Gordon Smith's recent entry touches on a dangerous topic that possibly I should leave alone, but can't resist. He discusses the recent exclusion of Professor Deborah DeMott's expert testimony in the Disney case. Briefly, Chancellor Chandler concludes that a legal expert does not provide assistance to a U.S. judge on U.S. law, therefore not meeting the basic standard set by FRCP 702 and state rules (like Delaware's) modeled on this rule.
The topic is dangerous because, like many U.S. law professors, I have several times been paid to opine on U.S. law in U.S. courts. I testify mainly on partnership and corporate law, leaving the admissibility issue to lawyers and judges. But it's a question I've long thought about. Chancellor Chandler's conclusion squares with what I know about the general U.S. evidence rule. Given the Chancellor's conclusion in Disney, when should a law professor's testimony be admissible? When it provides a comprehensive review of the case law? Presumably the court could read the professor's treatise. If the professor is being asked to apply the treatise to the law, then isn't she doing what the court should be doing? To be sure, FRCP 704 provides that the testimony is not excludable solely on that ground, but what if testifying on the ultimate issue is the only thing the professor is good for?
Maybe the law professor is not testifying on something a judge should know about, but about some underlying policy issue that drives the law. In other words, the law professor is not merely a lawyer, but a law-and-economist, or some such thing. Admissibility on this ground raises interesting and fundamental questions about the nature of "law," and about what lawyers, judges and law professors do. These questions all have to be analyzed under the aegis of Daubert and its progeny. These cases impose a reliability standard on expert evidence based on science, or at least specialized knowledge.
A cynic might suspect a case management incentive here. In other words, one way courts can get cases settled is by inviting a kind of "arms race" of costly experts.
However, I prefer to be less cynical about motives. Courts are just trying to do their jobs. From this perpective, the phenomenon of expert testimony on the law has something to do with the need to provide incentives for lawmaking, including both statutory lawmaking and the lawmaking that goes on in court. I discuss my work on this in a previous post. Briefly, courts and lawmakers need help in lawmaking that lawyers (and law professors) and provide, if incentivized properly. As I suggest in my articles referred to in my previous post, the incentives might come, among other places, from lawyer licensing, protecting class action lawyers' property rights in their complaints, and being hired as experts.
This raises the additional question of how expert testimony affects law professors. If the reason why this testimony is admitted is to motivate law professors to assist courts, this suggests that the admissibility of our testimony affects what we law professors do. Does it cause us to do more work on legal doctrine, or on hot litigation topics, than we would would otherwise do? Does this tend to compensate for an excessive turn to theory in legal academia, or to retard an appropriate move in legal academia from trade school to academia?
Obviously there's more work to be done here.
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