Next year, the Supreme Court’s Daubert decision will turn 20.  The decision, in interpreting Federal Rule of Evidence 702, dramatically changed the landscape of expert witness testimony.  Still, there are many who would turn the clock back to disabling the gatekeeping function.  In past posts, I have identified scholars, such as Erica Beecher-Monas and the late Margaret Berger, who tried to eviscerate judicial gatekeeping.  Recently a student note argued for the complete abandonment of all judicial control of expert witness testimony.  See Note, “Admitting Doubt: A New Standard for Scientific Evidence,” 123 Harv. L. Rev. 2021 (2010)(arguing that courts should admit all relevant evidence).

One advantage that comes from requiring trial courts to serve as gatekeepers is that the expert witnesses’ reasoning is approved or disapproved in an open, transparent, and rational way.  Trial courts subject themselves to public scrutiny in a way that jury decision making does not permit.  The critics of Daubert often engage in a cynical attempt to remove all controls over expert witnesses in order to empower juries to act on their populist passions and prejudices.  When courts misinterpret statistical and scientific evidence, there is some hope of changing subsequent decisions by pointing out their errors.  Jury errors on the other hand, unless they involve determinations of issues for which there were “no evidence,” are immune to institutional criticism or correction.

Despite my whining, not all courts butcher statistical concepts.  There are many astute judges out there who see error and call it error.  Take for instance, the trial judge who was confronted with this typical argument:

“While Giles admits that a p-value of .15 is three times higher than what scientists generally consider statistically significant—that is, a p-value of .05 or lower—she maintains that this ‘‘represents 85% certainty, which meets any conceivable concept of preponderance of the evidence.’’ (Doc. 103 at 16).”

Giles v. Wyeth, Inc., 500 F.Supp. 2d 1048, 1056-57 (S.D.Ill. 2007), aff’d, 556 F.3d 596 (7th Cir. 2009).  Despite having case law cited to it (such as In re Ephedra), the trial court looked to the Reference Manual on Scientific Evidence, a resource that seems to be ignored by many federal judges, and rejected the bogus argument.  Unfortunately, the lawyers who made the bogus argument still are licensed, and at large, to incite the same error in other cases.

This business perhaps would be amenable to an empirical analysis.  An enterprising sociologist of the law could conduct some survey research on the science and math training of the federal judiciary, on whether the federal judges have read chapters of the Reference Manual before deciding cases involving statistics or science, and whether federal judges expressed the need for further education.  This survey evidence could be capped by an analysis of the prevalence of certain kinds of basic errors, such as the transpositional fallacy committed by so many judges (but decisively rejected in the Giles case).  Perhaps such an empirical analysis would advance our understanding whether we need specialty science courts.

One of the reasons that the Reference Manual on Scientific Evidence is worthy of so much critical attention is that the volume has the imprimatur of the Federal Judicial Center, and now the National Academies of Science.  Putting aside the idiosyncratic chapter by the late Professor Berger, the Manual clearly present guidance on many important issues.  To be sure, there are gaps, inconsistencies, and mistakes, but the statistics chapter should be a must-read for federal (and state) judges.

Unfortunately, the Manual has competition from lesser authors whose work obscures, misleads, and confuses important issues.  Consider an article by two would-be expert witnesses, who testify for plaintiffs, and confidently misstate the meaning of a confidence interval:

“Thus, a RR [relative risk] of 1.8 with a confidence interval of 1.3 to 2.9 could very likely represent a true RR of greater than 2.0, and as high as 2.9 in 95 out of 100 repeated trials.”

