Blind expertise

Research output: Contribution to journalArticle

28 Citations (Scopus)

Abstract

The United States spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court appointment of experts has been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction in the American adversarial system. Drawing on the notion of blind research from the sciences and on the concept of the veil of ignorance from political theory, this Article offers a novel and feasible reform that will make it rational for self interested litigants to present unbiased experts to factfinders. The idea is to use an intermediary to select qualified experts who will render litigation opinions without knowledge of which party is asking. The result will be greater accuracy of both expert opinions and litigation outcomes compared to both the status quo and litigation with court appointed experts. A game theory analysis shows that the current attorney work product protections make this"blind expert" procedure a low cost and no risk rational strategy for litigants. This Article argues that blind expertise is a worthwhile reform for the system of medical malpractice liability in particular and may have wider application wherever laypersons must rely upon the advice of potentially biased experts.

Original languageEnglish (US)
Pages (from-to)174-257
Number of pages84
JournalNew York University Law Review
Volume85
Issue number1
StatePublished - Apr 2010
Externally publishedYes

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expertise
expert
witness
layperson
reform
game theory
deterrence
political theory
dollar
liability
present
costs
science

ASJC Scopus subject areas

  • Law

Cite this

Blind expertise. / Robertson, Christopher T.

In: New York University Law Review, Vol. 85, No. 1, 04.2010, p. 174-257.

Research output: Contribution to journalArticle

Robertson, CT 2010, 'Blind expertise', New York University Law Review, vol. 85, no. 1, pp. 174-257.
Robertson, Christopher T. / Blind expertise. In: New York University Law Review. 2010 ; Vol. 85, No. 1. pp. 174-257.
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