in full: "A judicially noticed [adjudicative] fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(b).
26. See supra text accompanying note 18.
27. See supra note 17 and accompanying text.
28. See supra text accompanying note 20.
29. Rule 702 reads in full: "If scientific, technical, or other specialized knowledge will assist the trier-of-fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." FED. R. EVID. 702.
30. Rule 703 establishes that experts may rely on facts or data not themselves admissible as evidence "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Id. 703.
31. Rule 706 establishes that the court "may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection." Id. 706(a). Court-appointed experts are then subject to being called to testify by the court or by either party, and are subject to cross examination. See id.
32. FED. R. CIV. P. 50(a) (providing for directed verdicts).
33. Id. 56 (providing for summary judgment).
34. The Court's discussion of the role of Rule 104(a) is somewhat unclear. "Faced with a proffer of expert scientific testimony," said the Court, "the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993) (emphasis added) (footnotes omitted). This might suggest that "at the outset" of every question involving a proffer of scientific evidence, a trial court is required to hold an in limine hearing under Rule 104(a). It seems that this cannot be quite right, because in many cases the methodology of proffered evidence is well accepted in the jurisdiction, so that district judges will often think it not worth the cost to the court or parties to spend time on an in limine hearing. See Margaret A. Berger, Evidentiary Framework, in FEDERAL JUDICIAL CTR., REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 37, 50 & n.23 (1994). Assuming the Court is not to be taken quite at its word, Daubert does not give good guidance about when such a hearing ought to be held. Note that, when it is required, such a hearing is significant from an epistemic point of view, because Rule 104(a) allows the trial judge to consider inadmissible evidence, under a preponderance test, in deciding whether to admit the evidence. See FED. R. EVID. 104(a) ("In making its determination [the trial judge] is not bound by the rules of evidence except those with respect to privileges."); Daubert, 509 U.S. at 592 n.10 (requiring that judgment under Rule 104(a) "should be established by a preponderance of proof"). This means that a judge has much greater freedom to try to inform himself in a 104(a) inquiry than in an inquiry under other rules of evidence. See MUELLER & KIRKPATRICK, supra note 22, at 190 n.1.
35. See Daubert, 509 U.S. at 592 ("Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on first-hand knowledge or observation. See Rules 702 and 703.").
36. See id. at 595.
37. Id.
38. See id.
39. See id. at 595-97.
40. Id. at 590. The Court took this to be a criterion implied by the adjective "scientific" in Rule 702. See id.
41. Id.
42. Id. at 590-91 n.9 ("In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.").
43. Id.
44. Id. at 590 (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 1252 (1986) (defining "knowledge")).
45. Id.
46. Id. at 592.
47. Id. at 592-93.
48. Id. at 593.
49. See id.
50. See id.
51. See id. at 594.
52. See id.
53. Unlike the Frye Court, the Daubert Court expressly declined to limit its analysis to the admission of novel scientific evidence, see id. at 592, although it did limit itself to Rule 702's "scientific" evidence prong, see id. at 590 n.8.
54. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
55. See Daubert, 509 U.S. at 591-95. The Court asserted that "[m]any factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test," id. at 593, and it expressly qualified each criterion listed, see, e.g., id. (arguing that "[o]rdinarily" a key question for determining scientific validity is "whether it can be (and has been) tested"); id. at 593-94 (describing peer review and publication as a "pertinent" and "relevant, though not dispositive, consideration" nor the "sine qua non of admissibility"); id. at 594 (stating that "ordinarily" a court should consider the known or potential rate of error); id. (maintaining that "general acceptance" can still have a bearing on the inquiry since "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community" (citation omitted)).
56. Id. at 587.
57. I follow the philosophical convention of using single quotation marks to name words. That is, I use single quotation marks when referring to words by name rather than using them to refer to the things they name. Thus, whereas 'Yale' is a four-letter word, Yale is a university. I will use double quotes to refer to a direct quotation or to refer to the way in which something is referred to in some linguistic community. For a discussion of this convention, see WILLARD V. QUINE, METHODS OF LOGIC 37-38 (1959).
58. Daubert, 509 U.S. at 590 ("The adjective 'scientific' implies a grounding in the methods and procedures of science. Similarly, the word 'knowledge' connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED, supra note 42, at 1252)).
59. For particularly compelling examples of "ordinary language" philosophical methods, see J.L. AUSTIN, PHILOSOPHICAL PAPERS (J.O. Urmson & G.J. Warnock eds., 3d ed. 1979); and STANLEY CAVELL, MUST WE MEAN WHAT WE SAY? (1976). I offer additional brief discussion of the nature of philosophical method below. See infra note 174.
60. For particularly compelling examples of "ordinary language" philosophical methods, see J.L. AUSTIN, PHILOSOPHICAL PAPERS (J.O. Urmson & G.J. Warnock eds., 3d ed. 1979); and STANLEY CAVELL, MUST WE MEAN WHAT WE SAY? (1976). I offer additional brief discussion of the nature of philosophical method below. See infra note 174.
61. Thus, for example, the Court cited the works of Karl Popper and Carl Hempel to support the proposition that testability and falsifiability are characteristic of scientific method. See Daubert, 509 U.S. at 593 (citing C. HEMPEL, PHILOSOPHY OF NATURAL SCIENCE (1966); K. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE (5th ed. 1989)).
62. Thus, for example, the Court cited the works of Karl Popper and Carl Hempel to support the proposition that testability and falsifiability are characteristic of scientific method. See Daubert, 509 U.S. at 593 (citing C. HEMPEL, PHILOSOPHY OF NATURAL SCIENCE (1966); K. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE (5th ed. 1989)).
63. FED. R. EVID. 702.
64. Hard, but not impossible. For example, two philosophers, Martha Nussbaum and John Finnis, recently testified at a trial in a case raising various challenges to a state referendum that forbade Colorado localities from enacting civil rights protections specifically for homosexuals. See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 119 n.87 (1997). They testified partly as experts on ancient Greek culture and partly as experts on the moral acceptability of the referendum. See John M. Finnis, Law, Morality, and "Sexual Orientation," 69 NOTRE DAME L. REV. 1049, 1056-63 (1994); Martha C. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies, 80 VA. L. REV. 1515, 1522-24 (1994). Deep questions, of ancient provenance, remain about this kind of testimony. The deepest and most enduring, perhaps, is one that comes to us in Plato's thoroughgoing condemnation of the sophists: Can philosophy maintain its intellectual and epistemic integrity when it enters the public political and legal forum?
65. Hard, but not impossible. For example, two philosophers, Martha Nussbaum and John Finnis, recently testified at a trial in a case raising various challenges to a state referendum that forbade Colorado localities from enacting civil rights protections specifically for homosexuals. See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 119 n.87 (1997). They testified partly as experts on ancient Greek culture and partly as experts on the moral acceptability of the referendum. See John M. Finnis, Law, Morality, and "Sexual Orientation," 69 NOTRE DAME L. REV. 1049, 1056-63 (1994); Martha C. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies, 80 VA. L. REV. 1515, 1522-24 (1994). Deep questions, of ancient provenance, remain about this kind of testimony. The deepest and most enduring, perhaps, is one that comes to us in Plato's thoroughgoing condemnation of the sophists: Can philosophy maintain its intellectual and epistemic integrity when it enters the public political and legal forum?
66. Hard, but not impossible. For example, two philosophers, Martha Nussbaum and John Finnis, recently testified at a trial in a case raising various challenges to a state referendum that forbade Colorado localities from enacting civil rights protections specifically for homosexuals. See David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. TEX. L. REV. 1, 119 n.87 (1997). They testified partly as experts on ancient Greek culture and partly as experts on the moral acceptability of the referendum. See John M. Finnis, Law, Morality, and "Sexual Orientation," 69 NOTRE DAME L. REV. 1049, 1056-63 (1994); Martha C. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies, 80 VA. L. REV. 1515, 1522-24 (1994). Deep questions, of ancient provenance, remain about this kind of testimony. The deepest and most enduring, perhaps, is one that comes to us in Plato's thoroughgoing condemnation of the sophists: Can philosophy maintain its intellectual and epistemic integrity when it enters the public political and legal forum?
67. See, e.g., United States v. Charlottesville Redevelopment & Hous. Auth., 718 F. Supp. 461, 468-69 (W.D. Va. 1989) (holding that a public housing authority's tenant assignment plan was race-conscious and violated the Fair Housing Act). The court noted: While the scope of this policy advancing integration must be circumscribed, that does not mean that the legal principle of integration goes away, that CRHA's duty to seek integration fades away, or that the legal value of integration has no force. To utilize an analogy from moral philosophy, when one describes the conflict of moral principles, it is not accurate to act as if the principle which has been overridden evaporates without residue. A principle, even after being overridden, still has some force. It still leaves, in one philosopher's language, "moral traces." Id. (citing Robert Nozick, Moral Complications and Moral Structures, 13 NAT. L.F. 1 (1968)); see also American Home Prods. Corp. v. FTC, 695 F.2d 681, 689 (3d Cir. 1982) (using Paul Grice's framework of conversational implicature to describe a false advertising claim). As Professor Lawrence Lessig has recently emphasized, the Supreme Court's landmark decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), relies heavily on taking judicial notice of a change in the philosophical conception of law from a natural law to a positivist conception. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 432 (1995).
68. See, e.g., United States v. Charlottesville Redevelopment & Hous. Auth., 718 F. Supp. 461, 468-69 (W.D. Va. 1989) (holding that a public housing authority's tenant assignment plan was race-conscious and violated the Fair Housing Act). The court noted: While the scope of this policy advancing integration must be circumscribed, that does not mean that the legal principle of integration goes away, that CRHA's duty to seek integration fades away, or that the legal value of integration has no force. To utilize an analogy from moral philosophy, when one describes the conflict of moral principles, it is not accurate to act as if the principle which has been overridden evaporates without residue. A principle, even after being overridden, still has some force. It still leaves, in one philosopher's language, "moral traces." Id. (citing Robert Nozick, Moral Complications and Moral Structures, 13 NAT. L.F. 1 (1968)); see also American Home Prods. Corp. v. FTC, 695 F.2d 681, 689 (3d Cir. 1982) (using Paul Grice's framework of conversational implicature to describe a false advertising claim). As Professor Lawrence Lessig has recently emphasized, the Supreme Court's landmark decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), relies heavily on taking judicial notice of a change in the philosophical conception of law from a natural law to a positivist conception. See Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 432 (1995).
69. See Daubert, 509 U.S. at 590, 592.
70. The Court shows no awareness of post-positivist critiques of Popper's falsifiability thesis, for example. One of the most influential of these critiques is W.V. QUINE, Two Dogmas of Empiricism, in FROM A LOGICAL POINT OF VIEW: 9 LOGICO-PHILOSOPHICAL ESSAYS 20 (2d ed. 1961).
71. Anthony Kenny may be correct that "[t]he difficulty of deciding in the courtroom whether something is a science is not a difficulty which could be solved by admitting philosophers into the courtroom as higher order experts," Anthony Kenny, The Expert in Court, in THE IVORY TOWER: ESSAYS IN PHILOSOPHY AND PUBLIC POLICY 51 (1985), but surely the admission of such testimony could help solve the problem. Kenny also contends that "[t]he decision whether something is or is not a science is . . . a matter for philosophy," and that, on the test Kenny offers for science, "[p]hilosophy itself is clearly . . . no science [since it is] neither consistent, methodological, cumulative, or predictive." Id.
72. See HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge & Philip P. Frickey eds., 1994).
73. Daubert, 509 U.S. at 600-01 (Rehnquist, C.J., concurring in part and dissenting in part).
74. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995). Judge Kozinski also wrote the original Daubert opinion to which the Supreme Court granted certiorari. See Daubert v. Merrell Dow Pharms. Inc., 951 F.2d 1128 (9th Cir. 1991), vacated and remanded, 509 U.S. 579 (1993). In that opinion, he affirmed the district court's grant of summary judgment, applying the Frye test to hold that the proffered scientific evidence was not admissible. See supra note 21. On remand from the Supreme Court, Judge Kozinski's panel decided to apply the newly minted test without first remanding to the district court - offering as a justification for this procedural arrogation the contention that it was permitted by "the peculiar circumstances of the case," "the interests of justice," and "judicial economy." Daubert, 43 F.3d at 1314-15. Given the newness of the test, and the possibility that the original plaintiffs might have been able to develop new evidence or repackage existing evidence pursuant to it, the wiser course would have been to remand to the trial court. Apart from the claimed equities, Judge Kozinski's substantive argument for his decision to decide the case without remanding to the trial court was as follows. The Daubert test, according to Judge Kozinski, has "two prongs": First, the plaintiffs must show that the proffered scientific evidence really is "derived by the scientific method"; second, they must show that the evidence would "assist the trier of fact." Id. at 1320. Judge Kozinski conceded that the plaintiffs might have been able to "submit additional proof that the scientific testimony they proffer[ed] was 'derived by the scientific method,'" but he also concluded that they could not possibly show that their evidence would "assist the trier of fact," mainly because the evidence they could adduce would not meet the burden of proof for causation under California tort law. Id. at 1320-22. This analysis is unconvincing. Judge Kozinski's claim that he could decide whether the evidence was relevant without seeing whether it was sufficiently scientifically valid seems to overlook the likely intellectual synergy between the "prongs" of the Daubert analysis. (I assume, arguendo, that Judge Kozinski's simplification of the Daubert rule is accurate - it seems actually to be an oversimplification.) If plaintiffs could, under the new and fairly detailed guidance of Daubert, show that their evidence was indeed "derived by the scientific method," such a demonstration might very well have helped to show that the evidence could also "assist the trier of fact." At least, such interaction between the two showings is clearly possible and not unlikely in many instances. Moreover, a careful reading of the Supreme Court's Daubert opinion shows that the Court itself clearly saw a close enough connection between the "scientific validity" criterion of Rule 702 and the "helpfulness" criterion as to suggest that it is a mistake to try to assess them independently. See Daubert, 509 U.S. at 591-92.
75. Daubert, 43 F.3d at 1315-16. Kozinski here echoes the concerns not only of Chief Justice Rehnquist and Justice Stevens, but also those of a great many commentators. See, e.g., Paul S. Milich, Controversial Science in the Courtroom: Daubert and the Law's Hubris, 43 EMORY L.J. 913, 919 (1994) ("Scientists who have spent . . . their professional lives wrestling with the . . . mysteries of their disciplines must be amazed at the law's hubris in thinking that nonscientist judges can . . . ultimately decide who has the better . . . argument.").
76. I say "ex hypothesi" here because if the factfinder did have that expertise, the evidence would not be necessary and should thus probably be excluded under Rule 403. See FED. R. EVID. 403 (making relevant evidence excludable "if its probative value is substantially outweighed by . . . considerations of undue delay, waste of time, or needless presentation of cumulative evidence"). Rule 702 also might afford a ground for excluding the evidence; for example, assuming the law of thermodynamics were relevant o a case, and the trier of fact were a physicist, it would not "assist the trier of fact" to have expert testimony restating that law. See id. 702.
77. Daubert, 509 U.S. at 593.
78. Id. at 595-96.
79. Id. at 596.
80. Jurists concerned with the rules and institutions of expert evidence have long been wary of the adversary system's capacity to produce truths. Professor John Langbein's skeptical inquiry is a fair representation of this concern: Wigmore's celebrated panegyric - that cross-examination is "the greatest legal engine ever invented for the discovery of truth" - is nothing more than an article of faith . . . . Judge Frankel explains why: "The litigator's devices, let us be clear, have utility in testing dishonest witnesses, ferreting out falsehoods, and thus exposing the truth. But to a considerable degree these devices are like other potent weapons, equally lethal for heroes and villains." . . . In the hands of many of its practitioners, cross-examination is not only frequently truth-defeating or ineffectual, it is also tedious, repetitive, time-wasting, and insulting. John H. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823, 833 n.31 (1985) (citations omitted).
81. 347 U.S. 483 (1954).
82. See An Act To Establish Rules of Evidence for Certain Courts and Proceedings, Pub. L. No. 93-595, § 3, 88 Stat. 1926, 1926 (1975).
83. 208 U.S. 412 (1907). For a partial reprint and discussion of the brief, see JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN THE LAW 187-90 (4th ed. 1998).
84. 163 U.S. 537 (1896).
85. The Court noted: [W]e cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. . . . Today, education is perhaps the most important function of state and local governments. . . . In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Brown, 347 U.S. at 492-93.
