Social Science and Litigation, Part I 

 Over twenty years ago, J. Morgan Kousser wrote an article with the provocative title, â€œAre Expert Witnesses Whores?  Reflections on Objectivity in Scholarship and Expert Witnessingâ€? (6 The Public Historian 5 (1984)).  In answering the rhetorical question largely in the negative, Professor Kousser recounted his own experience as an expert in litigation under the Voting Rights Act, an experience which, according to him, â€œafforded me the opportunity to tell the truth and do good at the same time.â€? 

 As a historian of southern politics specializing in the post-Reconstruction and Progressive eras, Professor Kousser had concluded that at-large voting systems had a racially discriminatory impact upon disfavored minority groups, and that such systems were adopted for exactly that purpose.  Having written on the subject, he was â€œâ€˜discoveredâ€™â€? by a civil rights attorney, retained, and stood ready to provide â€œwindow-dressingâ€? in Section 2 cases challenging at-large systems when the Supreme Court decided Mobile v. Bolden, 446 U.S. 55 (1980).  Without delving into legal technicalities, and oversimplifying somewhat, Mobile compelled Section 2 plaintiffs to produce evidence regarding the motives of those who adopted the voting schemes under challenge.  In doing so, Mobile â€œmade historians . . .  necessary participants in voting rights casesâ€? (at least until Congress removed the intent requirement by amending Section 2 in 1982), and so Professor Kousser ended up testifying in several pieces of litigation regarding the motives of those who adopted at-large voting systems and the effectiveness of such systems in achieving their framersâ€™ desires.  After examining various meanings of bias and objectivity, and the threats to the latter in both expert witnessing and researching, Professor Kousser concludes his article with the statement, â€œTestifying and scholaring are about equally objective pursuits.â€? 

 As a former litigator of employment discrimination and voting rights cases, I believe that Professor Kousserâ€™s vision of an expert witness is one few lawyers would recognize.  As a budding statistician interested in application of social science to the litigation setting, I assert (admittedly with slightly less certainty) that Professor Kousserâ€™s narrative would be unfamiliar to most expert witnesses as well.  Few attorneys discover expert witnesses who have spent years studying a question critical in a case they are litigating, fewer still an expert who has reached the â€œrightâ€? answer.  It is rare that scholars, having reached conclusions after years of study and research for academic purposes, suddenly discover that the law has evolved in a way to make those conclusions relevant to pending (and, in Professor Kousserâ€™s case, high-profile) litigation. 

 Iâ€™ll be using Professor Kousserâ€™s article as a springboard for a discussion on the relationship among courts, litigators, and expert witnesses in several blog posts.  As is true of all members of the Content Committee of this blog, I remain eager for responses and comments. 

 (It should go without saying that I do not intend in any way to question Professor Kousserâ€™s honesty or integrity, either in the testimony he gave or in his 1984 article.  In case it does not go without saying . . .).