© 1997 D.H. Kaye(2). This report appears in the Association of American Law Schools Section on Evidence Newsletter, Fall 1997, pp. 2-6
Two cases involving the law of evidence are part of the United States Supreme Court's current docket. Both concern scientific evidence. In Joiner v. General Electric Co. (3) the Court will consider the appellate standard of review of trial court rulings on scientific evidence. In United States v. Scheffer (4) the Court will address the validity under the Sixth Amendment of a rule that categorically excludes polygraph evidence in criminal cases. This article describes the facts and proceedings below and speculates on what the Court will decide.
Robert Joiner was an electrician who worked for nearly 20 years for a city Water and Light Department in Georgia. His work brought him into contact with Polychlorinated biphenyls (PCBs) in electrical transformers. In 1991, at the age of 37, he was diagnosed with lung cancer.(5)
Joiner and his wife sued three manufacturers of PCBs--the General Electric Company, Westinghouse Electric Corporation, and the Monsanto Company--in state court on theories of strict liability, negligence, and fraud.(6) A former cigarette smoker, Joiner alleged that tobacco smoke acted as an initiator of his cancer, and that the PCBs acted as a promotor, transforming the initiated cells into malignant growths.(7) Defendants removed the cases to the United States District Court for the Northern District of Georgia, where they moved for summary judgment.(8) They argued that "plaintiffs . . . cannot present credible, admissible scientific evidence that . . . small cell lung cancer in humans can be caused or promoted by PCBs,"(9) and they maintained that PCBs do not cause cancer unless other chemicals--namely, furans or dioxins--are present. Plaintiffs' experts pointed to studies of PCBs to dispute this claim,(10) and they suggested that there were reasons to think that Joiner had been exposed to PCBs, furans, and dioxins. However, defendants argued further that the available evidence indicated that Joiner had no significant exposure to any of these three types of chemicals.(11)
The district court granted the motion for summary judgment. It found that although there was a genuine dispute as to whether Joiner was exposed to PCBs, the potentially admissible evidence failed to show that he was exposed to furans or dioxins.(12) Furthermore, the court found that the epidemiological and animal studies on which plaintiffs' experts relied to conclude that PCBs and the related compounds can promote cancers were too weak to justify that inference. It insisted that even "[a]ssuming that Plaintiff's experts had not made unfounded assumptions about [exposure to] furans and dioxins, . . . Plaintiffs' expert testimony would not be admissible."(13)
A divided panel of the Eleventh Circuit reversed. Two judges concluded that the district court "improperly assessed the admissibility of the proffered scientific expert testimony and overlooked evidence establishing disputed issues of fact."(14) The three opinions generated by the three members of the panel raise fundamental questions about the application of the principles of admissibility enunciated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(15) to toxic tort cases, the distinction between the admissibility and the sufficiency of evidence, the distinction between methodology and conclusions, and the extent of a trial judge's role as the gatekeeper for the admission of scientific evidence.
The Supreme Court granted certiorari in response to a petition from defendants complaining of the "particularly stringent" standard of review that the Court of Appeals purported to apply to the district court's ruling that plaintiffs' experts' conclusions were inadmissible under Daubert. Because it is doubtful that the Supreme Court will reassess the factually dense aspects of this case, any opinion that results is likely to be limited to the abstract issue of the standard of review that should be applied to decisions to admit or to exclude evidence under the principles enunciated in Daubert.
The circuits are split as to the standard of review for expert testimony.(16) Six apply a "manifestly erroneous" standard, four apply an abuse-of-discretion standard, and two apply the "particularly stringent" standard discussed in Joiner.(17) Application of the dominant abuse-of-discretion standard, which is used for many other kinds of evidentiary rulings, normally results in a strong measure of deference to the trial judge's ruling. However, the court of appeals in Joiner reasoned that "the Federal Rules of Evidence governing expert testimony display a preference for admissibility," and this preference requires applying "a particularly stringent standard of review to the trial judge's exclusion of expert testimony."
