Law and Contemporary Problems最新文献

{"title":"Scientific Ignorance and Reliable Patterns of Evidence in Toxic Tort Causation: Is There a Need for Liability Reform?","authors":"C. Cranor, D. Eastmond","doi":"10.2307/1192289","DOIUrl":"https://doi.org/10.2307/1192289","url":null,"abstract":"CARL F. CRANOR [*] DAVID A. EASTMOND [**] I INTRODUCTION The U.S. Supreme Court, urged on by legal scholars, affected industries, a number of lower court decisions, and some in the scientific community, has instituted substantial evidentiary reform of admissibility requirements for scientific evidence in the law. [1] Evidentiary reform, however, is beginning to pose problems of its own, [2] and a growing number of scholars are concerned about its impact on tort law. [3] Courts appear to be struggling to find the right guidance for admitting and excluding evidence. Indeed, it appears that there will be intra- and inter-circuit disagreements about general causation for the same substance.[4] Some courts appear to have overreacted to the Supreme Court's gatekeeping mandate and have rejected evidence that was derived by the methods and procedures of science as revealed by scientific practice and highly regarded scientific bodies. Such consequences are not surprising due to the subtle tensions between science and law. Given the tension, then, how should the science/law interaction be addressed in order to retain fidelity to the principal goals and strengths of both fields? The legal picture is further complicated by the realities of toxicology. In general, little is known about the universe of approximately 100,000 chemical substances or their derivatives registered for commerce (with 800 to 1000 new substances added to the list each year).[5] Surprisingly, for seventy-five percent of the 3000 top-volume chemicals in commerce, the most basic toxicity results cannot be found in the public record.[6] Yet these knowledge gaps will be slow to close because both animal and human studies are costly and take years to conduct, interpret, and understand. It takes even longer to develop a scientific consensus about any toxic properties. For a significant subset of these substances, including carcinogens, chronic toxicants, and some reproductive toxicants- those with long latency periods or associated with erratic exposure patterns- these problems are exacerbated.[7] Lack of scientific knowledge about substances poses two significant problems. First, the way in which some courts have implemented evidentiary reform has, in all likelihood, precluded some litigants with reliable, but not ideal, scientific evidence from a jury trial. These litigants were prevented from using whatever good evidence might have been available.[8] This problem may arise in part from the fact that human beings become \"captured\" by certain ideas; in their admissibility decisions, some courts appear to have been captured by ideas about scientific evidence that are more restrictive than those utilized in the scientific community. Daubert evidentiary reform only has a chance of succeeding in the torts context if courts adopt conceptions of scientific evidence actually utilized in the scientific community. Much of this article addresses this issue. Second, scientific ignorance about the unive","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"25 1","pages":"5-48"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78227407","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Assessing Causation in Breast Implant Litigation: The Role of Science Panels","authors":"Laura Hooper, J. Cecil, Thomas E. Willging","doi":"10.2307/1192294","DOIUrl":"https://doi.org/10.2307/1192294","url":null,"abstract":"LAURAL L. HOOPER [*] JOE S. CECIL [**] THOMAS E. WILLGING [***] I INTRODUCTION While the idea of court-appointed experts has been supported by individuals concerned with the courts' ability to assess scientific and technical evidence, [1] it has often been resisted by attorneys and judges who confront such evidence. [2] An increasing number of recent cases, however, suggest that court-appointed experts are gaining acceptance, even though appointments remain rare. [3] Such growing acceptance may be due to the increasingly difficult nature of scientific and technical evidence, [4] or to Justice Stephen G. Breyer's recent endorsement of such experts in General Electric Co. v. Joiner. [5] Moreover, recent programs to aid judges in locating qualified experts who are willing to serve will likely encourage further appointments. [6] Nevertheless, the appointment of such experts remains sufficiently rare that problems are difficult to anticipate. In two recent cases--Hall v. Baxter Healthcare Corp. [7] and In re Silicone Gel Breast Implants Products Liability Litigation [8]--federal judges appointed panels of scientific experts to help assess conflicting scientific testimony regarding causation of systemic injuries by silicone gel breast implants. This article will describe the circumstances that gave rise to the appointments, the procedures followed in making the appointments and reporting to the courts, and the reactions of the participants in the proceedings. It will also offer specific suggestions for improving the use of such panels of appointed science experts. Expert panels may be developed and used in a variety of ways; these approaches illustrate only two forms that such panels may take. Part II offers a brief overview of the silicone gel breast implant product