Prove It with Figures: Empirical Methods in Law and Litigation

370 Pages·1997·23.083 MB·English

by  Hans Zeisel, David Kaye (auth.)

Statistics for Social Science
and Public Policy
Advisors:
S. Fienberg D. Lievesley J. Rolph
Springer Science+Business Media, LLC
Statistics for Social Science and Public Policy
DevlinlFienberglResnicklRoeder (Eds.): Intelligence, Genes, and Success: Scientists
Respond to The Bell Curve.
ZeisellKaye: Prove It with Figures: Empirical Methods in Law and Litigation.
Hans Zeisel
David Kaye
Prove It with Figures
Empirical Methods in Law
and Litigation
With a Foreword by Jack B. Weinstein
, Springer
Hans Zeisel David Kaye
(deceased) College of Law
Arizona State University
Tempe, AZ 85287
USA
Advisors
Stephen Fienberg John Rolph
Department of Statistics Graduate School of Business
Carnegie-Mellon University Department of Information and
Pittsburgh, PA 15213 Operations Management
University of Southern California
Los Angeles, CA 90089
Denise Lievesley
ESRC Data Archive
University of Essex
Colchester, Essex C04 3SQ
United Kingdom
Library of Congress Cataloging-in-Publication Data
Zeisel, Hans.
Prove it with figures : empirical methods in law and litigation I
Hans Zeisel, David Kaye with a foreword by Jack B. Weinstein.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-4612-7300-4 ISBN 978-1-4612-1824-1 (eBook)
DOI 10.1007/978-1-4612-1824-1
1. Law - United States - Statistical methods. 2. Law - United
States-Methodology. 3. Social sciences-Research-Law and
legislation-United States. 1. Kaye, D.H. (David H.), 1947-
II. Title.
KF320.S73Z45 1997
349.73 '07'27 -dc21 97-9827
Printed on acid-frec paper.
© 1997 Springer Science+Business Media New York
Originally published by Springer-Verlag New York, Ine. in 1997
Softcover reprint oftbe hardeover Ist edition 1997
AlI rights reserved. This work may not be translated or copied in whole or in part without the
written permission of the publisher (Springer Science+Business Media, LLC), except for brief
excerpts in connection with reviews or scholarly analysis. Use in connection with any form of
information storage and retrieval, electronic adaptation, computer software, or by similar or
dissimilar methodology now known or hereafter developed is forbidden.
The use of general descriptive names, trade names, trademarks, etc., in this publication, even
if the former are not especially identified, is not to be taken as a sign that such names, as
understood by the Trade Marks and Merchandise Marks Act, may accordingly be used frecly
byanyone.
Production managed by Victoria Evarretta; manufacturing supervised by Jeffrey Taub.
Photocomposed copy prepared by the author using Wordperfect 7.0.
987654321
ISBN 978-1-4612-7300-4
To
the princely memory of Harry Kalven, the Harry A. Bigelow Professor of
Law at the University of Chicago Law School. By his deep interest in and
understanding of the place of empirical research in the law, he played a
major role in its development and acceptance.
H.Z.
Foreword
Judges, lawyers, academics, law students, legislators, the business
community, and the public at large are presented in this volume with a
clearly written and fascinating primer on fact-fmding for policymaking or
adjudication. Hans Zeisel's studies represent the blending of the best of
European and American sociology, psychology, and other social sciences
with jurisprudence. David Kaye picks up Zeisel' s torch of statistically
based fact-fmding, illuminating the latest developments in the emerging
field of legal statistics. Both tell us how to avoid being misled by field
studies and statistical and scientific studies, while squeezing the most
valuable and reliable data that can conveniently be made available.
Zeisel and Kaye open the windows of our stuffy chambers where
decision makers have too often relied solely on their own limited
experiences and biases and those embodied in equally limited precedents
or policies. "Look out on the real world as it is," they exhort, "and see the
effects of what you do or plan to do on real people and real institutions."
"Observe, experiment and use the criteria of statisticians and scientists in
evaluating data," they instruct. They explain how it should be done, what
the pitfalls are, and they identify the limits of knowledge and prediction.
Perhaps most importantly, they provide candor in recognizing the limits of
statistical and scientific knowledge and how to determine what information
is necessary for greater precision. The authors have been involved in
myriad studies, and they discuss all types - controlled, randomized,
observational, epidemiological, and those based on other methodologies.
Embodied in the book are more than a score of case histories
selected from many they have been responsible for. They include analyses
of the death penalty, jury selection, mass torts, and present and future
vaccine evaluations. Each story is told with enough detail to be fascinating
and instructive, yet not so much as to be tedious.
I have had the pleasure of working with both authors. When I was
hired as reporter to the Tweed Commission in the mid-1950s to revise New
York's civil practice and court procedures, I needed help to tell us how the
system was working. Hans Zeisel was recommended by the leading
sociologists of the day for his theoretical knowledge and his practical
experience in the new commercial field of market research. As a professor
viii Foreword
at the University of Chicago Law School, he had been conducting a
comprehensive study of the American jury. There was, at fITst, great
opposition from judges to his field studies. Zeisel' ~ charm and great skills
soon pried open the courthouses. Teased from limited data were major
findings published in the book Delay in the Courts. This and others of his
I
works have opened wide the courts to many subsequent empirical works on
the law.2 Like many other practitioners and scholars, I constantly turned to
him for advice.
David Kaye's work has been exemplary as an outstanding teacher,
lecturer, and the author of many monographs and articles in evidence, law
and social science, and legal statistics, among other subjects.3 Over the
years, I, as well as many others, have turned to him for help in
understanding science, statistics, and the law. No one has a reputation or
skills superior to his in the fields in which he and his coauthors have
collaborated.
Despite its imposing title and subject matter, this book can be read
as an engrossing and accessible introduction to the subject by those with
but a passing interest in the field. Yet, so incisive and sophisticated is the