(18)In adopting a stringent standard for reviewing a trial court exclusion of apparently speculative scientific evidence culminating in summary judgment, the Eleventh Circuit was following in the footsteps of the Third Circuit. In In re Paoli Railroad Yard PCB Litigation (Paoli II),(19) which also happened to involve PCBs, Judge Edward Becker announced that a "hard look" would be given--not to all evidentiary rulings under Daubert--but only to those that "will result in a summary judgment . . . ."(20) Judge Becker gave two reasons for this rule. He maintained that "evaluating the reliability of scientific methodologies and data does not generally involve assessing the truthfulness of the expert witnesses and thus is often not significantly more difficult on a cold record."(21) And, to justify a hard look only at rulings excluding plaintiffs' evidence, he pointed to "a significant risk that district judges will set the threshold [for admission under Daubert] too high."(22)
It seems doubtful that the Supreme Court will countenance a rule so blatantly tied to preventing summary judgments, typically for defendants in toxic tort cases.(23) However, to the extent that decisions about the admissibility of scientific evidence transcend the facts of specific cases and involve determinations about the generally applicable state of scientific knowledge, more active appellate review can be justified.(24) Thus, the dissenting judge in Joiner offered "a more precise explanation"(25) of the standard of review. Judge Smith explained that "[t]he trial court's preliminary factfinding during a Rule 104(a) hearing to determine the admissibility of expert opinion is reviewed for clear error,"(26) but "[i]n applying the Daubert framework, the trial court's ruling on whether the expert opinion is (1) reliable (i.e., scientific knowledge grounded in the methods and procedures of science) and (2) relevant (i.e., 'fits' the fact of the case) is reviewed for abuse of discretion."(27) Whether an opinion amounts to "scientific knowledge," however, is a "question of law requiring plenary review."(28)
Ultimately, it is difficult to predict with any assurance how the Court will characterize the standard of review for Daubert rulings, and the operational significance of the differences in terminology is far from clear. In Joiner itself, plaintiffs argue that the "hard look" is merely a matter "of reserving extra judicial time and attention for important admissibility decisions,"(29) and they insist that the result on appeal was unaffected by the invocation of the hard-look standard.(30) If the Court were to agree with that reading of the opinions below, it could dismiss the writ of certiorari as improvidently granted. However, given the Court's interest in making sweeping pronouncements about scientific evidence as manifested in its actions to date in Daubert and Joiner, that outcome seems unlikely. Some discussion of the appellate standard of review can be expected, and that discussion probably will endorse the conventional abuse-of-discretion standard.
The more fundamental mystery of Daubert--the distinction between "methodology" and "conclusion"(31)--is not likely to be addressed, let alone clarified. And that is unfortunate, for this crucial distinction is routinely manipulated in both trial and appellate court opinions dealing with causation in toxic tort cases.
Edward Scheffer, a serviceman in the Air Force, worked briefly as an informant for the Air Force Office of Special Investigations (OSI). After he told investigators that two civilians were selling drugs, the OSI requested a urine sample and a polygraph test. Scheffer complied. The OSI's polygraph examiner concluded that Scheffer was not dissembling when he denied using drugs while in the Air Force,(32) but the urine test was positive for methamphetamine. A general court-martial followed. Scheffer denied knowingly ingesting drugs. He testified that he left the house of one of the civilians at about midnight, began driving toward March Air Force Base, and woke up in the morning in his car in a remote area without knowing how he got there.