liability litigation and the two cases in which science panels were appointed. [9] Subsequent parts compare the procedures used to select the experts, the instruction of the expert panels in their tasks, the preparation of the panels' reports, the depositions and testimony of the panel members, and the costs of the two programs. Part VIII provides a preliminary assessment of the effect of each program based on the participants' impressions and citations to the reports in related litigation. Finally, Part IX summarizes participants' overall reactions to the two procedures and suggests issues for judges to consider when appointing future panels. II OVERVIEW OF SILCONE GEL BREAST IMPLANT LITIGATION Claims of systemic injuries arising from silicone gel breast implants have presented some of the most complex scientific evidence issues in the federal courts. [10] Following the removal of silicone gel breast implants from the market in 1992 by the Food and Drug Administration, more than 400,000 cases were filed in federal and state courts alleging injuries arising from leakage or rupture of the shell that encased the silicone gel. The most troublesome allegation concerned the extent to which the ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"17 2 1","pages":"139-190"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76991966","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Causation, Contribution, and Legal Liability: An Empirical Study","authors":"L. Solan, J. Darley","doi":"10.2307/1192298","DOIUrl":"https://doi.org/10.2307/1192298","url":null,"abstract":"LAWRENCE M. SOLAN [*] JOHN M. DARLEY [**] I INTRODUCTION This article presents empirical evidence of the ways people compare judgments of liability with judgments of causation and contribution. Specifically, the article reports the results of experiments designed to show whether people regard causation and enablement as necessary elements of liability. As suggested by past psychological research, the experiments also test what roles other factors, such as the defendant's state of mind and the severity of the victim's injury, play in people's judgments of both causation and liability. The experiments ask people for their judgments concerning types of cases that the law does not treat uniformly. In one type of case, the defendant has left his keys in the ignition of his car. Someone steals the car and gets into an accident. In the other type, a social host sends an intoxicated guest out in a car to drive another guest home and the guest gets into an accident. Both of these scenarios illustrate what Robert Rabin has called \"enabling torts.\" [1] The defendant does not directly cause the harm but sets the stage for the individual who does. As discussed below, courts disagree not only as to whether such cases should generate liability for the enabler, but also as to how these cases should be conceptualized in causal terms. The results of the experiment show no more uniformity of judgment than the case law. Some respondents thought that there should be liability for the enabler, while others disagreed. Nonetheless, the study casts light on some important contemporary debates in the law of torts. First, the results begin to offer an explanation for the disagreement in the case law. Courts do not use the expression enabling torts\"; rather, they decide these cases using traditional tort concepts, such as duty, foreseeability, and proximate causation. [2] For example, some courts deny recovery for lack of proximate causation. Others allow recovery on the basis of proximate causation. Still others talk, instead, of duty. Professor Rabin's approach suggests an additional possibility: To the extent that people distinguish between causation and enablement, there may be no cause in fact in these cases. However, because enablement, like actual causation, is a \"but for\" relationship, legal thinkers who draw the distinction will find it di fficult to articulate the problem in that way within the taxonomy of conventional tort theory. This article explores the possibility of such alternative conceptualizations. The results of the study show people to be divided as to how they conceptualize these cases. Many respondents appear content to group causation and enablement together and to regard them essentially as components of a general concept of contribution. Those who do distinguish between the two disagree as to whether enablement is an adequate basis to establish liability. Some who see the actor as an enabler but not a cause do not assign liability to the actor, wh","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"119 1","pages":"265-298"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74892807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Culture and Causality: Non-Western Systems of Explanation","authors":"W. O'barr","doi":"10.2307/1192300","DOIUrl":"https://doi.org/10.2307/1192300","url":null,"abstract":"WILLIAM M. O'BARR [*] I INTRODUCTION Leave it to an anthropologist to claim that the scientific reasoning on which modern Western society depends is just another of the many systems humans have developed to explain the way things work. As a card-carrying anthropologist, I will say it as clearly as possible: Science is but one of many systems of thought, and it would do us well to think of it as satisfying the needs of a particular society and culture. Yes, science provides the basis for putting men on the moon and allowing