Volume 37 Abstracts
ABSTRACT: In late June 1996, Senator Pete V. Domenici (R-N.M.) introduced S.1898, the Genetic Confidentiality and Nondiscrimination Act of 1996 (GCNA), which was based in large part on the proposed "Genetic Privacy Act of 1995" (GPA) drafted by the authors. This article outlines the purpose and provisions of the GPA, and it highlights some of the differences between the GPA and the GCNA.
CITATION: Patricia (Winnie) Roche, Leonard H. Glantz, and George J. Annas, The Genetic Privacy Act: A Proposal for National Legislation, 37 Jurimetrics J. 1-11 (1996)
ABSTRACT: This article surveys the arguments for and against allowing insurers to use genetic information in setting premiums or determining coverage. Noting that access to this information raises both discrimination and privacy issues, the article discusses the fit between various rationales for prohibiting this use of genetic information and the actual statutes that have been enacted and proposed. The article concludes with a call for more empirical research into the actual impact of these statutes and the magnitude of the social problems that led to their enactment.
CITATION: Mark A. Hall, Insurers' Use of Genetic Information, 37 Jurimetrics J. 13-22 (1996)
ABSTRACT: This article reports on a study of the factors associated with jurors' assessments of experts' believability. A total of 156 former jurors from 24 civil cases tried in Dallas Country, Texas, responded to a telephone survey. Multivariate analysis revealed no statistically significant associations between the occupations of the experts or the characteristics of the jurors, on the one hand, and the believability of the experts, on the other. Perceived qualifications, familiarity with the facts, good reasoning, impartiality, and the side calling the expert were associated with believability. We conclude that jurors make expert-specific decisions based on rational criteria.
CITATION: Daniel W. Shuman, Anthony Champagne, and Elizabeth Whitaker, Assessing the Believability of Expert Witnesses: Science in the Jurybox, 37 Jurimetrics J. 23-34 (1996)
ABSTRACT: This note catalogs and describes federal and state legislation regulating the use of genetic information by insurance companies.
CITATION: Helen R. Davis and Janice V. Mitrius, Note, Recent Legislation on Genetics and Insurance, 37 Jurimetrics J. 69-82 (1996)
ABSTRACT: The Bureau of the Census conducts a decennial count of the population of the United States. Unfortunately, the census does not count everyone, and the undercount is concentrated among racial and ethnic minorities. To combat this "differential undercount," the Census Bureau experimented with a statistical method to adjust the census count, known as "dual-systems estimation." After the Secretary of Commerce declined to apply this adjustment to the 1990 census, various states, cities, and interest groups sued to force its use. The case reached the Supreme Court in 1996, which held that because census inaccuracy is different from state malapportionment, the one-person, one-vote strict scrutiny standard does not apply. Because the Constitution grants Congress broad discretion to conduct the census, the Secretary of Commerce's decision not to adjust need only be reasonable in light of the constitutional purpose of the census.
CITATION: James Pack, Note, The Census Adjustment Cases: The Hunt for the Wily Trout, 37 Jurimetrics J. 35-52 (1996)
ABSTRACT: In Hopkins v. Dow Corning Corp., the Ninth Circuit Court of Appeals upheld a pivotal and controversial jury verdict against a manufacturer of silicone gel breast implants. The defendant argued that the plaintiff's proof that the implants caused disease lacked a scientific foundation and should not have been allowed into evidence. This note discusses the status of the scientific literature on the issue of causation of autoimmune diseases in women with silicone gel breast implants and the critical importance of epidemiologic evidence establishing causation. It concludes that Hopkins v. Dow Corning Corp. was wrongly decided.
CITATION: Donald A. Lawson, Note, Hopkins v. Dow Corning Corporation : Silicone and Science, 37 Jurimetrics J. 53-68 (1996)
ABSTRACT: Criticisms are presented of the second NRC report on DNA evidence. The underlying theme is that the report does not focus on evidential weight; consequently much of its discussion is tangential to the issues that matter in court, and in some cases the report is positively misleading. In particular, a recommendation concerning database searches and another concerning small groups or tribes are seriously flawed, erring in the former case in favor of defendants and in the latter case against defendants.
