What type of feedback would you like to send?
Abstract: In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the logical theology of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of axioms and corollaries; and this element of truth is not obviated by the more powerful logical techniques that are now available.
Oliver Wendell Holmes, Christopher Columbus Langdell, syllogistic logic, modern logic, law
Abstract: Jeremy Bentham's powerful metaphor of Injustice, and her handmaid Falsehood reminds us, if we need reminding, that justice requires not only just laws, and just administration of those laws, but also factual truth - objective factual truth; and that in consequence the very possibility of a just legal system requires that there be objective indications of truth, i.e., objective standards of better or worse evidence... My plan [in this Olin Lecture in Jurisprudence, presented at Notre Dame law School, in October 2004] is to sketch some epistemological themes of mine, and explore their bearing on two familiar, radical epistemological criticisms of our legal system: (i) that an adversarial system is an epistemologically poor way of determining the truth; and (ii) that exclusionary rules of evidence are epistemologically undesirable. Neither criticism, I shall argue, is decisive; both, however, throw harsh light on disturbing aspects of the way our adversarial system actually functions.
Evidence, epistemology, adversarial system, inadmissibility, exclusionary rules
Abstract: After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the pluralistic universe of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).
Abstract: After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the "pluralistic universe" of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).
classical pragmatism, Oliver Wendell Holmes, pluralistic universe, synechism, evolution of legal systems, logic and law, law and morality
Abstract: In Frye (1923) the D.C. Court upheld the exclusion of testimony of the results of a then-new blood-pressure deception test on the grounds that novel scientific testimony crosses the line between the experimental and the demonstrable, and so is admissible, only if it is sufficiently established to have gained general acceptance in the particular field to which it belongs. Ignored for a decade, rarely cited for a quarter-century, over time the Frye test became increasingly influential, until by the early 1980s it had been adopted by 29 states. In 1975, however, newly-enacted Federal Rules of Evidence had set a seemingly less restrictive standard: the testimony of a qualified expert, including a scientific expert, is admissible provided it is relevant (unless it is excluded, under Rule 403, on grounds of unfair prejudice, waste of time, or confusing or misleading the jury). In 1992 proposals to tighten up the Federal Rules were before Congress. In 1993 the Supreme Court issued its ruling in Daubert -- the first case in its 204-year history where the central questions concerned the admissibility of scientific testimony. The Frye rule arose in a criminal case, and had for most of its history been cited in criminal cases; but Daubert was a tort action in which the trial court had relied on Frye in excluding the plaintiffs' experts' testimony that the morning-sickness drug Bendectin was teratogenic. So the Supreme Court was to determine whether the FRE had superseded Frye, and in particular how Rule 702 was to be interpreted. Yes, Justice Blackmun wrote for the majority, the FRE had superseded Frye; but the Rules themselves require judges to screen proffered expert testimony not only for relevance, but also for reliability. In dissent, however, pointing out that the word reliable nowhere occurs in the text of Rule 702, Justice Rehnquist anticipated difficulties over whether and if so how Daubert should be applied to non-scientific expert testimony; worried aloud that federal judges were being asked to become amateur scientists; and questioned the wisdom of his colleagues' readiness to get involved in philosophy of science. I think he was right to suspect that something was seriously amiss; in fact, what I shall have to say here might be read as an exploration, amplification, and partial defense of his reservations about that philosophical excursus.
Abstract: Abstract: This paper responds to the question posed in the announcement of the conference at Brooklyn Law School at which it was presented: if and how [the inquiry into the reliability of proffered scientific testimony mandated by Daubert] relates to 'truth,' and whose view of the truth should prevail. The first step is to sketch the legal history leading up to Daubert, and to explore some of the difficulties Daubert brought in its wake; the next, to develop an account of truth in the sciences that combines a full acknowledgment of the fallibility and incompleteness of the scientific enterprise with a robustly objective conception of truth - which helps us understand why the legal system often gets less than the best out of science; and finally, exploring the concept of legal truth, to show how false scientific clams sometimes get entrenched as legally reliable.
Evidence law, Daubert trilogy, truth in science, warrant cnsensus, legal reliability, truth in law
Abstract: What is called legal pragmatism today is very different from the older style of legal pragmatism traditionally associated with Oliver Wendell Holmes; and there is much that is worthwhile on the conception of the law revealed by reading Holmes's The Path of the Law in the light of the classical pragmatist tradition of Peirce, James, and Dewey. Here, reflections on the varieties of pragmatism - philosophical and legal, old and new - will be wrapped around an exploration of Holmes's legal philosophy and the strengths and weaknesses of his arguments.
