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The previous article in this series [NLJ, Oct. 25] pointed out that although some courts now accept expert ethical testimony on descriptive and metaethical issues, there is a sharp controversy over normative testimony. When, if ever, should a court accept such testimony? The distinction between a court’s legislative and adjudicative functions is one of the keys to answering that question. Although the judiciary is distinct from “the legislature,” in reality courts sometimes perform legislative functions. A judge performs an essentially legislative function when the judge fills a gap in the law by formulating a common law rule, determining the proper construction of a statute, or framing a constitutional rule. Wrestling with the question of social policy In these settings, the court is wrestling with a question of social policy and creating law. In contrast, the court performs an adjudicative function when it determines the specific historical “facts of the particular case,” that is, the facts about the immediate parties and their conduct. To perform the latter function, the court weighs the credibility of witnesses rather than pondering policy considerations. The significance of the distinction between a court’s legislative and adjudicative functions is that the formal evidentiary rules are inapplicable to information submitted to a court to enable the court to perform a legislative function. Kenneth Culp Davis has long argued that the technical evidentiary rules should be inapplicable to a court’s or administrative agency’s notice of information relevant to its performance of a legislative task. Davis, “Judicial Notice,” 55 Colum. L. Rev. 945 (1955). Davis attacked both the Model Code of Evidence and the uniform rules because, in his judgment, both codes unduly restricted a court’s ability to dispense with compliance with evidentiary rules. Federal Rule of Evidence 201 governs formal judicial notice. Subdivisions (c)-(g) of Rule 201 mandate special procedures for formal judicial notice. Rule 201(a) reads: “This rule governs only judicial notice of adjudicative facts.” The accompanying note indicates that formal procedures such as those specified by subdivisions (c)-(g) should not restrict the judge’s notice of information for legislative purposes. The rules of evidence should not apply when a court is performing an essentially legislative function. Landell v. Sorrell, 382 F.3d 91, 203 (2d Cir. 2004). It is sensible to apply those rules only when the court is resolving disputed issues of adjudicative fact. The “formal” evidentiary rules have a legitimate role to play when the court must reconstruct historical events and pass on credibility. However, it is unnecessary and wasteful to apply them when the court is engaged in a creative, law-making function. When a judge is so engaged, the procedures are informal, and the judges are not limited to information cited or submitted by the litigants. Many of the published opinions accepting expert ethical testimony are cases of first impression. In these cases, there are no precedents, or a litigant is asking the court to overturn prior precedents. This is precisely the type of case in which the court is most likely to be asked to perform an essentially legislative function. When a bioethical case falls into a void left by the legislature, litigants often ask the court to fill the gap by formulating a rule of law. The court is being called on to engage in judicial legislation. In this situation, the judge could find an ethicist’s normative views relevant as well as useful. To be sure, in a formal sense the judge is resolving a legal dispute, and some legal disputes do not pose moral issues. In other cases, though, the legal dispute raises moral questions, and in the process of disposing of the legal question, the judge must or at least may advert to moral values. The judge is formulating social policy, but moral analysis can be a part of policy formation. Consider the development of tort law. As one of the leading texts on that subject observes, many tort doctrines reflect moral considerations. Prosser and Keeton on the Law of Torts � 4 (5th ed. 1994). Tort doctrine is inspired in part by notions of moral responsibility and corrective justice. Dobbs, the Law of Torts � 8 (2000). Expert normative analysis can be relevant and help inform the judge’s formulation of legal doctrine such as tort rules. When the proponent offers the analysis to help the judge perform an essentially legislative function, the evidentiary restrictions are inapplicable. Suppose that the plaintiff sued a medical device manufacturer. The plaintiff alleged that the manufacturer defectively designed a heart device and that, as a result of the design, she suffered a serious heart attack. In the liability phase of the case, the jury returned a verdict in the plaintiff’s favor. The damages phase now goes to trial. In this phase, the plaintiff seeks punitive as well as compensatory damages. As the basis for the punitive damages claim, the plaintiff alleges that the defendant acted recklessly in continuing to market the device after it had received numerous complaints from customers and their physicians. In this jurisdiction, there is a pattern instruction on punitive damages. The jury will be charged that in deciding whether to award punitive damages, the jurors should consider whether the defendant’s conduct was “morally reprehensible.” 