Posted 10:36 AM by David Bernstein
Peter Norberg, of Daubert website fame, misapprehends the point of my post below about the plaintiffs lawyers extorting money from breast implant manufacturers via the use of junk science, and then using some of the money, place in a "Common Benefit Trust," to fund a study arguing for loosening the Daubert reliability standard for the admissibility of expert testimony. My point is not that the study itself is suspect because the authors received funds that flowed from the efforts of plainttiffs lawyers. As Norberg points out, studies, arguments, etc., must stand or fall on their own merits, regardless of funding source. Rather, my point is that the breast implant litigation was based on a junk science premise, that breast implants caused immune system disease. The junk science involved led to the extortion of billions of dollars from implant manufacturers. This, itself, was utterly outrageous; junk-science based claims are a form of fraud, albeit a legal form (and as far as I can tell, not officially unethical for an attorney to bring even if he knows he is relying on junk science, which is itself an outrage). Adding insult to injury is to use the ill-gotten gains from the junk science-based litigation to fund a study arguing for more lenient standards of admissibility of scientific evidence, which would lead to the admission of more junk science, and thus more successful fraudulent claims. Now, I would agree that if the experts who conducted the study were a truly neutral group of scientists with no preconceived notions who just happened to conclude that Daubert was too strict, my outrage would dissipate. But I suspect strongly that the deck was stacked. The Tellus Institute, organization that was in charge of the study, has a left-wing, environmentalist, redistributivist bias, which is obvious from its website. Moreover, the panel that conducted the study had no representative of "hard science" on it: no one from a physics, biology, or chemistry department. Instead, there are professors from the squishy field of Environmental Health, an Urban and Environmental Policy and Planning Professor, and an MD. Apparently, one or more of these professors is a philosopher by training. And the study reads like a legal brief, not a serious critique by scientists of the post-Daubert landscape. Yet the sponsore have the chutzpah to call their website, "defendingscience.org."

Update: Norberg challenges me to specifically critique the report at issue. I could do that, but instead will ask him to wait for the forthcoming New Wigmore: Expert and Scientific Evidence, of which I am co-author. That treatise discusses Daubert and other expert evidence-related issues in great, and, I believe, illuminating detail. As for why I focus on the lack of hard scientists who worked on the report, my point was simply that if the report was meant to be an objective look at how courts are dealing with scientific evidence in the post-Daubert era, it's unlikely that no hard scientists would have been selected. Further update: Oh yeah, and since my point is that the study seems to have been funded with the intent of creating an anti-Daubert manifesto, it's hardly an ad hominem argument to point out that the folks in charge of the study appear to be the sorts who would be predisposed to dislike a stringent reliability standard for scientific evidence in toxic tort cases.

Posted 8:16 PM by David Bernstein
Here's an outrage: Plaintiffs' lawyers relied on junk science to win billions of dollars in the silicone breast implant litigation (I review the entire fiasco here--the final version was published in the California Law Review). They then used money from the litigation that was placed in a "Common Benefit Trust" to fund a study advocating, you guessed it, that more junk science be admitted at trials through a weakening of the Daubert reliability test for scientific evidence.

Posted 10:33 AM by David Bernstein
Eugene has an interesting discussion of why Congress needed a constitutional amendment to ban alcohol, but only needs to pass a law to ban drugs: the answer lies in the, ahem, creative interpretaton the Court gave to the Commerce Clause starting in the late 1930s. Next time you see the 1936 anti-mairjuana cult classic, Reefer Madness, notice the FBI agent's response when a concerned mother asks him why the federal government isn't doing more to combat marijuana. (The agent responds ruefully that most marijuana is grown in-state, and therefore the federal government lacks jurisdiction over it.)

Posted 10:28 PM by David Bernstein
Linda Greenhouse in the New York Times:

"In fact, 'this term suggested a split between two kinds of conservative Republicans,' Walter Dellinger, a former acting solicitor general and longtime student of the court, said in an interview. Justices Kennedy and O'Connor 'share the sensibilities of corporate Republicans, who often have a bit of a libertarian streak in them,' he said, while on social issues, 'Scalia and Thomas represent the Moral Majority strain, which is vocal but not necessarily dominant.'

