Rethinking the Probative Value of Evidence: Base Rates,Intuitive Profiling,and the “Postdiction” of Behavior

It is argued that American courts may be routinely admitting evidence with little to no probative value and great potential for prejudicial impact. This may be particularly likely with regard to what is essentially intuitive profiling or stereotype related evidence, defined herein as evidence suggesting that the defendant (or other party), or his (her) behavior, fits intuitive profiles (or stereotypes) of the type of person likely to commit the crime or behavior in question. In other words, intuitive profiling evidence is admitted to postdict behavior. Formal empirically based profiling evidence (testimony regarding the fit of a defendant's characteristics or behaviors to formal or scientific profiles of the typical perpetrator of the crime in question for use to prove guilt is inadmissible in American courts. However, we suggest that everyday use of informal intuitive profiles underlies both judicial determinations of probative value diagnosticity, and thus admissibility, of evidence, and jurors' use of the evidence in determining guilt. Demonstrations of the use of base rate information to evaluate the probative value of such intuitive profiling evidence both as evidence of guilt and as evidence of innocence are provided. Demonstrations of both how to evaluate the actual probative value of evidence (when all necessary values are known), and the theoretical limit of its probative value (in circumstances where some values are not known) are provided. It is argued that such evaluations may provide the basis for (1) support of motions to either admit or to exclude evidence, (2) testimony to the jury to help them weigh or interpret evidence, (3) exculpatory profiling (profiling evidence of innocence), (4) pretrial research to establish probative versus prejudicial value of evidence, and (5) sufficiency analyses to determine maximum likelihood of guilt, given multiple items of evidence. Among these, the first two are considered most important, as it can be demonstrated that many profiling characteristics currently admitted in trial (such as evidence of battery to support a murder charge) are not probative of guilt.     

Antitrust, health care quality, and the courts

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.     

Collaboration over Adaptation: The Case for Interoperable Communications in Homeland Security

Analogizing the U.S. Department of Homeland Security to a corporate conglomerate consisting of multiple, formerly independent operating units with little in common and even less history of cooperation, this response to Professor Charles Wise prescribes the "bitter medicine" of interoperable communications. The critical function of assuring homeland security and disaster preparedness cannot depend on the uncertain trajectory of adaptive response.     

Collaboration and Leadership for Effective Emergency Management

Collaboration is a necessary foundation for dealing with both natural and technological hazards and disasters and the consequences of terrorism. This analysis describes the structure of the American emergency management system, the charts development of the Federal Emergency Management Agency, and identifies conflicts arising from the creation of the Department of Homeland Security and the attempt to impose a command and control system on a very collaborative organizational culture in a very collaborative sociopolitical and legal context. The importance of collaboration is stressed, and recommendations are offered on how to improve the amount and value of collaborative activities. New leadership strategies are recommended that derive their power from effective strategies and the transformational power of a compelling vision, rather than from hierarchy, rank, or standard operating procedures.     

Politics of Environmental Law: Political Ideology, Elitism or Urban-Rural Interests?

This paper examines a number of demographic aspects in congressional districts and states that played important roles in a series of Congressional votes on environmental issues in 2000. These characteristics include urbanization or population density, education, income, race, and employment. Our findings are mixed. While we find some evidence (at least in Senate votes) that population density is a positive predictor of “pro-environment” votes, we also find that things commensurate with the Environmental Kuznets Curve such as income, education, and lifestyle also play an important role in environmental voting.     

An analytical history of terrorism, 1945–2000

This paper traces the history of modern terrorism from the end of the Second World War to the beginning of the twenty-first century. It divides that history into three stylized waves: terrorism in the service of national liberation and ethnic separatism, left-wing terrorism, and Islamist terrorism. Adopting a constitutional political economy perspective, the paper argues that terrorism is rooted in the artificial nation-states created during the interwar period and suggests solutions grounded in liberal federalist constitutions and, perhaps, new political maps for the Middle East, Central Asia and other contemporary terrorist homelands.     

Value Choices and American Public Opinion

Individual preferences among core values are widely believed to be an important determinant of political attitudes. However, several theoretical perspectives suggest that people experience difficulties making choices among values. This article uses data from the 1994 Multi-Investigator Study to test for hierarchical structure in citizens' value preferences. The empirical results show that most people make transitive choices among values and that their value preferences have an impact on subsequent issue attitudes. To the extent that citizens exhibit intransitive value choices and/or apparent difficulties in the "translation process" from value preferences to issue attitudes, it is due more to low levels of political sophistication than to the existence of value conflict.