Economists are often called upon as expert witnesses by the parties involved in antitrust litigation. One challenge they may face in US federal courts is compliance with the Daubert standard of admissibility of expert testimony. The interplay between model applicability and the Daubert standard is analyzed, suggesting the importance of distinguishing between weak applicability claims, those that state that a model’s critical assumptions are shared by the target, and strong applicability claims, those that connect empirical models (...) and quantitative market features. Recent antitrust cases in which expert testimonies based on economic models have been assessed following the Daubert standard are examined using this framework. Some normative implications are drawn concerning how to improve judges’ assessment of model-based arguments. (shrink)

In many toxic-tort cases - notably in Oxendine v. Merrell Dow Pharmaceuticals, Inc, and in Joiner v. G.E., - plaintiffs argue that the expert testimony they wish to present, though no part of it is sufficient by itself to establish causation "by a preponderance of the evidence," is jointly sufficient to meet this standard of proof; and defendants sometimes argue in response that it is a mistake to imagine that a collection of pieces of weak evidence can be any (...) stronger than its individual components. This article draws on the epistemological theory I first presented in 1993 in Evidence and Inquiry, and then amplified and refined in 2003 in Defending Science - Within Reason. This theory of evidence shows that, under certain conditions, a combination of pieces of evidence none of which is sufficient by itself really can warrant a casual conclusion to a higher degree than any of its components alone. When my account is applied to the very complex congeries of evidence typically proffered to prove general causation in these toxic-tort cases, it improves on the influential "Bradford Hill criteria" for assessing causation; and it suggests answers to questions frequently raised in such cases: e.g., whether epidemiological evidence is essential for proof of causation, and whether such evidence should be excluded if it is not statistically significant. Moreover, the argument of this paper reveals that by obliging courts to screen each item of expert testimony individually for reliability, the atomism implicit in Daubert will sometimes stand in the way of an accurate assessment of the worth of complex causation evidence. (shrink)

This essay addresses the question: What is the probative value of including neuroscience data in court cases where the defendant might have had a traumatic brain injury? That is, this essay attempts to articulate how well we can connect scientific data and clinical test results to the demands of the Daubert standard in the United States’ court system, and, given the fact that neuroimaging is already being used in our courts, what, if anything, we should do about this (...) fact. Ultimately, I am not sure that there are completely satisfactory answers to this query at this particular time in our legal history. I briefly rehearse the recent use of brain research in our legal system, summarize how neuroscience data regarding TBI and its relation to poor behavioral outcomes are currently used in the courtroom, review challenges with using these data, and highlight fundamental tensions between how the legal system views the causes of behavior and how medicine, neuroscience, and psychology do. Until these tensions are resolved, it is unclear the place neuroscience data should have in courts. (shrink)

We examine the relationship between scientific knowledge and the legal system with a focus on the exclusion of expert testimony from trial as ruled by the Daubert standard in the US.We introduce a simple framework to understand and assess the role of judges as “gatekeepers”, monitoring the admission of science in the courtroom. We show how judges face a crucial choice, namely, whether to limit Daubert assessment to the abstract reliability of the methods used by the expert (...) witness or also to check whether the application of those methods was correct. Undesirable outcomes result from both choices, thereby giving rise to the “gatekeeper’s dilemma.” We illustrate the dilemma by analyzing in some detail two well-known cases of Daubert challenges to economic experts. Finally, we present reasons for the absence of straightforward solutions to the dilemma and for its likely endurance. (shrink)

Over 40 years of research have shown that traumatic brain injury affects brain volume. However, technical and practical limitations made it difficult to detect brain volume abnormalities in patients suffering from chronic effects of mild or moderate traumatic brain injury. This situation improved in 2006 with the FDA clearance of NeuroQuant®, a commercially available, computer-automated software program for measuring MRI brain volume in human subjects. More recent strides were made with the introduction of NeuroGage®, commercially available software that is based (...) on NeuroQuant® and extends its utility in several ways. Studies using these and similar methods have found that most patients with chronic mild or moderate traumatic brain injury have brain volume abnormalities, and several of these studies found—surprisingly—more abnormal enlargement than atrophy. More generally, 102 peer-reviewed studies have supported the reliability and validity of NeuroQuant® and NeuroGage®. Furthermore, this updated version of a previous review addresses whether NeuroQuant® and NeuroGage® meet the Daubert standard for admissibility in court. It concludes that NeuroQuant® and NeuroGage® meet the Daubert standard based on their reliability, validity, and objectivity. Due to the improvements in technology over the years, these brain volumetric techniques are practical and readily available for clinical or forensic use, and thus they are important tools for detecting signs of brain injury. (shrink)