women to decide whether to be pregnant. Because it works so well as a system of explanation and prediction in our society, we tend to dismiss alternatives outright. For many, the judgment that something is \"non-scientific\" is the basis for dismissal, disinterest, and disbelief. I propose that we suspend disbelief for a moment to look into the logic of some other systems of thought, explanation, and prediction to learn what we can about their sociocultural contexts and their functions in other cultures. Let the laboratory of anthropology be a stage on which we watch some dramas about human dilemmas and ask whether the essential themes these stories in other cultures present have any relevance for Western society. It will be immediately apparent that these stories are not about our own lives, but about what truths, if any, they may represent about the human quest to understand causes and effects. II THE FIRST DRAMA: A GRANARY TUMBLES DOWN IN THE SUDAN In his classic ethnography of the Azande people of the Western Sudan in Africa, E.E. Evans-Pritchard describes the misfortune of a man who took shelter from the sun in the shade of a granary. [1] The Azande use the granaries to store the bounty of their grain crops. In this area of unpredictable rainfall and frequent drought, famine is a common problem. When there is a bountiful harvest, it must be preserved for periods when there is none. The granaries are made of sun-dried clay and perched several inches off the ground to protect them from both puddles of rainwater and hungry or adventurous vermin. The perches are made from wood and are usually sturdy enough to support a granary that is heavy with stored grain. Evans-Pritchard tells us the story of a man who sat in the shade of a particular granary, leaned against a supporting perch, and died as it crumbled and the granary fell on top of him. [2] In our system of thought, we might say that the man was negligent not to check the strength of the supporting structure before leaning on it, or that the owner ought to be held responsible for not keeping his granary in good repair. Whichever way we go initially, we may, in the end, label the man's misfortune an accident. But this is not how the Azande approach the matter. They do not call an event like this, or other misfortunes such as a person falling and breaking a limb after tripping on a root, accidents. Rather, they see such things occurring as a result of witchcraft or sorcery. [3","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"24 1","pages":"317-324"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80182383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Of Cherries, Fudge, and Onions: Science and Its Courtroom Perversion","authors":"David Peterson, J. Conley","doi":"10.2307/1192296","DOIUrl":"https://doi.org/10.2307/1192296","url":null,"abstract":"DAVID W. PETERSON [*] JOHN M. CONLEY [**] I INTRODUCTION The Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc.[1] General Electric Co. v. Joiner,[2] and Kumho Tire Co., Ltd. v. Carmichael[3] (the \"Daubert trilogy\") redefine the duties of trial courts as arbiters of good scientific evidence.[4] Whereas under the venerable Frye test judges needed only to hear that the evidence was generally accepted in the relevant scientific community,[5] they are now thrust into an active \"gatekeeping\" role.[6] Above all, the Daubert trilogy requires courts to recognize the scientific method.[7] The legal test for reliability of scientific evidence is whether it conforms to the scientific method.[8] Courts must scrutinize purportedly scientific evidence for specific indicia of the scientific method; where these indicia are present, the evidence will be deemed reliable. [9] In other words, at least with respect to reliability, the law should accept what science should accept. [10] Although its nominal focus is on admissibility alone, the Daubert trilogy also has profound implications for causation, in particular the relationship between scientific and legal causation. The purpose of the epistemological system that we call the scientific method is to provide rules for deciding when evidence counts--when it can be relied on to support a deduction about truth or an inference about causation. [11] The ultimate standards of truth and causation employed by science and law are very different, though both standards are couched in terms of probabilities. Science focuses on the specific probability of the chance occurrence of a particular result, while the law speaks vaguely, asking whether proffered accounts of truth and causation are \"more probable than not\" in a civil case, or are convincing \"beyond a reasonable doubt\" in a criminal case. Despite these differences, the Daubert trilogy has linked the two standards inextricably, and the scientific method is the bridge. The very existence of the expert testimony controversy reflects the fact that, in many cases, a finding of scientific causation will be highly material to the question of legal causation. Indeed, in Daubert itself, a finding of legal causation could be based only on a claim of scientific causation. [12] In response to the question when purported evidence of scientific causation is sufficiently reliable to be admitted in support of legal causation, the Court answered: when it conforms to the scientific method. 