In Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned decades of preceden... more In Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned decades of precedent to conclude that the Constitution does not provide women a right to an abortion under the Fourteenth Amendment. At the heart of the Court's analysis was a review of the history of abortion law that, according to the Court, demonstrated that the right to an abortion was not deeply rooted in our Nation's history or traditions. Instead, the Court found that our legal history demonstrated that abortion was disfavored and widely construed to be illegal both at the time of the Founding and at the time of ratification of the Fourteenth Amendment. The decision in Dobbs has been exposed to severe criticism including criticism of its historical analysis. Because the history of abortion law in America is so central to Dobbs's conclusion, it is vital that we understand whether Dobbs was right on history. This Article resolves this question through an in-depth analysis of the historical sources including (1) the four eminent common law authorities referenced by the Court (Bracton, Blackstone, Hale, and Coke), (2) American treatises on the common law at the time of the Founding, (3) case reports from the time before the Founding, and (4) statutory law at the time of ratification of the Fourteenth Amendment. All of these sources demonstrate that abortion in general was understood as illegal and subject to control by the courts. This Article also demonstrates that the claims of the Dobbs dissent and Professor Tang, that the majority erred in its understanding of history, are incorrect and rely on selective (and misleading) readings of the historical sources. Due to the extensive legal history demonstrating the historical illegality of abortion and the failure of the critics to provide an alternative history, we must conclude that, at least relative to its history, Dobbs is right.
With the rapidly expanding sophistication of artificial intelligence systems, their reliability, ... more With the rapidly expanding sophistication of artificial intelligence systems, their reliability, and cost-effectiveness for solving problems, the current trend of admitting testimony based on artificially intelligent (AI) systems is only likely to grow. In that context, it is imperative for us to ask what rules of evidence judges today should use relating to such evidence. To answer that question, we provide an in-depth review of expert systems, machine learning systems, and neural networks. Based on that analysis, we contend that evidence from only certain types of AI systems meet the requirements for admissibility, while other systems do not. The break in admissible/inadmissible AI evidence is a function of the opaqueness of the underlying computational methodology of the AI system and the court’s ability to assess that methodology. The admission of AI evidence also requires us to navigate pitfalls including the difficulty of explaining AI systems’ methodology and issues as to the right to confront witnesses. Based on our analysis, we offer several policy proposals that would address weaknesses or lack of clarity in the current system. First, in light of the long-standing concern that jurors would allow expertise to overcome their own assessment of the evidence and blindly agree with the “infallible” result of advanced-computing AI, we propose that jury instruction commissions, judicial panels, circuits, or other parties who draft instructions consider adopting a cautionary instruction for AI-based evidence. Such an instruction should remind jurors that the AI-based evidence is solely one part of the analysis, the opinions so generated are only as good as the underlying analytical methodology, and ultimately, the decision to accept or reject the evidence, in whole or in part, should remain with the jury alone. Second, as we have concluded that the admission of AI-based evidence depends largely on the computational methodology underlying the analysis, we propose for AI evidence to be admissible, the underlying methodology must be transparent because the judicial assessment of AI technology relies on the ability to understand how it functions.
Consistency and rationality are central to the legitimacy of the modern court system. Considerabl... more Consistency and rationality are central to the legitimacy of the modern court system. Considerable recent attention has been focused on the Court’s overturning of established precedent on abortion in Dobbs v. Jackson Women’s Health Organization. Yet, as we empirically demonstrate, the courts, through the decisions of individual judges over thirty years, have reversed the meaning of the Daubert standard for admission of scientific evidence, thereby threatening the legitimacy of the very heart of the civil justice system. In the initial years after the Daubert decision, litigants saw its reliability standard as a stricter standard than the previously used Frye “general acceptance” standard. But after only a short time, application of the standard became unclear. It was neither more nor less strict. Current perception of the Daubert standard has completely reversed, as our analysis shows it is now seen as a weaker standard than the Frye standard. Courts must make up to half a million Daubert decisions each year in tort cases. To have application of a standard so prevalent in civil litigation reverse its effect in thirty years, without a decision or direct change, risks great harm to the legitimacy of the civil justice system. We contend that the problem arises because the Daubert standard’s factors are misunderstood by judges, too interrelated, and too complex. To resolve the problem, we propose that the Courts replace the multiple Daubert factors with a single factor—testability—and that once the evidence meets this standard the judge should provide the jury with a proposed jury instruction to guide their analysis of the fact question addressed by the expert evidence.
American University Journal of Gender, Social Policy & the Law, 2023
In Dobbs v. Jackson Women’s Health Organization, Justice Alito ruled there is no right, under the... more In Dobbs v. Jackson Women’s Health Organization, Justice Alito ruled there is no right, under the U.S. Constitution, for a woman to have an abortion. Since then, eleven states have either enacted or activated statutes that forbid the performance of an abortion. Others may soon follow suit. This Article does not attempt to dispute the reasoning of the Dobbs decision. Instead, it asks whether the eleven state statutes, now construed as constitutionally permitted, are, in fact impermissible intrusions into the constitutionally required separation of church and state. This Article approaches this problem from both a historical and philosophical perspective. First, it uses the over 4,000-year-long history of the church-state interrelationship (including U.S. Supreme Court opinions) to define when a belief is a “religious belief.” Second, using that definition, the Article engages in a careful logical analysis of the eleven statutes to argue both that they promote religious beliefs in contravention of the First Amendment’s Establishment Clause and that they do not fall under the exception the Court has carved out in Kennedy v. Bremerton.
The defining purpose of the Diversity Clause of the United States Constitution is to provide a ne... more The defining purpose of the Diversity Clause of the United States Constitution is to provide a neutral federal forum for out-of-state litigants concerned that local courts and legislatures would be biased against them. That avoiding geographic bias is the purpose of the Diversity Clause as attested in the state ratifying conferences, the congressional record, and twenty U.S. Supreme Court opinions. In 2022, an empirical study demonstrated, using data from over one million district court actions arising under diversity jurisdiction (from 1990 to 2019), that geographic bias was no longer a concern of out-of-state litigants. As a result, diversity jurisdiction is no longer necessary and should be eliminated. Elimination of diversity jurisdiction would save billions of dollars each year, improve the application of state law, send a signal on national unity, improve the fairness of the system, and decrease friction between the federal and state courts. The central counterargument to eliminating diversity jurisdiction is that it provides a “neutral” or “bias-free” forum for litigants afraid of bias in the state courts. This counterargument fails because the empirical evidence demonstrates both that geographic bias is no longer an issue and that the federal forum is no bias-free Eden—multiple forms of pernicious bias, including racial, gender, and socioeconomic bias, are present in the federal system.