In this paper I criticize the current standards for the acceptability of expert testimony in current US legislation. The standards have been the subject of much academic literature after the Frye and Daubert cases. I expose what I call the Paradox of Proof, and argue that the historical and current standards have sidestepped the problem of determining who is an expert and who is not in a court of law. I then investigate the problem of recognizing expertise from the (...) layperson’s standpoint, and suggest what courses of action the future research ought to take on the problem of identifying expertise. (shrink)

Peer review and publication is one of the factors proposed in Daubert v. Merrell Dow Pharmaceuticals, Inc. as indicia of the reliability of scientific testimony. This Article traces the origins of the peer-review system, the process by which it became standard at scientific and medical journals, and the many roles it now plays. Additionally, the Author articulates the epistemological rationale for pre-publication peer-review and the inherent limitations of the system as a scientific quality-control mechanism. The Article explores recent (...) changes in science, in scientific publishing, and in the academy that have put the system under strain. The Author argues that Justice Blackmun's advice to courts - that peer-reviewed publication is relevant, but is not dispositive - is of little practical help. Instead, the Author suggests questions that courts should ask in assessing the significance of the fact that testimony is, or is not, based on peer-reviewed publication and illustrates with reference to another Bendectin case, Blum v. Merrell Dow Pharmaceuticals, Inc., where some of these questions were asked. (shrink)

A recent Supreme Court decision, Kumho Tire Co., Ltd. v. Carmichael, may have substantial impact on psychological expert testimony. Previous criteria for admissibility of scientific expert testimony now apply broadly to expert testimony, not just testimony narrowly grounded in scientific evidence. Judges will determine the relevance and reliability of all expert testimony, including that based on clinical experience or training. Admissible testimony will either satisfy the criteria established in Daubert v. Merrell Dow Pharmaceuticals, Inc. or meet similarly rigorous standards (...) judged appropriate to the particular field involved. Because psychological testimony has varied in its evidentiary basis, sometimes relying on science and otherwise on clinical training or experience, court decisions will gradually determine the precedent for its admissibility. We also discuss long-term consequences for the credibility of psychological expert testimony and the relation between psychology and law. (shrink)

'the oldest biography of Spinoza', La Vie de Mr. Spinosa, which in the manuscript copies is often followed by L'Esprit de M. Spinosa. Margaret Jacob, in her Radical Enlightenment, contended that the Traite was written by a radical group of Freemasons in The Hague in the early eighteenth century. Silvia Berti has offered evidence it was written by Jan Vroesen. Various discussions in the early eighteenth century consider many possi ble authors from the Renaissance onwards to whom the work might (...) be attributed. The Trois imposteurs has attracted quite a bit of recent attention as one of the most significant irreligious clandestine writings available in the Enlightenment, which is most important for understanding the develop ment of religious scepticism, radical deism, and even atheism in the seventeenth and eighteenth centuries. Scholars for the last couple of decades have been trying to assess when the work was actually written or compiled and by whom. In view of the widespread distribution of manu scripts of the work all over Europe, they have also been seeking to find out who was influenced by the work, and what it represented for its time. Hitherto unknown manuscripts are being turned up in public and private libraries all over Europe and the United States. (shrink)

The claims of randomized controlled trials to be the gold standard rest on the fact that the ideal RCT is a deductive method: if the assumptions of the test are met, a positive result implies the appropriate causal conclusion. This is a feature that RCTs share with a variety of other methods, which thus have equal claim to being a gold standard. This article describes some of these other deductive methods and also some useful non-deductive methods, including the (...) hypothetico-deductive method. It argues that with all deductive methods, the benefit that the conclusions follow deductively in the ideal case comes with a great cost: narrowness of scope. This is an instance of the familiar trade-off between internal and external validity. RCTs have high internal validity but the formal methodology puts severe constraints on the assumptions a target population must meet to justify exporting a conclusion from the test population to the target. The article reviews one such set of assumptions to show the kind of knowledge required. The overall conclusion is that to draw causal inferences about a target population, which method is best depends case-by-case on what background knowledge we have or can come to obtain. There is no gold standard. (shrink)

Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). (...) Given some standard assumptions about the values at stake, the case for convicting and punishing using statistical evidence seems solid. In trying to show where this argument goes wrong, I shall argue (against Lockeans, reliabilists, and others) that beliefs supported only by statistical evidence are epistemically defective and (against Enoch, Fisher, and Spectre) that these epistemic considerations should matter to the law. To solve the puzzle about the role of statistical evidence in the law, we need to revise some commonly held assumptions about epistemic value and defend the relevance of epistemology to this practical question. (shrink)

Nathan Salmon; XII*—How to Measure the Standard Metre, Proceedings of the Aristotelian Society, Volume 88, Issue 1, 1 June 1988, Pages 193–218.

Despite extensive discussion of naïve realism in the wider philosophical literature, those influenced by the phenomenological movement who work in the philosophy of perception have hardly weighed in on the matter. It is thus interesting to discover that Edmund Husserl’s close philosophical interlocutor and friend, the early twentieth-century phenomenologist Johannes Daubert, held the naive realist view. This article presents Daubert’s views on the fundamental nature of perceptual experience and shows how they differ radically from those of Husserl’s. The (...) author argues, in conclusion, that Daubert’s views are superior to those of Husserl’s specifically in the way that they deal with the phenomenon of perceptual constancy. (shrink)

This paper challenges the conventional wisdom dominating the social sciences and philosophy regarding temporal discounting, the practice of discounting the value of future utility when making decisions. Although there are sharp disagreements about temporal discounting, a kind of standard model has arisen, one that begins with a normative standard about how we should make intertemporal comparisons of utility. This standard demands that in so far as one is rational one discounts utilities at future times with an exponential (...) discount function. Tracing the justification for this standard through economics, philosophy and psychology, I’ll make what I believe is the best case one can for it, showing how a non-arbitrariness assumption and a dominance argument together imply that discounting ought to be exponential. Ultimately, however, I don’t find the case compelling. Non-exponential temporal discounting is often rational. If this is correct, Instead of trying to ‘fix’ non-exponential discounting because it is irrational and associated with negative life outcomes, we might instead focus attention on why the conditions obtain that make such discounting rational. (shrink)

I challenge the common picture of the “Standard Story” of Action as a neutral account of action within which debates in normative ethics can take place. I unpack three commitments that are implicit in the Standard Story, and demonstrate that these commitments together entail a teleological conception of reasons, upon which all reasons to act are reasons to bring about states of affairs. Such a conception of reasons, in turn, supports a consequentialist framework for the evaluation of action, (...) upon which the normative status of actions is properly determined through appeal to rankings of states of affairs as better and worse. This covert support for consequentialism from the theory of action, I argue, has had a distorting effect on debates in normative ethics. I then present challenges to each of these three commitments, a challenge to the first commitment by T.M. Scanlon, a challenge to the second by recent interpreters of Anscombe, and a new challenge to the third commitment that requires only minimal and prima facie plausible modifications to the Standard Story. The success of any one of the challenges, I demonstrate, is sufficient to block support from the theory of action for the teleological conception of reasons and the consequentialist evaluative framework. I close by demonstrating the pivotal role that such arguments grounded in the theory of action play in the current debate between evaluator-relative consequentialists and their critics. (shrink)

Weatherson argues that whoever accepts classical logic, standard mereology and the difference between vague objects and any others, should conclude that there are no vague objects. Barnes and Williams claim that a supporter of vague objects who accepts classical logic and standard mereology should recognize that the existence of vague objects implies indeterminate identity. Even though it is not clearly stated, they all seem to be committed to the assumption that reality is ultimately constituted by mereological atoms. This (...) assumption is not granted by standard mereology which instead remains silent on whether reality is atomic or gunky; therefore, I contend that whoever maintains classical logic, standard mereology and the difference between vague objects and any others, is not forced to conclude with Weatherson that there are no vague objects; nor is she compelled to revise her point of view according to Barnes and Williams’s proposal and to accept that the existence of vague objects implies indeterminate identity. (shrink)