1 Calif. Jury Instructions-Civil Baji 7.12 (9th ed. 2002). Anticipating that instruction, the plaintiff calls an ethicist as an expert witness. In this hypothetical, the information is not being proffered for a legislative purpose. The plaintiff is not submitting the information to the judge to persuade the trial judge to revise the jurisdiction’s damages law to permit punitive damages. By case law, statute or constitutional provision, this jurisdiction has already settled the legal standard. Should the judge ever admit ethical testimony for adjudicative purposes? Sometimes, the answer is yes. To begin with, the legal standard has to be interpreted as requiring or inviting the decision-maker to bring moral judgment to bear. Not all legal standards require that the trier must apply moral judgment. On its face, a legal standard can be morally neutral even if moral judgment originally entered into the legislative choice of the standard. As finally formulated, the standard might not require or even permit the trier of fact to exercise moral judgment in applying the standard. However, in the hypothetical, the phrasing of the instruction incorporates the expression “morally reprehensible.” More narrowly, the standard has to be interpreted as alluding to normative moral judgment. Even after finding a reference to “moral” or “morally,” the judge should not leap to the conclusion that the legal standard calls for normative ethical analysis. The rule of law might invite only descriptive testimony. Suppose, for example, that in addition to a statutory section authorizing the consideration of “moral reprehensibility” as a factor in whether to award punitives, the legislation includes a definition of the expression. The definition specifies that the reprehensibility of the conduct must be judged by the moral standards of “ordinary decent people.” The statute makes it clear that the decision-maker is to apply the extant moral standards accepted by ordinary laypeople. The petit jurors do not need the benefit of expert testimony about those standards, since as laypeople they are already familiar with those standards. The question is what those standards are, not what an ethicist believes the standards ought to be. Finally, the law of the jurisdiction in question must allocate the decision to the trier of fact; the jurisdiction assigns the decision to the jury. In a procedural sense, the jurisdiction has elected to treat the question as an adjudicative issue rather than as a legislative question. When normative testimony passes admissibility muster The reader might wonder whether normative testimony can ever fall within these parameters and pass muster for admissibility. The answer is yes. Although the number of qualifying fact situations is quite small, there can be cases that satisfy all the criteria. In a civil action seeking punitive damages, the decision whether to award such damages is ordinarily allocated to the jurors in jury trial. The lay jurors adjudicate the question of damages as well as the threshold liability issue. As we have seen, some jurisdictions follow the view that in deciding whether to award exemplary damages, the jurors may consider the reprehensibility of the defendant tortfeasor’s conduct. Nor are the examples limited to the civil setting. One variation of the entrapment defense is illustrative. The majority of American jurisdictions subscribe to the subjective version of the entrapment defense, exculpating only an accused who lacks a disposition toward criminal misconduct. However, a minority of states also recognize the objective version of the doctrine, calculated in part to deter police misconduct. Marcus, The Entrapment Defense � 10.03 (1989). In some of those jurisdictions, the reprehensibility of the police conduct is one of the factors to gauge in deciding whether to sustain the defense. Annot., 18 A.L.R.5th 1 (1994). Although most of the states following the objective test treat the judge as the trier of fact, some assign the entrapment decision to the jurors. Marcus, supra, at 5.02. The admissibility of an expert normative analysis largely depends on the proponent’s purpose: Is it being offered for legislative or adjudicative purposes? In many settings in evidence law, the admissibility of testimony turns on the purpose for which it is proffered. For example, depending on the purpose, testimony about an out-of-court statement could be perfectly admissible nonhearsay or blatantly inadmissible hearsay. Identifying the purpose of the testimony is also critical in character evidence. As we have seen, to a degree the same pattern sometimes holds true in expert opinion on ethical matters. Edward J. Imwinkelried has been appointed the Edward L. Barrett Professor of Law at the University of California, Davis School of Law.

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