Richard W. Clapp & David Ozonoff, “Environment and Health: Vital Intersection or Contested Territory?” 30 Am. J. L. & Med. 189, 210 (2004).  This misstatement was then cited and quoted with obvious approval by Professor Beecher-Monas, in her text on scientific evidence.  Erica Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process 60-61 n. 17 (2007).   Beecher-Monas goes on, however, to argue that confidence interval coefficients are not the same as burdens of proof, but then implies that scientific standards of proof are different from the legal preponderance of the evidence.  She provides no citation or support for the higher burden of scientific proof:

“Some commentators have attributed the causation conundrum in the courts to the differing burdens of proof in science and law.²⁸ In law, the civil standard of ‘more probable than not’ is often characterized as a probability greater than 50 percent.²⁹ In science, on the other hand, the most widely used standard is a 95 percent confidence interval (corresponding to a 5 percent level of significance, or p-level).³⁰ Both sound like probabilistic assessment. As a result, the argument goes, civil judges should not exclude scientific testimony that fails scientific validity standards because the civil legal standards are much lower. The transliteration of the ‘more probable than not’ standard of civil factfinding into a quantitative threshold of statistical evidence is misconceived. The legal and scientific standards are fundamentally different. They have different goals and different measures.  Therefore, one cannot justifiably argue that evidence failing to meet the scientific standards nonetheless should be admissible because the scientific standards are too high for preponderance determinations.”

Id. at 65.  This seems to be on the right track, although Beecher-Monas does not state clearly whether she subscribes to the notion that the burdens of proof in science and law differ.  The argument then takes a wrong turn:

“Equating confidence intervals with burdens of persuasion is simply incoherent. The goal of the scientific standard – the 95 percent confidence interval – is to avoid claiming an effect when there is none (i.e., a false positive).³¹“

Id. at 66.   But this is crazy error; confidence intervals are not burdens of persuasion, legal or scientific.  Beecher-Monas is not, however, content to leave this alone:

“Scientists using a 95 percent confidence interval are making a prediction about the results being due to somethingother than chance.”

Id. at 66 (emphasis added).  Other than chance?  Well this implies causality, as well as bias and confounding, but the confidence interval, like the p-value, addresses only random or sampling error.  Beecher-Monas’s error is neither random nor scientific.  Indeed, she perpetuates the same error committed by the Fifth Circuit in a frequently cited Bendectin case, which interpreted the confidence interval as resolving questions of the role of matters “other than chance,” such as bias and confounding.  Brock v. Merrill Dow Pharmaceuticals, Inc., 874 F.2d 307, 311-12 (5th Cir. 1989)(“Fortunately, we do not have to resolve any of the above questions [as to bias and confounding], since the studies presented to us incorporate the possibility of these factors by the use of a confidence interval.”)(emphasis in original).  See, e.g., David H. Kaye, David E. Bernstein, and Jennifer L. Mnookin, The New Wigmore – A Treatise on Evidence:  Expert Evidence § 12.6.4, at 546 (2d ed. 2011) Michael O. Finkelstein, Basic Concepts of Probability and Statistics in the Law 86-87 (2009)(criticizing the overinterpretation of confidence intervals by the Brock court).

Clapp, Ozonoff, and Beecher-Monas are not alone in offering bad advice to judges who must help resolve statistical issues.  Déirdre Dwyer, a prominent scholar of expert evidence in the United Kingdom, manages to bundle up the transpositional fallacy and a misstatement of the meaning of the confidence interval into one succinct exposition:

“By convention, scientists require a 95 per cent probability that a finding is not due to chance alone. The risk ratio (e.g. ‘2.2’) represents a mean figure. The actual risk has a 95 per cent probability of lying somewhere between upper and lower limits (e.g. 2.2 ±0.3, which equals a risk somewhere between 1.9 and 2.5) (the ‘confidence interval’).”

Déirdre Dwyer, The Judicial Assessment of Expert Evidence 154-55 (Cambridge Univ. Press 2008).