This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael... more This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael D. Ryan by examining the impact of his work on Arizona law through the lens of his "most important" opinions. As with all things touched by Justice Ryan it has become something greater than its initial purpose. The Author began this project by surveying three hundred seven Arizona judges about Justice Ryan's published opinions. The results of this survey were quite surprising. Rather than identifying a common core of important opinions, the survey identified two mutually exclusive sets of important opinions: one for the appellate court and the other for the trial court. In an effort to understand this result, the Author reviewed the salience literature (which identifies measures of case or issue importance) and identified fourteen measures of salience. The application of those measures to Justice Ryan's published opinions only confirmed the results of the survey because no two measures identified the same set (or even similar sets) of opinions as important. This empirical analysis and review of Justice Ryan's published opinions demonstrated three things. First, Justice Ryan's opinions matter to a wide range of people including grandparents, illegal aliens, homeowners, schoolchildren, employees, and convicted felons on death row. Second, the salience literature does not identify a single unitary concept of importance, but rather many different concepts of importance. Finally, the empirical analysis discussed herein unequivocally demonstrates that whether an opinion is important depends upon who you ask.
A close analysis of the Y2K problem provides valuable insight into the ethics of technology. We c... more A close analysis of the Y2K problem provides valuable insight into the ethics of technology. We contend that the primary cause of the Y2K problem is a lack of, what John Stuart Mills calls, originality (and the related loss of freedom, diversity, and understanding) in the information technology (IT) industry. If the various IT companies had supported originality, then they would have empowered their employees to respond to the foreseen difficulties associated with the change of millennium long before these difficulties blossomed in the current worldwide problem. We contend that originality, which requires and nourishes both intellectual vigor and diversity, which require in turn freedom and variety of situation, not only develops a better marketplace, but a better world full of people who have reached their true human potential.
In The Chances of Explanation, Paul Humphreys presents a metaphysical analysis of causation. In t... more In The Chances of Explanation, Paul Humphreys presents a metaphysical analysis of causation. In this paper, I argue that this analysis is flawed. Humphreys' model of Causality incorporates three completeness requirements, I show that these completeness requirements, when applied to the world, force us to take causally irrelevant factors to be causally relevant. On this basis, I argue that Humphreys' analysis should be rejected.
Georgetown Journal of Law & Modern Critical Race Perspectives, 2021
Empirical studies find that Black Americans distrust the U.S. justice system because they believe... more Empirical studies find that Black Americans distrust the U.S. justice system because they believe that it will not treat them fairly. The well-developed empirical literature on race and the criminal justice system demonstrates that this belief is well founded. At the same time, the empirical literature on race in the civil justice system is less well developed owing to a lack of data associating racial and other demographic information with court filings. To fill part of that gap, I combine federal filings data with U.S. Census and National Center for Health Statistics data to produce a dataset representing 254,643 actual filings with associated data on race, poverty-rate, and population density. I then use this data to engage in a statistical analysis of race and diversity jurisdiction through the lens of increases in the amount-in-controversy requirement. I find that a large percentage of Black claimants are simply missing from the federal courts. This result is consistent with studies finding a barrier to Black claimant use of the courts arising out of systemic racism which creates and maintains Black Americans' distrust of the U.S. justice system. The analysis also finds that increasing the amount-incontroversy requirement further decreases filing rates and, thereby, creates a second barrier for Black claimants to access the federal courts. This additional barrier can only serve to reinforce and deepen Black alienation as those Black claimants willing to trust the federal courts are told that federal court is not for people like them. In addition, the analysis to identify hidden or unknown covariates produces evidence of belief that the state courts are biased in other ways including geographic bias, rural court bias, and bias against the poor.
Through the use of empirical studies informed by theories of memory and brain functioning cogniti... more Through the use of empirical studies informed by theories of memory and brain functioning cognitive scientists have made impressive gains in understanding how stories and images help student learning. Law professors have laid an important foundation for bringing the usefulness of stories and images to light but have not empirically determined whether and in what circumstances stories and images improve law student learning. This Article fills the gap by discussing three studies conducted by the author. The results are quite dramatic. For first-year students supplementation of classroom material with images is 30% better at improving law student understanding than supplementation with text-based material. For upper-level students the improvement is even larger-images are 50% better than text. Stories are 9% better than exposition at improving first-year student learning with one type of story outperforming the improvement seen by any other medium by 53%. For upper-level students the results are flipped on their head (empirically demonstrating that upper-level students learn differently than firstyear students). Exposition improves performance 8% more than stories with flowcharts outperforming the next best medium by 12%. These results, and others discussed in the Article, provide a firm empirical basis for adding stories and images into the law school teaching mix.
The law of copyright infringement is fairly simple in structure. At its core is protection agains... more The law of copyright infringement is fairly simple in structure. At its core is protection against illicit copying of protected expression. The details of determining whether the expression was copied (the epistemology of copy infringement) and whether the copied expression is protected forms much of the remainder of copyright infringement law. The purpose of this Comment is to derive the ontology of American copyright infringement.
On a bleary winter night, Lee Keller King, in a drunken rage, emptied his pistol into two men, ne... more On a bleary winter night, Lee Keller King, in a drunken rage, emptied his pistol into two men, nearly killing them. At trial, he pled guilty to one count of attempted murder. The Texas court initially sentenced King to seven years. However, after four months in jail, the court recognized that the shooting was inconsistent with King's character, suspended his sentence, and placed him on probation. In the thirty years following the shooting, King live a decent, ordinary life. He was devoted to his family, attended church, went to law school, practiced law in Texas for ten years without a blemish, moved to Arizona, and applied for admission to the Arizona State Bar. Nonetheless, in June 2006, the Arizona Supreme Court denied King's application for admission. In doing so, the court perpetuated a serious injustice, an injustice mirrored by other state supreme courts.