86. See id. at 494 n.11.
87. This is a point ably made in PAUL L. ROSEN, THE SUPREME COURT AND SOCIAL SCIENCE 163-64 (1972).
88. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
89. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
90. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
91. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
92. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
93. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
94. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
95. Brown, 347 U.S. at 494-95 (emphasis added) (footnote omitted). The famous footnote 11 of Brown, in which the Court cited to social scientific literature in support of its conclusions, reads as follows: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). Id. at 494 n.11. The plaintiffs in Brown strongly encouraged the Court to lean heavily on social science (when the law is against you, as the saying goes, argue the facts). They filed, for example, a detailed appendix to their brief, titled The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement. See Appendix to Appellants' Briefs, Brown (No. 8). Similarly, in argument before the Court, Thurgood Marshall asserted that the social science witnesses who had testified below "stand in the record unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields." ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN v. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 36, 37 (Leon Friedman ed., 1969) [hereinafter BROWN ORAL ARGUMENT].
96. Paul Rosen characterizes it thus. See ROSEN, supra note 80, at 162. In the terms established by the current Federal Rules of Evidence, this would be judicial notice of a "legislative fact," and thus would not be in any way regulated by the rules. See FED R. EVID. 201 (a) advisory committee's note.
97. See supra note 81 and accompanying text.
98. 98 F. Supp. 529 (E.D.S.C. 1951), vacated, 342 U.S. 350 (1952). Briggs was the South Carolina case in which the court upheld the constitutionality of segregation and expressly refused to overturn it on the basis of testimony by putative educational and sociological experts. Like the other companion cases in Brown, this court's treatment of the expert evidence stands in instructive contrast to the treatment by the Court in the Brown opinion: We conclude, therefore, that if equal facilities are offered, segregation of the races in the public schools as prescribed by the Constitution and laws of South Carolina is not of itself violative of the Fourteenth Amendment. We think that this conclusion is supported by overwhelming authority which we are not at liberty to disregard on the basis of theories advanced by a few educators and sociologists. Even if we felt at liberty to disregard other authorities, we may not ignore the unreversed decisions of the Supreme Court of the United States which are squarely in point and conclusive of the question before us. Id. at 536-37.
99. The Kansas case was Brown v. Board of Education, 98 F. Supp. 797 (D. Kan. 1951). In that case, the court admitted expert testimony regarding the psychological harm of public school segregation but upheld the constitutionality of segregation. See infra note 89 (noting the Supreme Court's quotation of the district court's discussion of this testimony).
100. The Virginia case was Davis v. County School Board, 103 F. Supp. 337 (E.D. Va. 1952). That court admitted conflicting expert testimony on the question of the harm of segregation and decided it was a toss-up on that evidence (so that, given the burden of persuasion, the plaintiffs failed to establish the proposition). The opinion provides a nice contrast to the use of social science evidence by the Supreme Court in Brown, so I quote it at some length: Eminent educators, anthropologists, psychologists and psychiatrists appeared for the plaintiffs, unanimously expressed dispraise of segregation in schools, and unequivocally testified the opinion that such separation distorted the child's natural attitude, throttled his mental development, especially the adolescent, and immeasurably abridged his educational opportunities. For the defendants, equally distinguished and qualified educationists and leaders in the other fields emphatically vouched the view that, given equivalent physical facilities, offerings and instruction, the Negro would receive in a separate school the same educational opportunity as he would obtain in the classroom and on the campus of a mixed school. Each witness offered cogent and appealing grounds for his conclusion. On this fact issue the Court cannot say that the plaintiffs' evidence over-balances the defendants'. But on the same presentation by the plaintiffs as just recited, Federal courts have rejected the proposition, in respect to elementary and junior high schools, that the required separation of the races is in law offensive to the National statutes and constitution. They have refused to decree that segregation be abolished incontinently. We accept these decisions as apt and able precedent. Indeed we might ground our conclusion on their opinions alone. But the facts proved in our case, almost without division and perhaps peculiar here, so potently demonstrate why nullification of the cited sections of the statutes and constitution of Virginia is not warranted, that they should speak our conclusion. Id. at 338-39 (citation omitted).
101. See Belton v. Gebhart, 87 A.2d 862 (Del. Ch. 1952); see infra note 89 (providing the Supreme Court's quotation from the Delaware court regarding that court's assessment of the expert testimony).
102. Note that the clearly erroneous standard of FED. R. CIV. P. 52(a) was in place at the time of Brown and routinely used in federal courts.
103. The Brown Court reasoned: To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs . . . . Brown v. Board of Educ., 347 U.S. 483, 494 (1954). The Court quoted, without citation, the Kansas court as follows: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system." Id. In addition, the Supreme Court added the following footnote: "A similar finding was made in the Delaware case: 'I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.'" Id. at 494 n.10 (quoting Belton, 87 A.2d at 865).
104. Id. at 494.
105. Id.
106. See FED. R. EVID. 201(a) advisory committee's note. In colloquy with Thurgood Marshall during the first oral argument in Brown, Justice Frankfurter asked, "Can we not take judicial notice of writings by people who competently deal with these problems? Can I not take judicial notice of Myrdal's book without having him called as a witness?" BROWN ORAL ARGUMENT, supra note 81, at 63. After Marshall batted this softball question with cautious enthusiasm, Frankfurter went on to assert that "in these matters this Court takes judicial notice of accredited writings, and does not have to call the writers as witnesses." Id. He added, "How to inform the judicial mind, you know, is one of the most complicated problems. It is better to have witnesses, but I did not know that we could not read the works of competent writers." Id.; see also ROSEN, supra note 80, at 141.
107. The Deutscher and Chein study, which the Court cited third in footnote 11, see supra note 81, was a survey of more than 800 social scientists regarding their views about the psychological effects of segregation. See Max Deutscher & Isidor Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. PSYCHOL. 259 (1948). Of that number, 517 responded, 90% of whom agreed that segregation had a harmful effect on the segregated group. See id.; see also ROSEN, supra note 80, at 188. This kind of unanimity might even have allowed this factual claim to be admitted as expert
108. See ROSEN, supra note 80, at 194-95 (listing studies).
109. See supra note 81.
110. See Kenneth B. Clark & Mamie P. Clark, Racial Identification and Preference in Negro Children, in READINGS IN SOCIAL PSYCHOLOGY 602 (Eleanor E. Maccoby et al. eds., 3d ed. 1958).
111. Id.
112. Id. at 611 (emphasis added).
113. See RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 356 (1975) ("Marshall had weighed the risks of Clark's findings and decided that on balance they demonstrated injury to segregated Negro youngsters. 'I wanted this kind of evidence on the record,' he had said.").
114. See KENNETH B. CLARK, PREJUDICE AND YOUR CHILD 45 (2d ed. 1963).
115. Id.
116. Moreover, there seem to be some design flaws in the study that one might readily identify (though these flaws are perhaps more readily noticeable with the benefit of more than 40 years of hindsight). One might well expect - and perhaps one might reasonably have expected even then - that black children in integrated schools in the North would at first be deeply traumatized by being thrown together with white children in a general cultural atmosphere of discrimination. But one might also expect (and have reasonably expected then) that over time the effect would be to reduce the psychic discomfort of being in an integrated setting, thereby allowing integration to give greater psychic sustenance to black schoolchildren in the long run. The question this possibility raises for the design of the Clark study is, over what span of time must the children be studied before one can reach a warranted result about the specific harms allegedly arising from segregation? (Thanks to Henry Steiner for helpful discussion on this point.)
117. See ROSEN, supra note 80, at 138-39.
118. See Brown v. Board of Educ., 347 U.S. 483, 492-93 (1954).
119. See ROSEN, supra note 80, at 141-43.
120. See id. at 182-96.
121. Brown, 347 U.S. at 494-95.
122. See id. at 494 ("Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.").
123. 220 F. Supp. 667 (S.D Ga. 1963), rev'd, 333 F.2d 55 (5th Cir. 1964), cert. denied, 379 U.S. 933 (1964).
124. After noting the Brown opinion's quotation from the Kansas court, the district judge asserted: These are facts, not law. To make these findings the Kansas District Judge considered evidence - not cases. Whether Negroes in Kansas believed that separate schooling denoted inferiority, whether a sense of inferiority affected their motivation to learn and whether motivation to learn was increased or diminished by segregation was a question requiring evidence for decision. That was as much a subject of scientific inquiry as the braking distance required to stop a two-ton truck moving at ten miles an hour on dry concrete. Again, the Supreme Court quoted the record that Negro children in Delaware were "receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated," a statement which could only be of factual rather than legal significance. The Supreme Court put at rest any residual question on the nature of its inquiry when it indicated its reliance on scientific information: "Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority." The teachings of psychology in 1896, in 1954, or in 1963 are inquiries requiring evidence in the same sense as repeated determinations of "seaworthiness." Actually, the non-legal authority to which the Court referred was neither testimonial nor documentary in character but came from a "Brandeis"-type brief filed directly in the Supreme Court by the National Association for the Advancement of Colored People. Id. at 678 (citations omitted). Although the judge's characterization of the factual and evidentiary basis of Brown seems fair, his analysis needs some such distinction as that between "legislative" and "adjudicative" facts - a distinction that did not become common until 1975, when Rule 201 of the Federal Rules of Evidence made it salient. See FED. R. EVID. 201(a) advisory committee's note. Such a distinction would have made his argument far less plausible, for it was the failure to distinguish these types of facts that gave this stare decisis argument whatever superficial plausibility it had. Brown's holding rested on a finding not of adjudicative facts, but rather of legislative facts. While it is true that adjudicative facts cannot bind nonparties, legislative facts are much more likely, as a matter of institutional practice, to do so, as Brown itself shows. (Whether and to what extent a court should bind other parties to its findings of legislative facts is a separate question, a question on which Brown provides no guidance.)
125. See Stell, 220 F. Supp. at 676-77.
126. Id. at 678.
127. Id. at 680.
128. The Fifth Circuit noted in its opinion: We do not read the major premise of the decision of the Supreme Court in the first Brown case as being limited to the facts of the cases there presented. We read it as proscribing segregation in the public education process on the stated ground that separate but equal schools for the races were inherently unequal. This being our interpretation of the teaching of that decision, it follows that it would be entirely inappropriate for it to be rejected or obviated by this court. Stell v. Savannah-Chatham County Bd. of Educ., 333 F.2d 55, 61 (5th Cir. 1964), cert. denied, 379 U.S. 933 (1964). After the Supreme Court denied the state's petition for certiorari, the district court on remand granted an injunction against the school board's operation of a segregated school system and further enjoined the board: [C]onsistently with and in accordance with Brown and the decision of the Court of Appeals in this case school children may be assigned to particular schools "on a basis of intelligence, achievement, or other aptitudes upon a uniformly administered program" provided race is not a factor in making the assignment. Stell v. Savannah-Chatham County Bd. of Educ., 255 F. Supp. 88, 94 (S.D. Ga. 1966) (citation omitted).
129. Stell, 220 F. Supp. at 668 (emphasis added).
130. For a classic complaint about courts' use of fiat rather than reason in attempting to justify their discussions, see Lon L. Fuller, Reason and Fiat in Case Law, 59 HARV. L. REV. 376 (1946).
131. David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 573 (1991) (footnote omitted).
132. Ronald Dworkin, Social Sciences and Constitutional Rights - The Consequences of Uncertainty, 6 J.L. & EDUC. 3, 5 (1977) (paraphrasing Edmond Cahn, Jurisprudence, 30 N.Y.U. L. REV. 150, 157-58 (1955)).
133. Ronald Dworkin, Social Sciences and Constitutional Rights - The Consequences of Uncertainty, 6 J.L. & EDUC. 3, 5 (1977) (paraphrasing Edmond Cahn, Jurisprudence, 30 N.Y.U. L. REV. 150, 157-58 (1955)).
134. Dworkin focuses on a "finding" slightly different from that at issue in Brown. Brown's finding was that segregation caused psychological harm. Dworkin's issue is whether it was an "insult." Not every insult causes psychological harm, and when an insult does so is a question of empirical psychological fact. Nevertheless, his question whether a given social gesture is an insult in a particular community or to a given person is also thoroughly empirical.
135. Dworkin's analysis is an early version of arguments about so-called "social meaning" (what other kind is there?) that are becoming popular among legal academics. See, e.g., Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995). Like Dworkin's approach to general jurisprudential issues, and like much recent work in literary and hermeneutic theory, this approach is much absorbed by the effort to linguistify and textualize features of legal and social experience that are readily explained in nonlinguistic terms. According to one of its recent expositors, Professor Lessig, the social meaning approach focuses on "the semiotic content attached to various actions, or inactions, or statuses, within a particular context," id. at 951, for the purpose of assessing whether (1) collective action problems exist that make it difficult to "reconstruct" social meanings that have been "constructed"; and (2) whether and how such collective action problems as do exist should be addressed by private or public agents, see id. On this approach, for example, when an action creates a stigma, the stigma is a social meaning, and when a gesture is an insult, the insult is a social meaning. See id. Moreover, a stigmatizing socially meaningful act like discriminating on the basis of race in a publicly visible way can create a collective action problem for stigmatizers who would rather not behave in such a way, other things equal, but who feel compelled to do so by a social meaning that they cannot individually control. Lessig claims that this predicament afflicted many employers in the South prior to passage of the Civil Rights Act, which then, Leviathan-like, solved this collective action problem. See id. at 965-67. An enduring question about all such approaches is to what extent theories of linguistic meaning narrowly conceived can usefully be extended to explain phenomena that seem linguistic only in a loose or - dare I say it - metaphorical sense. An answer to that question, however, awaits discussion elsewhere. For now, observe that such a theory easily lends itself (indeed, these very examples lend themselves) to a Dworkin-like analysis of Brown. Perhaps what Brown was really addressing was whether there was a "social meaning" of state-mandated segregation, and whether, if so, it created a psychological harm to black schoolchildren. Dworkin's suggested answer to the first question is, yes, the social meaning was that of "insult." But even through the "social meaning" lens, there are still fundamentally empirical questions, pace Dworkin, to be asked about whether in fact a given act or gesture is insulting and stigmatizing, and even if so, whether that insult or stigma in fact causes psychological harm. Thus, the social meaning interpretation of Brown cannot obviate, and instead merely restates or relocates, the problem of how courts can reliably acquire empirical information of this sort.
136. Daubert gives a nice example of what I am referring to here as epistemic repose: [W]e do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rules of Evidence 201. Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 593 n.11 (1993).
137. The "legal repose" at issue here is both internal to a particulai case and external to it. Doctrines like res judicata and the pragmatic relevance requirement of Federal Rule of Evidence 403 guide judges in effecting repose within a case. See FED. R. EVID. 403. Judges' use of doctrines of stare decisis help effect legal repose across cases.
138. See infra Section V.C.
139. See MUELLER & LAIRD, supra note 19, at 729-41.
140. For extended discussion of "competition" in experts' testimony, see infra Section IV.C.
141. See infra Part VII.
142. See supra note 19 and accompanying text.
143. France is often mentioned as the chief exemplar of a political and legal system that gives decisions to "technocrats" who have received extensive training in (inter alia) science, but who also exercise a great deal of bureaucratic governmental power without any real oversight by democratic institutions. It is probably not quite right to conclude that this is a system in which scientists make many of the decisions that judges and juries would make in the United States. It appears that, although the elite French technocrat does typically get training in mathematics, physics, and chemistry (as well as economics, law, decision theory, and administration), he is specifically trained to be a generalist manager, whose only specialty is the multipurpose skill of governing, administering, and making organizational decisions - a skill that is thought to require sufficient competence with science to comprehend its use in policy decisions. Thus, for example, students of one of the elite training academies have been told routinely that "'[t]he scientific training you receive will not give you the knowledge in any branch that the specialists have, but it will give you the aptitudes and the methods such as to allow you to be on top of everything.'" EZRA N. SULEIMAN, ELITES IN FRENCH SOCIETY: THE POLITICS OF SURVIVAL 166 (1978) (quoting language addressed to an entering class of the Ecole Polytechnique, in FREDERIC BON & MICHEL A. BURNIER, LES NOUVEAUX INTELLECTUELS 112 (1971)). For discussion of the issue, see JOHN ARDAGH, FRANCE IN THE 1980s, at 82-92 (1982); and SULEIMAN, supra, at 158-92. Even if these technocrats are not scientists in their own right, it does seem clear that they are far better trained in scientific matters than the average American juror or judge. It also seems clear that government officials trained in this way make many far-reaching decisions involving science and technology that are given to judges and juries in the United States, particularly in torts cases.