Relying on Military Rules of Evidence 403 and 707, the trial judge excluded the polygraph results. Rule 707(a) reads: "[T]he results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking a polygraph examination, shall not be admitted into evidence."(33)
In closing argument, the prosecution maintained: "He lies. He is a liar. He lies at every opportunity he gets and he has no credibility. Don't believe him. He knowingly used methamphetamine, and he is guilty of Charge II."(34) The court-martial convicted Scheffer of using methamphetamine and of other offenses.(35)
The Air Force Court of Criminal Appeals affirmed the convictions, but a sharply divided Court of Appeals for the Armed Forces reversed. It reasoned as follows: "A per se rule of exclusion of polygraph evidence offered by an accused to rebut an attack on his credibility, without giving him an opportunity to lay a foundation under Mil. R. Evid. 702 and Daubert, violates his Sixth Amendment right to present a defense."(36) Significantly, the military court did not hold polygraph evidence admissible--to rebut an attack on credibility, or for any other purpose. Like the Fifth Circuit in United States v. Posado,(37) the military court of appeals emphasized that it was unable to determine "whether polygraph technique can be said to have made sufficient technological advance in the seventy years since Frye to constitute the type of 'scientific, technical or other specialized knowledge' envisioned by Rule 702 and Daubert."(38) It remanded the case to give Scheffer the opportunity to establish "that the underlying theory--that a deceptive answer will produce a measurable physiological response--is scientifically valid," that "the theory can be applied to appellant's case,"(39) and that "the examiner is qualified, that the equipment worked properly and was properly used, and that the examiner used valid questioning techniques."(40)
Scheffer is potentially even more destabilizing than several recent federal court decisions holding that Daubert necessitates abandoning a categorical rule of exclusion for polygraph evidence, at least pending a Rule 104 hearing on the current scientific validity of the polygraph as a lie detector.(41) Many, if not most, circuits already reject a per se rule of exclusion,(42) but state courts tend to be more implacably opposed to polygraph evidence.(43) Those states that have not adopted Daubert need not be swayed by the tremors triggered by Daubert. If Scheffer is correct, however, in grounding defendant's right to present polygraph evidence on the Sixth Amendment, then all per se rules--state and federal--must fall, at least when a criminal defendant offers the evidence in appropriate circumstances.(44)
Thus, the Supreme Court may have granted certioriari in Scheffer to decide whether to curb an expansive reading of the Sixth Amendment right to present a defense. Although a variety of both Fifth and Sixth Amendment opinions involving criminal due process, the right to compulsory process, and other matters radiate strongly enough to shed some light on the exclusion of defendant's evidence in Scheffer,(45) Both the Military Court of Appeals and petitioner's brief rely primarily on Rock v. Arkansas.(46) At first blush, the cases seem similar. Like Scheffer, Rock involved a rule categorically excluding a type of scientific evidence, namely, hypnotically induced or enhanced memories.(47) Indeed, the rule of inadmissibility for hypnotic memories rested on arguably more justified and extensive scientific doubts about the accuracy of such memories than the questions of validity that attend polygraphic lie-detection. Yet, the Court held that applying the rule to bar the defense from presenting the evidence gleaned from hypnosis violated the Sixth Amendment.(48)
Rock, however, involves extremely unusual circumstances. Vicky Lorene Rock and her husband Frank had been arguing. When police arrived at the couple's small apartment, they found Frank on the floor with a bullet wound in his chest. A very unsettled Vicky told police that after Frank "grabbed her by the throat and choked her and threw her against the wall," she "walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him."(49) Vicky was charged with manslaughter.
Because her memory of the details of the shooting were vague, Vicky consulted a psychologist who hypnotized her. She did not relate any new information under hypnosis, but after a second session she recalled that she did not have her finger on the trigger and that the gun discharged when Frank grabbed her arm. A gun expert then examined the weapon and found that it was prone to discharge when hit or dropped.
At trial, Vicky was not allowed to testify to anything that was not contained in a set of notes taken by the psychologist prior to the hypnotic sessions. Consequently, some "ninety-nine percent of everything" that Vicky wanted to say in her own behalf was excluded.(50)
Over a strong dissent from four justices,(51) the Supreme Court reversed the conviction that followed these evidentiary rulings. The majority opinion penned by Mr. Justice Blackmun observed that: "[R]estrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation on the defendant's constitutional right to testify." (52) The majority concluded that under the facts of the case,(53) "Arkansas' per se rule excluding all posthypnotic testimony infringes impermissibly on the right of a defendant to testify in his or her own behalf."(54)
But Rock is easily distinguished from Scheffer. First, Scheffer was not prevented from presenting his version of the underlying events in as much detail as he cared to. Second, rather than simply exercising of the Rock "right of a defendant to testify in his or her own behalf," Scheffer would have to call the OSI polygrapher as a witness.(55) Third, using polygraph evidence to rebut an attack on credibility is a collateral issue.(56) Fourth, a jury might appreciate the motivation (conscious or unconscious) of even a hypnotized defendant to fill in gaps in memory with exculpatory details, but sensitizing jurors to the sources and extent of false negative errors in polygraph testing could prove more difficult and time-consuming.
