Foundations of Evidence Law

Numerology is sweeping the professions. In the past decade, both medicine and business have witnessed a radical growth in efforts to subject common wisdoms to empirical testing, which has come to be called evidencebased medicine (or business). The rise of empirical legal scholarship suggests that law will soon face, or is already facing, a similar movement. With an increase in available data and user-friendly desktop statistical packages, any law professor (or student) can test any theory-from the deterrent effect of the death penalty to the existence of the litigation explosion. This trend is surely all to the good in all three disciplines. False myths are a nuisance that can mislead physicians into erroneous treatment, support costly business practices, and produce misguided legal reform. But medicine and business each have a relatively unified mission-the treatment of patients and the production of profits-meaning that their theories are either right or wrong. Law, however, lacks this uniformity of purpose. It is often politics by other means that sorts winners and losers, rather than right and wrong, thereby clouding the normative environment. What is accepted fact in medicine and business is contestable in law. Law's political nature does not render empirical testing of widely held myths a hopeless misadventure but complicates the hope (and the value) of creating an evidence-based law. † Professor of Law, Cornell Law School. I would like to thank the participants in this symposium for their comments, as well as Robert B. Diener '82 and David S. Litman '82, founders of the Cornell Law School-Tel Aviv University Exchange Initiative for their support of this Essay and Symposium.

Cornell Law Review, 2011

In Reply: Dr. Grosch is a clever logician whose cunningly crafted sham peer review has our admiration and close scrutiny. His main point claims we make a “distinction without a difference” between scientific and legal evidence and reasoning, stating legal standards of proof “entail value judgments which are inaccessible to objective verification ” The main point fails, however, as our focus is medical, not scientific evidence. Nevertheless, we highlight that science’s methodological biases and consensus opinions ensure that science is not as objectively verifiable as commonly thought. ........ [continues ...]

Journal of the American Academy of Psychiatry …, 2003

Law, Probability and Risk

Journal of Health Politics, Policy and Law, 2001

In April 2000 the Institute of Medicine (IOM) and the Agency for Healthcare Research and Quality (AHRQ) jointly hosted a one-day workshop to explore an intriguing and important intersection of medicine and law: the courtroom presentation of science-based medical evidence and expertise. This workshop was inspired by a concern that legal uses and interpretations of science-based medical evidence, particularly population studies and the findings of controlled clinical trials, may diverge substantially from the uses and interpretation of that evidence by the medical and health care researchers who produce it and of the practitioners and health plans that use it in making clinical decisions and policies. Recognizing that a preliminary discussion among professions was needed even to describe the nature of their differences, the IOM and AHRQ, at the instigation of John M. Eisenberg, director of AHRQ, convened about twenty clinicians, epidemiologists, health services researchers, health plan executives, practicing and academic lawyers, jurists, and social scientists in the field of legal medicine (see appendix for participants). Participants and presenters were asked to formulate empirical research questions concerning both evidence-based medicine (EBM) and judicial practices that might increase familiarity with, and therefore promote greater reliance on, the use of science-based medical evidence by the courts. Workshop participants were further asked to identify policy

Michigan Law Review, 1977

Teaching law through the use of appellate court opinions was pedagogically sound in Langdell's day. It is still sound. Its basic

Does evidence of a biomechanical cause of psychopathy reduce sentencing to the same extent for male and female judges? A recent experiment found that when psychiatric evidence of criminal psychopathy was supplemented by evidence of an underlying biomechanism, judges assigned shorter average sentences and were more likely to cite at least one mitigating factor of psychopathy in accompanying written opinions. But it remains unclear whether the absence of neurobiological evidence justifies the retention of longer sentences, and unclear whether the opinions of this judicial sample are widely held, or reflect the unique demographics of the U.S. state trial judiciary. Specifically, previous research has found systematic differences in the credence that men and women give to different kinds of scientific explanations, and this research suggests that the discovered scientism among U.S. state trial judges may be moderated by the gender ratio of that population, which is skewed heavily toward men. Here, a reanalysis of the data in which this effect was first revealed found no effect of biomechanism on female judges' sentencing or opinions. These results suggest that it is worth further investigating whether the overrepresentation of men on the bench may lead to a hard-scientific bias in U.S. state courts. Additionally, the findings highlight the need to develop a scientific understanding of the social forces that give rise to these gender differences in the first place, and reveal problems with a concept that I develop and critique called the principle of epistemic caution. Acknowledgements: I am extraordinarily grateful to Lisa Aspinwall, Teneille Brown, and James Tabery for reanalyzing and sharing their data, and for their comments on and continued support of this project. They wish to express no public opinion at this time regarding my interpretation of their data. I am also grateful to Jennifer Mangels, Jesse Prinz, Hagop Sarkissian, and Ron Whiteman for their comments on previous drafts. Finally, I must thank two anonymous referees and the editor, John Banja, for their extraordinarily helpful and detailed critiques of earlier versions of the manuscript.

American Journal of Criminal Law, 2018

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense. Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered. We argue that the principle underlying this line of doctrine is broader than courts have so far recognized. A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty. SED has played a central role in the Court’s elaboration of the “consideration” requirement. It is often given what we call “restrictive consideration” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime. We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral—as opposed to legalistic—appraisal of the evidence. When judges restrict the moral principles under which they evaluate the mitigating weight of evidence on the basis of precedent or even judicial custom, they fail to give a reasoned, moral response to the evidence. We articulate a three-factor test for when legalistic thinking of this sort prevents a judge from satisfying the constitutional requirement. Restrictive consideration of SED evidence, in many jurisdictions, is a product of legal convention and thus fails the test. Second, we contend that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from restrictive consideration of mitigating evidence. The Constitution requires that death sentences must be consistent with community values. Unrestricted consideration of evidence—evaluating its mitigating weight in light of a range of moral principles—ensures that the diverse moral views of the community are brought to bear on the capital question.