144. France is often mentioned as the chief exemplar of a political and legal system that gives decisions to "technocrats" who have received extensive training in (inter alia) science, but who also exercise a great deal of bureaucratic governmental power without any real oversight by democratic institutions. It is probably not quite right to conclude that this is a system in which scientists make many of the decisions that judges and juries would make in the United States. It appears that, although the elite French technocrat does typically get training in mathematics, physics, and chemistry (as well as economics, law, decision theory, and administration), he is specifically trained to be a generalist manager, whose only specialty is the multipurpose skill of governing, administering, and making organizational decisions - a skill that is thought to require sufficient competence with science to comprehend its use in policy decisions. Thus, for example, students of one of the elite training academies have been told routinely that "'[t]he scientific training you receive will not give you the knowledge in any branch that the specialists have, but it will give you the aptitudes and the methods such as to allow you to be on top of everything.'" EZRA N. SULEIMAN, ELITES IN FRENCH SOCIETY: THE POLITICS OF SURVIVAL 166 (1978) (quoting language addressed to an entering class of the Ecole Polytechnique, in FREDERIC BON & MICHEL A. BURNIER, LES NOUVEAUX INTELLECTUELS 112 (1971)). For discussion of the issue, see JOHN ARDAGH, FRANCE IN THE 1980s, at 82-92 (1982); and SULEIMAN, supra, at 158-92. Even if these technocrats are not scientists in their own right, it does seem clear that they are far better trained in scientific matters than the average American juror or judge. It also seems clear that government officials trained in this way make many far-reaching decisions involving science and technology that are given to judges and juries in the United States, particularly in torts cases.
145. France is often mentioned as the chief exemplar of a political and legal system that gives decisions to "technocrats" who have received extensive training in (inter alia) science, but who also exercise a great deal of bureaucratic governmental power without any real oversight by democratic institutions. It is probably not quite right to conclude that this is a system in which scientists make many of the decisions that judges and juries would make in the United States. It appears that, although the elite French technocrat does typically get training in mathematics, physics, and chemistry (as well as economics, law, decision theory, and administration), he is specifically trained to be a generalist manager, whose only specialty is the multipurpose skill of governing, administering, and making organizational decisions - a skill that is thought to require sufficient competence with science to comprehend its use in policy decisions. Thus, for example, students of one of the elite training academies have been told routinely that "'[t]he scientific training you receive will not give you the knowledge in any branch that the specialists have, but it will give you the aptitudes and the methods such as to allow you to be on top of everything.'" EZRA N. SULEIMAN, ELITES IN FRENCH SOCIETY: THE POLITICS OF SURVIVAL 166 (1978) (quoting language addressed to an entering class of the Ecole Polytechnique, in FREDERIC BON & MICHEL A. BURNIER, LES NOUVEAUX INTELLECTUELS 112 (1971)). For discussion of the issue, see JOHN ARDAGH, FRANCE IN THE 1980s, at 82-92 (1982); and SULEIMAN, supra, at 158-92. Even if these technocrats are not scientists in their own right, it does seem clear that they are far better trained in scientific matters than the average American juror or judge. It also seems clear that government officials trained in this way make many far-reaching decisions involving science and technology that are given to judges and juries in the United States, particularly in torts cases.
146. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
147. See OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, passim (1920); see also William Twining, The Bad Man Revisited, 58 CORNELL L. REV. 275 (1973).
148. See OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, passim (1920); see also William Twining, The Bad Man Revisited, 58 CORNELL L. REV. 275 (1973).
149. See H.L.A. HART, THE CONCEPT OF LAW 89-91, 242-43, 254 (2d ed. 1994).
150. See JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 137-45 (1979) [hereinafter RAZ, THE AUTHORITY OF LAW] (discussing Kelsen); JOSEPH RAZ, PRACTICAL REASON AND NORMS 170-77 (1975) [hereinafter RAZ, PRACTICAL REASON].
151. See JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 137-45 (1979) [hereinafter RAZ, THE AUTHORITY OF LAW] (discussing Kelsen); JOSEPH RAZ, PRACTICAL REASON AND NORMS 170-77 (1975) [hereinafter RAZ, PRACTICAL REASON].
152. DWORKIN, supra note 3, at 14.
153. Id.
154. Id. at 255-56. Dworkin maintains: Hard cases arise, for any judge, when his threshold test does not discriminate between two or more interpretations of some statute or line of cases. Then he must choose between eligible interpretations by asking which shows the community's structure of institutions and decisions - its public standards as a whole - in a better light from the standpoint of political morality. His own moral and political convictions are now directly engaged. Id. (emphasis added).
155. See Ernest J. Weinrib, The Jurisprudence of Legal Formalism, 16 HARV. J.L. & PUB. POL'Y 583, passim (1993) [hereinafter Weinrib, Jurisprudence of Legal Formalism]; see also Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949 (1988).
156. See Ernest J. Weinrib, The Jurisprudence of Legal Formalism, 16 HARV. J.L. & PUB. POL'Y 583, passim (1993) [hereinafter Weinrib, Jurisprudence of Legal Formalism]; see also Ernest J. Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949 (1988).
157. Weinrib, Jurisprudence of Legal Formalism, supra note 136, at 591-93 (emphasis added).
158. There is good reason to doubt whether it is epistemically or morally valuable to believe that there are such points of view; that is, whether from either an epistemological or a moral point of view, we ought to think that there is such a thing as a woman's or a black person's point of view. For critical discussion of this issue, see Scott Brewer, Pragmatism, Oppression, and the Flight to Substance, 63 S. CAL. L. REV. 1753 (1990).
159. Quine argues: From among the various conceptual schemes best suited to these various pursuits, one - the phenomenalistic - claims epistemological priority. Viewed from within the phenomenalistic conceptual scheme, the ontologies of physical objects and mathematical objects are myths. The quality of myth, however, is relative; relative, in this case, to the epistemological point of view. This point of view is one among various, corresponding to one among our various interests and purposes. QUINE, supra note 63, at 19 (emphasis added). Quine continues: For my part I do, qua lay physicist, believe in physical objects and not in Homer's gods; and I consider it a scientific error to believe otherwise. But in point of epistemological footing the physical objects and the gods differ only in degree and not in kind. . . . The myth of physical objects is epistemologically superior to most in that it has proved more efficacious than other myths as a device for working a manageable structure into the flux of experience. Id. at 44 (emphasis added). The distinction of the epistemological from the ontological points of view is central to Quine's project of "naturalized epistemology." See, e.g., W.V. QUINE, WORD AND OBJECT 22-23 (1960). As Quine explains it, when we speak of underdetermination of a physical theory, we are speaking "from the standpoint of a description of the theory-building process," and noting that in building theories, "physical human subjects" go (and inevitably go) beyond the sensory evidence on which the theories are built; most generally, the project in which scientists are engaged is the ontological project the goal of which is "painstakingly to surmise what reality is like." Id. at 22; see also id. ("Everything to which we concede existence . . . is . . . real from the standpoint of the theory being built." (emphasis added)).
160. See John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 6-7 (1955).
161. THOMAS NAGEL, THE VIEW FROM NOWHERE 3 (1986).
162. LAURENCE BONJOUR, THE STRUCTURE OF EMPIRICAL KNOWLEDGE 8 (1985). The passage continues: "It follows that one's cognitive endeavors are epistemically justified only if and to the extent that they are aimed at this goal, which means very roughly that one accepts all and only those beliefs which one has good reason to think are true." Id.
163. See LARRY LAUDAN, SCIENCE AND VALUES: THE AIMS OF SCIENCE AND THEIR ROLE IN SCIENTIFIC DEBATE (1984).
164. Id. at 23.
165. See id.
166. Id.
167. See id.
168. See id. at 26. Thomas Kuhn identifies the following aims of scientific inquiry: accuracy (deducible consequences should be in agreement with experiments); consistency (both internally and with other currently accepted theories); simplicity (the explanation should presuppose the existence of fewer rather than more entities); fruitfulness (disclose new phenomena or previously unnoted relationships); and broad scope (consequences should extend beyond initial observations, laws, or subtheories). See THOMAS S. KUHN, Objectivity, Value Judgment, and Theory Choice, in THE ESSENTIAL TENSION: SELECTED STUDIES IN SCIENTIFIC TRADITION AND CHANGE 320, 321-22 (1977). Quine and J.S. Ullian identify and describe "five virtues which count toward plausibility, and which a hypothesis may enjoy in varying degrees." W.V. QUINE & J.S. ULLIAN, THE WEB OF BELIEF 43 (1970). These virtues are conservatism (the hypothesis should conserve prior beliefs because "[t]he plausibility of a hypothesis varies inversely with the plausibility of the prior beliefs that it disallows," id. at 44); generality ("[t]he plausibility of a hypothesis depends largely on how compatible the hypothesis is with our being observers placed at random in the world," id.); simplicity (that, when choosing among hypotheses equal in all other respects, the more plausible hypothesis is the simpler one, see id. at 45); refutability (a hypothesis neither confirms nor predicts anything unless "[s]ome imaginable event, recognizable if it occurs . . . suffice[s] to refute it," id. at 50); and modesty (a stronger "conservatism" demanding that the less "extravagant" hypothesis be preferred to those that are more so, other things being equal, id. at 51). One might treat as axiological values (aims) the values that Kuhn, on the one hand, and Quine and Ullian, on the other, identify, but one might also treat some of them as methodological rules (methods). Laudan himself does not draw a sharp line between methods and aims. See, e.g., LAUDAN, supra note 143, at 31. One quite plausible explanation for this is that no sharp line can be drawn between the concepts "method" and "aim," and that (as with all vague concepts) the line between them is to be drawn on the basis of holistic considerations. Consistent with this explanation is the possibility that there is one fundamental axiological aim that all other aims and methods subserve. For science, a likely candidate for such an overall and overriding and superseding axiological norm is a norm of truth or accuracy, such as, "Choose those aims, methods, and beliefs that are most likely to produce true or accurate accounts of the world." Cf. BONJOUR, supra note 142, at 7 ("What makes us cognitive beings at all is our capacity for beliefs, and the goal of our distinctively cognitive endeavors is truth: we want our beliefs to correctly and accurately depict the world."). Note that if there were such a norm, it would play a structural role for judgments of scientific validity analogous to the role that, on Kelsen's account, the Grundnorm plays for judgments of legal validity. See RAZ, THE AUTHORITY OF LAW, supra note 132, at 122-45 (discussing Kelsen's "basic norm").
169. See id. at 26. Thomas Kuhn identifies the following aims of scientific inquiry: accuracy (deducible consequences should be in agreement with experiments); consistency (both internally and with other currently accepted theories); simplicity (the explanation should presuppose the existence of fewer rather than more entities); fruitfulness (disclose new phenomena or previously unnoted relationships); and broad scope (consequences should extend beyond initial observations, laws, or subtheories). See THOMAS S. KUHN, Objectivity, Value Judgment, and Theory Choice, in THE ESSENTIAL TENSION: SELECTED STUDIES IN SCIENTIFIC TRADITION AND CHANGE 320, 321-22 (1977). Quine and J.S. Ullian identify and describe "five virtues which count toward plausibility, and which a hypothesis may enjoy in varying degrees." W.V. QUINE & J.S. ULLIAN, THE WEB OF BELIEF 43 (1970). These virtues are conservatism (the hypothesis should conserve prior beliefs because "[t]he plausibility of a hypothesis varies inversely with the plausibility of the prior beliefs that it disallows," id. at 44); generality ("[t]he plausibility of a hypothesis depends largely on how compatible the hypothesis is with our being observers placed at random in the world," id.); simplicity (that, when choosing among hypotheses equal in all other respects, the more plausible hypothesis is the simpler one, see id. at 45); refutability (a hypothesis neither confirms nor predicts anything unless "[s]ome imaginable event, recognizable if it occurs . . . suffice[s] to refute it," id. at 50); and modesty (a stronger "conservatism" demanding that the less "extravagant" hypothesis be preferred to those that are more so, other things being equal, id. at 51). One might treat as axiological values (aims) the values that Kuhn, on the one hand, and Quine and Ullian, on the other, identify, but one might also treat some of them as methodological rules (methods). Laudan himself does not draw a sharp line between methods and aims. See, e.g., LAUDAN, supra note 143, at 31. One quite plausible explanation for this is that no sharp line can be drawn between the concepts "method" and "aim," and that (as with all vague concepts) the line between them is to be drawn on the basis of holistic considerations. Consistent with this explanation is the possibility that there is one fundamental axiological aim that all other aims and methods subserve. For science, a likely candidate for such an overall and overriding and superseding axiological norm is a norm of truth or accuracy, such as, "Choose those aims, methods, and beliefs that are most likely to produce true or accurate accounts of the world." Cf. BONJOUR, supra note 142, at 7 ("What makes us cognitive beings at all is our capacity for beliefs, and the goal of our distinctively cognitive endeavors is truth: we want our beliefs to correctly and accurately depict the world."). Note that if there were such a norm, it would play a structural role for judgments of scientific validity analogous to the role that, on Kelsen's account, the Grundnorm plays for judgments of legal validity. See RAZ, THE AUTHORITY OF LAW, supra note 132, at 122-45 (discussing Kelsen's "basic norm").
170. See id. at 26. Thomas Kuhn identifies the following aims of scientific inquiry: accuracy (deducible consequences should be in agreement with experiments); consistency (both internally and with other currently accepted theories); simplicity (the explanation should presuppose the existence of fewer rather than more entities); fruitfulness (disclose new phenomena or previously unnoted relationships); and broad scope (consequences should extend beyond initial observations, laws, or subtheories). See THOMAS S. KUHN, Objectivity, Value Judgment, and Theory Choice, in THE ESSENTIAL TENSION: SELECTED STUDIES IN SCIENTIFIC TRADITION AND CHANGE 320, 321-22 (1977). Quine and J.S. Ullian identify and describe "five virtues which count toward plausibility, and which a hypothesis may enjoy in varying degrees." W.V. QUINE & J.S. ULLIAN, THE WEB OF BELIEF 43 (1970). These virtues are conservatism (the hypothesis should conserve prior beliefs because "[t]he plausibility of a hypothesis varies inversely with the plausibility of the prior beliefs that it disallows," id. at 44); generality ("[t]he plausibility of a hypothesis depends largely on how compatible the hypothesis is with our being observers placed at random in the world," id.); simplicity (that, when choosing among hypotheses equal in all other respects, the more plausible hypothesis is the simpler one, see id. at 45); refutability (a hypothesis neither confirms nor predicts anything unless "[s]ome imaginable event, recognizable if it occurs . . . suffice[s] to refute it," id. at 50); and modesty (a stronger "conservatism" demanding that the less "extravagant" hypothesis be preferred to those that are more so, other things being equal, id. at 51). One might treat as axiological values (aims) the values that Kuhn, on the one hand, and Quine and Ullian, on the other, identify, but one might also treat some of them as methodological rules (methods). Laudan himself does not draw a sharp line between methods and aims. See, e.g., LAUDAN, supra note 143, at 31. One quite plausible explanation for this is that no sharp line can be drawn between the concepts "method" and "aim," and that (as with all vague concepts) the line between them is to be drawn on the basis of holistic considerations. Consistent with this explanation is the possibility that there is one fundamental axiological aim that all other aims and methods subserve. For science, a likely candidate for such an overall and overriding and superseding axiological norm is a norm of truth or accuracy, such as, "Choose those aims, methods, and beliefs that are most likely to produce true or accurate accounts of the world." Cf. BONJOUR, supra note 142, at 7 ("What makes us cognitive beings at all is our capacity for beliefs, and the goal of our distinctively cognitive endeavors is truth: we want our beliefs to correctly and accurately depict the world."). Note that if there were such a norm, it would play a structural role for judgments of scientific validity analogous to the role that, on Kelsen's account, the Grundnorm plays for judgments of legal validity. See RAZ, THE AUTHORITY OF LAW, supra note 132, at 122-45 (discussing Kelsen's "basic norm").
171. Every empirical concept is "open-textured," i.e., has the possibility of being vague in some particular circumstance. See Brewer, supra note 15, at 993-96. If, with Quine, we abandon one of the two dogmas of empiricism, we would acknowledge that all concepts, even mathematical and logical concepts, are open-textured. See QUINE, supra note 63, at 43.
172. LAUDAN, supra note 143, at 5.
173. Id. at 32.
174. Loud analogies to consensus and dissensus formation in both legal theory and legal interpretation ring in one's ears. Legal theory has certainly had its arch-rationalists (legal process theorists, perhaps, and Dworkinians), its arch-underdeterminationists (some Realists, some Crits), and its Laudan-like centrists (such as H.L.A. Hart).