analysis that it will join the handful of basic references on the shelves of
every judge and litigator who must deal with science and statistics. There
are almost none in today's and tomorrow's world of law who will not need
to grapple regularly with these subjects.
Jack B. Weinstein
Senior United States District Judge
Eastern District of New York
Preface
In the fall of 1951, in New York City, I received a telephone call and later
a visit from Edward H. Levi, then dean of the University of Chicago Law
School. He had persuaded the Ford Foundation to give the law school a
major grant for exploring the potential usefulness of social science research
for the law. "We were looking for a common-law lawyer to help us, who
knew everything about social science research [the "everything" was
accompanied by a gesture of uncertainty], but could not find one. You are
at least a European lawyer. You are our second choice. Do you want to
come?" I came, and the present text is part of the harvest.
The first years of the four decades I have spent at the University of
Chicago Law School were devoted almost exclusively to developing
research that would be substantial enough to regenerate broad interest in
factual research of legal problems. The American Jury! and its related
publications,2 did just that. Other law schools also ventured into this
borderland of the law, and eventually I taught a course that I titled "Social
Science Research in Litigation." The students seemed to enjoy it.
The present text is an effort to codify the learning in this field
systematically. It is intended to provide law teachers with one possible
model for teaching the subject that in the meantime has become an
important, if still peripheral, law school tradition. For this ambitious
enterprise I have won the collaboration of a kindred spirit and dear friend,
David Kaye, now Regents' Professor at the College of Law of Arizona
State University.
Social science has been understood in many ways. For the purposes
of the present text, we mean it to refer to the tool chest social scientists use
in their efforts to unearth or reinforce new insights into our social life. The
vistas are not often wide; as a rule, their range is modest, but these
limitations are counterbalanced by precise observation and analysis.
Originally, we wanted to call our text Social Science Research in
Litigation. While this has become the more acceptable name, we hesitated.
The law's tool chest overlaps with other sciences; experimental and
observational studies are used in many sciences and inquiries, and statistics
has become the universal quantitative language in all scientific fields. And,
this book discusses issues in epidemiology, toxicology, medicine, and many
x Preface
other disciplines. To call our endeavors empirical or factual research
seemed to us the more correct description.
The degree of familiarity to which we want to bring the student's
understanding of the tool chest is limited. The student will not be expected
to master each tool, but to appreciate its structure and purpose, so that when
the time comes, the lawyer can discuss it intelligently with an expert. The
discussion of the tool chest is interlaced with its application in litigation,
or legal research, by administrative agencies, or simply research with a
bearing on legal problems. At times, the explication of a tool continues
without such examples because the tool has not yet found its footing in the
law. But since the primary objective of this text is to acquaint the student
with the tool chest, even if its legal role may lie in the future, such passages
are unavoidable.
David Kaye and I have occasionally done some consulting work
with litigators. We have drawn on that experience in instances where, we
like to think, our contribution has advanced research methodology and, at
times, even the law.
Legal ,disputes, at the ground level, rest on two foundations: the
underlying facts and the law that pertains to them. The contribution of
social science research is to render the fact-finding process more precise.
That use in litigation is growing. In the process, the tools have sharpened,
partly because the courts have had the opportunity of examining some of
them and have expressed their approval or disapproval, as the case may be.
This text is designed for the practicing lawyer as well as for
students and their teachers. The topics considered here allow the
practitioner, faced with a certain problem, to learn whether there are
approaches that might help to prove an important point. The examples and
accompanying discussions, as well as the selected references at the end of
each chapter, may assist in developing the vocabulary and perspective for
dealing with relevant experts. The result, we hope, will be not merely an
increase in the use of systematic empirical methods in law and litigation,
but an improvement in the quality of decisions and in the understanding of
the issues under investigation.
Hans Zeisel
Chicago, lllinois, 1992
In 1980, when I was teaching at the University of Southampton, I received
a letter from Hans Zeisel. Hans wanted to know whether I might collaborate
Preface xi
on a textbook on social science methods for law students. Hans never told
me why he contacted me, a young law professor who had had no contact
with him or any of his colleagues at the University of Chicago. We met in
the O'Hare airport when I returned to the states. Hans escorted me to his
Hyde Park apartment, and promptly made me part of his extended family.
We never completed the project Hans had in mind. Hans had
retired from full-time teaching, but not from pursuing, with his inimitable
verve and intensity, a great many interests. He wrote more articles and
books. Eminent trial attorneys sought his counsel in major litigation, both
commercial and pro bono publico. Work on "the book" or "our book," as
he generously called it, came in fits and starts until his last years. Then, he
returned to the project with determination, working on it until the fmal
weeks of his long and fruitful life.
This book is based on the drafts that Hans left. I have edited them
and filled in various gaps as best I could, but the Hans I knew would not
have been satisfied. He would have wanted - and achieved - something
better. Still, I hope that I have moved his fmal efforts in the direction that
he would have wanted and that he would have approved of my additions to
Chapters 2, 3, 5, and 12, and of Chapters 4, 6, and 13, most of which were
written without his critical eye and keen mind.
David H. Kaye
Tempe, Pulzona, 1997