Of course, Clapp, Ozonoff, Beecher-Monas, and Dwyer build upon a long tradition of academics’ giving errant advice to judges on this very issue.  See, e.g., Christopher B. Mueller, “Daubert Asks the Right Questions:  Now Appellate Courts Should Help Find the Right Answers,” 33 Seton Hall L. Rev. 987, 997 (2003)(describing the 95% confidence interval as “the range of outcomes that would be expected to occur by chance no more than five percent of the time”); Arthur H. Bryant &Alexander A. Reinert, “The Legal System’s Use of Epidemiology,” 87 Judicature 12, 19 (2003)(“The confidence interval is intended to provide a range of values within which, at a specified level of certainty, the magnitude of association lies.”) (incorrectly citing the first edition of Rothman & Greenland, Modern Epidemiology 190 (Philadelphia 1998);  John M. Conley & David W. Peterson, “The Science of Gatekeeping: The Federal Judicial Center’s New Reference Manual on Scientific Evidence,” 74 N.C.L.Rev. 1183, 1212 n.172 (1996)(“a 95% confidence interval … means that we can be 95% certain that the true population average lies within that range”).

Who has prevailed?  The statistically correct authors of the statistics chapter of the Reference Manual on Scientific Evidence, or the errant commentators?  It would be good to have some empirical evidence to help evaluate the judiciary’s competence. Here are some cases, many drawn from the Manual‘s discussions, arranged chronologically, before and after the first appearance of the Manual:

Before First Edition of the Reference Manual on Scientific Evidence:

DeLuca v. Merrell Dow Pharms., Inc., 911 F.2d 941, 948 (3d Cir. 1990)(“A 95% confidence interval is constructed with enough width so that one can be confident that it is only 5% likely that the relative risk attained would have occurred if the true parameter, i.e., the actual unknown relationship between the two studied variables, were outside the confidence interval.   If a 95% confidence interval thus contains ’1′, or the null hypothesis, then a researcher cannot say that the results are ‘statistically significant’, that is, that the null hypothesis has been disproved at a .05 level of significance.”)(internal citations omitted)(citing in part, D. Barnes & J. Conley, Statistical Evidence in Litigation § 3.15, at 107 (1986), as defining a CI as “a limit above or below or a range around the sample mean, beyond which the true population is unlikely to fall”).

United States ex rel. Free v. Peters, 806 F. Supp. 705, 713 n.6 (N.D. Ill. 1992) (“A 99% confidence interval, for instance, is an indication that if we repeated our measurement 100 times under identical conditions, 99 times out of 100 the point estimate derived from the repeated experimentation will fall within the initial interval estimate … .”), rev’d in part, 12 F.3d 700 (7th Cir. 1993)

DeLuca v. Merrell Dow Pharms., Inc., 791 F. Supp. 1042, 1046 (D.N.J. 1992)(”A 95% confidence interval means that there is a 95% probability that the ‘true’ relative risk falls within the interval”) , aff’d, 6 F.3d 778 (3d Cir. 1993)

Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1353-54 & n.1 (6th Cir. 1992)(describing a 95% CI of 0.8 to 3.10, to mean that “random repetition of the study should produce, 95 percent of the time, a relative risk somewhere between 0.8 and 3.10″)

Hilao v. Estate of Marcos, 103 F.3d 767, 787 (9th Cir. 1996)(Rymer, J., dissenting and concurring in part).

After the first publication of the Reference Manual on Scientific Evidence:

American Library Ass’n v. United States, 201 F.Supp. 2d 401, 439 & n.11 (E.D.Pa. 2002), rev’d on other grounds, 539 U.S. 194 (2003)

SmithKline Beecham Corp. v. Apotex Corp., 247 F.Supp.2d 1011, 1037-38 (N.D. Ill. 2003)(“the probability that the true value was between 3 percent and 7 percent, that is, within two standard deviations of the mean estimate, would be 95 percent”)(also confusing attained significance probability with posterior probability: “This need not be a fatal concession, since 95 percent (i.e., a 5 percent probability that the sign of the coefficient being tested would be observed in the test even if the true value of the sign was zero) is an  arbitrary measure of statistical significance.  This is especially so when the burden of persuasion on an issue is the undemanding ‘preponderance’ standard, which  requires a confidence of only a mite over 50 percent. So recomputing Niemczyk’s estimates as significant only at the 80 or 85 percent level need not be thought to invalidate his findings.”), aff’d on other grounds, 403 F.3d 1331 (Fed. Cir. 2005)