Under current federal regulations, law school faculties are permitted to engage in human research... more Under current federal regulations, law school faculties are permitted to engage in human research using students as subjects with little or no ethical oversight. This freewheeling environment runs counter to well-established ethical guidelines for human research and to law professors’ heightened moral duties as members of the Bar and the legal academy. In addition, it exposes students, law faculty, and the legal academy to risks arising out of the use of unregulated human experimentation in law schools. This is inimical to morally good practice. To remedy this ethical problem, this Article provides a set of guidelines for law professors who wish to ethically engage in empirical research using students as subjects.
University of Michigan Journal of Law Reform, 2022
The legal profession is among the least diverse in the United States. Given
continuing issues of ... more The legal profession is among the least diverse in the United States. Given continuing issues of systemic racism, the central position that the justice system occupies in society, and the vital role that lawyers play in that system, it is incumbent upon legal professionals to identify and remedy the causes of this lack of diversity. This Article seeks to understand how the bar examination—the final hurdle to entering the profession— contributes to this dearth of diversity. Using publicly available data, we analyze whether the ethnic makeup of a law school’s entering class correlates to the school’s first-time bar passage rates on the Uniform Bar Examination (UBE). We find that higher proportions of Black and Hispanic students in a law school’s entering class are associated with lower first-time bar passage rates for that school in its reported UBE jurisdictions three years later. This effect persists after controlling for other potentially causal factors like undergraduate grade-point average (UGPA), law school admission test (LSAT) score, geographic region, or law school tier. Moreover, the results are statistically robust at a p-value of 0.01 (indicating just a 1% chance that the results are due to random variation in the data). Because these are school-level results, they may not fully account for relevant factors identifiable only in student-level data. As a result, we argue that follow-up study using data relating to individual students is necessary to fully understand why the UBE produces racially and ethnically disparate results.
British Journal for the Philosophy of Science, 1997
This paper is a response to Forster and Sober's [1994] solution to the curve-fitting solution. If... more This paper is a response to Forster and Sober's [1994] solution to the curve-fitting solution. If their solution is correct, it will provide us with a solution to the New Riddle of Induction as well as provide a basis for choosing realism over conventionalism. Examining this solution is also important as Forster and Sober incorporate it in much of their other philosophical work (see Forster [1995a,b, 1994] and Sober [1996, 1995, 1993]). I argue that Forster and Sober's solution is subject precisely to the problem they seek to solve. They provide a method of choosing among hypotheses but only at the cost of requiring that we have a method of choosing between different ways of conceptualizing the world. Thus the solution raises a new problem--the world-fitting problem.
American federal diversity jurisdiction was created in response to the concern that out-of-state ... more American federal diversity jurisdiction was created in response to the concern that out-of-state litigants would suffer bias in state court due to their out-of-state status ("geographic bias"). As attested in the record from the state ratification conventions, in the legislative history of diversity jurisdiction, and in seventeen U.S. Supreme Court opinions (the most recent in 2021), the creation of an impartial tribunal to mitigate geographic bias was and is the central rationale for federal diversity jurisdiction. Even though geographic bias is the rationale for diversity jurisdiction, no (prior) empirical studies have established whether geographic bias remains a problem in the American civil justice system. This Article provides the results of an empirical study of objective data, representing over one million cases across thirty years, demonstrating that geographic bias is no longer an issue in the civil justice system. Given that this result eliminates the very reason for the existence of federal diversity jurisdiction, the outcome provides a strong basis for Congress to either modify or abolish diversity jurisdiction.
This Article provides the results of the most comprehensive and detailed analysis of the correlat... more This Article provides the results of the most comprehensive and detailed analysis of the correlation between bar passage and race and ethnicity. It provides the first proof of racially disparate outcomes of the bar exam, both for first-time and ultimate bar passage, across jurisdictions and within law schools. Using data from 63 public law schools, we found that first-time bar examinees from Communities of Color underperform White examinees by, on average, 13.41 percentage points. While the gap closes when looking at ultimate bar passage, there is still a difference, on average, of 9.09 percentage points. The validity of these results are supported through our use of t-test statistical analysis and a regression analysis. Under the Civil Rights Act, a difference of 20% would be evidence of adverse impact creating a cause of action. As White examinees pass the first time at about an 85% rate, a 17-percentage-point difference meets the 20% requirement—something Black examinees, unfortunately, meet and something Asian examinees almost meet. Historically, this kind of difference in the bar examination was attributed to differences in the entering credentials of the various races—implying that examinees from Communities of Color are less well qualified than White examinees. Our results demonstrate that this explanation is incorrect. Because our dataset is an intra-school (within the school) dataset, we are comparing the bar results of White examinees with examinees from Communities of Color who both have similar entering credentials and receive the same legal education. In that context, race should not be correlated with the bar passage rate—if differing credentials are the cause of the differing bar pass rates. But as we show, those differences in bar pass remain. It is time to act. Bar Examiners must re-examine the bar exam and determine how race is impeding its ability to properly measure an examinee’s competence. This need to act is all the more vital given the coming changes to the 2026 bar examination.
The substantive standard for gatekeeping expert evidence is an issue that has an enormous impact ... more The substantive standard for gatekeeping expert evidence is an issue that has an enormous impact on the judicial system, affecting tens of thousands of federal cases and many times that in state court each year and dramatically modifying substantive tort law. Yet while the issue is critical, researchers have often struggled to find a way to quantify the change in the substantive standard for gatekeeping under Daubert.
In a recent study, we decided the best way to measure the effect of Daubert would be to assess the aggregate case management decisions of litigants in millions of actual cases. Our prior study used the metric of removal rates to determine whether civil defendants acted in a way demonstrating that Daubert changed the standard. The removal data showed that Daubert acts as a stricter gatekeeping standard.
This Study asks an equally important question: when we measure the case management decisions of civil plaintiffs, how did Daubert change the substantive gatekeeping standard? To answer that question, we again reviewed a database of millions of real cases. In so doing, we found an identical result: Daubert is the stricter standard.
By measuring the behavior of civil litigants in actual cases, we believe our analysis shows whether Daubert is a stricter gatekeeping standard, and finds that it is. If so, we can conclude the theoretical underpinnings of Daubert are unmoored from reality, meriting Supreme Court evaluation of the issue by accepting certiorari on a case revisiting expert admissibility.