CITATION: David J. Balding, Errors and Misunderstandings in the Second NRC Report, 37 Jurimetrics J. 469-476 (1997).
ABSTRACT: In
State v. Lyons, the Oregon Supreme Court held a form of PCR-based DNA evidence admissible. It determined that the PCR-DQA test is generally accepted in the scientific community and that the evidence satisfied a standard similar to that adopted for federal courts in
Daubert v. Merrell Dow Pharmaceuticals, Inc. The reasoning in
Lyons is persuasive, and it is likely that courts in other jurisdictions will reach similar results.
CITATION: Karla K. Hotis, Note, The Admissibility of PCR-based DNA Evidence: State v. Lyons , 37 Jurimetrics J. 495-506 (1997)
ABSTRACT: Microsoft Corporation is often accused of using the monopoly power of its Windows operating system to unfair advantage in applications software markets, such as word processing and spreadsheets. Various cases under Section 2 of the Sherman Act provide a basis for analyzing Microsoft's behavior. The essential facilities doctrine, along with other precedents on intent, refusal to deal, and leveraging, indicates that Microsoft has a duty to be more cooperative in informing its applications software competitors of details about its operating systems. This would help to maintain diversity in software innovation and to protect reliance on cooperative arrangements within industries.
CITATION: Bryce J. Jones, II and James R. Turner, Can an Operating System Vendor Have a Duty to Aid Its Competitors?, 37 Jurimetrics J. 355-394 (1997)
ABSTRACT: The possibility of error limits the strength of DNA evidence in the same way that it limits the strength of other kinds of legal evidence. However, a 1996 report by the National Research Council recommends against estimating an error rate derived from proficiency tests to help identify the probative value of DNA evidence. The Committee's arguments are identified and critiqued. It is argued that error rate data derived from broad reference classes such as "all DNA laboratories" provide a relevant starting point for estimating the risk of error in individual cases. Likelihood ratios that fail to incorporate this estimate may be misleading.
CITATION: Jonathan J. Koehler, Why DNA Likelihood Ratios Should Account for Error, 37 Jurimetrics J. 425-437 (1997)
ABSTRACT: This article traces some of the controversies surrounding DNA evidence and argues that, although many have been laid to rest by scientific developments confirmed in the National Research Council's second DNA report, there remain several problems that are likely to lead to continued questioning of standard ways prosecutors present DNA evidence. Although much about the report is to be commended, it falls short in several ways, the most important of which is in its support of presenting random match probabilities independent of plausible error rates. The article argues that although one can sympathize with the NRC committee's decision as an effort to say no more than what science reliably tells us, it is not a good forensic science recommendation because following it means that the probative value of DNA evidence is likely to be substantially overstated. Fortunately, it will be the rare case where this matters.
CITATION: Richard Lempert, After the DNA Wars: Skirmishing with NRC II, 37 Jurimetrics J. 439-468 (1997)
ABSTRACT: The National Research Council report on DNA evidence left a few unsolved problems, nearly all at the level of forensic assimilation of established scientific principles. This article reviews the major post-NRC topics: the theoretical framework, the coincidence test for unrelated suspect and evidentiary sample, the kinship test for pairs from the same subpopulation, alternative hypotheses, Bayesian analysis, multiple culprits or suspects, and what remains to be done if DNA evidence is to be trustworthy and suspect trawls are to be efficient and without prejudice to defendants. A simple solution to the trawling controversy through confirmatory markers is proposed.
CITATION: N.E. Morton, The Forensic DNA Endgame, 37 Jurimetrics J. 477-494 (1997)
ABSTRACT: This article criticizes the National Research Council's second report on forensic DNA evidence for giving inadequate attention to problems surrounding the interpretation of DNA test results, for acquiescing to interpretive standards less rigorous than those recommended in the first NRC report, and for assuming, unrealistically, that retesting by criminal defendants will resolve the problem of laboratory error. It also comments on the calculation and presentation of quantitative error rate estimates and posterior probabilities in connection with DNA evidence.
CITATION: William C. Thompson, The National Research Council's Second Report on Forensic DNA Evidence: A Critique, 37 Jurimetrics J. 405-423 (1997)