In re Silicone Gel Breast Implants Prods. Liab. Litig, 318 F.Supp.2d 879, 897 (C.D. Cal. 2004) (interpreting a relative risk of 1.99, in a subgroup of women who had had polyurethane foam covered breast implants, with a 95% CI that ran from 0.5 to 8.0, to mean that “95 out of 100 a study of that type would yield a relative risk somewhere between on 0.5 and 8.0.  This huge margin of error associated with the PUF-specific data (ranging from a potential finding that implants make a woman 50% less likely to develop breast cancer to a potential finding that they make her 800% more likely to develop breast cancer) render those findings meaningless for purposes of proving or disproving general causation in a court of law.”)(emphasis in original)

Ortho–McNeil Pharm., Inc. v. Kali Labs., Inc., 482 F.Supp. 2d 478, 495 (D.N.J.2007)(“Therefore, a 95 percent confidence interval means that if the inventors’ mice experiment was repeated 100 times, roughly 95 percent of results would fall within the 95 percent confidence interval ranges.”)(apparently relying party’s expert witness’s report), aff’d in part, vacated in part, sub nom. Ortho McNeil Pharm., Inc. v. Teva Pharms Indus., Ltd., 344 Fed.Appx. 595 (Fed. Cir. 2009)

Eli Lilly & Co. v. Teva Pharms, USA, 2008 WL 2410420, *24 (S.D.Ind. 2008)(stating incorrectly that “95% percent of the time, the true mean value will be contained within the lower and upper limits of the confidence interval range”)

Benavidez v. City of Irving, 638 F.Supp. 2d 709, 720 (N.D. Tex. 2009)(interpreting a 90% CI to mean that “there is a 90% chance that the range surrounding the point estimate contains the truly accurate value.”)

Estate of George v. Vermont League of Cities and Towns, 993 A.2d 367, 378 n.12 (Vt. 2010)(erroneously describing a confidence interval to be a “range of values within which the results of a study sample would be likely to fall if the study were repeated numerous times”)

Correct Statements

There is no reason for any of these courts to have struggled so with the concept of statistical significance or of the confidence interval.  These concepts are well elucidated in the Reference Manual on Scientific Evidence (RMSE):

“To begin with, ‘confidence’ is a term of art. The confidence level indicates the percentage of the time that intervals from repeated samples would cover the true value. The confidence level does not express the chance that repeated estimates would fall into the confidence interval.91

* * *

According to the frequentist theory of statistics, probability statements cannot be made about population characteristics: Probability statements apply to the behavior of samples. That is why the different term ‘confidence’ is used.”

RMSE 3d at 247 (2011).

Even before the Manual, many capable authors have tried to reach the judiciary to help them learn and apply statistical concepts more confidently.  Professors Michael Finkelstein and Bruce Levin, of the Columbia University’s Law School and Mailman School of Public Health, respectively, have worked hard to educate lawyers and judges in the important concepts of statistical analyses:

“It is the confidence limits PL and PU that are random variables based on the sample data. Thus, a confidence interval (PL, PU ) is a random interval, which may or may not contain the population parameter P. The term ‘confidence’ derives from the fundamental property that, whatever the true value of P, the 95% confidence interval will contain P within its limits 95% of the time, or with 95% probability. This statement is made only with reference to the general property of confidence intervals and not to a probabilistic evaluation of its truth in any particular instance with realized values of PL and PU. “

Michael O. Finkelstein & Bruce Levin, Statistics for Lawyers at 169-70 (2d ed. 2001)