Proponents of tort reform have suggested it is a necessary response to rising personal injury lit... more Proponents of tort reform have suggested it is a necessary response to rising personal injury litigation and skyrocketing insurance premiums. Yet the research into the issue has mixed results, and the necessity of tort reform has remained unproven.
We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.
We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.
Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.
We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.
Tort reform legislation developed as a response to a series of insurance crises and reactions tha... more Tort reform legislation developed as a response to a series of insurance crises and reactions that blamed the personal injury compensation system for those problems. Since measures of tort reform have been adopted, many researchers have analyzed their effects within and beyond the legal system, assessing how they affect damages, insurance claims, health costs, and physician supply.
Our study analyzes an underdeveloped area of research: the effect of tort reform on the filing of cases in court. Using two databases of state court filing data over 12 years, we examine how a damages cap for medical negligence claims affects case filings in the years immediately after its adoption. With several test states, we find that when a state adopts med mal damages caps, there is a statistically significant drop of 23 percent in med mal filings. We confirm this effect by also measuring the effect of a cap’s nullification, and find that in the aftermath of a cap’s removal case filings increase by 29 percent. Our work can therefore confirm and quantify the effect of damages caps on case filing.
Yet these findings become more significant when we consider them along with a new and interesting study from the Journal of Empirical Legal Studies. In their 2013 study, Myungho Paik, Bernard Black, and David Hyman found that filings of med mal torts have decreased in the last decade, not only in tort reform states but also in states without it! If so, our finding of a statistically significant drop in med mal filings in response to tort reform has a “doubling-down” effect: there is one reduction in filings due to tort reform, and also a background reduction in filings based on larger, non-statutory changes.
We believe that our findings regarding the effect of tort reform on med mal filings and the “doubling-down” effect significantly modify the cost-benefit analysis of tort reform. The positive impacts of tort reform have been significantly oversold, and the effects of tort reform disproportionately impact certain vulnerable citizens. If so, we believe that claimants are being doubly squeezed without significant public benefit. We therefore suggest that state legislators reconsider these efforts, or risk court intervention due to equal protection challenges.
In Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned decades of preceden... more In Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned decades of precedent to conclude that the Constitution does not provide women a right to an abortion under the Fourteenth Amendment. At the heart of the Court's analysis was a review of the history of abortion law that, according to the Court, demonstrated that the right to an abortion was not deeply rooted in our Nation's history or traditions. Instead, the Court found that our legal history demonstrated that abortion was disfavored and widely construed to be illegal both at the time of the Founding and at the time of ratification of the Fourteenth Amendment. The decision in Dobbs has been exposed to severe criticism including criticism of its historical analysis. Because the history of abortion law in America is so central to Dobbs's conclusion, it is vital that we understand whether Dobbs was right on history. This Article resolves this question through an in-depth analysis of the historical sources including (1) the four eminent common law authorities referenced by the Court (Bracton, Blackstone, Hale, and Coke), (2) American treatises on the common law at the time of the Founding, (3) case reports from the time before the Founding, and (4) statutory law at the time of ratification of the Fourteenth Amendment. All of these sources demonstrate that abortion in general was understood as illegal and subject to control by the courts. This Article also demonstrates that the claims of the Dobbs dissent and Professor Tang, that the majority erred in its understanding of history, are incorrect and rely on selective (and misleading) readings of the historical sources. Due to the extensive legal history demonstrating the historical illegality of abortion and the failure of the critics to provide an alternative history, we must conclude that, at least relative to its history, Dobbs is right.
With the rapidly expanding sophistication of artificial intelligence systems, their reliability, ... more With the rapidly expanding sophistication of artificial intelligence systems, their reliability, and cost-effectiveness for solving problems, the current trend of admitting testimony based on artificially intelligent (AI) systems is only likely to grow. In that context, it is imperative for us to ask what rules of evidence judges today should use relating to such evidence. To answer that question, we provide an in-depth review of expert systems, machine learning systems, and neural networks. Based on that analysis, we contend that evidence from only certain types of AI systems meet the requirements for admissibility, while other systems do not. The break in admissible/inadmissible AI evidence is a function of the opaqueness of the underlying computational methodology of the AI system and the court’s ability to assess that methodology. The admission of AI evidence also requires us to navigate pitfalls including the difficulty of explaining AI systems’ methodology and issues as to the right to confront witnesses. Based on our analysis, we offer several policy proposals that would address weaknesses or lack of clarity in the current system. First, in light of the long-standing concern that jurors would allow expertise to overcome their own assessment of the evidence and blindly agree with the “infallible” result of advanced-computing AI, we propose that jury instruction commissions, judicial panels, circuits, or other parties who draft instructions consider adopting a cautionary instruction for AI-based evidence. Such an instruction should remind jurors that the AI-based evidence is solely one part of the analysis, the opinions so generated are only as good as the underlying analytical methodology, and ultimately, the decision to accept or reject the evidence, in whole or in part, should remain with the jury alone. Second, as we have concluded that the admission of AI-based evidence depends largely on the computational methodology underlying the analysis, we propose for AI evidence to be admissible, the underlying methodology must be transparent because the judicial assessment of AI technology relies on the ability to understand how it functions.
Consistency and rationality are central to the legitimacy of the modern court system. Considerabl... more Consistency and rationality are central to the legitimacy of the modern court system. Considerable recent attention has been focused on the Court’s overturning of established precedent on abortion in Dobbs v. Jackson Women’s Health Organization. Yet, as we empirically demonstrate, the courts, through the decisions of individual judges over thirty years, have reversed the meaning of the Daubert standard for admission of scientific evidence, thereby threatening the legitimacy of the very heart of the civil justice system. In the initial years after the Daubert decision, litigants saw its reliability standard as a stricter standard than the previously used Frye “general acceptance” standard. But after only a short time, application of the standard became unclear. It was neither more nor less strict. Current perception of the Daubert standard has completely reversed, as our analysis shows it is now seen as a weaker standard than the Frye standard. Courts must make up to half a million Daubert decisions each year in tort cases. To have application of a standard so prevalent in civil litigation reverse its effect in thirty years, without a decision or direct change, risks great harm to the legitimacy of the civil justice system. We contend that the problem arises because the Daubert standard’s factors are misunderstood by judges, too interrelated, and too complex. To resolve the problem, we propose that the Courts replace the multiple Daubert factors with a single factor—testability—and that once the evidence meets this standard the judge should provide the jury with a proposed jury instruction to guide their analysis of the fact question addressed by the expert evidence.
