The Volokh Conspiracy

it was a well written article, but i was surprised to your receptivity to expanded federal diversity jurisdiction. i always thought that libertarians and conservatives were in favor of smaller federal government and more local control. i can see the argument when it comes to national class actions, but shouldn't states be better equipped -- in individual cases -- to balance the rights of plaintiffs and defendants within their borders?

it was a well written article, but i was surprised to your receptivity to expanded federal diversity jurisdiction. i always thought that libertarians and conservatives were in favor of smaller federal government and more local control. i can see the argument when it comes to national class actions, but shouldn't states be better equipped -- in individual cases -- to balance the rights of plaintiffs and defendants within their borders?

It's not surprising to me that a law professor would call for increased federal jurisidiction. While I don't know David's research background - for all I know, he focuses extensively on state courts - it is an unfortunate fact that a large majority of law professors focus almost entirely on the federal court system. This is understandable of course - almost all of my law professors were former federal clerks, for example - but I think it's not very helpful to the legal profession, since 90% of lawyers don't practice in the federal system at all.

I don't think it's really fair to blame law professors for this, since IMO there are much better incentives for them to engage in federal research. A sophisticated, reality based law journal article dealing with sentencing reforms in, say, MO, could have a real effect on sentencing reforms in that state, influencing courts and state legislatures to at least pay careful attention to the arguments in the article. However, colleagues in other states and law journals in other states are going to be much less interested in a state-specific article than in another tired article about the federal sentencing guidelines, which will join a vast pile of sentencing guidelines articles that have had little effect on anyone.

there are two questions, david. the easy one is federal power, and of course (almost) everyone agrees that congress can expand diversity jurisdiction within reasonable limits.

the second question is policy. don't libertarian/conservatives usually argue that the federal government should be smaller (whether or not it has the power to expand), and that more authority should be entrusted to state and local governments?

let's agree that the daubert rule, as codified by FRE 702, is superior. but lots of states have their own rules of evidence. should diversity jurisdiction be expanded to the max whenever the federal rules allow better results?

in the standard conservative account (which i do not necessarily attribute to anyone posting here), state court juries and evidentiary rules must be given maximum deference when it comes to executing inadequately represented poor people. on the other hand, those same state courts (with their wacky rules and runaway juries) appear to be completely unreliable when it comes to entering money judgments against well represented mega-corporations.

please discuss.

Hi

Ah...yes. I have been using the expression Quacktitioner for some time to describe people not qualified as doctors who try to act AS doctors. See here

I wish I could say it was totally original. It is not. The US toy company Mattell Corp. introduced a toy called the "Nurse Quacktitioner, incurring the wrath (to much amusement amongst the US and UK medical professions) of the perfectly ludicrous Centre for Nursing Advocacy. If you are ever feeling down, and need a giggle, have a lot at the rants of these sad, sad people:

BW

DR John Crippen (UK)
NHS BLOG DOCTOR

Oooh, look out, David.

Duck!

I'm sure Ted Frank is correct that the federal courts (a biggish tent) do not always apply Daubert in consistent fashion. But I'm unsure that I made that implicit observation. I'm also unsure that consistently applying Daubert is to be equated with consistently reaching sound results.

To me, in fact, it seems very doubtful that even a Uniform National Daubertization Act would do much to promote consistency or forestall commerce-unfriendly outcomes. The Daubert standard radically underdetermines evidentiary outcomes, and Kumho Tire's abuse-of-discretion standard for appellate review implies some limits on how much order the Courts of Appeals can bestow. Meanwhile, it is something of an open empirical question whether Daubert is, in fact, more stringent than Frye. Practicing defense counsel don't necessarily see it that way. See Edward K. Cheng &Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471 (2005).

I don't see Cheng and Yoon's paper as remotely persuasive on that question; their metrics aren't measuring the right matters.

Ted,

You may not see Cheng and Yoon as measuring the right things, but criticisms of the study do not substitute for actual evidence supporting contrary empirical conclusions. Except for anecdotes and intuitions, empirical evidence that Frye is more stringent than Daubert, as measured by outcomes, is markedly lacking. Even attempts to study that question quantitatively are lacking (which I find rather peculiar). What studies there are, are mostly dated, and mostly show mixed results or no effect.