Courts have no doubt been confused to some extent between the operational definition of a confidence interval and the role of the sample point estimate as an estimator of the population parameter.  In some instances, the sample statistic may be the best estimate of the population parameter, but that estimate may be rather crummy because of the sampling error involved.  See, e.g., Kenneth J. Rothman, Sander Greenland, Timothy L. Lash, Modern Epidemiology 158 (3d ed. 2008) (“Although a single confidence interval can be much more informative than a single P-value, it is subject to the misinterpretation that values inside the interval are equally compatible with the data, and all values outside it are equally incompatible. * * *  A given confidence interval is only one of an infinite number of ranges nested within one another. Points nearer the center of these ranges are more compatible with the data than points farther away from the center.”); Nicholas P. Jewell, Statistics for Epidemiology 23 (2004)(“A popular interpretation of a confidence interval is that it provides values for the unknown population proportion that are ‘compatible’ with the observed data.  But we must be careful not to fall into the trap of assuming that each value in the interval is equally compatible.”); Charles Poole, “Confidence Intervals Exclude Nothing,” 77 Am. J. Pub. Health 492, 493 (1987)(“It would be more useful to the thoughtful reader to acknowledge the great differences that exist among the p-values corresponding to the parameter values that lie within a confidence interval … .”).

Admittedly, I have given an impressionistic account, and I have used anecdotal methods, to explore the question whether the courts have improved in their statistical assessments in the 20 years since the Supreme Court decided Daubert.  Many decisions go unreported, and perhaps many errors are cut off from the bench in the course of testimony or argument.  I personally doubt that judges exercise greater care in their comments from the bench than they do in published opinions.  Still, the quality of care exercised by the courts would be a worthy area of investigation by the Federal Judicial Center, or perhaps by other sociologists of the law.

As part of its project curriculum, Columbia Law School’s Lawyering in the Digital Age Clinic engages in an ongoing collaboration with NYC’s Project FAIR to innovate and implement greater access to legal help and resources for the low-income and underrepresented members of the New York City community.

Project FAIR

Project FAIR (Fair Hearing Assistance, Information & Referral) comprises a consortium of attorneys, paralegals, public benefits experts, legal advocates and law students working to ensure that individuals who seek public assistance, food stamps, and Medicaid are able to effectively exercise their due process rights to access these services. Project FAIR is the sole independent provider of free legal information and service located on the premises of the main hearing site at 14 Boerum Place in Brooklyn where approximately 500 hearings are held each day.

Project FAIR is unique in that it does not have a standalone office. Volunteer attorneys and advocates chair a table at the hearing site, where they “rely on technology as the glue to hold operations together- providing the calendaring system to ensure the help table is staffed by someone every weekday, as well as housing the online database that serves as the primary data collection point from the individuals who go to the table,” says Columbia Clinical Professor of Law Conrad Johnson, who oversees FAIR’s collaboration with the Clinic.

Clinic Collaboration

In addition to creating Project FAIR’s vast knowledge database containing all of its training and reference resources, Columbia’s clinic also created and maintains an online database which contains records and information collected by the volunteers from all those who visit the help table.  This database now contains more than 10,000 entries and enables the volunteers to “track systemic trends in real time,” says Professor Johnson.

Through their work with FAIR, the database, and participating advocates, clinic students learned that for more than a year, those seeking to apply for or maintain their public assistance benefits were forced to wait for hours outside of many of the City’s welfare “job centers”.  Lines at many of the centers often spanned blocks and persisted in rain or shine, summer heat or winter cold. Last October the concern grew that as winter set in, it would be dangerous for individuals, many with children at their side, to be standing out in the cold for hours as they waited their turn.

Technology in Action

Prompted by this growing problem, clinic students Chris Watts, CLS ’13 and Ben Kopelman, CLS ’12, joined Professor Johnson on a visit to one of the centers on Dec. 5^th, 2011.  There, they encountered a long line of individuals waiting outside of the center.  That day they filmed a video of the overcrowding, and interviewed those waiting in line:

The Legal Aid Society used the clinic students’ video as part of its effort to raise awareness about the overcrowding issue.  The Wall Street Journal was the first media outlet to report on the issue when it published an article titled “Welfare Lines Overflow.” Similar stories were subsequently published by New York Magazine, NY Times and Social Service Employees Union.  Shortly thereafter, the WSJ published a follow-up article to its first column wherein NYC Mayor Michael Bloomberg acknowledged the pressing issue of the overcrowding at job centers across the city, and stated his pledge to work on improving the problem.

