Chapter 2 Section II - Social Science Methods

Transcription

1 Chapter 2 Section II - Social Science Methods A. METHODS OF ASKING QUESTIONS 1. Ask the right question (page 47) a. The question must make reference to the empirical world. b. The question often calls for a causal explanation. c. The question involves measuring/quantifying what is observed. 2. Reference to the Empirical World (pages 47-49) EMPIRICAL APPROACH observable verifiable repeatable objective 3. Components of causal explanation (pages 49-52) RATIONAL APPROACH intuitive argumentative ad hoc subjective a. Prediction (ability to state what will happen before it happens) b. Control (ability to bring about a change in a state of affairs) c. Understanding (knowing the causal mechanisms/processes by which something operates and changes) 4. General causal accounts are called theories. Good theories yield testable hypotheses. 5. Not all social science research tries to establish causality. Some research is descriptive (e.g., census). A single piece of research does not have to fulfill all three goals of prediction, control, and understanding (E.g., Scurvy). a. Necessary cause b. Sufficient cause c. Contributory cause (page 50)

2 6. Measurement (pages 53-57) i. Variables - Things/concepts that one chooses to measure (page 52) a. Categorical (male/female) or b. Continuous (age) Independent Variable - one that may be the cause of something Dependent Variable that something Intervening Variable mediates the effect of independent variable on the dependent variable ii. Operational definition - Define things by how they are measured iii. Reliability Consistency (get the same value every time you measure it) a. Inter-rater reliability b. Test re-test reliability iv. Validity - True/accuracy (accurately measures what you want to measure) a. Internal Validity validity of a study on its own terms, e.g., a 6 member and 12 member jury function study of state and federal juries. Threats to Internal Validity (pages 58-60) I. History II. Maturation III. Testing IV. Instrumentation V. Regression VI. Selection VII. Mortality b. External Validity the ability to generalize the results of a study. B. METHODS OF GATHERING INFORMATION Threats to validity can be eliminated with good research design. Four generic kinds of research design are case studies, correlational studies, true experiments, and quasiexperiments. (Pages 64-78) 1. Sampling A representative sample must be drawn from the Population of study. Probability Sampling vs. Convenience Sampling (whoever you run into). Simple Random Sampling every person in the population has the same probability of being in the sample. Stratified random Sampling Break the population into groups of interest (e.g., by gender, age, ethnicity, etc.), and then randomly sample from each group. You can randomize by different units of analysis. For example, prisons may be assigned to different treatment programs.

3 2. Research Design a. Case Studies are subject to selection bias. One is likely to select cases that validate one s hypothesis. (Pages 64-65) b. Correlational Studies examine the positive (change in the same direction) or negative (change in the opposite direction) relationship between variables. Correlation does not imply causation (e.g., TV viewing and violent behavior, ice cream sales and drowning.) Most surveys use correlational designs. (Page 66) c. True Experiments (p.71) Random assignment (not random sampling) of subjects to various groups in the experiment guards against threats to internal validity except mortality (that is more subjects may drop out of one group than another.) d. Quasi-experiments (p.74) There is no random assignment. i. Before and After designs (page 75) are subject to maturation, history, and testing threats to internal validity. ii. Simple Comparison Group designs are subject to the threat of selection biases. (Pages 75-76) iii. Time Series Designs measure the same group at more than two points in time. History may affect validity. For example, some historical event, rather than the independent variable, may cause the change in the dependent variable. (Pages 76-77) 3. You must have reliability in order to have validity. It is possible to have perfect reliability and no validity (e.g., hat size as a measure of IQ). 4. Validity is rarely all or none. It is more a matter of degree. Reasonable people often disagree about the validity of variables. (E.g., reasonable people may disagree on the most valid definition of whether a crime has been committed.) Chapter 3 Social Science Used to Determine Facts Section I Trademarks 1. Hearsay Rule was used for sometime to object to the introduction of scientific evidence. Courts took the view that the respondents in the surveys were offering statements in evidence while not being present at trial to testify and be cross-examined. (Page 95). Elgin National Watch Company and Life Savers (Pages 96-97) In Triangle Publications where the issue was whether teenage girl consumers were likely to be confused, Judge Frank, a realist, did his own survey because he thought that the male judges in the case were not likely to have knowledge of teenage girls shopping behavior. Note that Judge Frank writes the dissenting opinion. Today, his survey would be rejected as unscientific because the survey was not random and the sample was not representative of the population of consumers at issue. (Pages 97-98).

