The Brief, Vol. 39, Fall 2019
Putting Learned Treatises Under the Microscope:
Assessing the Rule 803(18) Hearsay Exception and the
Reproducibility Crisis in Social Science
by William E. Braff
By expanding the Daubert standard to expert testimony in all fields, including social sciences, the Supreme Court's decision in Kumho Tire embraced reproducibility and reliability as general benchmarks for expert admissibility. These changes are reflected in Federal Rule of Evidence 702, which was updated post-Daubert to incorporate the Daubert factors for evaluating expert witness testimony. This article argues that the reproducibility crisis in the behavioral and social sciences demands that currently overbroad admissibility of expert testimony be scrutinized, particularly when using Federal Rule of Evidence 803(18) to admit a learned treatise. For attorneys and judges seeking fair procedures for exposing evidence to jurors, reforming the learned treatise exception is a simple step that could limit the unfair prejudice of evidence being presented as scientifically accurate despite lacking the hallmark reliability of science.
Attorney Withdrawal in Mass Actions:
A Proposal for Change
by Jean Raveney
The use of multidistrict litigation has grown in recent years. However, lawyers are constrained by current rules of professional conduct on withdrawal and clients can be harmed if there is disagreement between the client and lawyer about settlement offers. This article proposes an amendment to the Model Rules of Professional Conduct regarding an attorney’s ability to withdraw in mass actions under specific circumstances. The proposal is keyed to a rationality principle. If a lawyer representing a large group of plaintiffs successfully negotiates a settlement that is accepted by 90% of the client base, then the lawyer may withdraw from any clients who do not accept the offer. The proposed solution fixes many of the issues raised by mass action scholars, and it is arguably good for clients, lawyers, and courts. Thus, the rule could prove beneficial to the administration of mass litigation and to all involved parties.