Oliver Wendell Holmes, Classical Pragmatism, Neo-Pragmatism, Legal Theory, Social Science, Constitutional Law
Abstract: "Much truth is spoken, that more may be concealed," wrote Mr. Justice Darling in 1879. Opening with an articulation of the distinction between truth (the concept) and truths (particular true propositions), this paper is largely devoted to: (1) developing an account of the dual meaning of "partially true" - "true-in-part" vs. "part of the truth"; and (2) understanding the reasons for, and the dangers of, the very common tendency to tell only part of the relevant truth.
truth, truths, partial truth, Ramsey, laconicism, vagueness, deception
Abstract: Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances.
expert testimony, Daubert, Joiner, science, inquiry vs. advocacy, fallibilism vs. finality, innovation vs. inertia
Abstract: In many toxic-tort cases - notably in Oxendine v. Merrell Dow Pharmaceuticals, Inc, and in Joiner v. G.E., - plaintiffs argue that the expert testimony they wish to present, though no part of it is sufficient by itself to establish causation by a preponderance of the evidence, is jointly sufficient to meet this standard of proof; and defendants sometimes argue in response that it is a mistake to imagine that a collection of pieces of weak evidence can be any stronger than its individual components. This article draws on the epistemological theory I first presented in 1993 in Evidence and Inquiry, and then amplified and refined in 2003 in Defending Science - Within Reason. This theory of evidence shows that, under certain conditions, a combination of pieces of evidence none of which is sufficient by itself really can warrant a casual conclusion to a higher degree than any of its components alone. When my account is applied to the very complex congeries of evidence typically proffered to prove general causation in these toxic-tort cases, it improves on the influential Bradford Hill criteria for assessing causation; and it suggests answers to questions frequently raised in such cases: e.g., whether epidemiological evidence is essential for proof of causation, and whether such evidence should be excluded if it is not statistically significant. Moreover, the argument of this paper reveals that by obliging courts to screen each item of expert testimony individually for reliability, the atomism implicit in Daubert will sometimes stand in the way of an accurate assessment of the worth of complex causation evidence.
toxic torts, causation evidence, admissibility, preponderance, Weight of Evidence methodology, Bradford Hill criteria, evidentiary atomism, Daubert v. Merrell Dow Pharms., Inc.
Abstract: Rehearing Daubert on remand from the Supreme Court, Judge Kozinski introduced a fifth "Daubert factor" of his own: that expert testimony is based on "litigation-driven science" is an indication that it is unreliable. This article explores the role this factor has played in courts' handling of scientific testimony, clears up an ambiguity in "litigation-driven" and some uncertainties in "reliable," and assesses the reasons courts have given for reading such research with suspicion. This analysis reveals that research that is litigation-driven in the stronger of the two senses distinguished is inherently less likely to be evidentially reliable; but also that it is so hard to determine whether research is litigation-driven in this strong sense that this new Daubert factor is not as helpful as Judge Kozinski imagined.
law, science, Daubert, Kitzmiller, forensic science, professional expert witnesses, statutes of limitations, court-appointed experts
Abstract: Peer review and publication is one of the factors proposed in Daubert v. Merrell Dow Pharmaceuticals, Inc. as indicia of the reliability of scientific testimony. This Article traces the origins of the peer-review system, the process by which it became standard at scientific and medical journals, and the many roles it now plays. Additionally, the Author articulates the epistemological rationale for pre-publication peer-review and the inherent limitations of the system as a scientific quality-control mechanism. The Article explores recent changes in science, in scientific publishing, and in the academy that have put the system under strain. The Author argues that Justice Blackmun's advice to courts - that peer-reviewed publication is relevant, but is not dispositive - is of little practical help. Instead, the Author suggests questions that courts should ask in assessing the significance of the fact that testimony is, or is not, based on peer-reviewed publication and illustrates with reference to another Bendectin case, Blum v. Merrell Dow Pharmaceuticals, Inc., where some of these questions were asked.
Abstract: The many meanings of integrity are distinguished. This paper focuses specifically on how the concept of integrity in the sense of firm adherence to values applies to science qua institution. The most relevant values - the epistemological values of evidence-sharing and respect for evidence - are articulated, and shown to be rooted in the character of the scientific enterprise. This paves the way for an exploration of the circumstances that presently threaten to erode commitment to these core values: an exploration illustrated by the disturbing saga of the arthritis drugs Vioxx and Celebrex. The paper concludes with an articulation of why the erosion of scientific integrity should concern us.
Science, integrity, values, epistemology, ethics, medical research, Vioxx
Abstract: A drug company funds a large-scale clinical trial of a new AIDS therapy; when the results are unfavorable, the company tries to prevent their being published; when the researchers go ahead with publication anyway; the company seeks millions of dollars in damages. Of course, viewed more closely, things are more complicated than they seem at first. The author sketches an account of what science is and does that suggests how and why the ways in which scientific work is funded can distort or even block its progress, and concludes with some thoughts about industrial sponsorship of scientific research in the universities.