For such reasons, it seems doubtful that the Supreme Court will adopt the reasoning of the military court of appeals. It probably will deem Rule 707 to be constitutionally reasonable rather than arbitrary--a crystallization of the principles of Rules 702 and 403. The exclusionary rule for lie detectors may not be required just because of the lack of general acceptance of polygraph evidence in the scientific community, but the dissenting view in Rock that substantial doubt concerning the accuracy of a scientific technique permits jurisdictions to ban it--even when offered to exonerate a criminal defendant--seems likely to prevail in Scheffer.(57) If so, the significance of the Court's opinion will lie in how far it goes to restrict the growth of the largely undeveloped constitutional right of criminal defendants to present evidence in their own behalf in the teeth of well-established exclusionary rules. The law's perpetual tension between rules and standards is apparent here.(58)
2. Regents' Professor, Arizona State University College of Law. I am grateful to Ralph Spritzer for helpful comments on a draft of this article and to William Fay and to Jennifer Reed for their assistance in preparing the article. [BACK]
3. 78 F.3d 524 (11th Cir. 1996), cert. granted, 117 S. Ct. 1243 (1997). BACK]
4. 44 M.J. 442 (C.A.A.F. 1996), cert. granted, 117 S. Ct. 1817 (1997). [BACK]
5. Joiner v. General Elec. Co., 864 F. Supp. 1310, 1313 (N.D. Ga. 1994), rev'd, 78 F.3d 524 (11th Cir. 1996). [BACK]
6. Id. at 1314. The complaint did not allege fraud as to Monsanto. Id. Plaintiffs sought a variety of damages, including loss of consortium and punitive damages. Id. [BACK]
7. Id. at 1313-14. [BACK]
8. Joiner v. General Elec. Co., 78 F.3d 524, 528 (11th Cir. 1996). [BACK]
9. Id. [BACK]
10. 864 F. Supp. at 1322-27 (discussing studies of PCBs). [BACK]
11. 78 F.3d at 528. [BACK]
12. 864 F. Supp. at 1318. [BACK]
13. Id. at 1322. [BACK]
14. 78 F.3d at 528 (opinion of Judge Barkett). Judge Birch "concur[red] in this opinion," emphasizing in his concurring opinion that the district court exceeded its role as "gatekeeper" by examining the weight and sufficiency of the evidence). Id. at 534. [BACK]
15. 509 U.S. 579 (1993). [BACK]
16. See, e.g., 1 Modern Scientific Evidence: The Law and Science of Expert Testimony § 1-3.5, at 38 (David Faigman et al. eds., 1997). [BACK]
17. Brief for Petitioners, at 24-25, Joiner v. General Elec. Co. (No. 96-188). It is generally said that appellate courts review a grant of summary judgment "de novo," to verify that "there is no genuine issue of material fact." Joiner, 78 F.3d at 529. [BACK]
18. Id. [BACK]
19. 35 F.3d 717 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995). [BACK]
20. Id. at 750 (citation omitted). [BACK]
21. Id. at 749. [BACK]
22. Id. at 750. The risk was thought to result from the "somewhat amorphous" nature of Rules 702 and 703. Id. [BACK]
23. Cf. Modern Scientific Evidence, supra note 13, § 1-3.5, at 39 ("although Daubert recognizes and emphasizes the liberal thrust of the Rules, the decision also frames a gatekeeping function for trial court judges that limits their liberality. The gatekeeping responsibility does not change in relation to the proponent of the evidence, or the outcome, such as summary judgment, that follows from the admissibility decision."). [BACK]
24. Id. at 38-39. [BACK]
25. 78 F.3d at 535. [BACK]
26. Id. at 536. [BACK]
27. Id. [BACK]
28. Id. at 535 (citing Cook v. American Steamship Co., 53 F.3d 733, 738 (6th Cir. 1995)). [BACK]
29. Brief for Respondents, at 29, Joiner v. General Elec. Co. (No. 96-188). [BACK]
30. Id. at 31 ("reference to the abuse-of-discretion standard of review, and the 'hard look' that at times is called for under that standard, was only a dictum that did not turn out to be relevant to the disposition of the case. . . . It follows that even if the Court does not agree with the standard of review recited in the dictum below, the judgment of the court of appeals still must be affirmed."). [BACK]
31. See, e.g., D.H. Kaye, Science in Evidence 99 (1997). The same difficulty plagues Daubert's predecessor, the general acceptance standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). [BACK]
