Showing papers in "Washington Law Review in 1986"

Is Proof of Statistical Significance Relevant

Abstract: The classic treatises on evidence note that the court or jury must weigh the evidence, and upon weighing it, determine whether the plaintiff or the defendant prevails Some courts, however, have indicated that statistical evidence should not be admitted unless it is subjected to a procedure known as 'hypothesis testing' There are many rather mechanical procedures for performing these tests and a number of judges, attorneys, and law professors have suggested that hypothesis testing provides an objective, scientific means of settling disputed questions on which statistical evidence is brought to bear Yet, many circumstances arise in which courts or administrators have puzzled over the meaning of hypothesis tests This article examines the status of significance testing in litigation It describes the case law on the need for the procedure, explains the nature and terminology of hypothesis testing as used in court, enumerates some of the problems that arise in these forensic applications, and pursues one such problem - that of selecting a 'significance level' These sections show that explicit hypothesis testing is poorly suited for courtroom use Statements as to what results are or are not 'statistically significant' should be inadmissible The article also suggests the use of other statistical tools and terms that do not 'test' hypotheses but can better aid the finder of fact in judging the probative value of the statistical evidence It is a plea to leave the task of decision to the trier of fact, and not to rely on superficially impressive methods whose seeming objectivity does not withstand analysis It is a call for using, where suitable, those statistical tools that will aid these decisionmakers in the process if inference

Privacy, Abortion, and Judicial Review: Haunted by the Ghost of Lochner

Abstract: The 1973 Roe v Wade abortion decision raised legal issues regarding privacy and autonomy and triggered controversy over the relative merits of interpretive and noninterpretive modes of judicial review. This article traces the philosophy of Justice Louis Brandeis who conceived the common law right of privacy and discusses the applicability of the substantive due process doctrine of Lochner v New York to the abortion issue. According to the 1973 Supreme Court decision the fundamental privacy rights of the pregnant woman outweigh the states interest in protecting fetal rights until the fetus has acquired the capacity for independent life. It is the decision wheter to have an abortion rather than the right to abortion per se that is protected from public interference. However the right of privacy has become vulnerable to criticism as a result of the Courts failure to articulate a principled basis for distinguishing Lochner from later substantive due process cases. Critics of Roe v Wade a paradigm of noninterpretivism fear a return to the unbridled judicial discretion of the Lochner era. Brandeis advocated both protection of family auronomy and abolition of Lochner. He evolved the concept that legislation restricting fundamental rights is constitutional only if required to further a compelling state interest. There is a danger that the significance of rights of privacy and autonomy will be overlooked in the debates on abortion and judicial review and replaced by sterile jurisprudence based on pure majoritarianism.