Volume 2014, No. 6

 


The Hidden Daubert Factor: How Judges Use Error Rates in Assessing Scientific Evidence

John B. Meixner & Shari Seidman Diamond

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of expert scientific evidence. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study indicates that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this Article, we examine one possible interpretation of the “known or potential rate of error” standard that would treat the factor more broadly: considering direct assessments of a method’s validity as assessments of the method’s potential rate of error, even when numerical error rates are not mentioned. To assess the extent to which judges use the error rate factor in this “implicit” sense, we examined 208 federal district court cases, coding for the number of words judges spent analyzing the Daubert factors and other evidentiary considerations.

We found that judges faced with a Daubert challenge often undertake a detailed analysis of the quality of the methodology used by the expert rather than simply relying on proxies for the quality of the method such as peer review and general acceptance. Analysis of a method’s potential rate of error was significantly more common and lengthy than analysis using any of the other Daubert factors. This implicit error rate analysis also predicted the final admissibility ruling of the evidence and varied across expert disciplines. Our data support the notion that judges put considerable effort into directly assessing the validity of the scientific evidence before them when responding to a Daubert challenge. That is, they engage substantially in central processing in making methodological evaluations rather than merely relying on the peripheral cues of peer review and general acceptance. This finding lays the groundwork for future assessments of the obstacles judges face in these demanding evaluations.


Rethinking Speech-Tort Remedies

David S. Han

Courts generally craft speech-tort jurisprudence as a binary proposition. Any time state tort law and the First Amendment come into potential conflict, courts typically hold either that the First Amendment comes into play and the defendant is completely exempt from traditional tort liability, or that it does not come into play and the plaintiff is entitled to the full complement of tort remedies. In other words, courts generally adopt an unspoken assumption that in speech-tort cases, liability and full tort remedies necessarily go hand-in-hand.

This rigid approach, however, significantly limits courts’ ability to craft a nuanced balance between First Amendment and tort interests. In individual cases, it forces them to choose only one set of interests to be vindicated to the complete exclusion of the other, and on a jurisprudential level, it gives courts only the bluntest of instruments to tailor speech-tort doctrine to widely varying facts. Furthermore, the current approach exacerbates the distributional problem inherent to speech-tort cases: any time the First Amendment intervenes to completely invalidate a subset of common law tort liability, plaintiffs left without liability or remedy are effectively forced to subsidize the costs of free speech, the benefits of which are shared broadly by the public at large


Comment
How Wisconsin Circuit Courts Can Ensure Proper Service in Eviction Actions After 2013 Wisconsin Act 76

Samantha Ahrendt

This Comment outlines ways in which Wisconsin circuit courts can act to ensure proper service in eviction actions. Even with the new law changes, Wisconsin circuit courts retain the autonomy to create their own local rules for service in all types of small claims proceedings. This Comment takes a county-by-county look at the current state of local rules for service in eviction actions. By comparing each county’s local service rule for eviction to its local service rule for replevin, this Comment makes predictions about the long-term impacts of Act 76 on service rules for eviction actions.

Then, this Comment suggests changes that each local court should make to ensure tenants are adequately served notice that their landlord has commenced an eviction action against them. This Comment concludes by urging each Wisconsin circuit court to think critically about its local rules and service requirements for eviction actions in light of the recent changes to Wisconsin rental housing law in order to ensure that tenants are properly notified of pending eviction actions and to ensure that judgments of eviction are certain and final.


Comment
Blight Prevention: The Use of Eminent Domain to Condemn Underwater Mortgages in Wisconsin

Joyce C. Williams

Blight costs Wisconsin taxpayers millions of dollars. However, there is a solution to prevent blight before it occurs in this state, and that solution is based on a plan enacted by the city of Richmond, California (the Plan). There, with the help of Mortgage Resolution Partners, the city took an unprecedented step to slow the city’s foreclosure rate. Using its eminent domain power, the city enacted a plan to condemn underwater mortgages. The city would then refinance the mortgages and transfer them back to the current homeowners. This Comment will assume that the Plan, although controversial, is permissible under both the Fifth Amendment’s Takings Clause and the Wisconsin Constitution’s similar provision.

Using the Blight Elimination and Slum Clearance Act (the Act), Wisconsin cities can and should follow Richmond’s lead by condemning underwater mortgages to prevent the dissemination of blight. The purpose of the Act is to provide for the elimination and prevention of blight. Due to the direct correlation between underwater mortgages and foreclosure, using the Act to condemn underwater mortgages can prevent the blight associated with foreclosed homes. This Comment describes how the Act provides for the steps necessary to implement the Plan and argues the necessity of the Plan in Wisconsin cities, especially Milwaukee and Racine. This Comment concludes by describing the Plan’s many benefits to homeowners, the general public, local governments, and lenders alike.