Spurred by the widespread media coverage, the City Council held hearings on the overcrowding problem in January of 2012.  Council member Gale Brewer, who chaired the hearings, showed the Clinic’s video as her opening statement to begin the hearings.

Professor Johnson was asked to testify at the city council hearing.  The day before the hearing, he returned to the job center he and his students had visited on Dec. 5^th.  To his surprise, the line outside of the center was gone.  He called several advocate colleagues who were also working on the issue and they too reported that lines outside other job centers had also disappeared.  It seemed that the HRA had finally enacted measures that eliminated the lines outside of the job centers.  Asked of his impression of the experience, Professor Johnson speaks about the power and importance of using technology in contemporary law practice. “It was a visual story; we were able to alert the media and the public by capturing images that both proved the existence of the problem and conveyed the hardships it created in ways that words alone could not. We also got results far more quickly and effectively than we would have using conventional advocacy.” He goes on: “Using tools of the digital age allowed for relief mechanisms that were not available to people who relied on traditional methods.”

While the story comes with many lessons, the most important is that technology not only creates greater access to our legal and judicial processes: it is used in creative ways to reach and influence the political process and to aid the members of our community who need help most.

Witnesses in the United States may choose to exercise their right to “plead the Fifth,” or refuse to answer a question because the response could provide self incriminating evidence of an illegal act. But how strong is this right if a prosecutor is already aware of where a witness was, what they saw, what they heard, and in some ways even what they were thinking at any given time on any given day? I do not refer to torture, truth serums, or the recent accomplishment of Berkeley scientists in creating visual pictures from brain waves. Rather, I refer to smart phones and the growing field of “reality mining” or “mobile phone sensing.”

The Progression of Mobile Phone Technology

Mobile phones had a humble beginning in 1973. Unlike modern iterations, the first mobile phone was bulky, difficult to transport, and had but one function; it allowed you to make a phone call. Technology has rapidly progressed from 1973, and today’s smart phones come rich with functionality through the use of embedded sensors. For example, the Apple iPhone comes equipped with an accelerometer, gyroscope, GPS, digital compass, ambient light detection, and dual microphones and cameras. These sensors give the iPhone the ability to speak, listen, locate, give directions, detect movement etc…  The new iPhone4S also responds to natural language queries.

“Mobile phone sensing” makes use of these digital senses to enable smart phones to become even more dynamic. Dartmouth College’s Smartphone Sensing Group
describes it as “turning the everyday smart phone into a cognitive phone by pushing intelligence to the phone and the computing cloud to make inferences about people’s behavior, surroundings and their life patterns.” The practical applications of this field seem enormous:

• Researchers at Dartmouth college describe examples such as 1) using accelerometer data to automatically recognize different activities (e.g., running, walking, standing), 2) combining accelerometer data with location estimates from a phone’s GPS to recognize the mode of transportation such as walking, biking, driving, taking a bus or riding the subway and 3) continuously collecting audio from a phone’s microphone to “classify a diverse set of distinctive sounds associated with a particular context or activity in a person’s life, such as using an automated teller machine, being in a particular coffee shop, having a conversation, listening to music, making coffee, and driving.” Amongst a laundry list of other applications, this data can be translated into suggestions for how to avoid traffic, increase social networking, and for personal health care by tracking your physical activity or the number of times you’ve visited your doctor’s office.
• An Oregon based technology company, Digimarc, has developed an application that uses a mobile phone’s camera and microphone to “detect digital watermarks encoded into magazines, newspapers, packaging and other printed materials, as well as identify songs in music and read QR codes.” Mobile phones can then recognize what it is that a user is looking at or listening to and make personalized suggestions.
• Sandy Pentland (a leader in the field of mobile phone sensing and director of MIT’s Human Dynamics Laboratory) predicts that mobile phone sensing may be able to give clues to diagnosing depression by detecting changes in speech patterns, or using a phones motion sensors to reveal slight changes in gait, potentially acting as an early indicator of ailments such as Parkinson’s disease.