Chief Justice Rehnquist, Mr. Dellinger said, often occupies a middle position between the two groups."

With all due respect to Prof. Dellinger (and I do respect Prof. Dellinger), there is no way one can argue that Rehnquist has more of libertarian streak than does Scalia, much less Thomas. In fact, when I was in law school, there was a saying that neatly explained 90+% of Rehnquist's jurisprudence: state versus individual--state wins; state versus federal government--state wins; federal government versus individual--government wins (except in Takings and affirmative action cases). Kennedy and Thomas both have libertarian streaks, but Kennedy is more moderate in general, and in particular accepts substantive due process jurisprudence as Thomas does not.

I don't see any particular evidence that O'Connor has a libertarian streak, as such, though as a moderate conservative she sometimes casts votes that lead to smaller government. However, libertarians in general can't abide her because of her extremely annoying tendency to muck up the law with nonsensical balancing tests that fail to convey to anyone what the law will be in any particular future instance. (What would Hayek say? Oy!)

Moreover, and here I'm getting away from the libertarian issue, her opinions also tend to be intellectually vacuous; her opinion in Grutter, the Michigan Law School affirmative action case, which I just read, is one of the least-well-reasoned, least coherent, least consistent with prior reasoning on similar issues, etc. opinions I have ever seen. I think affirmative action at state universities can be given a strong constitutional defense, but Grutter certainly ain't it. What happened to strict scrutiny? Wasn't scrutiny stricter in the VMI case, which was only supposed to involve intermediate scrutiny? Why a 25 year cutoff for affirmative action? Isn't that completely arbitrary? Why are Latinos important for ethnic diversity but not, say, Armenians, Greeks, or Slavs? Or can state universities now admit people based on any ethnic criteria they wish? Should Latinos (including Latinos who look "Caucasian," come from South America where they are considered white, and consider themselves to be white) be treated exactly the same as blacks for equal protection purposes, even if we agree that the compelling interest test should be weaker for "positive discrimination?" How does Michigan Law School's claim that it was adhering to a diversity rationale square with the district court's finding that among Latinos only Mexican Americans and mainland Puerto Ricans benefited from the school's admissions preferences? Why defer to state university officials and their judgment but not to any other government officials with regard to matters of race, especially when VMI officials received no deference? Is Justice O'Connor completely unaware that the diversity rationale is largely a charade masking the (far more defensible) true redistributive and ameliorative intent of AA programs, as most strong proponents of such programs will admit, at least in private? Did O'Connor really look at the statistics involved in the law school case before she wrote that it's clear that race is not outcome determinitive in the Michigan admissions process? Was she being disingenuous? Does she really believe that her opinion, which gives far more leeway to AA than Justice Powell's Bakke opinion did, is no different than Powell's opinion? Unfortunately, the answer to all these questions is, who knows? Justice Scalia points out that O'Connor's opinion leaves open a lot of room for further litigation over the scope of AA. It also, I think, is likely to be overruled if she retires and is replaced by someone conservative, because the opinion is so bad that it simply does not put affirmative action on a sound constitutional footing. A historically-minded opinion could have pointed out that the 14th Amendment was not meant to void all racial classifications, and that the Court has never held that it does. Rather, reasonable classifications are allowed, so long as they are benign and "reasonableness" is considered with the gravity required for something as explosive as racial classifications. Further, O'Connoer could have argued that aiding African Americans and perhaps some other disadvantaged groups, while still avoiding quotas and treating applicants as individuals, is such a reasonable classification. If I were O'Connor, I would have challenged Scalia and Thomas on their own originalist turf, where they are very vulnerable on this issue.

Posted 1:26 PM by David Bernstein
If you haven't done so recently (or even if you have), be sure to visit Walter Olson's legal blog, Overlawyered.com, which has a new movable-type based format. I've known Wally since I was a Summer intern at the Manhatten Institute, his employer, in 1989. It's no exaggeration to say that he is the leading light of the movement to reform and improve America's civil justice system.