175. Id. at 29.
176. For example, in biology, the rules and evidence do not "establish the unique correctness of evolutionary theory," but they do rule out several creationist claims from the permissible realm "and thus provide a warrant for a rational preference for evolutionary over creationist biology." Id. Of course, Laudan's claim here can be correct only if there is a "rational" way to delimit the theories that are placed "under active consideration." Id. 155. See id. at 42-66. For an argument that instrumental rationality does not exhaust all types of rationality, see ROBERT NOZICK, THE NATURE OF RATIONALITY 133-81 (1993).
177. See Brewer, supra note 15, at 938-39.
178. See LAUDAN, supra note 143, at 23-41.
179. See DWORKIN, supra note 3, at 176-277.
180. See RONALD DWORKIN, A MATTER OF PRINCIPLE 167-77 (1985).
181. See supra Section H.A.
182. See, e.g., R.M. Hare, The Promising Game, in THEORIES OF ETHICS 115 (Phillippa Foot ed. 1967) (arguing that "ought" cannot be derived from "is" without the addition of a prescriptive premise). But see John R. Searle, How To Derive 'Ought' From 'Is,' in THEORIES OF ETHICS, supra, at 101 (arguing that "ought" can be derived from "is," even without a prescriptive premise). One promising route of inquiry is to consider whether claims about what is (especially scientific claims) are on any surer epistemological footing than are claims of morality. See, e.g., Baruch A. Brody, Intuitions and Objective Moral Knowledge, 62 MONIST 446 (1979) (providing an intuitionist defense for "objective moral knowledge"); Hilary Putnam, The Place of Facts in a World of Values, in REALISM WITH A HUMAN FACE 163 (James Conant ed., 1990); J.B. Schneewind, Moral Knowledge and Moral Principles, in REVISIONS: CHANGING PERSPECTIVES IN MORAL PHILOSOPHY 113 (Stanley Hauerwas & Alasdair MacIntyre eds., 1983) (viewing moral and scientific principles as enjoying equivalent rational grounding). Another important question is whether "is" and "ought" claims are even distinguishable in kind, given the "holistic" way in which many of our beliefs confront experience. See MORTON WHITE, WHAT IS AND WHAT OUGHT TO BE DONE: AN ESSAY ON ETHICS AND EPISTEMOLOGY (1981).
183. See, e.g., R.M. Hare, The Promising Game, in THEORIES OF ETHICS 115 (Phillippa Foot ed. 1967) (arguing that "ought" cannot be derived from "is" without the addition of a prescriptive premise). But see John R. Searle, How To Derive 'Ought' From 'Is,' in THEORIES OF ETHICS, supra, at 101 (arguing that "ought" can be derived from "is," even without a prescriptive premise). One promising route of inquiry is to consider whether claims about what is (especially scientific claims) are on any surer epistemological footing than are claims of morality. See, e.g., Baruch A. Brody, Intuitions and Objective Moral Knowledge, 62 MONIST 446 (1979) (providing an intuitionist defense for "objective moral knowledge"); Hilary Putnam, The Place of Facts in a World of Values, in REALISM WITH A HUMAN FACE 163 (James Conant ed., 1990); J.B. Schneewind, Moral Knowledge and Moral Principles, in REVISIONS: CHANGING PERSPECTIVES IN MORAL PHILOSOPHY 113 (Stanley Hauerwas & Alasdair MacIntyre eds., 1983) (viewing moral and scientific principles as enjoying equivalent rational grounding). Another important question is whether "is" and "ought" claims are even distinguishable in kind, given the "holistic" way in which many of our beliefs confront experience. See MORTON WHITE, WHAT IS AND WHAT OUGHT TO BE DONE: AN ESSAY ON ETHICS AND EPISTEMOLOGY (1981).
184. See, e.g., R.M. Hare, The Promising Game, in THEORIES OF ETHICS 115 (Phillippa Foot ed. 1967) (arguing that "ought" cannot be derived from "is" without the addition of a prescriptive premise). But see John R. Searle, How To Derive 'Ought' From 'Is,' in THEORIES OF ETHICS, supra, at 101 (arguing that "ought" can be derived from "is," even without a prescriptive premise). One promising route of inquiry is to consider whether claims about what is (especially scientific claims) are on any surer epistemological footing than are claims of morality. See, e.g., Baruch A. Brody, Intuitions and Objective Moral Knowledge, 62 MONIST 446 (1979) (providing an intuitionist defense for "objective moral knowledge"); Hilary Putnam, The Place of Facts in a World of Values, in REALISM WITH A HUMAN FACE 163 (James Conant ed., 1990); J.B. Schneewind, Moral Knowledge and Moral Principles, in REVISIONS: CHANGING PERSPECTIVES IN MORAL PHILOSOPHY 113 (Stanley Hauerwas & Alasdair MacIntyre eds., 1983) (viewing moral and scientific principles as enjoying equivalent rational grounding). Another important question is whether "is" and "ought" claims are even distinguishable in kind, given the "holistic" way in which many of our beliefs confront experience. See MORTON WHITE, WHAT IS AND WHAT OUGHT TO BE DONE: AN ESSAY ON ETHICS AND EPISTEMOLOGY (1981).
185. See, e.g., R.M. Hare, The Promising Game, in THEORIES OF ETHICS 115 (Phillippa Foot ed. 1967) (arguing that "ought" cannot be derived from "is" without the addition of a prescriptive premise). But see John R. Searle, How To Derive 'Ought' From 'Is,' in THEORIES OF ETHICS, supra, at 101 (arguing that "ought" can be derived from "is," even without a prescriptive premise). One promising route of inquiry is to consider whether claims about what is (especially scientific claims) are on any surer epistemological footing than are claims of morality. See, e.g., Baruch A. Brody, Intuitions and Objective Moral Knowledge, 62 MONIST 446 (1979) (providing an intuitionist defense for "objective moral knowledge"); Hilary Putnam, The Place of Facts in a World of Values, in REALISM WITH A HUMAN FACE 163 (James Conant ed., 1990); J.B. Schneewind, Moral Knowledge and Moral Principles, in REVISIONS: CHANGING PERSPECTIVES IN MORAL PHILOSOPHY 113 (Stanley Hauerwas & Alasdair MacIntyre eds., 1983) (viewing moral and scientific principles as enjoying equivalent rational grounding). Another important question is whether "is" and "ought" claims are even distinguishable in kind, given the "holistic" way in which many of our beliefs confront experience. See MORTON WHITE, WHAT IS AND WHAT OUGHT TO BE DONE: AN ESSAY ON ETHICS AND EPISTEMOLOGY (1981).
186. See, e.g., R.M. Hare, The Promising Game, in THEORIES OF ETHICS 115 (Phillippa Foot ed. 1967) (arguing that "ought" cannot be derived from "is" without the addition of a prescriptive premise). But see John R. Searle, How To Derive 'Ought' From 'Is,' in THEORIES OF ETHICS, supra, at 101 (arguing that "ought" can be derived from "is," even without a prescriptive premise). One promising route of inquiry is to consider whether claims about what is (especially scientific claims) are on any surer epistemological footing than are claims of morality. See, e.g., Baruch A. Brody, Intuitions and Objective Moral Knowledge, 62 MONIST 446 (1979) (providing an intuitionist defense for "objective moral knowledge"); Hilary Putnam, The Place of Facts in a World of Values, in REALISM WITH A HUMAN FACE 163 (James Conant ed., 1990); J.B. Schneewind, Moral Knowledge and Moral Principles, in REVISIONS: CHANGING PERSPECTIVES IN MORAL PHILOSOPHY 113 (Stanley Hauerwas & Alasdair MacIntyre eds., 1983) (viewing moral and scientific principles as enjoying equivalent rational grounding). Another important question is whether "is" and "ought" claims are even distinguishable in kind, given the "holistic" way in which many of our beliefs confront experience. See MORTON WHITE, WHAT IS AND WHAT OUGHT TO BE DONE: AN ESSAY ON ETHICS AND EPISTEMOLOGY (1981).
187. See, e.g., R.M. Hare, The Promising Game, in THEORIES OF ETHICS 115 (Phillippa Foot ed. 1967) (arguing that "ought" cannot be derived from "is" without the addition of a prescriptive premise). But see John R. Searle, How To Derive 'Ought' From 'Is,' in THEORIES OF ETHICS, supra, at 101 (arguing that "ought" can be derived from "is," even without a prescriptive premise). One promising route of inquiry is to consider whether claims about what is (especially scientific claims) are on any surer epistemological footing than are claims of morality. See, e.g., Baruch A. Brody, Intuitions and Objective Moral Knowledge, 62 MONIST 446 (1979) (providing an intuitionist defense for "objective moral knowledge"); Hilary Putnam, The Place of Facts in a World of Values, in REALISM WITH A HUMAN FACE 163 (James Conant ed., 1990); J.B. Schneewind, Moral Knowledge and Moral Principles, in REVISIONS: CHANGING PERSPECTIVES IN MORAL PHILOSOPHY 113 (Stanley Hauerwas & Alasdair MacIntyre eds., 1983) (viewing moral and scientific principles as enjoying equivalent rational grounding). Another important question is whether "is" and "ought" claims are even distinguishable in kind, given the "holistic" way in which many of our beliefs confront experience. See MORTON WHITE, WHAT IS AND WHAT OUGHT TO BE DONE: AN ESSAY ON ETHICS AND EPISTEMOLOGY (1981).
188. Thus, for example, it seems to me that Hare decisively got the better of the argument with Searle regarding the deriviability of ought from is. Compare Hare, supra note 161, with Searle, supra note 161
189. See infra Sections VI.A-B.
190. See Richard Rudner, The Scientist Qua Scientist Makes Value Judgments, 20 PHIL. Sci. 1 (1953).
191. This is Rudner's preferred description since he believes that "an adequate rational reconstruction of the procedures of science would show that every scientific inference is properly construable as a statistical inference." Id. at 3.
192. Id. at 2.
193. Id.
194. See id.
195. Id.
196. Id.
197. See id. at 2-3.
198. See supra note 21.
199. Perhaps Rudner's scientist should defer epistemically to a moral theorist. There is reason to believe that moral deference takes place - children surely rely on it, and religious adherents probably do as well. Indeed, the concepts of a "moral leader" and "moral authority" are not at all alien to the discourse of communal moral life. In a well-known dissent, Judge Frank suggested that the proper way for the court to go about assessing whether an immigrant had "good moral character," as required by a federal immigration statute, was to ascertain "the attitude of our ethical leaders," an attitude that "would not be too difficult to learn." Repouille v. United States, 165 F.2d 152, 154 (2d Cir. 1947) (Frank, J., dissenting). Interesting issues remain to be analyzed regarding the kind of epistemic deference that could occur in moral settings, and whether and when such deference should occur - "should" from both epistemic and moral points of view. As mentioned above, there appear to be cases in which courts defer to moral philosophers "as such." In Daubert, the Supreme Court arguably deferred epistemically to philosophers, albeit not moral philosophers. See supra notes 58-60 and accompanying text.
200. The metaethical issue Rudner raises - whether a scientist as such must make moral judgments - is closely analogous to one that has occupied a good deal of legal theory, namely, whether a judge "as such" must make moral judgments. John Lyons takes a position on this issue quite similar to Rudner's, and both of them raise (and, to my ears, beg) the metaethical question about the overriding nature of moral judgments. Arguing for the view that the judge as such must make moral decisions, Lyons asserts that [p]eople who act in the name of the law do things which would require justification if they were nor done in the name of the law - they use coercion and force, they kill and maim, they deprive people of liberty and valued goods. . . . [J]udicial decisions, like other things, stand in need of full-fledged moral justification. David Lyons, Substance, Process, and Outcome in Constitutional Theory, 72 CORNELL L. REV. 745, 761-62 (1987). Basically, Lyons's contention amounts to the claim that moral considerations are overriding for the judge, just as Rudner's basic contention is that they are overriding for the scientist. Any point of view can be imperialistic, demanding that its methods, aims, and results trump others if and when they conflict. In this, Rudner and Lyons share a familiar deontic metaethical view. Though I do not argue it here, my own preferred metaethical view treats moral norms as hypothetical, not categorical imperatives. It is a kind of voluntarism about moral obligation cogently argued by Phillippa Foot (later, unfortunately, abandoned), and is one that might have been better admired in Sartrian existentialism had it been advanced in a more disciplined manner. An additional comment about intellectual "imperialism" is relevant. The domain of metaethics provides one example of the fact that philosophical analysis is the ultimate and inevitable court of appeal for disputes between and among competing points of view. Of course, that claim itself is advanced from a philosophical point of view; it's philosophy all the way up. (Ludwig Wittgenstein may have been right to suggest that there is no "meta-philosophy" in the sense of escaping philosophy, see LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 121 (1953), but wrong if he was also claiming that philosophical reflection on philosophy is not possible. It is. Indeed, it is an almost inevitable, if often implicit, part of philosophical reflection.) What then are the distinctive aims, methods, and results of the philosophical point of view? As an axiological enterprise, philosophy's cognitive aims are not so much to produce truths or even correct beliefs - though truth is a regulative ideal for philosophical analysis. The principal overarching cognitive aim of philosophy is to produce rationally warranted argument and explanation. Its methods are varied but tend to be drawn from a delimited conceptual toolkit. Those methods deploy and are concerned with the metaphysical modalities (necessity, possibility, impossibility, contingency) and their normative kin (obligation, permission, prohibition). Philosophers deploy the modalities to explicate "the nature" of various abstractions and the concepts used to express them (such as truth, meaning, knowledge, justification, justice, good, bad, evil), as well as the concepts comprising the metaphysical and normative modalities themselves. They search for the necessary and sufficient conditions that constitute those concepts, or some of the necessary or sufficient conditions, or try to discern why it is not possible to offer the necessary and sufficient conditions either of some given concept or of any concept at all. Philosophers are also centrally concerned with argument, both as an object of study and as a method of analysis. My arguments in this Article concern several of these distinctively philosophical enterprises, especially the last.
201. The metaethical issue Rudner raises - whether a scientist as such must make moral judgments - is closely analogous to one that has occupied a good deal of legal theory, namely, whether a judge "as such" must make moral judgments. John Lyons takes a position on this issue quite similar to Rudner's, and both of them raise (and, to my ears, beg) the metaethical question about the overriding nature of moral judgments. Arguing for the view that the judge as such must make moral decisions, Lyons asserts that [p]eople who act in the name of the law do things which would require justification if they were nor done in the name of the law - they use coercion and force, they kill and maim, they deprive people of liberty and valued goods. . . . [J]udicial decisions, like other things, stand in need of full-fledged moral justification. David Lyons, Substance, Process, and Outcome in Constitutional Theory, 72 CORNELL L. REV. 745, 761-62 (1987). Basically, Lyons's contention amounts to the claim that moral considerations are overriding for the judge, just as Rudner's basic contention is that they are overriding for the scientist. Any point of view can be imperialistic, demanding that its methods, aims, and results trump others if and when they conflict. In this, Rudner and Lyons share a familiar deontic metaethical view. Though I do not argue it here, my own preferred metaethical view treats moral norms as hypothetical, not categorical imperatives. It is a kind of voluntarism about moral obligation cogently argued by Phillippa Foot (later, unfortunately, abandoned), and is one that might have been better admired in Sartrian existentialism had it been advanced in a more disciplined manner. An additional comment about intellectual "imperialism" is relevant. The domain of metaethics provides one example of the fact that philosophical analysis is the ultimate and inevitable court of appeal for disputes between and among competing points of view. Of course, that claim itself is advanced from a philosophical point of view; it's philosophy all the way up. (Ludwig Wittgenstein may have been right to suggest that there is no "meta-philosophy" in the sense of escaping philosophy, see LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 121 (1953), but wrong if he was also claiming that philosophical reflection on philosophy is not possible. It is. Indeed, it is an almost inevitable, if often implicit, part of philosophical reflection.) What then are the distinctive aims, methods, and results of the philosophical point of view? As an axiological enterprise, philosophy's cognitive aims are not so much to produce truths or even correct beliefs - though truth is a regulative ideal for philosophical analysis. The principal overarching cognitive aim of philosophy is to produce rationally warranted argument and explanation. Its methods are varied but tend to be drawn from a delimited conceptual toolkit. Those methods deploy and are concerned with the metaphysical modalities (necessity, possibility, impossibility, contingency) and their normative kin (obligation, permission, prohibition). Philosophers deploy the modalities to explicate "the nature" of various abstractions and the concepts used to express them (such as truth, meaning, knowledge, justification, justice, good, bad, evil), as well as the concepts comprising the metaphysical and normative modalities themselves. They search for the necessary and sufficient conditions that constitute those concepts, or some of the necessary or sufficient conditions, or try to discern why it is not possible to offer the necessary and sufficient conditions either of some given concept or of any concept at all. Philosophers are also centrally concerned with argument, both as an object of study and as a method of analysis. My arguments in this Article concern several of these distinctively philosophical enterprises, especially the last.