Smart Phone as a Witness

Yet these examples may not be the limit to what mobile phone sensing may be used for in the future. It seems possible that future criminal (or civil) trials may not need live witnesses so long as the sensor data from an accused individual’s smart phone was admissible as evidence. Before a word was said, it could be known where the individual was, who they were with, what they were looking at, listening to, talking about etc… Not just the day that a crime was committed, but days, weeks, or months in the past. These seem to be the personal experiences that individuals were traditionally allowed to protect to avoid self-incrimination.

Conclusion

The Fifth Amendment is concerned with what an individual must be witness to after a crime is committed, rather than before. Ex ante choices such as planning to commit a crime do not bar a person’s right to avoid self-incrimination. Thus a person who purchases a smart phone in order to utilize the advantages of mobile phone sensing (or for whatever other reason) should not diminish their rights under the Constitution. When we look ex post, the experiences that a phone interprets are the users, the senses that it has are digital extensions of the individuals. Those experiences and senses is what the Fifth Amendment is concerned with and should not be allowed as evidence of a person’s guilt.

When probed for the reasoning behind the change, Sony responded that the updated terms were “designed to benefit both the consumer and the company by ensuring that there is adequate time and procedures to resolve disputes.”  The gaming community seems unconvinced.  “Seems to me Sony is spontaneously forcing users to renegotiate their use contract in a decidedly one-sided fashion,” wrote one Slashdot contributor.  “With this new clause, Sony can make a quick buck off its customers without having to worry about ramifications,” another poster lamented.

But is this really the case?  Law and economics principles teach that arbitration clauses can actually be efficient for consumers: if given the choice between arbitrating or filing suit over a defective product (say, for example, an iPod), most consumers would choose arbitration.  Individual suits are expensive and take a long time; most consumers would rather recover quickly through an inexpensive procedure and move on.  Consumers may also prefer products with binding arbitration clauses because they cost less, as manufacturers often build litigation risk into their pricing.

However, it’s unclear whether these principles apply to Sony’s Playstation Network.  Rather than an off-the-shelf consumer product, the Playstation Network is a complex service with a wide range of potential consumer grievances.  Some, such as small service interruptions, could be worth very little to a consumer, while others, such as a massive leakage of sensitive financial data, could be worth a lot.  In these latter cases, consumers might be less willing to settle for an arbitration proceeding and would want the option to sue.  Moreover, because potential grievances are more diverse, it would be harder to design “efficient, streamlined [arbitration] procedures tailored to the type of dispute,” a key advantage of arbitration noted by the Supreme Court in AT&T Mobility v. Concepcion.  Given this, Sony’s new agreement may be more one-sided than its comments let on.

So what if consumers don’t think arbitration is the right answer to potential Playstation Network woes?  Sony allows users to opt out of the waiver by submitting a written request within 30 days.  Numerous gaming blogs have posted alerts with detailed instructions for opting out, but it remains to be seen how many people will notice the alerts or care to respond.

• Patent Docs reviews Senator Patrick Leahy’s proposals for patent reform.

• Third Circuit gives “Spam filter ate my filing notice” excuse a second chance, from the Technology & Marketing Blog.

• EFF sues to find out how the government spies on us using social networks; Indiana University students makes a Freedom of Information request to find out much the big telcos charge the government to spy on their networks, says Wired.

• The New York Times opines in favor of the Empire State’s decision to collect sales tax on online purchases from out-of-state retailers delivered in New York.

• Lazy IP enforcement leads to prosecution of the wrong guy, who makes a big deal out of it, says Ars Technica.

• FTC isn’t done with Intel yet, now looking into anticompetitive behavior with regard to Nvidia, reports BusinessWeek.

• Google to end free access to subscription news, blogs Gizmodo.

• And for an international perspective: BioTechBlog reports on IP and the biotech industry in India.

