Tort Reform 2011: True Science or Pure Mischief?

Well, that didn’t take long.  In its first week of political life, the new legislature has proposed sweeping “tort reform” legislation.  The compass of the 30-plus page bill is manifold, embracing punitive damages, fee shifting, product liability claims, and damages caps.  What interests me more, however, are proposed changes to the Wisconsin Rules of Evidence governing expert opinion testimony.  For years, some have bemoaned Wisconsin’s failure to adopt the so-called Daubert rule (see below), an often restrictive, ad hoc standard that ostensibly identifies those “reliable” expert methodologies worthy of consideration by the courts.  Unreliable methods, of course, are excluded.  And while courts and commentators still debate how one goes about reliably identifying reliable methodologies, Wisconsin will apparently make up for lost time by not only adopting Daubert, but also go it one better by requiring that expert methodologies be “true” as well as reliable.

True in what sense you ask?  Well, it’s unclear, although I concede it has a nice Old Testament ring to it and the idea that courts should use “true” evidence is appealing in all senses of that word.  While you’re pondering what “true” might mean (and I still am), let me offer some background.

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Simon to Speak on Punishment for Murder

I’m looking forward to the upcoming George and Margaret Barrock Lecture on Criminal Law.  Berkeley Professor Jonathan Simon will be visiting us on January 24 at 12:30 to speak on punishment for murder.  Here is the teaser:

Although the death penalty may be dying out in the United States, the end stage of capital punishment leaves us grasping more than ever for principles that could govern the power to punish those who are convicted of society’s most feared and loathed category of crime. This need is particularly acute in the United States, where the rise of general incapacitation as the dominant purpose of punishment has produced sentences that are far in excess of international and historic American standards. Professor Simon will suggest that these sentences help to anchor an overall structure of imprisonment that appears unjust and unsustainable, argue for a new version of selective incapacitation limited by dignity as the central purpose of imprisonment, and propose a restructuring of the law of murder to effectuate those goals.

More information about Simon’s lecture, including details about how to RSVP, is here

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Rofes Receives Kutulakis Award

AALS Peter RofesIt was a privilege today to attend the lunch of the Section on Student Services at the Association of American Law Schools’ annual meeting. For our colleague, Professor Peter K. Rofes, received the section’s Peter N. Kutulakis Award. This award recognizes the outstanding contributions of an institution, administrator, or law professor in the provision of services to law students. Our Associate Dean for Administration, Bonnie M. Thomson, nominated Professor Rofes for the Kutulakis Award, and Professor Rofes richly deserves it.

Permit me to repeat what I said a year ago concerning Prof. Rofes. The context was my reporting to students, in my beginning-of-semester letter, that Prof. Rofes had elected to return this academic year to full-time faculty duties, in the tradition of the Law School, after lengthy service as director of the part-time program and associate dean for academic affairs. I wished to explain “my thanks and admiration”:

I have been especially impressed by Prof. Rofes’s ability—even while administering the academic program, including determining course offerings, working with full-time and adjunct faculty, overseeing the schedule, and running the Academic Support Program—never to lose sight of the individuals with whom he works and never to fail to make time, for example, for the individual in need of time, attention, or assistance. There is a lesson for you in his work. For your work as a lawyer also will be in support and service of others; indeed, the work of the lawyer inheres most basically in the attention to and care for another. I express at graduation my hope that you have found some models in these, your early days in the profession. You—we—would do well especially to consider the important ways in which Prof. Rofes is an exemplar.

Congratulations, Peter—and thank you.

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