Social Science and Litigation, Part I 

 Over twenty years ago, J. Morgan Kousser wrote an article with the provocative title, “Are Expert Witnesses Whores?  Reflections on Objectivity in Scholarship and Expert Witnessing? (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, “afforded me the opportunity to tell the truth and do good at the same time.? 

 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 “‘discovered’? by a civil rights attorney, retained, and stood ready to provide “window-dressing? 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 “made historians . . .  necessary participants in voting rights cases? (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 framers’ 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, “Testifying and scholaring are about equally objective pursuits.? 

 As a former litigator of employment discrimination and voting rights cases, I believe that Professor Kousser’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 Kousser’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 “right? 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 Kousser’s case, high-profile) litigation. 

 I’ll be using Professor Kousser’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 Kousser’s honesty or integrity, either in the testimony he gave or in his 1984 article.  In case it does not go without saying . . .).