The Office for Human Research Protections was correct in determining that the consent forms for the National Institutes of Health -sponsored SUPPORT study were seriously flawed. Several articles defended the consent forms and criticized the OHRP's actions. Disagreement focuses on three central issues: how risks and benefits should be described in informed consent documents; the meaning and application of the concept of “standard of care” in the context of research; and the proper role of OHRP. Examination of the consent (...) forms reveals that they failed to disclose the reasonably foreseeable risks of the experimental interventions in the study, as well as the potential for differences in the degree of risk between these interventions. Although the concept of “standard of care” may be helpful in determining the ethical acceptability of other aspects of research, such as clinical equipoise, it is not helpful in discussing consent requirements. (shrink)

Rik Peels has once again forcefully argued that ignorance is not equivalent to the lack or absence of knowledge. In doing so, he endeavors to refute the Standard View of Ignorance according to which they are equivalent, and to advance what he calls the “New View” according to which ignorance is equivalent (merely) to the lack or absence of true belief. I defend the Standard View against his new attempted refutation.

:We address the question, in decision theory, of how the value of risky options should be assessed when they have no finite standard expected value, that is, where the sum of the probability-weighted payoffs is infinite or not well defined. We endorse, combine and extend the proposal of Easwaran to evaluate options on the basis of their weak expected value, and the proposal of Colyvan to rank options on the basis of their relative expected value.

Against some very common views (e.g. Dummett), this paper argues that Frege did not have a standard interpretation of higher-order logic and for this reason his programme in the foundations of mathematics was a nonstarter.

ABSTRACT:This paper examines the norms that should guide policies aimed at promoting happiness or, more broadly, well-being. In particular, we take up the question of which conception of well-being should govern well-being policy, assuming some such policies to be legitimate. In answer, we lay out a case for ‘pragmatic subjectivism’: given widely accepted principles of respect for persons, well-being policy may not assume any view of well-being, subjectivist or objectivist. Rather, it should promote what its intended beneficiaries see as good (...) for them: pleasure for hedonists, excellence for Aristotelians, etc. Specifically, well-being policy should promote citizens’ ‘personal welfare values’: those values—and not mere preferences—that individuals see as bearing on their well-being. Finally, we briefly consider how pragmatic subjectivism works in practice. While our discussion takes for granted the legitimacy of well-being policy, we suggest that pragmatic subjectivism strengthens the case for such policy. (shrink)

A popular way to relate probabilistic information to binary rational beliefs is the Lockean Thesis, which is usually formalized in terms of thresholds. This approach seems far from satisfactory: the value of the thresholds is not well-specified and the Lottery Paradox shows that the model violates the Conjunction Principle. We argue that the Lottery Paradox is a symptom of a more fundamental and general problem, shared by all threshold-models that attempt to put an exact border on something that is intrinsically (...) vague. We propose application of the language of relative analysis—a type of non-standard analysis—to formulate a new model for rational belief, called Stratified Belief. This contextualist model seems well-suited to deal with a concept of beliefs based on probabilities ‘sufficiently close to unity’ and satisfies a moderately weakened form of the Conjunction Principle. We also propose an adaptation of the model that is able to deal with beliefs that are less firm than ‘almost certainty’. The adapted version is also of interest for the epistemicist account of vagueness. (shrink)

Clinical assessments of mental capacity have long been guided by four basic cognitive criteria (understanding, appreciation, ability to reason, communication of decision), distilled directly from widespread legal precedent in common law cases of informed consent and refusal. This article will challenge the sufficiency of these legal criteria at the bedside on the assertion that clinicians and bioethicists who evaluate decisional capacity face questions far deeper than the mere presence or absence of a patient’s informed consent. It will then present an (...) additional standard beyond the existing cognitive criteria – to be called the Narrative Coherence Standard – that may begin to bridge the gap between the existing legal standards and higher-order bioethical priorities. This standard will be treated with a philosophical argument for its use, as well as a detailed exploration of its technical components and conceptual underpinnings. (shrink)