32. The examiner also discerned "no deception" in Scheffer's statements that he never lied in providing information on drugs to the OSI, and that he never told anyone other than his parents of his work for the OSI. 44 M.J. at 443. [BACK]
33. The President promulgated Military Rule of Evidence 707 in 1991. Exec. Order No. 12,767, 3 C.F.R. 334, 339-40 (1991). Article 36(a) of the Uniform Code of Military Justice, 10 U.S.C. § 836(a), provides that "[p]retrial, trial, and post-trial procedures, including modes of proof . . . , may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." Prior to both Rule 707 and Daubert, the predecessor of the Court of Appeals for the Armed Services had held in United States v. Gipson, 24 M.J. 246 (C.M.A. 1987), that polygraphy had reached a sufficient degree of reliability that Rule 702 did not automatically bar polygraphy evidence from court-martial proceedings. [BACK]
34. Id. at 444. [BACK]
35. The court-martial also convicted Scheffer of cashing bad checks failing to go his place of duty, and being absent from duty. Id. at 443. [BACK]
36. Id. at 445. [BACK]
37. 57 F.3d 428 (5th Cir. 1995) (holding that Daubert precludes the use of the circuit's per se rule against admitting polygraph results to deny defendant the opportunity to demonstrate that such evidence satisfies Rule 702). [BACK]
38. Scheffer, 44 M.J. at 446 (quoting Posado, 57 F.3d at 433). [BACK]
39. Id. at 446-47. The outcomes of Daubert hearings on scientific validity and applicability could lead to something of a puzzle. Presumably, trial courts simply could find that the scientific status of polygraphy is too weak to establish admissibility under Daubert. If so, there would be no need for still more case-by-case inquiries (at least until such time as further proof of scientific advances materialized), and the per se rule would be reinstated. Appellate courts should review these possible Daubert rulings on the basis of the record about scientific validity created below and their own evaluation of the scientific literature. They should not hold that merely because Scheffer alluded to advances in polygraphy based on a cursory review of the literature, the per se rule cannot be justified under Daubert. In this way, even the appellate court's holding in Scheffer does not represent a definitive rejection of the per se rule. As that court stated, "we . . . cannot yet determine 'whether polygraph technique can be said to have made sufficient technological advance . . . .'" 44 M.J. at 446. [BACK]
40. In addition, the court observed that the military judge must apply Rule 403. Id. at 447. [BACK]
41. The leading such case is Posado, 57 F.3d at 436. See also United States v. Cordoba, 104 F.3d 225 (9th Cir. 1997) ("Daubert effectively overruled [this circuit's] per se rule under Rule 702 against admission of unstipulated polygraph evidence."). The logic of these cases is difficult to comprehend. If it is true that "[s]ince the Frye decision, tremendous advances have been made in polygraph instrumentation and technique" (United States v. Piccinonna, 885 F.2d at 1529, 1532 (11th Cir. 1989)), the viability of the exclusionary rule is open to attack under Frye to much the same extent as it is under Daubert. Therefore, it is far from clear that Daubert should produce such instability in the previously settled rules for admitting or excluding polygraph evidence. [BACK]
42. See cases cited, Scheffer, 44 M.J. at 444-45. [BACK]
43. The exception is New Mexico, whose courts routinely admit polygraph evidence. [BACK]
44. See James R. McCall, Misconceptions and Reevaluation--Polygraph Admissibility after Rock and Daubert, 1996 U. Ill. L. Rev. 363 (1994). [BACK]
