Imwinkelried's Argument for Normative Ethical Testimony

509 U.S. 579 (1993).

526 U.S. 137 (1999).

Imwinkelried E. J. , “Expert Testimony by Ethicists: What Should be the Norm?” Journal of Law, Medicine & Ethics 33, no. 2 (2005): 198–221, at 198.

509 U.S. at 520.

Imwinkelried , supra note 3, at text accompanying note 212.

Pierce R. J. Jr. , Administrative Law Treatise, 4th ed. (New York: Aspen Publishers, 2002), cited in Imwinkelried , supra note 3, at note 213.

Fed. R. Evid., 28 U.S.C.A.

Adv. Comm. Notes, Fed. R. Evid., 28 U.S.C.A.

Davis K. , “A System of Judicial Notice Based on Fairness and Convenience,” in Perspectives on Law: Essays for Austin Wakeman Scott, Pound R Griswold E. N. , and Sutherland A. E. , ed. (Boston: Little, Brown, 1964): 69–95 (quoted in Adv. Comm. Note To Subdivision (a), Fed. R. Evid. 201).

Morgan E. M. , “Judicial Notice,” Harvard Law Review 57(1944): 269–294, at 269, 270–71 (quoted in Adv. Comm. Note To Subdivision (a), Fed. R. Evid. 201).

Adv. Comm. Note g, Fed. R. Evid. 201.

Davis , supra note 9, at 82 (quoted in Adv. Comm. Note To Subdivision (a), Fed. R. Evid. 201).

358 U.S. 74 (1958).

Davis , supra note 9, at 83 (emphasis added; quoted in Adv. Comm. Note To Subdivision (a), Fed. R. Evid. 201).

The test from Daubert instructs trial judges to be gatekeepers, excluding unreliable testimony by flexibly considering the following four factors (among others), at least where they reasonably shed light on the reliability of the proffered evidence: whether a theory or technique…can be (and has been) tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and whether the theory or technique enjoys “general acceptance” within a relevant scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 592–94 (1993), as summarized in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149–50 (1999).

Adv. Comm. Note to Subdivision (b), Fed. R. Evid. 201.

Imwinkelried , supra note 3, at text accompanying note 123.

Id. at text in sentence following note 241.

Id. at text two sentences before note 242.

Id. at text accompanying note 242.

Id. at text in third sentence after note 242.

Id. at text accompanying note 41.

Id. at text accompanying notes 49–51. Professor Imwinkelried recognizes that neither of these includes normative ethical testimony: [T]here appears to be consensus that even when he or she offers testimony negatively critiquing the logic of an ethical argument, qua metaethicist the witness would not presume to suggest an affirmative answer to any normative value questions the witness identified. Thus, after dissecting a general issue of bioethics to separate out the normative aspect, a metaethicist would stop short of opining on the merits of the normative argument. Id. at text accompanying notes 52–54.

Id. at text accompanying notes 59–60.

Id. at text accompanying note 246.

Id. at text accompanying note 247.

Id. at text accompanying note 251.

Id. at text accompanying notes 254–55.

Id. at text accompanying notes 212–14.

See, e.g., Bobbitt P. , Constitutional Interpretation (Cambridge, MA.: Blackwell Publishing, 199l)(identifying historical, structural, doctrinal, and prudential modalities of constitutional interpretation in addition to ethical). Unlike the ethical arguments to which Professor Imwinkelried refers, these ethical arguments are “an appeal to those elements of the American constitutional ethos that are reflected in the Constitution,” and more normative than ethical in character. Id. at 20.

See, e.g., Hoffstadt B. M. , “Common-Law Writs and Federal Common Lawmaking on Collateral Review,” Northwestern University Law Review 96 (2002): 1413–1495, at 1413, 1432 (reviewing limits on judicial lawmaking power in the federal common law context). Scalia Compare A. , “The Rule of Law As a Law of Rules,” University of Chicago Law Review 56 (1989): 1175–1188, at 1175, 1182–83 (arguing that courts' role should be limited to interpretation of statutes and passages in the Constitution) and Tribe L. H. , American Constitutional Law (St. Paul, MN.: West Publishing, 1978): 52 (arguing that it is the outcome of judicial analysis rather than the method of interpretation that results in laws that reflect social values). See also, Starr K. W. , First Among Equals: The Supreme Court in American Life (New York: Warner Books, 2002)(describing the different predelictions among current Supreme Court justices to create new law).

Webster's New Collegiate Dictionary (Springfield, MA.: Merriam Webster, 1973): 976.

Black's Law Dictionary, 8th ed. (St. Paul, MN: West Publishing, 2004).

Imwinkelried , supra note 3, at text accompanying note 284 (stating “natural law theorists believe that there are universal moral standards, accessible to the human mind.”)

Id. at text accompanying note 273.

Keeton W. P. , Prosser and Keeton on Torts 5th ed. (St. Paul, MN.: West Publishing, 1984): 21.

Id. at 23.

Id. at 20–26. See also, Kelso J. C. , “Sixty Years of Torts: Lessons for the Future,” Torts & Insurance Law Journal 29 (1993): 1–13, at 1 (arguing that courts and scholars have turned to asking instrumentalist questions such as whether the goals of tort law are well served by imposing liability in a particular case and that compensation and deterrence are the pillars of tort law) and Smith S. D. , “The Critics and the ‘Crisis,’ A Reassessment of Current Conceptions of Tort Law,” Cornell Law Review 72 (1987): 765–798, at 765 (arguing that resolving disputes is the primary focus of tort law). The goals tort law pursues certainly reflect social norms, but are not for that reason based on morals, as that term is typically used.

Imwinkelried , supra note 3, at text accompanying notes 277–78.

Id. at text in the beginning of the section following note 286.

Id. (Emphasis added.)

Id. at text accompanying note 314.

Id. at text in paragraph containing notes 289–95.

Id. at note 287.

Id. at text following note 294.

Dobbs D. B. , Law of Remedies, 2d Ed. (St. Paul, MN.: West Publishing, 1993): 311.

Professor Imwinkelried alludes to a number of cases where the four criteria may be met but does not explore them in enough detail to evaluate them. Imwinkelried , supra note 3, at note 297. These include family law cases involving the “best interests of the child,” which, he states, might permit consideration of moral factors; cases involving “inappropriateness of physician's sexual contact with a patient” given ethical standards of the profession; obscenity trials considering the “redeeming value” of allegedly obscene work, tort cases where an evaluative moral judgment of defendant's behavior for punitive damages is made instead of applying extant moral standards; and criminal cases involving an objective test of “spontaneous moral revulsion.” On their face, these examples seem no more likely than the punitive damages example to meet his criteria, though raising them as possibilities is provocative.

Barnes D. W. , “Too Many Probabilities: Statistical Evidence of Tort Causation,” Law and Contemporary Problems 64 (2001): 191–212, at 192.

In jurisdictions where a plaintiff may recover for a future harm which has a less than 50% chance of occurring, damages are often calculated by multiply the probability of future occurrence (the fact probability) by the damages that would be appropriate if it did occur. When the defendant has created an increased risk of harm, i.e., when the fact of damage has been established, the question turns to the extent of that damage: “The probability percentage for the occurrence of a particular harm, the risk of which has been created by the tortfeasor, can be applied to the damages that would be justified if that harm should be realized.” Petriello v. Kaiman, 576 A.2d 474, 484 (Conn. 1990).

Imwinkelried , supra note 3, at text accompanying note 314.

Id. at note 314.

Id. at text following note 314.