American University Journal of Gender, Social Policy & the Law, 2023
In Dobbs v. Jackson Women’s Health Organization, Justice Alito ruled there is no right, under the... more In Dobbs v. Jackson Women’s Health Organization, Justice Alito ruled there is no right, under the U.S. Constitution, for a woman to have an abortion. Since then, eleven states have either enacted or activated statutes that forbid the performance of an abortion. Others may soon follow suit. This Article does not attempt to dispute the reasoning of the Dobbs decision. Instead, it asks whether the eleven state statutes, now construed as constitutionally permitted, are, in fact impermissible intrusions into the constitutionally required separation of church and state. This Article approaches this problem from both a historical and philosophical perspective. First, it uses the over 4,000-year-long history of the church-state interrelationship (including U.S. Supreme Court opinions) to define when a belief is a “religious belief.” Second, using that definition, the Article engages in a careful logical analysis of the eleven statutes to argue both that they promote religious beliefs in contravention of the First Amendment’s Establishment Clause and that they do not fall under the exception the Court has carved out in Kennedy v. Bremerton.
The defining purpose of the Diversity Clause of the United States Constitution is to provide a ne... more The defining purpose of the Diversity Clause of the United States Constitution is to provide a neutral federal forum for out-of-state litigants concerned that local courts and legislatures would be biased against them. That avoiding geographic bias is the purpose of the Diversity Clause as attested in the state ratifying conferences, the congressional record, and twenty U.S. Supreme Court opinions. In 2022, an empirical study demonstrated, using data from over one million district court actions arising under diversity jurisdiction (from 1990 to 2019), that geographic bias was no longer a concern of out-of-state litigants. As a result, diversity jurisdiction is no longer necessary and should be eliminated. Elimination of diversity jurisdiction would save billions of dollars each year, improve the application of state law, send a signal on national unity, improve the fairness of the system, and decrease friction between the federal and state courts. The central counterargument to eliminating diversity jurisdiction is that it provides a “neutral” or “bias-free” forum for litigants afraid of bias in the state courts. This counterargument fails because the empirical evidence demonstrates both that geographic bias is no longer an issue and that the federal forum is no bias-free Eden—multiple forms of pernicious bias, including racial, gender, and socioeconomic bias, are present in the federal system.
This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael... more This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael D. Ryan by examining the impact of his work on Arizona law through the lens of his "most important" opinions. As with all things touched by Justice Ryan it has become something greater than its initial purpose. The Author began this project by surveying three hundred seven Arizona judges about Justice Ryan's published opinions. The results of this survey were quite surprising. Rather than identifying a common core of important opinions, the survey identified two mutually exclusive sets of important opinions: one for the appellate court and the other for the trial court. In an effort to understand this result, the Author reviewed the salience literature (which identifies measures of case or issue importance) and identified fourteen measures of salience. The application of those measures to Justice Ryan's published opinions only confirmed the results of the survey because no two measures identified the same set (or even similar sets) of opinions as important. This empirical analysis and review of Justice Ryan's published opinions demonstrated three things. First, Justice Ryan's opinions matter to a wide range of people including grandparents, illegal aliens, homeowners, schoolchildren, employees, and convicted felons on death row. Second, the salience literature does not identify a single unitary concept of importance, but rather many different concepts of importance. Finally, the empirical analysis discussed herein unequivocally demonstrates that whether an opinion is important depends upon who you ask.
A close analysis of the Y2K problem provides valuable insight into the ethics of technology. We c... more A close analysis of the Y2K problem provides valuable insight into the ethics of technology. We contend that the primary cause of the Y2K problem is a lack of, what John Stuart Mills calls, originality (and the related loss of freedom, diversity, and understanding) in the information technology (IT) industry. If the various IT companies had supported originality, then they would have empowered their employees to respond to the foreseen difficulties associated with the change of millennium long before these difficulties blossomed in the current worldwide problem. We contend that originality, which requires and nourishes both intellectual vigor and diversity, which require in turn freedom and variety of situation, not only develops a better marketplace, but a better world full of people who have reached their true human potential.
In The Chances of Explanation, Paul Humphreys presents a metaphysical analysis of causation. In t... more In The Chances of Explanation, Paul Humphreys presents a metaphysical analysis of causation. In this paper, I argue that this analysis is flawed. Humphreys' model of Causality incorporates three completeness requirements, I show that these completeness requirements, when applied to the world, force us to take causally irrelevant factors to be causally relevant. On this basis, I argue that Humphreys' analysis should be rejected.
Georgetown Journal of Law & Modern Critical Race Perspectives, 2021
Empirical studies find that Black Americans distrust the U.S. justice system because they believe... more Empirical studies find that Black Americans distrust the U.S. justice system because they believe that it will not treat them fairly. The well-developed empirical literature on race and the criminal justice system demonstrates that this belief is well founded. At the same time, the empirical literature on race in the civil justice system is less well developed owing to a lack of data associating racial and other demographic information with court filings. To fill part of that gap, I combine federal filings data with U.S. Census and National Center for Health Statistics data to produce a dataset representing 254,643 actual filings with associated data on race, poverty-rate, and population density. I then use this data to engage in a statistical analysis of race and diversity jurisdiction through the lens of increases in the amount-in-controversy requirement. I find that a large percentage of Black claimants are simply missing from the federal courts. This result is consistent with studies finding a barrier to Black claimant use of the courts arising out of systemic racism which creates and maintains Black Americans' distrust of the U.S. justice system. The analysis also finds that increasing the amount-incontroversy requirement further decreases filing rates and, thereby, creates a second barrier for Black claimants to access the federal courts. This additional barrier can only serve to reinforce and deepen Black alienation as those Black claimants willing to trust the federal courts are told that federal court is not for people like them. In addition, the analysis to identify hidden or unknown covariates produces evidence of belief that the state courts are biased in other ways including geographic bias, rural court bias, and bias against the poor.