202. See infra Section VI.D.
203. See infra Section VI.C.
204. For a discussion of Wiles's proof and the publicity it occasioned, see SINGH, supra note 1.
205. See infra Section V.B.
206. See H.L.A. HART, ESSAYS ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL THEORY (1982).
207. Id. at 261-62.
208. THOMAS HOBBES, LEVIATHAN (1651), reprinted in 3 THE ENGLISH WORKS OF THOMAS HOBBES OF MALMESBURY 1, 54 (Sir William Molesworth ed., London, John Bohn 1839).
209. THOMAS HOBBES, LEVIATHAN (1651), reprinted in 3 THE ENGLISH WORKS OF THOMAS HOBBES OF MALMESBURY 1, 54 (Sir William Molesworth ed., London, John Bohn 1839).
210. G.E.M. Anscombe, What Is It To Believe Someone?, in RATIONALITY AND RELIGIOUS BELIEF 141, 144 (C.F. Delaney ed., 1979).
211. Id. at 145.
212. Id. (emphasis added).
213. C.A.J. COADY, TESTIMONY: A PHILOSOPHICAL STUDY (1992).
214. Id. at 42.
215. Again, Hobbes was on target here: When a man's discourse beginneth . . . at some saying of another, of whose ability to know the truth, and of whose honesty in not deceiving, he doubteth not; and then the discourse is not so much concerning the thing, as the person; and the resolution is called BELIEF, and FAITH: faith, in the man; belief, both of the man, and of the truth of what he says. HOBBES, supra note 181, reprinted in 3 THE ENGLISH WORKS OF THOMAS HOBBES OF MALMESBURY, supra note 181, at 53-54.
216. As Coady explains his view: [T]estimony is the evidence of persons[,] and [condition (2)] shows in a schematic way what it is about persons that makes this sort of evidence special. . . . [In the case of testimony] we are not just believing that p because of something or other about the witness's utterance but we are believing the witness. COADY, supra note 185, at 46.
217. Consider Paul Grice's maxim of quality: "1. Do not say what you believe to be false. 2. Do not say that for which you lack adequate evidence." PAUL GRICE, STUDIES IN THE WAY OF WORDS 27 (1989).
218. Compare Grice's maxims of quantity and relation. See id. at 26-27.
219. HOBBES, supra note 181, reprinted in 3 THE ENGLISH WORKS OF THOMAS HOBBES OF MALMESBURY, supra note 181, at 496.
220. A very helpful discussion with Catherine Elgin alerted me to a related point, which I here extend to the question of whether a testifier could cooperatively testify regarding something self-evident.
221. HART, supra note 179, at 261.
222. Id. at 262.
223. See id.; see also supra text accompanying note 180. Other theorists of practical and theoretical authority differ as to whether actual possession of superior knowledge (and related traits or information) is a necessary condition of epistemic authority. Heidi Hurd, for example, offers an account of epistemic authority that seems similar to Hart's on this point, asserting that "[t]he advice of a theoretical authority constitutes evidence at all only because that authority is more motivated to discover the truth, or is in possession of more information, or has superior inference-drawing abilities." Heidi M. Hurd, Challenging Authority, 100 YALE L.J. 1611, 1669 (1991). Raz's position on this point is harder to assess. On the one hand, he seems sympathetic with Hart's view in using the "dependence thesis" as an account of both theoretical and practical authority, according to which "all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive." JOSEPH RAZ, THE MORALITY OF FREEDOM 47 (1986). On the other hand, Raz also expressly denies that "authoritative determinations are binding only if they correctly reflect the reasons on which they depend." Id. (emphasis added). "On the contrary," he argues, "there is no point in having authorities unless their determinations are binding even if mistaken . . . ." Id. Raz suggests that practical authorities and theoretic authorities "share the same basic structure" that is expressed by the dependence thesis. Id. at 53. If the analogy extends to legal authorities specifically, Raz's position is probably this: Just as a legal authority need not necessarily be legitimate to be a legal authority, but rather need only claim to be so, so an epistemic authority need not necessarily have the requisite epistemic competence in the subject matter of his putative expertise, but rather need only claim to have it, to be an epistemic authority.
224. See id.; see also supra text accompanying note 180. Other theorists of practical and theoretical authority differ as to whether actual possession of superior knowledge (and related traits or information) is a necessary condition of epistemic authority. Heidi Hurd, for example, offers an account of epistemic authority that seems similar to Hart's on this point, asserting that "[t]he advice of a theoretical authority constitutes evidence at all only because that authority is more motivated to discover the truth, or is in possession of more information, or has superior inference-drawing abilities." Heidi M. Hurd, Challenging Authority, 100 YALE L.J. 1611, 1669 (1991). Raz's position on this point is harder to assess. On the one hand, he seems sympathetic with Hart's view in using the "dependence thesis" as an account of both theoretical and practical authority, according to which "all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive." JOSEPH RAZ, THE MORALITY OF FREEDOM 47 (1986). On the other hand, Raz also expressly denies that "authoritative determinations are binding only if they correctly reflect the reasons on which they depend." Id. (emphasis added). "On the contrary," he argues, "there is no point in having authorities unless their determinations are binding even if mistaken . . . ." Id. Raz suggests that practical authorities and theoretic authorities "share the same basic structure" that is expressed by the dependence thesis. Id. at 53. If the analogy extends to legal authorities specifically, Raz's position is probably this: Just as a legal authority need not necessarily be legitimate to be a legal authority, but rather need only claim to be so, so an epistemic authority need not necessarily have the requisite epistemic competence in the subject matter of his putative expertise, but rather need only claim to have it, to be an epistemic authority.
225. See HART, supra note 179, at 262.
226. See id. at 261 ("It is also content-independent since its status as a reason is not dependent on the meaning of what is asserted so long as it falls within the area of his special expertise.").
227. Other examples come to mind. Where exactly does the epistemic authority of a psychologist end when he is testifying about the degree to which a victim of battered-women's syndrome was responsible for her actions? Where exactly does the epistemic authority of a medical doctor end when she is advising nonphysicians at the Immigration and Naturalization Service regarding whether a homosexual alien should be excluded from the United States under a statute that forbids immigration to persons who have "psychopathic personality, sexual deviation, or mental defect"? Hill v. INS, 714 F.2d 1470, 1475 (9th Cir. 1983) (quoting 8 U.S.C. § 1182(a)(4) (1970)). These and many other adducible examples of the vague borders that demarcate the zone of the expert's special competence reveal that the content-independence of a nonexpert's reason for deferring cannot be absolute. See id. ("It would thus violate Congress' direction to allow INS officers who are not medically trained to determine psychopathic personality, sexual deviation, or mental defect by interrogation. . . . Congress intended the determination to be made solely by trained physicians.").
228. Anthony Kenny suggests in his discussion of expert testimony in courts that the possibility of cumulative reliance within a putative scientific discipline is indeed a necessary condition of the discipline's being a science. On Kenny's view, "though any expert must be able to repeat the results of others he does not have to: he can build on the foundations that others have built." Kenny, supra note 64, at 50 (emphasis added).
229. Id.
230. Id.
231. Sometimes it will be vacuously true that B treats A as an epistemic authority. For example, in situations in which B has not made any independent investigation on a given subject and A has, B could judge that A "has sufficient knowledge, intelligence, or wisdom which makes it reasonable to believe that what A says on that subject is more likely to be true than the results reached by B through B's independent investigations" - simply by virtue of the fact that B made no independent investigation and planned never to make such investigation. Such a judgment by B may be vacuously true, but it would well be true nevertheless. Despite the vacuity, it is useful to illustrate this possibility with a hypothetical example. Suppose B, an experienced nutritionist, is hired as a consultant for C. A is a college student who works for B. B has decided it would be useful, albeit not that important in the long run, to determine how many calories, on an average daily basis, C consumed over a specified time. Both A and B have access to a list of all the foods and quantities of food C consumed during that time. It could well be the case that B treated A as an epistemic authority on the question of C's daily average calorie consumption, under the following conditions: (1) A took the time to apply his perceptual and inferential faculties to the problem while B did not; (2) B did not think it would be worth B's time to do so; even though (3) B also believed that had B taken the time to do the calculation, he would have produced a more accurate one. (Thanks to Kent Greenawalt for useful discussion on this point.)
232. HART, supra note 179, at 261-62. I agree with Raz: "Nowadays it is not the fashion to talk of [theoretical] authorities . . . . Instead we have experts." RAZ, supra note 195, at 52.
233. Note also that Hart's account does not make knowledge a necessary condition of epistemic authority, only superior knowledge, intelligence, or wisdom which makes it reasonable to believe that what he says on that subject is more likely to be true than the results reached by others through their independent investigations, so that it is reasonable for them to accept the authoritative statement without such independent investigation or evaluation of his reasoning. HART, supra note 179, at 262 (emphasis added).
234. Hart offers this as his account of both practical and theoretical authority, and shares with Raz the basic explanation of the structure of authority.
235. Though I do not try to say it here, more could be said about what constitutes the kind of "specialized training" that can yield epistemic competence in an expert discipline. For example, certain kinds of experience, if properly reflected upon, might well provide the requisite "training," so that a religious mystic might well be an expert on the beliefs and requirements of his religion even without having what would conventionally be called "training." (Thanks to Kent Greenawalt for helpful discussion on this point.)
236. See supra Section II.B (discussing axiology and point of view).
237. This particular theoretical point of view serves also as a practical one. Indeed, it may be a distinctive feature of religious points of view that they tend to serve both functions. According to some realist theories of moral judgment, the moral point of view is also simultaneously theoretical and practical. Michael Moore construes Raz's conception of practical authority to have this kind of realist dimension: Why isn't practical authority always irrational and thus always illegitimate in its apparent requirement that we act against (or at least not judge for ourselves) what the balance of reasons indicates we should do? Raz's answer is very attractive, given in terms of what he calls the "service conception" of authority. As the name suggests, according to the service conception, authorities are legitimate to the extent that they serve us. Authorities serve us whenever they promulgate directives which, if we follow them, produce behavior by us that better conforms to what we ought to do anyway (independently of any authoritative directive) than the behavior which would result if we calculated directly what we ought to do. This is an attractive notion of legitimate authority because it meets the irrationality objection head-on: authority is legitimate only when it is rational not to act on those reasons that would otherwise (without the authority) make it rational for us to do something else. The service conception of legitimate practical authority softens the line between theoretical and practical authority. If one grants that there is such a thing as knowledge about what, all things considered, one ought to do, then another person is a practical authority for us usually when he is also a theoretical authority (about one area of knowledge, namely, about where the balance of our reasons for action comes out). It is this greater knowledge of the reasons that antecedently bind us that often gives someone legitimate authority over what we should do. Michael S. Moore, Authority, Law, and Razian Reasons, 62 S. CAL. L. REV. 827, 830-31 (1989) (footnotes omitted).
238. See supra Section II.B (discussing axiology and point of view).
239. See supra Section II.C (discussing Rudner).
240. Bonjour, for example, appears to emphasize truth in this way: The distinguishing characteristic of epistemic justification is . . . its essential or internal relation to the cognitive goal of truth. It follows that one's cognitive endeavors are epistemically justified only if and to the extent that they are aimed at this goal, which means very roughly that one accepts all and only those beliefs which one has good reason to think are true. BONJOUR, supra note 142, at 8.
241. See, e.g., CATHERINE Z. ELGIN, CONSIDERED JUDGMENT (1996).
242. See M.F. Burnyeat, Wittgenstein and Augustine De Magistro, 61 PROC. ARISTOTELIAN SOC'Y SUPPLEMENT 1, 20 (1987).
243. Id.
244. Id.
245. Catherine Elgin is making a serious inroad on this project. See ELGIN, supra note 212.
246. Explanation is important to the conception of understanding I endorse here. Again, Burnyeat puts it well: Plato, like Aristotle, makes it a condition on knowing or understanding that p that one grasps the explanation of p. This of course involves seeing the connection between p and a whole lot of other propositions, but it is not mere connectedness so much as explanatory connectedness that counts, and it is by way of this thought that Plato and Aristotle reach the conclusion that knowledge in the full sense, i.e. understanding, requires the synoptic grasp of a whole field. Burnyeat, supra note 213, at 21.
247. The view of understanding as possession of a synoptic grasp of explanatory relations is not uncommon among philosophers who explicitly discuss the concept. For example, Neil Cooper argues that "understanding is concerned with relations and connections" and that "[i]t is possible to have knowledge of a bitty or superficial kind, while we only have understanding when we relate or connect bits of knowledge with other bits in a more or less coherent whole." Neil Cooper, Understanding, 68 PROC. ARISTOTELIAN SOC'Y SUPPLEMENT 1, 3-4 (1994). To like effect is Catherine Elgin's more ambitious project of articulating an understanding-oriented, rather than a knowledge-oriented, epistemology: 'Understanding' is a better term for the epistemic achievement that concerns us here. Not being restricted to facts, understanding is far more comprehensive than knowledge ever hoped to be. We understand rules and reasons, actions and passions, objections and obstacles, techniques and tools, forms and functions and fictions, as well as facts. We also understand pictures, words, equations, and patterns. Ordinarily these are not isolated accomplishments; they coalesce into an understanding of a subject, discipline, or field of study. . . . Understanding a particular fact or finding, concept or value, technique or law is largely a matter of knowing where it fits and how it functions in a matrix of commitments. ELGIN, supra note 212, at 123.
248. See supra notes 143-158 and accompanying text.
249. See Brewer, supra note 15, at 962-78.
250. See supra Section III.B.
251. See NELSON GOODMAN, WAYS OF WORLDMAKING 1-7 (1978).
252. See supra note 19 and accompanying text.
253. i nor on anything about their relation. See id. at 23.
254. Logically and epistemologically weaker forms of competition, such as "incoherence," are possible, but the more easily articulable and understood forms of contradiction and competition will suffice for my analysis.
255. I briefly pointed to this kind of competition in the discussion of Brown. See supra Section I.C.
256. See Edmund Gettier, Is Justified True Belief Knowledge?, 23 ANALYSIS 121 (1963).
257. See supra note 21 and accompanying text.
258. See supra note 27.
259. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 590 (1993).
260. Id. at 589-90.
261. Id. at 590.
262. Cf. supra Section IV.C (discussing "competition" among experts).
263. Daubert, 509 U.S. at 590 (internal quotation marks omitted). Strictly speaking, one cannot, on pain of circularity, explicate the concept of knowledge by referring to "any body of known facts," unless one goes on to give a noncircular explication of what a known fact is. Id. In context, the Court may escape this problem if what it is really saying is that "when the Rules of Evidence speak of 'knowledge,' they are actually referring to beliefs supported by good reasons." Even so, the Court speaks a bit too broadly in the quote in the text above. Surely it is not the case that any "body of ideas inferred from 'known' facts" satisfies the criteria of even the Court's weaker conception of "knowledge." Id. For there are, of course, a great many invalid and otherwise unacceptable types of inference possible from acknowledged known truths. What the Court really has in mind are good inferences (those that are "accepted as truths on good grounds," "supported by appropriate validation - i.e., 'good grounds,' based on what is known," and the like). Id.
264. See id. at 590.
265. Brief for Respondent at 14-15, Daubert (No. 92-102) (emphasis added) (second alteration in original). The brief adds the following footnote: It is, of course, perfectly conceivable for each of several competing scientific (or other expert) claims to be validated to the extent possible at any given time. The very reason that scientists can disagree, and that scientific knowledge advances as it does, is that what is known at a particular moment does not uniquely predetermine all answers to new questions. Accepted standards and available evidence thus may not rule out either of two competing, but well-reasoned, conclusions. By the same token, however, they do rule out some answers. What validation means, therefore - all it can mean, given the ever-evolving body of knowledge - is good reason for acceptance as true, based on what is known at the time. Id. at 15 n.8. To similar effect are several other passages in the brief. The brief asserts, for example, that Rule 702 requires that "the specific testimony of each expert have an adequate foundation, judged by the accepted standards of the expert's field," id. at 12 (emphasis added); that "[i]t is the judge's fundamental duty under the Rules to screen evidence for admissibility to ensure that the body of evidence provides a rationally reliable basis for judgment," id. (emphasis added); that "by restricting expert testimony to 'scientific, technical, or other specialized knowledge [that] will assist the trier of fact,' Rule 702 demands that an expert's testimony be well-grounded in the standards generally followed in his or her field for validating-establishing the truth of-assertions of the type offered," id. (emphasis added) (quoting FED. R. EVID. 702); and that "[t]he critical term 'knowledge' demands more than individual belief or speculation, but instead refers to inferences or assertions that are grounded in the standards reliably used to support such claims," id. at 14 (emphasis added).