clinical trials, research funding
Abstract: The story I shall be exploring is certainly a disturbing one: a drug company funds a large-scale trial of its new AIDS therapy; when the results are unfavorable, the company tries to prevent their being published; when the researchers go ahead with publication anyway, the company seeks millions of dollars in damages; eventually, newspaper headlines tell us it gets zilch, but the arbitration proceedings are private, so beyond that we know - well, zilch; the same year, an action is filed alleging that the firm had manipulated its stock price by misleading the public about the effectiveness of this drug; four years later, with this suit still pending, the company website affirms that previous clinical trials demonstrate the drug's effectiveness. Of course, when you look closely things are more complicated than they seem at first; and anyway, I don't want just to work up a good head of righteous indignation, but to offer you something with real theoretical backbone. So the plan is to sketch an account of what science is and does that suggests how and why the ways in which scientific work is funded can distort or even block its progress, to put this theory to work in the course of an analysis of the troubled history of the trials, clinical and legal, of Immune Response's AIDS drug, Remune, and to conclude with some thoughts about industrial sponsorship of scientific research in the universities.
Abstract: After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the “pluralistic universe” of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).
In Portuguese Resumo Após um breve esboço da história do pragmatismo filosófico em geral, e do pragmatismo jurídico especificamente (seção 1), este artigo desenvolve um novo, neo-clássico pragmatismo jurídico: uma teoria do direito baseada, em parte, em Holmes, mas também em idéias da tradição pragmatista clássica na filosofia. Os principais temas são o “universo pluralista” do direito (seção 2); a evolução dos sistemas jurídicos (seção 3); o lugar da lógica no direito (seção 4); e a relação entre direito e moralidade (seção 5).
Abstract: I. The classical pragmatist tradition; contemporary distortions of pragmatism. II. Peirce's thesis of the "growth of meaning"; its relevance to the vocabulary of the sciences and the rationality of the scientific enterprise. III. Peirce's "ethics of terminology"; its connection with his aspiration to make philosophy "scientific." IV. Why, in the language of philosophy today, we see impoverishment of meaning and violations of the ethics of terminology.
pragmatism, pragmaticism, neo-pragmatism, C.S. Peirce, scientific philosophy, enrichment/impoverishment of meaning, ethics of terminology, language of science, language of philosophy
Abstract: The focus here is Robert L. Heilbroner's critique, in the last chapter of the 7th edition of The Worldly Philosophers, of the idea that economics is, or should be, scientific. Heilbroner's conception of economics as essentially tied to capitalism is too narrow, and at odds with his own commentary on the rise of pauperism after the English common-land enclosures; and his critique of contemporary economics-as-social science is overdrawn. Nevertheless, there is indeed an important role for the "visionary" economics for which Heilbroner hankers: assessing the benefits and drawbacks of different ways of ordering the production and distribution of goods and services.
science, social science, economics, capitalism, Robert L. Heilbroner
Abstract: There is tension between the adversarialism of the U.S. legal culture and the investigative procedures of the sciences, and between the law's concern for finality and the open-ended fallibilism of science. A long history of attempts to domesticate scientific testimony by legal rules of admissibility has left federal judges with broad screening responsibilities; recent adaptations of adversarialism in the form of court-appointed experts have been criticized as "inquisitorial," even "undemocratic." In exploring their benefits and disadvantages, it would make sense to look to the experience of other legal systems.
Abstract: Science is the search for truth - it is not a game in which one tries to beat his opponent...[Linus Pauling] If ...a judge [is] presiding over the hearing of a case, that cause must be decided somehow, no matter how defective the evidence may be... But the idea of science is to pile the ground before the foot of the outworks of truth with the carcasses of this generation, and perhaps of others to come after it, until some future generation, by treading on them, can storm the citadel. [C. S. Peirce]
Abstract: There are deep tensions between the goals and values of the scientific enterprise and the culture of the law, especially the culture of the U.S. legal system: between the investigative character of science and the adversarial culture of our legal system; between the scientific search for general principles and the legal focus on particular cases; between the pervasive fallibilism of the sciences and the concern of the law for prompt and final conclusions; between the scientific push for innovation and the legal concern for precedent; between the informal, problem-oriented pragmatism of scientific investigation and the reliance of the legal system on formal rules and procedures; and between the essentially theoretical aspirations of science and the law's inevitable orientation to policy.These tensions partly explain the difficulties encountered in handling scientific testimony.
Abstract: In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the "logical theology" of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of "axioms and corollaries"; and this element of truth is not obviated by the more powerful logical techniques that are now available.
Abstract: A philosophical exploration of the ideal of intellectual integrity drawing on Samuel Butler's semi-autobiographical Bildungsroaman, The Way of All Flesh; and relating this to C.S. Peirce's idea of the scientific attitude and Percy Bridgman's reflections on the conditions needed for this ideal to flourish.
intellectual integrity, self-deception, pseudo-inquiry, evidence, epistemological virtue, The Way of All Flesh, Sanuel Butler, C.S. Peirce, Percy Bridgman
© 2010 Social Science Electronic Publishing, Inc. All Rights Reserved. FAQ Terms of Use Privacy Policy Copyright This page was served by apollo5b in 0.546 seconds.