4 2. Oneida is an example of the beginning of judicial acceptance of scientific surveys. But witnesses were called and their testimony was given more weight than the scientific evidence. (Pages 98-99). 3. Zippo (pages ) marks the end of the hearsay objection to survey evidence. a. Surveys are not hearsay because they are not offered in evidence to prove the truth of the matter asserted. b. Even if they are hearsay, they are admissible under the present sense impression exception to the hearsay rule. (See Note on page 100). c. The judge ruled that the methodological problems affect the weight, not the admissibility of evidence. (These problems are mentioned on page 101. They affect the external validity.) 4. Amstar is an example where the problems with the survey affected the admissibility. The surveys had no probative value. (Page 102). 5. Study the methodology adopted in the Squirt Company case (page 106.) The court liked this study because it was conducted in a live market environment and measured actual consumer behavior, and not opinion (page 108.) Why does the court think that the 4.3% error is statistically insignificant? 5. In La Victoria Foods (page 109) consumers were instructed to buy a certain product, and were tested to see if they could follow those instructions without getting confused. Compare this case with Squirt Company case. 6. Bacardi (page 116) is one of the first cases to apply the Daubert test to expert testimony regarding consumer confusion. 7. Social science evidence of consumer confession need not be perfect or decisive. It must be relevant. (Page 123) Section II Obscenity 1. Does the First Amendment protect obscenity? Is obscenity the same as pornography? What is the standard for determining whether the material in issue is obscene or not? 2. Until the 1970 s the two issues regarding the use of social science evidence in obscenity litigation were: a. whether the prosecution is required to offer expert evidence; b. whether the defense must be permitted to offer expert evidence. (Page 127) 3. People v. Muller (page 127) Whether the photographs are obscene is a self-evident fact. Therefore, to allow an expert would be to invade province of the jury.

5 3. Jacobellis (pages ) a. White, J., - Let the jury decide by looking at the material. b. Harlan, J., - Expose the jury to the views of other individuals in the community. Opens the door for admitting expert testimony to educate the jurors. c. Stewart, J., - But I know it when I see it. 4. Smith (pages ) Frankfurter, J., believed that defendants have a due process right to present expert testimony on the question of obscenity. To allow light to be shed on what those contemporary community standards are. 5. Miller (pages ) is the most important case in obscenity law. For the basic guidelines for the jury read the 3 rd paragraph of the opinion. A jury need not consider national standards to determine whether certain materials are obscene. Defining community as a statewide standard would not violate the constitution. 6. Paris Adult Theatre (page 130) The prosecution is not required to present expert evidence of obscenity. 7. Kaplan (page 131) The defense should be free to introduce expert testimony. Miller, Paris and Kaplan were decided by the U.S. Supreme Court on the same day. These cases together resolved the issue of expert testimony in obscenity cases. 8. Hamling (page 132) The constitution does not require a statewide community standard. It can be a local standard. 9. Saliba (page 137) The Zippo cite demonstrates how a ruling on a methodology (surveys) to demonstrate facts in one legal context (trademarks) can serve as precedent for that methodology in another legal context (obscenity). a. Foundational Criteria = Admissibility (page 140, para 1) b. Technical Adequacy = Weight (page 140, para 2) 10. Trainor (page 141) is an example of how not to do a survey. 11. Pryba (page 144) rejected an ethnographic study that is qualitative, and not quantitative. Section III Damages Social science is used to determine compensatory damages in mass tort cases due to difficulty of considering each case individually. A court of appeal may intervene if the trial court abused its discretion in admitting the scientific evidence.

6 The constitutional issues raised in regard to the use of damage award determinations in sampled cases to non-sampled cases are: a. Due Process The plaintiffs in non-sampled cases are denied the right to individual trials. b. 7 th Amendment Use of random samples violates the right to a jury trial. 1. Harolds (pages ) is an example of the use of social science in a tort case involving one plaintiff. 2. Cimino (pages ) Over 2000 plaintiffs who have been injured by exposure to asbestos. Study the methodology adopted by judge Parker to consolidate cases. He stratified the plaintiffs into five categories based on medical diagnosis, and then selected a random sample of 160 cases from each category. The juries sat separately and heard testimony of individual cases, and returned individual damage verdicts. After trial the judge decided that the average verdict in each of the five categories should be applied to each of the non-sampled cases. 3. On appeal the Fifth Circuit reversed Judge Parker s decision in Cimino (page 172). It was held that the 7 th Amendment required jury trials in individual cases. 4. In re Estate of Ferdinand E. Marcos Human Rights Litigation (page 161) - Study the methodology adopted. How is it different from Cimino? The judge certified a class that included three categories determined by type of harm. A statistician presented a plan to take depositions of a random sample of 137 claimants in the three categories. A Special Master took the depositions and recommended damage amounts for each of the sampled claimants. He then recommended total damages for each category of nonsampled claimants. The jury was allowed to accept, reject, or modify the plan. 5. In re Chevron U.S.A. (page 167) 3000 plaintiffs. The trial court approved a plan to hold trials for 30 plaintiffs, 15 selected by the plaintiffs, and 15 selected by Chevron. Chevron objected that the selection process was not representative because it was not random. The Court of Appeal limited the use of the results to the 30 individual plaintiffs. 6. Blue Cross and Blue Shield of New Jersey v. Philip Morris (page 173) The judge endorses the use of sampling in mass tort cases, and holds that surveys do not violate either 14 th Amendment due process rights or the 7 th Amendment right to a trial by jury.