Standard Analytic Epistemology (SAE) names a contingently clustered class of methods and theses that have dominated English-speaking epistemology for about the past half-century. The major contemporary theories of SAE include versions of foundationalism, coherentism, reliabilism, and contextualism. While proponents of SAE don’t agree about how to define naturalized epistemology, most agree that a thoroughgoing naturalism in epistemology can’t work. For the purposes of this paper, we will suppose that a naturalistic theory of epistemology takes as its core, as its (...) starting-point, an empirical theory. The standard argument against naturalistic approaches to epistemology is that empirical theories are essentially descriptive, while epistemology is essentially prescriptive, and a descriptive theory cannot yield normative, evaluative prescriptions. In short, naturalistic theories cannot overcome the is-ought divide. Our main goal in this paper is to show that the standard argument against naturalized epistemology has it almost exactly backwards. (shrink)

In this article I defend what Mark Greenberg has labeled the standard picture of law against the attack on it by Greenberg and Scott Hershovitz. I point out that law on the standard picture’s conception of it has moral virtues that Greenberg's own moral impact theory and Hershovitz’s similar theory lack. Moreover, it avoids a vicious circularity that bedevils Greenberg’s theory.

The emphasis on the limitations of objectivity, in specific guises and networks, has been a continuing theme of contemporary analytic philosophy for the past few decades. The popular sport of baiting feminist philosophers — into pointing to what's left out of objective knowledge, or into describing what methods, exactly, they would offer to replace the powerful objective methods grounding scientific knowledge — embodies a blatant double standard which has the effect of constantly putting feminist epistemologists on the defensive, on (...) the fringes, on the run.This strategy can only work if objectivity is transparent, simple, stable, and clear in its meaning. It most certainly is not. In fact, taking objectivity as a sort of beautiful primitive, self-evident in its value, and all-powerful in its revelatory power, requires careless philosophy, and the best workers in metaphysics, epistemology, and philosophy of science have made reworked definitions of objectivity absolutely central to their own projects. In fact, classic feminist concerns with exploring the impact of sex and gender on knowledge, understanding, and other relations between human beings and the rest of the world fall squarely within the sort of human and social settings thatare already considered central in most current analytic metaphysics, epistemology, and philosophy of science. I argue that the burden of proof is clearly on those who wish toreject the centrality and relevance of sex and gender to our most fundamental philosophical work on knowledge and reality. (shrink)

According to standard trope nominalism, there are simple tropes that do not have parts or multiply distinct aspects. Douglas Ehring’s reductio ad absurdum against this standard view concludes that there are no simple tropes. In this paper, we provide a response to Ehring defending the standard view. Ehring’s argument may be refuted by (1) distinguishing the ontological form of tropes from their contribution to the ontological content of the world, and (2) construing tropes as having primitive identity. (...) At the same time, standard trope nominalism is elaborated on by distinguishing between ontological form and content, for which there are also independent reasons. (shrink)

ObjectiveTo examine measurement agreement between a vocabulary test that is administered in the standardized manner and a version that is administered with a brain-computer interface.MethodThe sample was comprised of 21 participants, ages 9–27, mean age 16.7 years, 61.9% male, including 10 with congenital spastic cerebral palsy, and 11 comparison peers. Participants completed both standard and BCI-facilitated alternate versions of the Peabody Picture Vocabulary Test - 4. The BCI-facilitated PPVT-4 uses items identical to the unmodified PPVT-4, but each quadrant forced-choice (...) item is presented on a computer screen for use with the BCI.ResultsMeasurement agreement between instruments was excellent, including an intra-class correlation coefficient of 0.98, and Bland-Altman plots and tests indicating adequate limits of agreement and no systematic test version bias. The mean standard score difference between test versions was 2.0 points.ConclusionThese results demonstrate that BCI-facilitated quadrant forced-choice vocabulary testing has the potential to measure aspects of language without requiring any overt physical or communicative response. Thus, it may be possible to identify the language capabilities and needs of many individuals who have not had access to standardized clinical and research instruments. (shrink)

The present paper deals with the predicate version MTL of the logic MTL by Esteva and Godo. We introduce a Kripke semantics for it, along the lines of Ono''s Kripke semantics for the predicate version of FLew (cf. [O85]), and we prove a completeness theorem. Then we prove that every predicate logic between MTL and classical predicate logic is undecidable. Finally, we prove that MTL is complete with respect to the standard semantics, i.e., with respect to Kripke frames on (...) the real interval [0,1], or equivalently, with respect to MTL-algebras whose lattice reduct is [0,1] with the usual order. (shrink)