13 Thus, if a claim of scientific causation appears to be based on scientific methodology, then it can be translated into evidence of legal causation. The Daubert cases assume that trial judges will be able to discern the scientific method with reasonable accuracy. Taking their duties seriously, trial judges in Daubert jurisdictions have added a new term of art to the legal lexicon--the \"Daubert hearing,\" a voir dire examination of an expert to investigate whether his or her meth","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"201 1","pages":"213-240"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76982300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Causation and the Law: Preemption, Lawful Sufficiency, and Causal Sufficiency","authors":"R. Fumerton, K. Kress","doi":"10.2307/1192292","DOIUrl":"https://doi.org/10.2307/1192292","url":null,"abstract":"RICHARD FUMERTON [*] KEN KRESS [**] I INTRODUCTION Richard Wright's attempt to distinguish actual causation from proximate causation, and to analyze actual causation--particularly in tort law--has been the most successful and influential work in this area in recent years. [1] Indeed, most scholars think that Wright's analysis of cause as a necessary element in a set of conditions (\"NESS\") sufficient for an effect [2] is an improvement upon H.L.A. Hart and Tony Honore's classic discussion. [3] In the decade and a half since Wright put forth his theory of causation, there have been a number of attempts to criticize him, but none has undermined the central thrust of his theory. [4] While Wright's view has received deserved praise, his analysis of a NESS requires clarification. Once clarified, however, it is vulnerable to certain fundamental objections. Wright's stated aim is to capture a nonnormative concept of causation. Therefore, this article begins by briefly describing the normative/nonnormative distinction, and how one might invoke this distinction to locate a nonnormative dimension of actual causation (as opposed to proximate causation). After briefly introducing Wright's concept of a NESS for an effect (the concept in terms of which he wants to understand actual causation), the article notes ambiguities in the critical concepts of necessity and sufficiency that he deploys. The article distinguishes a number of different modal concepts and suggests the most plausible interpretation of Wright's use of these concepts. With a more precise understanding of Wright's view in hand, we turn to the question of whether his analysis more effectively handles difficult cases of causation--including multiple causes, preemption, omissions and the like--than does the nearly universal \"but for\" test deployed by courts as a test of actual causation. While Wright's test has certain advantages over the \"but for\" test, the article argues that it faces difficult problems of its own. First, it is not clear that Wright can accommodate indeterministic causation. Nor, contrary to what he claims, can his account adequately explain all cases of overdetermination involving preemption. The most obvious revision of Wright's theory to handle cases of preemption (replacing a concept of lawful sufficiency with one of causal sufficiency--a revision with which Wright has indicated sympathy) risks vicious conceptual circularity. It hardly seems likely that one will gain insight into the nature of causation through an account that relies on an understanding of that special kind of sufficiency involved in causation. II CAUSATION AND NORMATIVITY Legal theorists have tried to distinguish nonnormative issues from those that include a normative element. [5] Obvious candidates for nonnormative issues are questions concerning causation. For example, if you are suing me for damages in tort, one of the things you must establish for your suit to be successful is that some action I took cau","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"75 1","pages":"83-106"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73425859","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Admissibility of Differential Diagnosis Testimony to Prove Causation in Toxic Tort Cases: The Interplay of Adjective and Substantive Law","authors":"J. Sanders, Julie Machal-Fulks","doi":"10.2307/1192293","DOIUrl":"https://doi.org/10.2307/1192293","url":null,"abstract":"JOSEPH SANDERS [*] JULIE MACHAL-FULKS [**] I INTRODUCTION In E.I. du Pont de Nemours & Co., Inc. v. Robinson, [1] the Texas Supreme Court adopted an interpretation of the rules concerning the admissibility of expert testimony nearly identical to that adopted two years earlier by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. [2] The court affirmed the trial judge's exclusion of Dr. Carl Whitcomb, the plaintiff's only causation expert, who was prepared to testify that the defendant's contaminated fungicide damaged the plaintiff's pecan orchard. In a vigorous dissent, Justice Cornyn noted that the expert's testimony was based in part on a series of first-hand observations of the orchard. [3] He noted that the excluded testimony \"is roughly analogous to that which may be offered by a physician, who may testify based on nothing more than a personal examination, the patient's history, and correspondence with other physicians.\" [4] Physicians are frequently called upon to offer opinions identifying an injury's cause based both on a physic al examination of a patient and the exclusion of other causes of the patient's condition. When this type of testimony is presented by physicians, it frequently goes by the name of \"differential diagnosis,\" although some courts have more appropriately called it \"differential etiology.