266. I pose this question, with a different example, at the beginning of the Article. See supra text accompanying note 1.
267. See infra Part VII.
268. A useful discussion of reductionist and antireductionist views of testimony is found in Elizabeth Fricker, Telling and Trusting: Reductionism and Anti-Reductionism in the Epistemology of Testimony, 104 MIND 393 (1995) (reviewing COADY, supra note 185).
269. DAVID HUME, Of Miracles, in AN INQUIRY CONCERNING HUMAN UNDERSTANDING 46 (Charles W. Hendel ed., The Bobbs-Merrill Co. 1955) (1748).
270. DAVID HUME, An Abstract of a Treatise of Human Nature, in AN INQUIRY CONCERNING HUMAN UNDERSTANDING, supra note 240, at 186.
271. See, e.g., HUME, supra note 240.
272. Id. at 119.
273. Id. at 119-21.
274. Id. at 121.
275. QUINE & ULLIAN, supra note 148, at 33-34.
276. See id. at 34 ("Observation sentences, taken narrowly, are comparatively foolproof. That is what makes them the tribunal of science.").
277. Id.
278. See id. at 35. They explain: Truthfulness is essential, in large part, to the survival of language itself. . . . Our learning of the primitive vocabulary of observation sentences consists, after all, in our learning to associate it with the appropriate sensory stimulations. Small wonder then if those same stimulations dispose us in the future to affirm the properly associated observation sentences. Lying is an effortful deviation from the conditioned response. Id.
279. Id. at 36-37.
280. I explore these devices shortly. See infra Section V.C.
281. See Elizabeth Fricker, The Epistemology of Testimony, 61 PROC. ARISTOTELIAN SOC'Y SUPPLEMENT 57, 73 (1987).
282. See HUME, supra note 240, at 119-24.
283. See QUINE & ULLIAN, supra note 148, at 33-34.
284. See COADY, supra note 185, at 79-100.
285. Fricker argues: Each one of us, in becoming the adult master of our commonsense scheme of things, has been through a historical process of development during which her attitude towards her teachers and other informants was one of simple trust. . . . Bearing in mind the role of teaching by others whom we trust unquestioningly in our learning of language (which is not separate from learning about the world), this seems inevitable. Fricker, supra note 239, at 401. Fricker also suggests that the putative KJB acquired at this stage can be confirmed in coherentist fashion as the stock of our KJB from all sources, including perception, memory, and inference, grows. She continues: "[A] belief first acquired through testimony very often gains support later on both through corroboration by other testimony, and through its coherence with what we learn from perception, and the empirical theory we base on this." Id. at 410.
286. Fricker, supra note 252, at 72-73.
287. See Fricker, supra note 252, at 73.
288. Fricker, supra note 239, at 405.
289. Id.
290. Fricker, supra note 252, at 77 (emphasis added).
291. I assume this is a misprint for "hearer."
292. Fricker, supra note 239, at 405 (emphasis added). How good the empirical grounds are depends, of course, on what kinds of empirical reasons there are for the presumption in favor of sincerity and competence. Fricker does not offer much discussion of those grounds in the pieces I have been discussing, but has more extended discussion elsewhere.
293. Fricker, supra note 252, at 75.
294. See supra Section I.A.
295. John Hardwig vigorously advances this point about the complexity of the testimony that we intuitively believe produces KJB in hearers. See infra notes 273-285 and accompanying text (discussing Hardwig's account).
296. Fricker, supra note 239, at 407.
297. Id.
298. See HILARY PUTNAM, The Meaning of "Meaning," in 2 MIND, LANGUAGE AND REALITY 215 (1975); John Hardwig, Epistemic Dependence, 82 J. PHIL. 335, 335 (1985).
299. See HILARY PUTNAM, The Meaning of "Meaning," in 2 MIND, LANGUAGE AND REALITY 215 (1975); John Hardwig, Epistemic Dependence, 82 J. PHIL. 335, 335 (1985).
300. See COADY, supra note 185; Kenny, supra note 64.
301. See supra Section IV.C.
302. I continue to use "KJB" for "knowledge or justified belief for the same basic reason offered at the outset of this section.
303. Hardwig, supra note 269, at 335. Since Hardwig does not deny that testimony is a form of evidence, and he clearly has testimonial evidence for the listed beliefs, we must take his assertion in the first sentence to mean that he possesses no nontestimonial evidence for them.
304. Hardwig offers a nice example of (what he calls) epistemic dependence among physicists. See id. at 346-47.
305. PUTNAM, supra note 269, at 227.
306. Id. at 228.
307. Putnam uses the term "division of linguistic labor" because of the particular version of realist semantics he was urging at the time. One may just as well call it a division of epistemic labor, as he himself implicitly acknowledges. See id. ("This division of linguistic labor rests upon and presupposes the division of nonlinguistic labor, of course. . . . [W]ith the increase of division of labor in the society and the rise of science, more and more words begin to exhibit this kind of division of labor.").
308. Hardwig, supra note 269, at 339.
309. Id. at 348.
310. Id.
311. See supra notes 272-274 and accompanying text. This is the intuition to which I think Fricker is insufficiently attentive.
312. Nozick offers an account of one mode of philosophical explanation as the explanation of the possibility of some state (knowledge, justice, truth) in the face of other apparently true propositions that deny its possibility. See NOZICK, supra note 5, at 8-24.
313. QUINE & ULLIAN, supra note 148, at 37.
314. See supra text accompanying note 226 (discussing "actual competition").
315. Many of these accounts presuppose some kind of epistemic collectivism, or at least cohere better with it than with individualism, for the reasons Hardwig highlights. See Hardwig, supra note 269.
316. See Kenny, supra note 64, at 49 (stating that "different experts must not regularly give conflicting answers to questions which are central to their discipline" though there may be differences about borderline cases).
317. See id. at 50 ("[T]here will be agreement about the appropriate procedures for gathering information within the discipline. A procedure carried out by one expert to reach a particular conclusion is one which must be capable of duplication by any other expert.").
318. See id. ("[T]hough any expert must be able to repeat the results of others he does not have to: he can build up on foundations that others have built.").
319. See id. ("It need not necessarily predict the future (paleontology does not). But it must predict the not yet known from the already known . . . ."). Note that both Kenny and the Daubert opinion articulate four criteria of science, and they overlap fairly closely on three of them: testing, peer review, and general acceptance. Kenny has no explicit version of the rate-of-error criterion the Supreme Court endorses. Compare Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594 (1993), with Kenny, supra note 64, at 49-50. Note also that Kenny offers his criteria as "four criteria which are necessary conditions for a discipline to be scientific," Kenny, supra note 64, at 49. while the Court assiduously avoids treating any of its factors as either necessary or sufficient conditions, see Daubert, 509 U.S. at 593.
320. Kenny, supra note 64, at 51-52.
321. Among evidence scholars, John Langbein articulates this position well: At trial, the battle of experts tends to baffle the trier, especially in jury courts. If the experts do not cancel each other out, the advantage is likely to be with the expert whose forensic skills are the more enticing. The system invites abusive cross-examination. Since each expert is party-selected and party-paid, he is vulnerable to attack on credibility regardless of the merits of his testimony. A defense lawyer recently bragged about his technique of cross-examining plaintiffs' experts in tort cases. Notice that nothing in his strategy varies with the truthfulness of the expert testimony he tries to discredit. Langbein, supra note 73, at 836. Langbein then quotes an article on trial strategy which reads: "A mode of attack ripe with potential is to pursue a line of questions which, by their form and the jury's studied observation of the witness in response, will tend to cast the expert as a 'professional witness.' By proceeding in this way, the cross-examiner will reap the benefit of a community attitude, certain to be present among several of the jurors, that bias can be purchased, almost like a commodity." Id. (quoting Joseph Ryan, Jr., Making the Plaintiff's Expert Yours, FOR DEF., Nov. 1982, at 12, 13). Langbein concludes: Thus, the systematic incentive in our procedure to distort expertise leads to a systematic distrust and devaluation of expertise. Short of forbidding the use of experts altogether, we probably could not have designed a procedure better suited to minimize the influence of expertise. Id.
322. Kenny notes: "[T]he adversary system does not fit well with the use of experts to assist the court. It leads to dangers that the experts will be more concerned to assist one or other party to win their case than to assist the court to arrive at the truth." Kenny, supra note 64, at 61.
323. Id. at 61-62. While Kenny's proposal is limited to judging the question whether a new discipline is a science, the basic problem he identifies affects competing testimony within acknowledged scientific felds no less than competing testimony about what is a science. (The former was arguably the situation, for example, in Daubert.) But that omission can be remedied, and other writers in the "extra-cameral" camp do so. Kenneth Culp Davis, for example, has proposed that Congress create "a research organization outside the [Supreme] Court to make studies at the Court's request," so that the Court could assign questions of legislative fact "to a qualified staff for a study or investigation." Kenneth Culp Davis, Judicial, Legislative, and Administrative Lawmaking: A Proposed Research Service for the Supreme Court, 71 MINN. L. REV. 1, 9, 15 (1986).
324. These include neutral commissions, such as Kenny proposes; special research services; and the like. See Kenny, supra note 64, at 61-62.
325. I discuss this criterion of arbitrariness further below. See infra Section VILA.
326. Not infrequently, expert "testimony" is offered in written form (for example through affidavits). This is especially likely to be true when the nonexpert judge, performing the Daubert "gatekeeping" function, is assessing the evidence in order to make the threshold decision about admissibility.
327. See supra Section III.C.
328. Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995); see also supra notes 53-56 and accompanying text.
329. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594-95 (1993) (emphasis added) (footnote) omitted).
330. See supra notes 143-158 and accompanying text.
331. See. e.g., Zuchowicz v. United States, 870 F. Supp. 15 (D. Conn. 1994); see also Developments in the Law - Confronting the New Challenges of Scientific Evidence, 108 HARV. L. REV. 1481, 1514 (1995) (discussing Zuchowicz and its application of Daubert). Although this may be within the spirit of Daubert, it is inconsistent with its letter, since Daubert expressly refused to make any one criterion of scientific reliability necessary and expressly allowed that the Frye criterion was a permissible one. See supra note 51 and accompanying text.
332. See. e.g., Zuchowicz v. United States, 870 F. Supp. 15 (D. Conn. 1994); see also Developments in the Law - Confronting the New Challenges of Scientific Evidence, 108 HARV. L. REV. 1481, 1514 (1995) (discussing Zuchowicz and its application of Daubert). Although this may be within the spirit of Daubert, it is inconsistent with its letter, since Daubert expressly refused to make any one criterion of scientific reliability necessary and expressly allowed that the Frye criterion was a permissible one. See supra note 51 and accompanying text.
333. 543 N.E.2d 1106 (Ill. App. Ct. 1989).
334. Id. at 1107.
335. See id. at 1109. In an earlier ruling reached largely because of the weakness of the state expert's testimony, the Illinois appellate court that decided Palmer II had held that the defendant was not guilty by reason of insanity, thus overturning a jury verdict of guilty but insane. See People v. Palmer (Palmer I), 487 N.E.2d 1154 (Ill. App. Ct. 1985). At issue before the appellate court in Palmer II was whether the Double Jeopardy Clause of the U.S. Constitution permitted Illinois to retry the defendant after the court's ruling in Palmer I. The court held that the state expert's self-contradictory testimony was so weak that the earlier ruling went to the sufficiency, and not merely to the weight of that testimony, and thus that the defendant could not be tried consistent with double jeopardy principles. See Palmer II, 543 N.E.2d at 1109.
336. 926 S.W.2d 449 (Ky. 1996).
337. See id. at 451.
338. The trial and appellate courts ultimately disposed of the case on the basis of a settlement the parties reached before the jury rendered its verdict. See id.
339. Jury deliberations are not reported, and there is no indication of the extent to which the jury relied on this distinction in deciding in favor of the manufacturer Eli Lilly.
340. Socrates - at least Plato's Socrates - deployed general canons of rational evidential support to question, challenge, and embarrass many of the "experts" he encountered in Athens. See PLATO, The Apology, in THE LAST DAYS OF SOCRATES 96 (H. Tredennick trans., 1969).
341. For discussion, see D.H. Kaye, The DNA Chronicles: Bad Numbers, Good Lawyering, and a Better Procedure, available in 1995 WL 564589.
342. See id.
343. 2, and you know the - no one is going to be able to do much with that kind of thing. And he says, "Can you simplify it?" You say, "See, there's too much simplification already. This is the only way that I can state it to you so there will be no misunderstanding." Sanchez v. Black Bros. Co., 423 N.E.2d 1309, 1320 (Ill. App. Ct. 1981) (emphasis omitted) (determining that a trial court's refusal, during cross-examination of a manufacturer's expert witness, to permit questioning about this speech was reversible error).
344. See Fricker, supra note 239.
345. See QUINE & ULLIAN, supra note 148, at 33-41.
346. See HUME, supra note 240, at 120 ("We entertain a suspicion concerning any matter of fact when the witnesses . . . deliver their testimony with hesitation or, on the contrary, with too violent asseverations.").
347. See ARISTOTLE, RHETORIC 75 (A. Jebb trans., Cambridge Univ. Press 1925).
348. Notice that when the judgment of the lawyer is also nonexpert, as it often is, the lawyer may not even be in a good position to decide on substantive grounds which experts are in fact competent. That is, the lawyer's relative lack of epistemic competence compounds the problem of possible divergence between warranted assertion and persuasiveness.
349. I draw on material collected in Samuel R. Gross, Expert Evidence, 1991 WIS. L. REV. 1113, 1126-36. Similar materials are gathered in Langbein, supra note 73, at 835-41.
350. Note, The Doctor in Court: Impartial Medical Testimony, 40 S. CAL. L. REV. 728, 728-29 (1967). It is not clear whether the authors of the survey were attentive to lawyers' relative inability to judge the spistemic merits of experts' testimony.
351. Hyman Hillenbrand, The Effective Use of Expert Witnesses, BRIEF, Fall 1987, at 48, 49 (emphasis added).
352. Stephen E. Nagin, Economic Experts in Antitrust Cases, LITIGATION, Winter 1982, at 36, 37.
353. Thomas V. Harris, A Practitioner 's Guide to the Management and Use of Expert Witnesses in Washington Civil Litigation, 3 U. PUGET SOUND L. REV. 159, 161 (1979).
354. Albert Momjian, Preserving Your Witness's Stellar Testimony: How To Qualify Your Expert to the Court, FAM. ADVOC., Summer 1983, at 8, 8.
355. Cf. supra Section IV.A (discussing understanding and epistemic competence).
356. Samuel Gross makes a related but slightly different point: "The confident expert witness is less likely to have been chosen because she is right, than to have been chosen because she is confident whether or not she is right." Gross, supra note 318, at 1134.
357. See Kenny, supra note 64, at 61-62.
358. See supra notes 273-286 and accompanying text.
359. See supra Section I.B.
360. Daubert made the Frye test one of its four factors of scientific reliability. Some federal courts have resuscitated the Frye test while ostensibly applying the Daubert rule, and many state courts have expressly rejected the Daubert rule and expressed continuing allegiance to the Frye test when applying state rules of evidence. See Developments in the Law - Confronting the New Challenges of Scientific Evidence, supra note 301, at 1514 n.40 (citing cases).
361. Milich, supra note 68, at 923-24 (emphasis added).
362. I say "judges" because at the stage of litigation to which Frye is relevant, the question is one of admissibility. Obviously, at a later litigative stage, factfinding juries can also rely on credentials in assessing the weight to be given to evidence that a judge has seen fit to admit.
363. See, e.g., Milich, supra note 68, at 918-20.
364. Most jurors presumably would give less weight to a degree from Pittsburgh than from, say, Harvard, since they would be ignorant of Pittsburgh's lofty reputation in philosophy.
365. Cf. supra note 60 (discussing a case in which philosophers' testimony was taken).
366. 529 F. Supp. 1255 (E.D. Ark. 1982), aff'd, 723 F.2d 45 (8th Cir. 1983).
367. Of course, there are versions of this dilemma that pit traditional science (the science of "established" universities and learned societies) against "nontraditional" science more directly. There are cases in the American courts, for example, dealing with the desire of Christian Scientist parents not to allow their gravely ill children to receive conventional medical care. See, e.g., Newmark v. Williams, 588 A.2d 1108 (Del. 1990). These cases turn in part on whether the child is actually receiving adequate medical care. Whom should the judge ask about whether Christian Science healing methods have due regard for the traditional medical facts, or indeed whether the traditional medical facts are the only relevant facts to be known - the Christian Scientist or a member of the traditional medical establishment?