Neurodoc: The policy justifications for Daubert, as articulated by the courts, have not generally included the promotion of liability-free interstate commerce, and I don't personally believe that should be a consideration -- except perhaps indirectly and implicitly, to the extent (if any) that Daubert prevents what would otherwise be a certain prevalence of inaccurate or unpredictable outcomes. But Professor Bernstein (and others) had made some interstate commerce noises in these comments, and I wanted to raise the question whether Daubert actually does operate to mitigate any such incidental anti-commercial effect (prescinding from the question whether we should try any harder to insulate commerce from liability than we already are). My personal view -- based on the empirical research, a nodding acquaintance with the decisional law, and my own two decades in the litigation trenches -- is that any such effect is dubious, but that Daubert does work in commercial defendants' favor by escalating plaintiffs' transaction costs and thereby discouraging certain kinds of litigation for merits-independent reasons.

You're correct that Daubert is sometimes applied to exclude defense witnesses in civil litigation -- but because plaintiffs have the burden of proof, even a rule that visits exclusionary consequences on both sides in equal measure will have a systematic pro-defendant effect. That's partly why we should want the rules to be based on truth-seeking rationales, rather than (say) dollar-seeking ones.

Criminal cases are one area where it might have been hoped that Daubert would operate to benefit the underclass rather than organized capital, by subjecting forensic evidence to more searching scrutiny. But that, infamously, has not occurred.

Peter writes: "Practicing defense counsel don't necessarily see it that way."

Name three.

I note that practicing plaintiffs' counsel sure see it that way; New Jersey's lack of Daubert standards was used as a selling point for bringing Vioxx litigation there instead of in the MDL.

There are literally dozens of variables in the decision whether to remove (including, not least, the availability of removal, and even that isn't consistent from year to year), and Cheng and Yoon controlled for none of them. Their denominator data is therefore worthless, and garbage in, garbage out. They're measuring noise.

Wrt the 1999 FJC survey, attorneys who tended to use professional expert testimony, rather than junk science, would have no reason to change their approach post-Daubert. (Certainly I experienced litigation partners who wanted experts to be as aggressive as possible and the puppets of the litigators, and I experienced litigation partners who wanted their experts to be like Caesar's wife. The latter aren't going to be much affected by Daubert because they were already operating within Daubert's constraints; the former are.)

If they raised the penalty for drunk driving to make it a capital crime, it wouldn't affect the way I approach drunk driving, because I don't drive drunk now. It doesn't mean that the change in the law doesn't have an effect.

The survey answer you single out is at least as consistent with my hypothesis as yours.

Ted,

If you and I carry on for much longer, we'll have to start writing checks to Eugene Volokh to cover the hosting bill. I'll try to be brief.

Anent Daubert, I feel the need to review the bidding. I claimed that it is an open empirical question whether Daubert is more stringent than Frye, and whether it produces more predictable results. I noted the relative paucity of empirical study on these points. I did make a nod to some of what few data there are, and what they suggest. Mindful as I am, in the age of Daubert, that one or two studies can seldom resolve an issue dispositively, because any given study usually has some limitations or is open to some arguable criticisms, I made a pretty explicit gesture to the uncertainties. Defense counsel didn't "necessarily" see Daubert as more stringent, I said, citing to one piece of literature that seemed to supply grounds for that uncertainty. My "position," in sum, has been one of skepticism. I have not taken any stronger one, on the point at issue -- though I do think myself on solid ground in supposing that my uncertainty is shared by some number of practicing defense counsel N, where N > 2.

Anent John Edwards, the old issue, which I had thought was being resuscitated, was whether John Edwards relied on expert testimony that he shouldn't have. That was certainly the primary issue in the posts you linked to. A new issue, apparently, involves his conduct of voir dire and closing argument. That's one I haven't studied up on. If there's transcript, then John Edwards's approach to voir dire and closing argument can be presented to the voters for their evaluation. This time, at least, there'd be actual evidence of the alleged misbehavior.

The Prius is a fine car.

Sorry if I missed this above, but obviously where the federal courts lead, the state courts often follow. The better jurisprudence we get out of the federal courts on experts and Daubert, the more the states will catch up.

Mississippi, for ex, just recently adopted Daubert, and is feeling its way towards its application. Federal guidance is invaluable.

Luke, my comment reported a verifiable fact. You're responding with an irrelevant (and untrue) ad hominem that violates the Volokh comment policy. Discuss substance, or stop polluting comment boards with hit-and-run anonymous attacks.