STLR has been ahead of the curve on this front, choosing since our inception to publish only online and in open, documented formats like PDF and HTML. We’re also continuing to improve open access to STLR’s legal scholarship–intiatives we’re working on include formally adopting open access principles and using archival-quality online repositories for all our published works.  We hope more journals follow us in this direction soon.

Attorneys’ Fees in American Courts

Attorneys’ fees are the costs of legal representation. They are usually expressed in one of three ways: 1) as a contingency fee; 2) as a fixed fee or 3) as an hourly billing fee. The standard billing practice for law firms is the hourly rate system, and rates for large law firms can average over $300 per lawyer per hour.

Unless the parties have agreed in advance to a different result, under the default American Rule each party in a lawsuit is responsible for paying its own attorneys’ fees. Certain statutes, however, force the losing party to pay the prevailing party’s attorneys’ fees or else give the judge discretion to order such a payment. For example, under 17 U.S.C. § 505, a judge has the discretion to award attorneys’ fees to the prevailing party in a copyright dispute. In a recent case, Gonzales v. Transfer Technologies Inc., the judge considered the cost of prosecuting copyright infringement and the relatively low statutory damage award, and the judge chose to award attorneys’ fees.

The Andersen Case

In February 2005, the RIAA sued Tanya Andersen, a disabled single mother living in Oregon, for copyright infringement related to online file sharing. Alleging abusive practices, Andersen filed a counter-claim accusing the RIAA of, among other things, electronic trespass, deceptive business practices, invasion of privacy, fraud and negligent misrepresentation. Andersen demanded statutory and punitive damages, as well as attorneys’ fees.

On June 1, 2007, the RIAA filed for dismissal of its case with prejudice, reflecting its belief that the case was non-winnable. To determine whether Andersen can recover attorneys’ fees, the federal district court judge must decide whether the goals of the Copyright Act would be furthered by the award. The federal magistrate wrote the judge a recommendation stating that the RIAA’s suit “lacked prima facie evidence,” that the suit “did not appear justified as a reasonable exploration of the boundaries of copyright law” and that “copyright holders generally, and these plaintiffs especially, should be deterred from prosecuting infringement cases [in a similar manner].” Accordingly, the magistrate recommended awarding Andersen attorneys’ fees. The judge has not yet ruled on this recommendation. (reported at Ars Technica)

Legal and Strategic Implications of Awarding Fees

If legal fees are awarded to Andersen, the RIAA may be forced to rethink its tactics in prosecuting copyright infringers. Until now, the RIAA has relied on a “shotgun approach,” filing nearly three hundred lawsuits per week against alleged downloaders of copyrighted music, often without particularly strong evidence of illegal activity. If the court forces the RIAA to pay Andersen’s legal fees, it could establish a precedent upon which other accused copyright infringers will rely. This may cost hundreds of thousands of dollars per case, and it may prompt the RIAA to abandon the shotgun approach and focus its legal strategy on downloaders who can be more conclusively tied to illegal activity. On the other hand, the RIAA might not be particularly sensitive to these costs and may instead prefer to occasionally pay in order to pressure file traders to stop downloading copyrighted music.

No matter how the RIAA responds, it is certain that a ruling for Anderson would make it more difficult to bully defendants into settling to avoid costly legal fees. Defendants with strong cases may be more willing to go to trial and to stand up to the RIAA if they believe they will recover their legal fees. These recoveries can be quite large – Andersen’s lawyers, for example, estimate their fees to be well over $200,000. Some argue that this would simply force the RIAA to be more careful about whom it sues and to avoid frivolous lawsuits. Others believe that even the RIAA has a right to have its day in court. Therefore, it’s clear that the judge’s decision in the Andersen case may prompt a dramatic change in the way the RIAA approaches copyright infringement cases.

By James Alonso, Marc Friedenberg, Michael Nguyen, Shawn Oakley and Sarah Calvert; originally published at the Columbia Project on Law and Technology blog.