Through the use of empirical studies informed by theories of memory and brain functioning cogniti... more Through the use of empirical studies informed by theories of memory and brain functioning cognitive scientists have made impressive gains in understanding how stories and images help student learning. Law professors have laid an important foundation for bringing the usefulness of stories and images to light but have not empirically determined whether and in what circumstances stories and images improve law student learning. This Article fills the gap by discussing three studies conducted by the author. The results are quite dramatic. For first-year students supplementation of classroom material with images is 30% better at improving law student understanding than supplementation with text-based material. For upper-level students the improvement is even larger-images are 50% better than text. Stories are 9% better than exposition at improving first-year student learning with one type of story outperforming the improvement seen by any other medium by 53%. For upper-level students the results are flipped on their head (empirically demonstrating that upper-level students learn differently than firstyear students). Exposition improves performance 8% more than stories with flowcharts outperforming the next best medium by 12%. These results, and others discussed in the Article, provide a firm empirical basis for adding stories and images into the law school teaching mix.
The law of copyright infringement is fairly simple in structure. At its core is protection agains... more The law of copyright infringement is fairly simple in structure. At its core is protection against illicit copying of protected expression. The details of determining whether the expression was copied (the epistemology of copy infringement) and whether the copied expression is protected forms much of the remainder of copyright infringement law. The purpose of this Comment is to derive the ontology of American copyright infringement.
On a bleary winter night, Lee Keller King, in a drunken rage, emptied his pistol into two men, ne... more On a bleary winter night, Lee Keller King, in a drunken rage, emptied his pistol into two men, nearly killing them. At trial, he pled guilty to one count of attempted murder. The Texas court initially sentenced King to seven years. However, after four months in jail, the court recognized that the shooting was inconsistent with King's character, suspended his sentence, and placed him on probation. In the thirty years following the shooting, King live a decent, ordinary life. He was devoted to his family, attended church, went to law school, practiced law in Texas for ten years without a blemish, moved to Arizona, and applied for admission to the Arizona State Bar. Nonetheless, in June 2006, the Arizona Supreme Court denied King's application for admission. In doing so, the court perpetuated a serious injustice, an injustice mirrored by other state supreme courts.
Under current federal regulations, law school faculties are permitted to engage in human research... more Under current federal regulations, law school faculties are permitted to engage in human research using students as subjects with little or no ethical oversight. This freewheeling environment runs counter to well-established ethical guidelines for human research and to law professors’ heightened moral duties as members of the Bar and the legal academy. In addition, it exposes students, law faculty, and the legal academy to risks arising out of the use of unregulated human experimentation in law schools. This is inimical to morally good practice. To remedy this ethical problem, this Article provides a set of guidelines for law professors who wish to ethically engage in empirical research using students as subjects.
University of Michigan Journal of Law Reform, 2022
The legal profession is among the least diverse in the United States. Given
continuing issues of ... more The legal profession is among the least diverse in the United States. Given continuing issues of systemic racism, the central position that the justice system occupies in society, and the vital role that lawyers play in that system, it is incumbent upon legal professionals to identify and remedy the causes of this lack of diversity. This Article seeks to understand how the bar examination—the final hurdle to entering the profession— contributes to this dearth of diversity. Using publicly available data, we analyze whether the ethnic makeup of a law school’s entering class correlates to the school’s first-time bar passage rates on the Uniform Bar Examination (UBE). We find that higher proportions of Black and Hispanic students in a law school’s entering class are associated with lower first-time bar passage rates for that school in its reported UBE jurisdictions three years later. This effect persists after controlling for other potentially causal factors like undergraduate grade-point average (UGPA), law school admission test (LSAT) score, geographic region, or law school tier. Moreover, the results are statistically robust at a p-value of 0.01 (indicating just a 1% chance that the results are due to random variation in the data). Because these are school-level results, they may not fully account for relevant factors identifiable only in student-level data. As a result, we argue that follow-up study using data relating to individual students is necessary to fully understand why the UBE produces racially and ethnically disparate results.
British Journal for the Philosophy of Science, 1997
This paper is a response to Forster and Sober's [1994] solution to the curve-fitting solution. If... more This paper is a response to Forster and Sober's [1994] solution to the curve-fitting solution. If their solution is correct, it will provide us with a solution to the New Riddle of Induction as well as provide a basis for choosing realism over conventionalism. Examining this solution is also important as Forster and Sober incorporate it in much of their other philosophical work (see Forster [1995a,b, 1994] and Sober [1996, 1995, 1993]). I argue that Forster and Sober's solution is subject precisely to the problem they seek to solve. They provide a method of choosing among hypotheses but only at the cost of requiring that we have a method of choosing between different ways of conceptualizing the world. Thus the solution raises a new problem--the world-fitting problem.
American federal diversity jurisdiction was created in response to the concern that out-of-state ... more American federal diversity jurisdiction was created in response to the concern that out-of-state litigants would suffer bias in state court due to their out-of-state status ("geographic bias"). As attested in the record from the state ratification conventions, in the legislative history of diversity jurisdiction, and in seventeen U.S. Supreme Court opinions (the most recent in 2021), the creation of an impartial tribunal to mitigate geographic bias was and is the central rationale for federal diversity jurisdiction. Even though geographic bias is the rationale for diversity jurisdiction, no (prior) empirical studies have established whether geographic bias remains a problem in the American civil justice system. This Article provides the results of an empirical study of objective data, representing over one million cases across thirty years, demonstrating that geographic bias is no longer an issue in the civil justice system. Given that this result eliminates the very reason for the existence of federal diversity jurisdiction, the outcome provides a strong basis for Congress to either modify or abolish diversity jurisdiction.