368. PHILIP KITCHER, ABUSING SCIENCE: THE CASE AGAINST CREATIONISM 179 (1982).
369. Id.
370. HENRY M. MORRIS, THE REMARKABLE BIRTH OF PLANET EARTH at back cover (1972), quoted in KlTCHER, supra note 337, at 178-79.
371. See infra Part VII.
372. One example (and there are many like it) is found in the following case, which addressed the same issue as in Daubert, namely whether Bendectin could cause birth defects: Have the plaintiffs established by a preponderance of the evidence that ingestion of Bendectin at therapeutic doses during the period of fetal organogenesis is a proximate cause [i.e. does it in a natural and continuous sequence produce injuries that would not have otherwise occurred] of human birth defects? . . . The jury unanimously answered no. Judge Rubin denied a post-trial motion for j.n.o.v. by the plaintiffs because "[b]oth sides presented testimony of eminently qualified and highly credible experts who differed in regard to the safety of Bendectin." The great weight of scientific opinion, as is evidenced by the FDA committee results, sides with the view that Bendectin use does not increase the risk of having a child with birth defects. Sailing against the prevailing scientific breeze is the DeLucas' expert Dr. Alan Done, formerly a Professor of Pharmacology and Pediatrics at Wayne State University School of Medicine, who continues to hold fast to his position that Bendectin is a teratogen. In spite of his impressive curriculum vitae, Dr. Done's opinion on this subject has been rejected as inadmissible by several courts. DeLuca v. Merrell Dow Pharms., Inc., 911 F.2d 941, 945-46 (3d Cir. 1990) (citations omitted). In a footnote, the court added: Dr. Done served as a Special Assistant to the Director for Pediatric Pharmacology of the PDA's Bureau of Drugs from 1971 to 1975. In this role, Done aided in the provision "of FDA input on research involving children and fetuses, and development of guidelines for pre-clinical safety evaluations of drugs for use in children and in pregnancy . . . ." He also participated in publishing a paper called "General Guidelines for the Evaluation of Drugs to be Approved for Use during Pregnancy and for the Treatment of Infants and Children," in conjunction with the American Academy of Pediatrics in 1974. Dr. Done's opinion that Bendectin is a teratogen largely rests on inferences he draws from epidemiological data, most of which he contends are the same that was utilized by the experts, including the FDA committee, to whom Merrell Dow cites to bolster its contention that Bendectin does not cause birth defects. The principal difference is that Dr. Done analyzes that data using an approach, advocated by Professor Kenneth Rothman of the University of Massachusetts Medical School, that places diminished weight on so-called "significance testing." Id. at 946 n.7 (citations omitted); cf. K.J. Rothman, A Show of Confidence, 300 NEW ENG. J. MED. 1362 (1978) (arguing that significance testing is misleading).
373. Concerns about regress, question begging, and underdetermination are present in ancient skeptical (specifically, Pyrrhorian) challenges to the claim that we can know anything. See JULIUS ANNAS & JONATHAN BARNES, THE MODES OF SKEPTICISM 19-30 (1985) (discussing "ten modes" of Aenisidemus).
374. Judge Posner described the crank factor with typically unvarnished asseveration: [The witness' testimony was] either [that] of a crank or, what is more likely, of a man who is making a career out of testifying for plaintiffs in automobile accident cases in which a door may have opened; at the time of trial he was involved in 10 such cases. His testimony illustrates the age-old problem of expert witnesses who are "often the mere paid advocates or partisans of those who employ and pay them, as much so as the attorneys who conduct the suit. There is hardly anything, not palpably absurd on its face, that cannot now be proved by some so-called 'experts.'" Chaulk v. Volkswagen of Am., Inc., 808 F.2d 639, 644 (7th Cir. 1986) (Posner, J., dissenting) (quoting Keegan v. Minneapolis & St. L.R.R., 78 N.W. 965, 966 (Minn. 1899)). One can be forgiven for wondering to what extent Posner's view is driven not so much by a concern for the expert witness's epistemic competence as by a strong disagreement with the expert over the normative attractiveness of the expert s views: It is not the law, in Wisconsin or anywhere else, that the standard of care is set by the designers of $60,000 automobiles, so that the omission of any safety device found in such automobiles is negligent. . . . The buyer of a Mercedes 560 may be willing to pay extra for minuscule, perhaps wholly theoretical, improvements in safety, but such a buyer's willingness to buy the ultimate refinement in safety technology does not define the standard of care for the whole industry. Id. at 644-45. This is perhaps another instance in which the borderline demarcating the expert's zone of competence is blurry and in need of policing. It is also relevant to the question of underdetermination to note that the Chaulk majority characterized the expert as "an engineer with expertise in automobile safety." Id. at 642.
375. COADY, supra note 185, at 282.
376. Id. at 286.
377. Id. at 287 (emphasis added).
378. I considered a very similar question in connection with Daubert, see supra Section I.B, and at the beginning of this Article, see supra note 1 and accompanying text.
379. Kenny, supra note 64, at 56.
380. See supra Section II.C.
381. The analysis of practical reasoning could become more complicated than the simple syllogism in the text reflects were one to reflect in the model of practical reasoning the complete structure of singular propositions. Classical categorical syllogistic logic calls for special treatment of singular propositions (e.g., "Socrates is a man"). On the one hand, as Immanuel Kant observed, "Logicians are justified in saying that, in the employment of judgments in syllogisms, singular judgments can be treated like those that are universal." IMMANUEL KANT, CRITIQUE OF PURE REASON 107 (Norman Kemp Smith trans., Macmillan 1965) (1781). On the other hand, such a treatment, while reflecting the universality of the singular proposition (by treating the subject term as a unit class), runs the risk of overlooking the singular proposition's existential import (i.e., the proposition's assertion that the unit class is not empty). One solution is to treat the singular proposition as the conjunction of a universal affirmative (e.g., "All men are mortal") and a particular affirmative (e.g., "Some men are mortal"). See IRVING M. COPI & CARL COHEN, INTRODUCTION TO LOGIC 412-14 (9th ed. 1994). Note also that, according to many philosophers, defeasibility is a feature of every practical syllogism. Although defeasibility is not reflected in the simple practical syllogism above, I do account for it in the model of practical epistemic deference presented below. See, e.g., infra Subsection VI.C.3 (describing steps (7) and (8) in my model).
382. The analysis of practical reasoning could become more complicated than the simple syllogism in the text reflects were one to reflect in the model of practical reasoning the complete structure of singular propositions. Classical categorical syllogistic logic calls for special treatment of singular propositions (e.g., "Socrates is a man"). On the one hand, as Immanuel Kant observed, "Logicians are justified in saying that, in the employment of judgments in syllogisms, singular judgments can be treated like those that are universal." IMMANUEL KANT, CRITIQUE OF PURE REASON 107 (Norman Kemp Smith trans., Macmillan 1965) (1781). On the other hand, such a treatment, while reflecting the universality of the singular proposition (by treating the subject term as a unit class), runs the risk of overlooking the singular proposition's existential import (i.e., the proposition's assertion that the unit class is not empty). One solution is to treat the singular proposition as the conjunction of a universal affirmative (e.g., "All men are mortal") and a particular affirmative (e.g., "Some men are mortal"). See IRVING M. COPI & CARL COHEN, INTRODUCTION TO LOGIC 412-14 (9th ed. 1994). Note also that, according to many philosophers, defeasibility is a feature of every practical syllogism. Although defeasibility is not reflected in the simple practical syllogism above, I do account for it in the model of practical epistemic deference presented below. See, e.g., infra Subsection VI.C.3 (describing steps (7) and (8) in my model).
383. For discussion of this form of the practical syllogism (using an example very similar to this one), see GEORG HENRIK VON WRIGHT, THE VARIETIES OF GOODNESS 162 (1963). Other forms of the practical syllogism are possible. See, e.g., ROBERT AUDI, PRACTICAL REASONING 17-24 (1989); RAZ, PRACTICAL REASON, supra note 132, at 17-24; VON WRIGHT, supra, at 160-71. I believe, however, that this one will suffice for my purposes here.
384. For discussion of this form of the practical syllogism (using an example very similar to this one), see GEORG HENRIK VON WRIGHT, THE VARIETIES OF GOODNESS 162 (1963). Other forms of the practical syllogism are possible. See, e.g., ROBERT AUDI, PRACTICAL REASONING 17-24 (1989); RAZ, PRACTICAL REASON, supra note 132, at 17-24; VON WRIGHT, supra, at 160-71. I believe, however, that this one will suffice for my purposes here.
385. For discussion of this form of the practical syllogism (using an example very similar to this one), see GEORG HENRIK VON WRIGHT, THE VARIETIES OF GOODNESS 162 (1963). Other forms of the practical syllogism are possible. See, e.g., ROBERT AUDI, PRACTICAL REASONING 17-24 (1989); RAZ, PRACTICAL REASON, supra note 132, at 17-24; VON WRIGHT, supra, at 160-71. I believe, however, that this one will suffice for my purposes here.
386. For discussion of this form of the practical syllogism (using an example very similar to this one), see GEORG HENRIK VON WRIGHT, THE VARIETIES OF GOODNESS 162 (1963). Other forms of the practical syllogism are possible. See, e.g., ROBERT AUDI, PRACTICAL REASONING 17-24 (1989); RAZ, PRACTICAL REASON, supra note 132, at 17-24; VON WRIGHT, supra, at 160-71. I believe, however, that this one will suffice for my purposes here.
387. For example, in the syllogism above, premise (2) might be considered either theoretical or prescriptive, depending on one's account of thick practical concepts. I am inclined to think that thick practical propositions, like (2), contain two separable components, one prescriptive and one theoretical. That debate, however, is beyond the scope of this Article. For discussion of thick ethical concepts, see BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 128-31 (1985). With obvious minor changes, Williams's account can be extended beyond the realm of ethics to that of practical reasoning generally.
388. Obviously this is highly idealized. It is possible that there is no actual legal system that even aspires to this degree of accuracy, much less one that achieves it. It is accepted, and probably inevitable, that rules of criminal substance and procedure are both overinclusive and underinclusive, as measured by their background justifications. See P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW: A COMPARATIVE STUDY OF LEGAL REASONING, LEGAL THEORY, AND LEGAL INSTITUTIONS 70-95 (1987); FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 31-34 (1991). In the United States, when the crime in question is a capital crime, there is under Supreme Court doctrine a demand for "heightened reliability" in the process of assessing guilt and making the decision to mete out the "ultimate punishment." But even heightened reliability is not thought by advocates of capital punishment to require absolute reliability in determining who actually committed a capital crime. Some of these advocates acknowledge that some mistakes will be made, with the result that the state will execute (and has executed) some innocent people. But, these advocates argue, overinclusiveness and underinclusiveness is a necessary feature of all rules, and capital punishment is desirable enough that we should tolerate this slippage. Some even argue for an analogy: The innocent executed are like civilian casualties in a "just war."
389. Obviously this is highly idealized. It is possible that there is no actual legal system that even aspires to this degree of accuracy, much less one that achieves it. It is accepted, and probably inevitable, that rules of criminal substance and procedure are both overinclusive and underinclusive, as measured by their background justifications. See P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW: A COMPARATIVE STUDY OF LEGAL REASONING, LEGAL THEORY, AND LEGAL INSTITUTIONS 70-95 (1987); FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 31-34 (1991). In the United States, when the crime in question is a capital crime, there is under Supreme Court doctrine a demand for "heightened reliability" in the process of assessing guilt and making the decision to mete out the "ultimate punishment." But even heightened reliability is not thought by advocates of capital punishment to require absolute reliability in determining who actually committed a capital crime. Some of these advocates acknowledge that some mistakes will be made, with the result that the state will execute (and has executed) some innocent people. But, these advocates argue, overinclusiveness and underinclusiveness is a necessary feature of all rules, and capital punishment is desirable enough that we should tolerate this slippage. Some even argue for an analogy: The innocent executed are like civilian casualties in a "just war."
390. I assume for the sake of argument either that the predicate of the crime (e.g., "murder") is not a thick practical concept, or, if it is one, that it can be broken down into prescriptive and descriptive components (including a descriptive component like "killed the victim" and a prescriptive component like "killed the victim without adequate justification"), and that the theoretical judgment is a judgment about whether the defendant's action satisfied the criteria of the descriptive predicate.
391. See supra note 352 and accompanying text (discussing how I would handle the kinds of "thick" practical concept-terms that occur in many authoritative legal norms, such as "murder," "theft," "assault," and "negligence").
392. Extending tradition, we might call it an enthymeme of the "fourth order." Some writers distinguish "orders" of enthymeme according to which line of the syllogism is unexpressed: "first-order" if the major premise is unexpressed, "second-order" if the minor, and "third-order" if the conclusion. COPI & COHEN, supra note 350, at 294-95. I suggest "enthymeme of the fourth order" to reflect the fact that in most rational reconstructions of the practical syllogism, the only step in the argument that is included is the conclusion of the secondary argument.
393. See supra Section I.A.
394. Brown v. Board of Educ., 347 U.S. 483 (1954); see supra Section I.C.
395. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); see supra Section I.B.
396. Again, this is a familiar feature of legal systems in which it is perfectly coherent to say both that Jones actually committed criminal act X but is not legally guilty of having committed act X.
397. See, e.g., HILARY PUTNAM, REASON, TRUTH AND HISTORY 127-49 (1981).
398. See supra Sections II.B-C.
399. 911 F.2d 941 (3d Cir. 1990).
400. See id. at 945-49. Epidemiologists use the "null hypothesis" as a device for testing the accuracy of a statistical correlation that has been discovered between some harm and a substance that might have caused the harm. The null hypothesis is the hypothesis that - contrary to some prima facie statistical finding - there is actually no correlation between the two variables (harm caused and what might have caused it). The technique is to assume arguendo that the "null hypothesis" is true, and then try to falsify it.
401. Id. (emphasis added).
402. See infra Section VI.C.
403. Of course, moral reasoners can and often should solicit expert information in order to make sufficiently justified moral decisions. For a powerful and elegantly concise suggestion along these lines, see Peter Singer, Moral Experts, 32 ANALYSIS 115 (1971-1972).
404. We may say that the reasoner ought to believe (2) because it is a warranted belief.
405. See supra Section II.C (discussing quantity and quality of warrant).
406. See supra notes 143-158 and accompanying text.
407. I am assuming, of course, a moral reasoner whose morality could countenance killing for this reason - presumably a judgment far more congenial to teleological than to deontological systems. It is also possible that a utilitarian calculator might well factor in even an admittedly small chance of achieving a hugely important outcome, and allow such a calculation to lower the level of proof of (2) she requires before reaching the conclusion in (3).
408. See In re Winship, 397 U.S. 358, 364 (1970).
409. See, e.g., CAL. EVID. CODE § 115 (West 1995) ("Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.").
410. ARIZ. REV. STAT. ANN. § 28-692(B) (West 1989) (amended 1993).
411. On some positivist views, these are not practical but theoretical propositions. See supra note 3. My analysis of epistemic deference and its rational structure does not depend on accepting or rejecting such views. If legal propositions are theoretical, then what I am calling "minor premise practical priority" could be refrained as something like "minor premise priority."
412. To take just one of (at least) hundreds of possible case law examples, in State ex rel. McDougall v. Albrecht, 811 P.2d 791 (Ariz. Ct. App. 1991), the court held that a defendant's failure to pass field sobriety tests, coupled with his speeding and failure to stop at a red light, provided sufficient evidence for the admission of his blood alcohol level at the time of testing, which was significantly after the time of arrest. This evidence was admissible, held the court, because the evidence of speeding, of failure to stop, and of failure to pass field sobriety tests constituted sufficient evidence for the expert to "relate . . . back" the blood alcohol content at the time of testing to that at the time of arrest. Id. at 795. The court also rejected some of the expert testimony in this case. The expert used evidence of the field sobriety test, coupled with the evidence of the post-arrest blood alcohol content, to conclude that there was a 67% chance that Williams had a blood alcohol content greater than 0.10%. See id. at 793. Rejecting the admissibility of this particular calculation, based solely on the post-arrest blood alcohol content and the failure to pass field sobriety tests, the court stated that the expert's "characterization of the field sobriety tests was misleading in that the jury may have given the tests undue significance as scientific truths, when, in fact, they measure only gross neurological impairment." Id. at 795-96. The court continued: "We have concern about the misleading influence [that] such speculative conclusions unsupported by controlled experiments may have on a jury." Id. at 796 (footnote omitted).
413. As I have already mentioned, this analysis applies just as well to "thick legal concepts" like murder and reckless endangerment as it does to blood alcohol in excess of 0.10. For thick legal concepts, the scientific expert testifies to the truth or falsity of the descriptive evidence.
