Expert Bioethics Testimony

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

Dickens C. , Hard Times (London: Bradbury & Evans, 1854).

Imwinkelried , supra note 1, at 206: “Professor Davis' position was that the rules of evidence are inapplicable to legislative facts. This article urges the broader view that the rules of evidence do not apply when the judge accepts information…to enable the judge to perform an essentially legislative function.”

Davis K. C. , “An Approach to Problems of Evidence in the Administrative Process,” Harvard Law Review 55 (1942): 364–425, at 402 (emphases added). Davis continues: “Creation of law and determination of policy usually do not rest upon uninformed a priori judgments having only an ethical or a logical basis. Frequently…choices of law or policy must depend on fact finding. But the fact finding process for such purposes is different from the process of finding facts which concern only the parties to a particular case and calls for different rules of evidence.”

Imwinkelried , supra note 1, at 207.

Adv. Comm. Note to Subdivision (a), Fed.R.Evid. 201. Emphasis added.

Imwinkelried admits this in the final version of his article. Imwinkelried , supra note 1, at 206–207.

Davis K. C. ,” Judicial Notice,” Columbia Law Review 55 (1955): 945–973, at 950.

Advisory Committee Note, 2000 Amendments, to FRE 701. These items include, inter alia, “the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight [and] distance.” Id.

Davis K. C. , “A System of Judicial Notice Based Upon Fairness and Convenience,” Perspectives of Law 69 (1964): 168–192, at 82; cited in Advisory Committee Notes to FRE 201.

Davis , supra note 8, at 951.

Id., quoting McCormick C. , Handbook of the Law of Evidence (St. Paul: West Publishing Co., 1954): at 712. See also Davis K. C. , “Judicial, Legislative and Administrative Lawmaking: A Proposed Research Service for the Supreme Court,” Minnesota Law Review 71, no. 1 (1986): 1–18 (recommending access by the Supreme Court to a research service resembling the Congressional Research Service).

Imwinkelried , supra note 1 at 208.

Davis , supra note 8 at 952.

Imwinkelried seems to share some of my uneasiness about following his argument all the way to where it leads, i.e., to the judical notice, without formal findings or formal notice, of experts' normative conclusions. Hence his comment, at 209, that “[a]t least when normative analysis is submitted in the testimonial or affidavit form, the opposing litigant has an opportunity to challenge the analysis and propose a contrary normative position.”

Imwinkelried , supra note 1, at 206–207.

FRE 702. Testimony by Experts., as amended April 17, 2000.

Notably in Spielman B. and Agich G. , “The Future of Bioethics Testimony: Guidelines for Determining Qualifications, Reliability and Helpfulness,” San Diego Law Review 36 (1999): 1043–1074, at 1043; see also Part III of Imwinkelried , supra note 1, and sources cited therein.

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999).

Mueller C. and Kirkpatrick L. , Evidence (New York: Aspen Publishers, 2003): at 653; see also Spielman and Agich , supra note 18 at 1061ff.

Spielman B. and Agich G. , supra note 15, at 1063–64.

Beauchamp T. L. and Childress J. F. , Principles of Biomedical Ethics, 5th ed. (New York: Oxford University Press, 2001).

Jonsen A. R. and Toulmin S. E. , The Abuse of Casuistry: A History of Moral Reasoning (Berkeley and Los Angeles: University of California Press, 1988).

Levi E. , An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1947).

Sunstein C. , Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996).

Dworkin R. , Laws Empire (Cambridge, MA.: Harvard University Press, 1986).

Ackerman B. , We the People: Foundations, vol. 1 (Cambridge, MA.: Harvard University Press, 1991).

See MacCormick N. , Legal Reasoning and Legal Theory (New York: Oxford University Press, 1978): at 155–56.

Dworkin R. , Taking Rights Seriously (Cambridge, MA.: Harvard University Press, 1978) at 24–27.

Margolis H. , Dealing with Risk: Why the Public and the Experts Disagree on Environmental Issues (Chicago: University of Chicago Press, 1996).

Or by force – but that is a different matter. For a more detailed discussion of professional authority and its distinction from persuasion and force, see Latham S. R. , “Medical Professionalism: A Parsonian View,” Mt. Sinai Journal of Medicine 69, no. 6 (2002): 365–7. My account leans heavily upon those found in Arendt H. , “What is Authority?” in Arendt H. , Between Past and Future (New York: Penguin Books, 1968): 91–142, at 93, 106, and 122–3; Arendt H. , “On Violence,” in Crises of the Republic (New York: Harcourt Brace Jovanovich, 1969): 103–184 at 145; and Friedman R. B. , “On the Concept of Authority in Political Philosophy,” in Raz J. , ed., Authority (New York: NYU Press, 1990): 56–91 at 74–76.

Scofield G. , “Commentary: The Wizard of Oughts,” Journal of Law, Medicine and Ethics 28, no. 3 (2000): 232–235, at 233.