This Article provides the results of the most comprehensive and detailed analysis of the correlat... more This Article provides the results of the most comprehensive and detailed analysis of the correlation between bar passage and race and ethnicity. It provides the first proof of racially disparate outcomes of the bar exam, both for first-time and ultimate bar passage, across jurisdictions and within law schools. Using data from 63 public law schools, we found that first-time bar examinees from Communities of Color underperform White examinees by, on average, 13.41 percentage points. While the gap closes when looking at ultimate bar passage, there is still a difference, on average, of 9.09 percentage points. The validity of these results are supported through our use of t-test statistical analysis and a regression analysis. Under the Civil Rights Act, a difference of 20% would be evidence of adverse impact creating a cause of action. As White examinees pass the first time at about an 85% rate, a 17-percentage-point difference meets the 20% requirement—something Black examinees, unfortunately, meet and something Asian examinees almost meet. Historically, this kind of difference in the bar examination was attributed to differences in the entering credentials of the various races—implying that examinees from Communities of Color are less well qualified than White examinees. Our results demonstrate that this explanation is incorrect. Because our dataset is an intra-school (within the school) dataset, we are comparing the bar results of White examinees with examinees from Communities of Color who both have similar entering credentials and receive the same legal education. In that context, race should not be correlated with the bar passage rate—if differing credentials are the cause of the differing bar pass rates. But as we show, those differences in bar pass remain. It is time to act. Bar Examiners must re-examine the bar exam and determine how race is impeding its ability to properly measure an examinee’s competence. This need to act is all the more vital given the coming changes to the 2026 bar examination.
The substantive standard for gatekeeping expert evidence is an issue that has an enormous impact ... more The substantive standard for gatekeeping expert evidence is an issue that has an enormous impact on the judicial system, affecting tens of thousands of federal cases and many times that in state court each year and dramatically modifying substantive tort law. Yet while the issue is critical, researchers have often struggled to find a way to quantify the change in the substantive standard for gatekeeping under Daubert.
In a recent study, we decided the best way to measure the effect of Daubert would be to assess the aggregate case management decisions of litigants in millions of actual cases. Our prior study used the metric of removal rates to determine whether civil defendants acted in a way demonstrating that Daubert changed the standard. The removal data showed that Daubert acts as a stricter gatekeeping standard.
This Study asks an equally important question: when we measure the case management decisions of civil plaintiffs, how did Daubert change the substantive gatekeeping standard? To answer that question, we again reviewed a database of millions of real cases. In so doing, we found an identical result: Daubert is the stricter standard.
By measuring the behavior of civil litigants in actual cases, we believe our analysis shows whether Daubert is a stricter gatekeeping standard, and finds that it is. If so, we can conclude the theoretical underpinnings of Daubert are unmoored from reality, meriting Supreme Court evaluation of the issue by accepting certiorari on a case revisiting expert admissibility.
Proponents of tort reform have suggested it is a necessary response to rising personal injury lit... more Proponents of tort reform have suggested it is a necessary response to rising personal injury litigation and skyrocketing insurance premiums. Yet the research into the issue has mixed results, and the necessity of tort reform has remained unproven.
We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.
We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.
Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.
We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.
Tort reform legislation developed as a response to a series of insurance crises and reactions tha... more Tort reform legislation developed as a response to a series of insurance crises and reactions that blamed the personal injury compensation system for those problems. Since measures of tort reform have been adopted, many researchers have analyzed their effects within and beyond the legal system, assessing how they affect damages, insurance claims, health costs, and physician supply.
Our study analyzes an underdeveloped area of research: the effect of tort reform on the filing of cases in court. Using two databases of state court filing data over 12 years, we examine how a damages cap for medical negligence claims affects case filings in the years immediately after its adoption. With several test states, we find that when a state adopts med mal damages caps, there is a statistically significant drop of 23 percent in med mal filings. We confirm this effect by also measuring the effect of a cap’s nullification, and find that in the aftermath of a cap’s removal case filings increase by 29 percent. Our work can therefore confirm and quantify the effect of damages caps on case filing.
Yet these findings become more significant when we consider them along with a new and interesting study from the Journal of Empirical Legal Studies. In their 2013 study, Myungho Paik, Bernard Black, and David Hyman found that filings of med mal torts have decreased in the last decade, not only in tort reform states but also in states without it! If so, our finding of a statistically significant drop in med mal filings in response to tort reform has a “doubling-down” effect: there is one reduction in filings due to tort reform, and also a background reduction in filings based on larger, non-statutory changes.
We believe that our findings regarding the effect of tort reform on med mal filings and the “doubling-down” effect significantly modify the cost-benefit analysis of tort reform. The positive impacts of tort reform have been significantly oversold, and the effects of tort reform disproportionately impact certain vulnerable citizens. If so, we believe that claimants are being doubly squeezed without significant public benefit. We therefore suggest that state legislators reconsider these efforts, or risk court intervention due to equal protection challenges.
This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael... more This Essay began as an effort to honor the work of the late Arizona Supreme Court Justice Michael D. Ryan by examining the impact of his work on Arizona law through the lens of his "most important" opinions. As with all things touched by Justice Ryan it has become something greater than its initial purpose. The Author began this project by surveying three hundred seven Arizona judges about Justice Ryan's published opinions. The results of this survey were quite surprising. Rather than identifying a common core of important opinions, the survey identified two mutually exclusive sets of important opinions: one for the appellate court and the other for the trial court. In an effort to understand this result, the Author reviewed the salience literature (which identifies measures of case or issue importance) and identified fourteen measures of salience. The application of those measures to Justice Ryan's published opinions only confirmed the results of the survey because no two measures identified the same set (or even similar sets) of opinions as important. This empirical analysis and review of Justice Ryan's published opinions demonstrated three things. First, Justice Ryan's opinions matter to a wide range of people including grandparents, illegal aliens, homeowners, schoolchildren, employees, and convicted felons on death row. Second, the salience literature does not identify a single unitary concept of importance, but rather many different concepts of importance. Finally, the empirical analysis discussed herein unequivocally demonstrates that whether an opinion is important depends upon who you ask.
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Papers by Scott DeVito
continuing issues of systemic racism, the central position that the justice system occupies in society, and the vital role that lawyers play in that system, it is incumbent upon legal professionals to identify and remedy the causes of this lack of diversity. This Article seeks to understand how the bar examination—the final hurdle to entering the profession— contributes to this dearth of diversity. Using publicly available data, we analyze whether the ethnic makeup of a law school’s entering class correlates to the school’s first-time bar passage rates on the Uniform Bar Examination (UBE). We find that higher proportions of Black and Hispanic students in a law school’s entering class are associated with lower first-time bar passage rates for that school in its reported UBE jurisdictions three years later. This effect persists after controlling for other potentially causal factors like undergraduate grade-point average (UGPA), law school admission test (LSAT) score, geographic region, or law school tier. Moreover, the results are statistically robust at a p-value of 0.01 (indicating just a 1% chance that the results are due to random variation in the data). Because these are school-level results, they may not fully account for relevant factors identifiable only in student-level data. As a result, we argue that follow-up study using data relating to individual students is necessary to fully understand why the UBE produces racially and ethnically disparate results.