45. See, e.g., Montana v. Engelhoff, 116 S. Ct. 2013 (1996) (upholding Montana's proscription of evidence of voluntary intoxication on the issue of whether the defendant possessed the required mental state); Taylor v. Illinois, 484 U.S. 400, 409-10 (1988) ("We cannot accept the State's argument that this constitutional right [to compulsory process] may never be offended by the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness," but "Petitioner's claim that the Sixth Amendment creates an absolute bar to the preclusion of the testimony of a surprise witness is just as extreme and just as unacceptable . . . . The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."); Crane v. Kentucky, 476 U.S. 683 (1986) (holding that the exclusion of testimony at trial concerning circumstances of defendant's confession, on ground that the testimony pertained solely to issue of voluntariness resolved against defendant in pretrial ruling, deprived him of a fair trial); Chambers v. Mississippi, 410 U.S. 284 (1973) (invalidating hearsay as applied to preclude a murder defendant from introducing another person's corroborated confessions to the murder); Washington v. Texas, 388 U.S. 14 (1967) (invalidating statute deeming persons charged as principals, accomplices, or accessories incompetent to testify as witnesses for one another). [BACK]
46. 483 U.S. 44 (1987). [BACK]
47. Although the excluded evidence in Rock did not emanate from an expert, it nevertheless implicated the rules for scientific evidence. Hypnotically enhanced memories, like expert scientific testimony, might be thought to be more trustworthy because they result from the application of a seemingly scientific procedure by an expert. [BACK]
48. 483 U.S. at 47. [BACK]
49. Id. at 46. [BACK]
50. Id. at 48 n. 4. But see Rock v. State, 708 S.W.2d 78, 85 (Ark. 1986) ("In reality, nothing was excluded that would have been of much assistance to appellant, or would have enlarged on her testimony to any significant degree."). [BACK]
51. Chief Justice Rehnquist and Justices White, O'Connor, and Scalia concluded that where "scientific understanding . . . is still in its infancy," rendering a type of testimony "inherently suspect," "[t]he Constitution does not in any way relieve a defendant from compliance with 'rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt or innocence.'" 483 U.S. 62, 64-65 (dissenting opinion). [BACK]
52. 483 U.S. at 56. [BACK]
53. These facts included "the defective condition of the gun [corroborating] the details petitioner remembered about the shooting" and tape recordings of the hypnotic sessions that "provided some means to evaluate the hypnosis." Id. at 62. [BACK]
54. Id. [BACK]
55. This poses a somewhat technical obstacle to admissibility not considered in the proceedings below or the briefs filed by the parties. If Scheffer were to testify about the findings of the polygraph examiner, it would be hearsay. If the polygrapher were to testify (or a written report of the polygrapher were admitted under an exception to the hearsay rule), then the evidence would extrinsic evidence of conduct in a specific instance rather than reputation or opinion evidence of truthfulness. Under Rule 608(b), such specific-instance evidence may not be used to refute the prosecution's attack on the defendant's character for truthfulness ("He is a liar"). Yet, that is the only use of the evidence that the military court seemed to contemplate. See 44 M.J. at 445 ("A per se exclusion of polygraph evidence offered by an accused to rebut an attack on his credibility, without giving him an opportunity to lay a foundation under Mil. R. Evid. 702 and Daubert, violates his Sixth Amendment right to present a defense.") (emphasis added). [BACK]
56. Of course, as a practical matter, where the defendant takes the witness stand and denies committing the crime, defendant's credibility can become the dispositive issue for the jury. [BACK]
57. Three of the dissenters in Rock (Chief Justice Rehnquist and Justices O'Connor and Scalia) are on the Court that will decide Scheffer, while only one of the majority remains (Justice Stevens, but not Justice Brennan, Marshall, or Powell). [BACK]
58. See generally, e.g., Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991); Larry Alexander & Emily Sherwin, The Deceptive Nature of Rules, 142 U. Pa. L. Rev. 1191 (1994); Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. Legal Stud. 257 (1974); Richard A. Epstein, The Risks of Risk/Utility, 48 Ohio St. L.J. 469 (1987); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976); William Powers, Jr., Structural Aspects of the Impact of Law on Moral Duty Within Utilitarianism and Social Contract Theory, 26 UCLA L. Rev. 1263 (1979). [BACK]