414. As noted supra Section I.B, rules of evidence divide decisionmaking labor between two types of practical reasoner - judges and juries. The rules allow the judge to decide which experts, and which information, is relevant to a given practical decision; the jury then hears from those experts that pass that test. The jury then listens to the screened experts and decides to what extent to credit the testimony in determining whether the defendant's conduct satisfied the predicate in question (e.g., "murder"). Sometimes the judge himself is the factfinder, and so the same person performs both tasks; while this is quite rare in criminal cases, it is less so in civil ones. That different persons perform these tasks is not important for my purposes here.
415. This model of the practical legal reasoner's reasoning applies equally to criminal sanctions and to the benefits parties can obtain from the "enabling" rules of contract, property, tax law, etc.
416. See infra Sections VI.D-E.
417. To anchor this abstraction with an example, recall the case of McDougall, in which the Arizona criminal court ruled inadmissible the scientific expert's testimony that there was a 67% chance that the defendant had been driving with a 0.10% blood alcohol content. The court stated: A courtroom is not a research laboratory. The fate of a defendant in a criminal prosecution should not hang on its ability to successfully rebut scientific evidence which bears an "aura of special reliability and trustworthiness," although, in reality the witness is testifying on the basis of an unproved hypothesis in an isolated experiment which has yet to gain general acceptance in the field. McDougall, 811 P.2d at 796 (quoting United States v. Brown, 557 F.2d 541, 556 (6th Cir. 1977)). In the terms of my analysis, the Arizona court decided that the scientific method the expert had used to arrive at the 67% figure did not produce judgments that were epistemically satisfactory for the practical legal purpose of effecting a just conviction of a criminal defendant. I discuss the normative constraints involved in this kind of decision in Part VII.
418. See supra Section III.A (explaining the distinction between believing a person and believing a proposition).
419. Some of the classic arguments in this debate are cited and discussed below. See infra note 385.
420. See, e.g., ALVIN I. GOLDMAN, EPISTEMOLOGY AND COGNITION (1986); NOZICK, supra note 5.
421. I offer one version of an example familiar in the pro- and anti-probabilist literature. In a seminal article, Laurence Tribe offers the "blue bus" hypothetical to illustrate problems with probabilism in a civil case. In this hypothetical, the plaintiff seeks recovery after being struck by a blue bus in a town in which four-fifths of the blue buses are operated by the defendant. See Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1340-41 (1971). L. Jonathan Cohen offers the "gate crasher" hypothetical to raise some of the same issues. Suppose one thousand people are seated in seats at the rodeo, but only 499 have paid. Payment was in cash, and there is no other proof regarding whether any given individual paid. Can the rodeo owner collect from (or win a civil or criminal action against) a randomly chosen person? Can he collect against every person in the rodeo? Cohen argues no. See L. JONATHAN COHEN, THE PROBABLE AND THE PROVABLE 75-81 (1977). Charles Nesson offers a famous example in the criminal setting. Suppose that in a prison yard, there is clear evidence that 24 out of 25 prisoners participated in the murder of a guard. There is no other evidence regarding any of the individual prisoners. Can one prisoner of the 25, randomly chosen, be convicted of murder on this evidence? Nesson argues no. See Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 HARV. L. REV. 1187, 1192-99 (1979).
422. I offer one version of an example familiar in the pro- and anti-probabilist literature. In a seminal article, Laurence Tribe offers the "blue bus" hypothetical to illustrate problems with probabilism in a civil case. In this hypothetical, the plaintiff seeks recovery after being struck by a blue bus in a town in which four-fifths of the blue buses are operated by the defendant. See Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1340-41 (1971). L. Jonathan Cohen offers the "gate crasher" hypothetical to raise some of the same issues. Suppose one thousand people are seated in seats at the rodeo, but only 499 have paid. Payment was in cash, and there is no other proof regarding whether any given individual paid. Can the rodeo owner collect from (or win a civil or criminal action against) a randomly chosen person? Can
423. I offer one version of an example familiar in the pro- and anti-probabilist literature. In a seminal article, Laurence Tribe offers the "blue bus" hypothetical to illustrate problems with probabilism in a civil case. In this hypothetical, the plaintiff seeks recovery after being struck by a blue bus in a town in which four-fifths of the blue buses are operated by the defendant. See Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1340-41 (1971). L. Jonathan Cohen offers the "gate crasher" hypothetical to raise some of the same issues. Suppose one thousand people are seated in seats at the rodeo, but only 499 have paid. Payment was in cash, and there is no other proof regarding whether any given individual paid. Can the rodeo owner collect from (or win a civil or criminal action against) a randomly chosen person? Can he collect against every person in the rodeo? Cohen argues no. See L. JONATHAN COHEN, THE PROBABLE AND THE PROVABLE 75-81 (1977). Charles Nesson offers a famous example in the criminal setting. Suppose that in a prison yard, there is clear evidence that 24 out of 25 prisoners participated in the murder of a guard. There is no other evidence regarding any of the individual prisoners. Can one prisoner of the 25, randomly chosen, be convicted of murder on this evidence? Nesson argues no. See Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 HARV. L. REV. 1187, 1192-99 (1979).
424. I have amalgamated this example of a jury instruction from CHARLES T. MCCORMICK, MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE 794 (Edward W. Cleary ed., 2d ed. 1972); and Davies v. Taylor, 1974 App. Cas. 207, 219 (Eng.).
425. I have amalgamated this example of a jury instruction from CHARLES T. MCCORMICK, MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE 794 (Edward W. Cleary ed., 2d ed. 1972); and Davies v. Taylor, 1974 App. Cas. 207, 219 (Eng.).
426. Some "thickly theoretically" inclined courts do indeed view the preponderance of the evidence standard this way. One British court, for example, asserted that "the concept of proof on balance of probabilities, which can be restated as the burden of showing odds of at least 51 to 49 that such and such has taken place or is so." Davies, 1974 App. Cas. at 219.
427. An official commission comment on the California rules of evidence discusses different burdens of proof in this way: Usually, the burden of proof requires a party to convince the trier of fact that the existence of a particular fact is more probable than its nonexistence - a degree of proof usually described as proof by a preponderance of the evidence. . . . However, in some instances, the burden of proof requires a party to produce a substantially greater degree of belief in the mind of the trier of fact concerning the existence of the fact - a burden usually described by stating that the party must produce clear and convincing proof . . . or, with respect to the prosecution in a criminal case, proof beyond a reasonable doubt . . . . CAL. EVID. CODE § 500 cmt. (West 1995). Probabilists might suggest that the appropriate level of confidence for the "preponderance" burden is 51%, for the "clear and convincing" burden something like 75%, and for the "beyond a reasonable doubt" burden something like 90%. Thus, probability as the standard of epistemic appraisal yields a very clear ordering system for these different levels of confidence. This is true whether the probabilistic standard is considered to be objective, as in assessments of relative frequency over repeated trials, or is considered to be the subjective rational assignment of betting odds.
428. Moss-Am., Inc. v. Fair Employment Practices Comm'n, 317 N.E.2d 343, 351 (Ill. App. Ct. 1974). A similar standard of epistemic appraisal and level of confidence is used in Livanovitch v. Livanovitch, 131 A. 799 (Vt. 1926), in which an appellate court held that the trial court properly instructed the jury regarding the requirements of the preponderance of evidence test with this charge: "If . . . you are more inclined to believe from the evidence that he did so deliver the bonds to the defendant, even though your belief is only the slightest degree greater than that he did not, your verdict should be for the plaintiff." Id. at 800.
429. MCCORMICK, supra note 386, at 794.
430. See, e.g., CAL. EVID. CODE. § 500 cmt. Overt reference to probabilistic standards is also frequently encountered in the judgment of relevance, a necessary condition (under most U.S. rules of evidence) of admissibility.
431. Charles Nesson, Agent Orange Meets the Blue Bus: Factfinding at the Frontier of Knowledge, 66 B.U. L. REV. 521, 521 (1986) (emphasis added).
432. For a brief discussion of a case in which an expert offered this testimony, see supra note 376.
433. See Brewer, supra note 15, at 1017-21.
434. See Id. at 945-49, 978-82, 1021-26.
435. See id.
436. Paul Thagard argues that abduction is better understood as an inference to the best explanation of Θ by Φ than as an inference that Θ follows deductively from Φ. See Paul R. Thagard, The Unity of Peirce's Theory of Hypothesis, 13 TRANSACTIONS PEIRCE SOC'Y 112, 116-17 (1977). Thagard's argument is persuasive. Although in the text 1 sometimes treat abductive inference in the standard Peircean manner, i.e., relying on a premise 'Φ → Θ,' I do think the relation of Φ and Θ is that the Φ advanced is, in the judgment of the abductive reasoner, the best available explanation of Θ.
437. i, even though the reasoner's ultimate conclusion is that only x, and not also y, has the inferred characteristic. See generally Brewer, supra note 15.
438. See supra Sections II.B-C.
439. FED. R. CIV. P. 12(b)(6).
440. 2.
441. Brown v. Board of Educ., 347 U.S. 483 (1954).
442. See supra Section I.E.
443. In the context of legal reasoning, analogy-warranting rule abduction is a special type of legal rule abduction.
444. See Brown, 347 U.S. at 495.
445. Daubert v. Merrell Dow Pharms., Inc., 727 F. Supp. 570 (S.D. Cal. 1989).
446. See supra Section I.B.
447. The process by which this scientific information is absorbed into the practical reasoner's overall reasoning, which I have called "minor premise practical priority," is outlined supra Section VI.B. It involves the practical reasoner (court or legislature, sometimes dividing labor with a jury) adopting some standard of epistemic appraisal, some attendant level of confidence, and then relying on it in soliciting expert information from scientific experts whose disciplines the practical reasoner has judged to be rationally pertinent to the case at hand.
448. See supra Section V.D.
449. Thagard's argument is much to the same effect. See Thagard, supra note 397.
450. See John R. Josephson, Conceptual Analysis of Abduction, in ABDUCTIVE INFERENCE: COMPUTATION, PHILOSOPHY, TECHNOLOGY 5 (John R. Josephson et al. eds., 1994).
451. Id. at 14 (emphasis added). Josephson appears to treat criteria (1) to (4) as going to "[t]he judgment of likelihood associated with an abductive conclusion," and criteria (6) and (7) as a separate consideration (one "[b]eyond the judgment of . . . likelihood") regarding the reasoner's "willingness to accept the conclusion." Id. I do not see these as separate types of consideration, so I have included them on one list in the text above. Criterion 5 is very close to the point Rudner makes in his ultimately unsuccessful argument that the scientist as such must make moral decisions. See supra Section II.C.
452. See supra Section II.C (discussing Rudner).
453. He writes: It has been suggested that we should use mathematical probabilities to help us choose among explanatory hypotheses . . . . If suitable knowledge of probabilities is available, the mathematical theory of probabilities can, in principle, guide our abductive evaluation of explanatory hypotheses to determine which is best. However, in practice it seems that rough qualitative confidence levels on the hypotheses are enough to support abductions, which then produce rough qualitative confidence levels for their conclusions . . . . [F]or the most part numerical confidence estimates are unavailable and unnecessary for reasoning. People are good abductive reasoners without close estimates of confidence. Josephson, supra note 411, at 26-27.
454. See supra Section IV.C.
455. See supra Subsection V.C.1.
456. See supra Subsection V.C.4.
457. State v. Hammond, 604 A.2d 793, 795 (Conn. 1992).
458. I should acknowledge that my approach to the question of the reasoner's experience with the success of credentials and extrapolation therefrom draws its energy from a moderate empiricist approach. Detailed discussion of why I am attracted to that approach is beyond the scope of the present work. I would begin by defending an empiricist account with the kinds of modifications cogently suggested by Fricker. See Fricker, supra note 239.
459. See Brewer, supra note 15, at 932-33.
460. Josephson also offers an argument to show that "it is possible to treat every good (i.e., reasonable, valid) inductive generalization as an instance of abduction." Josephson, supra note 411, at 19.
461. See the interesting discussion in JEROME D. FRANK, PERSUASION AND HEALING: A COMPARATIVE STUDY OF PSYCHOTHERAPY 136-64 (2d ed. 1973).
462. See the discussion of Laudan's reticular account of scientific inquiry, which I track here. See supra Section II.B.
463. An article in a leading litigator's handbook describes "accident reconstruction" and expert testimony in this way: Whenever one is confronted with difficult liability issues in a substantial motor vehicle injury case, a dissection of how the accident happened, is essential. This is particularly significant when the victim is one who is involved in a multi-vehicle crash situation. Under those circumstances, a firm grasp of the dynamics of speed, road surface, metal damage, skid marks, gouge marks, debris, scuffing of roadway, and other factors, are paramount in reconstructing the events that led to the accident in question. The burden of reconstruction (which falls upon the party asserting the claim or defense) can be met in but one of two methods of proof: The first option is to produce facts through witnesses and documents that will create sufficient inferences, thereby drawing the jury to the desired conclusion. The other methodology is to produce a professional witness called an "accident reconstruction specialist." Such an expert is one who is usually a licensed professional engineer with a specialty in the myriad of dynamics involved in a complex motor vehicle accident. Essentially, such a witness, once qualified, provides testimony that is usually identical with the ultimate or threshold issue of the case. In essence, such a witness furnishes the accusatory opinion that incriminates one or the other operator involved in the accident. While the argument can be raised that the ultimate opinion reached by such an expert is a usurpation of the jury function, it remains, notwithstanding, as opinion evidence, subject to the usual instruction by the Court as to its acceptance or rejection by the jury. Moreover, strong and direct accident reconstruction testimony is extremely persuasive and oftentimes represents the difference between winning and losing. Leonard L. Finz, Accident Reconstruction: A Very Special Art, in LITIGATION 177, 179-80 (PLI Litig. & Admin. Practice Course Handbook Series No. H4-5012, 1987).
464. B.A.O. Williams, Knowledge and Reasons, in PROBLEMS IN THE THEORY OF KNOWLEDGE 1, 5 (G.H. von Wright ed., 1972). In the omitted parts of this passage, Williams firmly commits himself to an externalist approach to knowledge. [N]ot only is it not necessary that the knower be able to support or ground his true belief by reference te other propositions, but it is not necessary that he be in any special state with regard to this belief at all, at least at the level of what he can consciously rehearse. Id. Elsewhere, the paper flirts with a causal account. I would subscribe to neither epistemological view, but I think virtually all theories would reject the merely accidentally true belief as either justified belief or knowledge.
465. See supra Sections II.B-C.
466. JOHN RAWLS, A THEORY OF JUSTICE 238-39 (1971) (emphasis added).
467. 631 F.2d 1069 (3d Cir. 1980).
468. See id. at 1071.
469. See id. at 1079-80.
470. See id. at 1073 (discussing Zenith Radio Corp. v. Matsushita Elec. Indus. Corp., 478 F. Supp. 889 (E.D. Pa. 1979)).
471. Id. at 1079 (emphasis added) (citations omitted).
472. Id. at 1084.
473. Id. (emphasis added).
474. Id. at 1085 (emphasis added) (citations omitted).
475. State v. Hammond, 604 A.2d 793, 795 (Conn. 1992) (citations omitted).
476. Markman v. Westview Instruments, Inc., 116 S. Ct. 1384, 1396 (1996) (citations omitted). From an epistemic point of view, Markman's solution suffers from the same problem that afflicts In Re Japanese Products Antitrust Litigation: A technically nonexpert judge is not in a decisively better position than a technically nonexpert jury.
477. See supra Subsection V.C.4.c (describing the "underdetermination condition").
478. See supra Section IV.A.
479. Thanks to Justice Charles Fried for very helpful discussion of this point.
480. See JUDICIAL CONFERENCE OF THE U.S., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 97 (1990) ("Economic, statistical, technological, and natural and social scientific data are becoming increasingly important in both routine and complex litigation."), quoted in General Elec. v. Joiner, 118 S. Ct. 512, 520 (1997) (Breyer, J., concurring).
481. Id. Joiner held that, even under Daubert, the proper standard of review for decisions about the admissibility of scientific evidence was "abuse of discretion," regardless of whether the district judge's decision was to admit or exclude the evidence, and regardless of whether that decision was "outcome determinative." See id. at 515 (majority opinion).
482. See FED. R. EVID. 706.
483. See Joiner, 118 S. Ct. at 520-21 (Breyer, J., concurring).
484. Like the philosopher Anthony Kenny, Justice Breyer offers an "extra-cameral" approach to the problem. I discuss this approach and its problems above. See supra notes 286-293 and accompanying text.