In a recent study, we decided the best way to measure the effect of Daubert would be to assess the aggregate case management decisions of litigants in millions of actual cases. Our prior study used the metric of removal rates to determine whether civil defendants acted in a way demonstrating that Daubert changed the standard. The removal data showed that Daubert acts as a stricter gatekeeping standard.
This Study asks an equally important question: when we measure the case management decisions of civil plaintiffs, how did Daubert change the substantive gatekeeping standard? To answer that question, we again reviewed a database of millions of real cases. In so doing, we found an identical result: Daubert is the stricter standard.
By measuring the behavior of civil litigants in actual cases, we believe our analysis shows whether Daubert is a stricter gatekeeping standard, and finds that it is. If so, we can conclude the theoretical underpinnings of Daubert are unmoored from reality, meriting Supreme Court evaluation of the issue by accepting certiorari on a case revisiting expert admissibility.
We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.
We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.
Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.
We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.
Our study analyzes an underdeveloped area of research: the effect of tort reform on the filing of cases in court. Using two databases of state court filing data over 12 years, we examine how a damages cap for medical negligence claims affects case filings in the years immediately after its adoption. With several test states, we find that when a state adopts med mal damages caps, there is a statistically significant drop of 23 percent in med mal filings. We confirm this effect by also measuring the effect of a cap’s nullification, and find that in the aftermath of a cap’s removal case filings increase by 29 percent. Our work can therefore confirm and quantify the effect of damages caps on case filing.
Yet these findings become more significant when we consider them along with a new and interesting study from the Journal of Empirical Legal Studies. In their 2013 study, Myungho Paik, Bernard Black, and David Hyman found that filings of med mal torts have decreased in the last decade, not only in tort reform states but also in states without it! If so, our finding of a statistically significant drop in med mal filings in response to tort reform has a “doubling-down” effect: there is one reduction in filings due to tort reform, and also a background reduction in filings based on larger, non-statutory changes.
We believe that our findings regarding the effect of tort reform on med mal filings and the “doubling-down” effect significantly modify the cost-benefit analysis of tort reform. The positive impacts of tort reform have been significantly oversold, and the effects of tort reform disproportionately impact certain vulnerable citizens. If so, we believe that claimants are being doubly squeezed without significant public benefit. We therefore suggest that state legislators reconsider these efforts, or risk court intervention due to equal protection challenges.
continuing issues of systemic racism, the central position that the justice system occupies in society, and the vital role that lawyers play in that system, it is incumbent upon legal professionals to identify and remedy the causes of this lack of diversity. This Article seeks to understand how the bar examination—the final hurdle to entering the profession— contributes to this dearth of diversity. Using publicly available data, we analyze whether the ethnic makeup of a law school’s entering class correlates to the school’s first-time bar passage rates on the Uniform Bar Examination (UBE). We find that higher proportions of Black and Hispanic students in a law school’s entering class are associated with lower first-time bar passage rates for that school in its reported UBE jurisdictions three years later. This effect persists after controlling for other potentially causal factors like undergraduate grade-point average (UGPA), law school admission test (LSAT) score, geographic region, or law school tier. Moreover, the results are statistically robust at a p-value of 0.01 (indicating just a 1% chance that the results are due to random variation in the data). Because these are school-level results, they may not fully account for relevant factors identifiable only in student-level data. As a result, we argue that follow-up study using data relating to individual students is necessary to fully understand why the UBE produces racially and ethnically disparate results.
In a recent study, we decided the best way to measure the effect of Daubert would be to assess the aggregate case management decisions of litigants in millions of actual cases. Our prior study used the metric of removal rates to determine whether civil defendants acted in a way demonstrating that Daubert changed the standard. The removal data showed that Daubert acts as a stricter gatekeeping standard.
This Study asks an equally important question: when we measure the case management decisions of civil plaintiffs, how did Daubert change the substantive gatekeeping standard? To answer that question, we again reviewed a database of millions of real cases. In so doing, we found an identical result: Daubert is the stricter standard.
By measuring the behavior of civil litigants in actual cases, we believe our analysis shows whether Daubert is a stricter gatekeeping standard, and finds that it is. If so, we can conclude the theoretical underpinnings of Daubert are unmoored from reality, meriting Supreme Court evaluation of the issue by accepting certiorari on a case revisiting expert admissibility.
We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.
We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.
Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.
We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.
Our study analyzes an underdeveloped area of research: the effect of tort reform on the filing of cases in court. Using two databases of state court filing data over 12 years, we examine how a damages cap for medical negligence claims affects case filings in the years immediately after its adoption. With several test states, we find that when a state adopts med mal damages caps, there is a statistically significant drop of 23 percent in med mal filings. We confirm this effect by also measuring the effect of a cap’s nullification, and find that in the aftermath of a cap’s removal case filings increase by 29 percent. Our work can therefore confirm and quantify the effect of damages caps on case filing.
Yet these findings become more significant when we consider them along with a new and interesting study from the Journal of Empirical Legal Studies. In their 2013 study, Myungho Paik, Bernard Black, and David Hyman found that filings of med mal torts have decreased in the last decade, not only in tort reform states but also in states without it! If so, our finding of a statistically significant drop in med mal filings in response to tort reform has a “doubling-down” effect: there is one reduction in filings due to tort reform, and also a background reduction in filings based on larger, non-statutory changes.
We believe that our findings regarding the effect of tort reform on med mal filings and the “doubling-down” effect significantly modify the cost-benefit analysis of tort reform. The positive impacts of tort reform have been significantly oversold, and the effects of tort reform disproportionately impact certain vulnerable citizens. If so, we believe that claimants are being doubly squeezed without significant public benefit. We therefore suggest that state legislators reconsider these efforts, or risk court intervention due to equal protection challenges.