\" [5] Justice Cornyn may have believed that the expert's testimony in Robinson must be admissible because it was so similar to the typical testimony of many medical doctors. Such testimony had been employed in tort cases for many years without criticism from courts or commentators. [6] Perhaps, however, Justice Cornyn foresaw the opposite implication: If Dr. Whitcomb's testimony was inadmissible, it might call into question the differential diagnosis testimony of many physicians. Had Judge Cornyn investigated the law review literature more thoroughly, he would have discovered that such questioning had already begun in the late 1980s and early 1990s. [7] A number of factors seem to have played a role in this change, among them the increasing use of scientific experts in court, the rise of toxic tort actions, and renewed interest in the criteria used to judge the admissibility of expert testimony. As the 1990s progressed, courts were presented with more admissibility challenges to differential diagnosis testimony. T here is now a considerable body of case law on point. [8] Most would agree that the result of these challenges is a body of evidence law that creates more barriers to the admissibility of this evidence. [9] However, there is no complete consensus on the requirements for admitting such testimony. On the contrary, the case law is unsettled in some regards. [10] This lack of agreement is not surprising, because differential diagnosis testimony attempts to address some very difficult causal questions, especially when offered in toxic tort cases. In this article, we use the differential diagnosis opini","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"30 1","pages":"107-138"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88276658","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Swine Flu Vaccine and Guillain-Barré Syndrome: A Case Study in Relative Risk and Specific Causation","authors":"D. Freedman, P. Stark","doi":"10.2307/1192290","DOIUrl":"https://doi.org/10.2307/1192290","url":null,"abstract":"DAVID A. FREEDMAN [*] PHILIP B. STARK [**] I INTRODUCTION This article discusses the role of epidemiologic evidence in toxic tort cases, focusing on relative risk. If a relative risk is above 2.0, can we infer specific causation? Relative risk compares groups in an epidemiologic study. One group is exposed to some hazard, like a toxic substance; another \"control\" group is not exposed. For present purposes, relative risk is a ratio: RR = Observed/Expected. The numerator in this fraction is the number of injuries observed in the exposed group. The \"expected\" number in the denominator is computed on the theory that exposure has no effect, so that injury rates in the exposed group should be the same as injury rates in the control group. Adjustments are often made to account for known differences between the two groups, for example, in the distribution of ages. The basic intuition connecting relative risk and probability of causation can be explained as follows. Suppose that the exposed and unexposed groups in an epidemiologic study are similar except for the exposure of interest, so that confounding is not an issue. For simplicity, suppose also that the two groups are the same size. To have specific numbers, suppose there are 400 injuries in the exposed group and 100 in the control group. In other words, the observed number of injuries is 400, compared to an expected number of 100. The relative risk is 400/100, or 4. Without exposure, there would be only 100 injuries among the exposed, so 300 of the 400 injuries may be attributable to the exposure and 100 to other factors. Apparently, then, each injury in the exposed group has a chance of 3/4 of being caused by exposure. Likewise, a relative risk of 3 corresponds to a chance of 2/3, while a relative risk of 2 corresponds to a chance of 1/2, which may be the minimum level needed to carry the burden of proof in civi l litigation. [1] The object here is to explore the scientific logic behind these intuitions. Of course, any epidemiologic study is likely to have problems of bias: Uncontrolled confounding appears to be the rule, rather than the exception. [2] When effects are large, such problems may not be material. When relative risk is near the critical value of 2.0, potential biases must be assessed more carefully. Individual differences also play an important role: The plaintiff may not resemble typical members of the study population; effects of such differences need to be considered. This is a salient difficulty in connecting relative risk to specific causation. With a randomized controlled experiment, for example, treatment and control groups are balanced in the aggregate but not at the level of individuals. Thus, even with the best research designs--where general causation is easily demonstrated--specific causation remains troublesome. We wanted to consider such issues in the context of a real example, in part to see how well the courtroom evidence stands up when examined retrospectively. We star","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"64 1","pages":"49-64"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87335201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Relation between Counterfactual (\"but for\") and Causal Reasoning: Experimental Findings and Implications for Jurors' Decisions","authors":"Barbara A. Spellman, Alexandra Kincannon","doi":"10.2307/1192297","DOIUrl":"https://doi.org/10.2307/1192297","url":null,"abstract":"BARBARA A. SPELLMAN [*] ALEXANDRA KINCANNON [**] I INTRODUCTION People often try to discover the causes of the events around them: Why did their child behave a certain way? Why did their football team lose? Why does their computer crash at critical moments? People also often trust other people to make causal decisions for them. We allow scientists to tell us that smoking causes lung cancer and that eggs are bad for us (some years, anyway). We also allow, or rather we require, jurors to make decisions about causality in many kinds of cases. Another kind of reasoning people do is to imagine the world other than it is and play out the consequences. For example, if the child had not watched so much television, if the quarterback had not thrown that interception, or if grandfather had quit smoking, might the world be a happier place? This kind of reasoning is called \"counterfactual reasoning.\" In its most common guise, people imagine an early event (\"antecedent\") as being different (for example, no interception), leading to an outcome (\"consequent\") that may also be different (for example, winning the game). A. Counterfactual Reasoning as \"but for\" Causal Reasoning in the Law The legal system often asks jurors to use counterfactual reasoning to make decisions about causation. Obviously, the idea of causality is essential in law: Generally, we do not wish to punish or impose liability on someone unless he or she caused the damage at issue. Both criminal and civil codes (especially in the context of negligence) spend many pages defining what it means to be a cause. In both kinds of cases, to be considered a cause, the potential cause in question must fulfill two requirements: It must be a \"but for\" cause (also called \"cause in-fact\" or \"factual cause or sine qua non\") of the outcome; and it must be a legal cause (also called \"proximate cause\") of the outcome. The legal cause requirement limits the infinite number of \"but for\" causes to those for which it makes sense to hold people liable. The definition of \"but for\" cause can be seen in the Model Penal Code (\"MPC\"), the Restatement (Second) of Torts, and in common civil jury instructions. In the MPC's general definition of \"causal relationship,\" the \"but for\" requirement is stated as follows: Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred...[1] In negligence cases in California, the Book of Approved Jury Instructions (\"BAJI\") recommended the following \"standard\" jury instruction for many years: A proximate cause of injury is a cause which... produces the injury and without which the injury would not have occurred.[2] Thus, jurors' causal judgments require counterfactual reasoning and a finding that changing the antecedent would have changed the outcome in question. B. Present Questions The legal system obviously assumes that people can reason counterfactually by making this type of reasoning essential for judgments of causation","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"37 1","pages":"241-264"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90702368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Too Many Probabilities: Statistical Evidence of Tort Causation","authors":"David W. Barnes","doi":"10.2307/1192295","DOIUrl":"https://doi.org/10.2307/1192295","url":null,"abstract":"Judges and lawyers first encountering statistical evidence want to believe that scientific standards are tougher than legal standards. A court will reject an assumption that there is no causal connection between an act and an injury if the evidence makes causation \"more likely than not.\" A scientist will reject an assumption that there is no relationship between two variables only if there is less than a five percent probability that the statistical evidence showing a relationship is due to chance. The law appears willing to accept no more than a forty-nine percent chance of error while science appears willing to accept no more than a five percent chance of error. This perception is incorrect, but hard to change. It is a matter of such serious concern to statisticians and scientists that they often raise the issue, but lay people seldom understand it. This article offers those uninitiated into the statistical guild several reasons to look behind the probabilities when evaluating scientific evidence. This article describes three types of statistical results as reflecting the \"belief probability,\" the \"fact probability,\" and the \"sampling error probability.\" The belief probability relates to evidentiary requirements imposed by the law, and the fact probability relates to the facts relevant to legal cases. These two probabilities are directly related to the civil law evidentiary requirement that the proponent of a claim must prove that the other's act is more likely than not a cause of harm. By contrast, the sampling error probability is a characteristic of statistical science. Appreciating the distinctions among these probabilities facilitates an understanding of the relationship between the preponderance of the evidence standard and the probabilities reported by statisticians.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"65 1","pages":"191-212"},"PeriodicalIF":0.0,"publicationDate":"2001-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81957886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}