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Summary. Arguing in a mixed-methods design—drawing on both qualitative data and formal analysis—that much of what lobbyists do isn't really quid pro quo corruption, notwithstanding the appearances.

Summary. Democratic superdelegates can bring in the campaign contributions.

Summary. 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.

Summary. The modern capitalist society, characterized by decentralized decision making and increasingly sophisticated products and services, turns on relationships of epistemic reliance, where laypersons depend upon advisors to guide their most important decisions. Yet many of those advisors lack real expertise and may be biased by conflicting interests. In such situations, laypersons are likely to make suboptimal decisions that sometimes aggregate into systematic failures, from soaring health care costs to market crashes. Regulators can attempt to manage the symptoms and worst abuses, but the fundamental problem of biased advice will remain. There are many potential policy solutions, from outright bans on conflicting interests to disclosure mandates, yet their comparative effectiveness is poorly understood. By constructing a decision task for human subjects and providing advice in various scenarios, this Article reports new experiments testing alternative policy mechanisms. Prior research has shown that disclosure mandates can be deleterious if they make advisors more biased, but this paper contextualizes those findings. It turns out that disclosures may be valuable in settings where relative expertise is low, but deleterious where relative expertise is high. By also disaggregating the data, one finds that disclosures of conflicting interests may hurt laypersons in the majority of situations where the conflicted advice is not actually biased. Thus, the evidence suggests that, if they are to be at all effective, disclosure mandates should be narrowly tailored. Most importantly, the evidence shows that a disclosure mandate improves layperson performance when unbiased advisors are also available. Yet laypersons appear to be poor judges of their need for unbiased advice, so market mechanisms may be ineffective for provisioning unbiased advice. In the end, the presence of an unbiased advisor is the strongest determinant of layperson performance, and thus policymakers must develop ways of aligning the interests of advisors and laypersons. Pay-for-performance, blinding of experts, and mandatory or subsidized second-opinion policies are likely to be helpful in aligning these interests.

Summary. In a recent symposium article (Expert Mining and Required Disclosure, 81 U Chi. L. Rev. 131 (2014)), Professor Jonah Gelbach discusses the problem that a litigant in the American adversarial system can consult multiple expert witnesses on a given question but only disclose the single most favorable opinion to the fact finder (a jury, judge, or arbitrator). He calls this the problem of “expert mining.” In particular, Gelbach considers whether a policy that requires litigants to disclose to the fact finder the number of experts that they consulted might be a satisfactory solution to the problem. Alternatively, Gelbach considers whether an even more radical change to the American litigation system — the exclusion of all expert opinions rendered after the first one — might be necessary. In doing so, Gelbach extensively discusses my own work on this problem and the third solution I developed in a 2010 article, Blind Expertise, 85 NYU L. Rev. 174 (2010). There, I show that expert mining is one part of a broader problem of expert bias, and I propose a conditional-disclosure rule as the solution. This Essay provides some analysis of Gelbach’s framing of the problem, reviews the blinding proposal, and identifies the limits of Gelbach’s analyses.

Summary. Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony.

Summary. “Blind expertise” has been proposed as an institutional solution to the problem of bias in expert witness testimony in litigation, as a way to improve litigation outcomes. At the request of a litigant, an intermediary selects a qualified expert and pays the expert to review a case without knowing which side requested the opinion. This paper reports an experiment that tests the hypothesis that, compared to traditional experts, such “blinded experts” will be more persuasive to jurors. A national sample of mock jurors (N = 275) watched an online video of a staged medical malpractice trial, including testimony from two medical experts, one of which (or neither, in the control condition) was randomly assigned to be a blind expert. We also manipulated whether the judge provided a special jury instruction explaining the blinding concept.

Summary. This paper explores the empirical evidence regarding the impact financial relationships on the behavior of health care providers, specifically, physicians. We identify and synthesize peer-reviewed data addressing whether financial incentives are causally related to patient outcomes and health care costs. We cover three main areas where financial conflicts of interest arise and may have an observable relationship to health care practices: (1) physicians' roles as self-referrers, (2) insurance reimbursement schemes that create incentives for certain clinical choices over others, and (3) financial relationships between physicians and the drug and device industries. We found a well-developed scientific literature consisting of dozens of empirical studies, some that allow stronger causal inferences than others, but which altogether show that such financial conflicts of interests can, and sometimes do, impact physicians' clinical decisions. Further research is warranted to document the causal relationship of such changes on health outcomes and the cost of care, but the current base of evidence is sufficiently robust to motivate policy reform.

Summary. The Supreme Court says that campaign finance regulations are unconstitutional unless they target “quid pro quo” corruption or its appearance. To test

Summary. The law has long been concerned with the agency problems that arise when advisors, such as attorneys or physicians, put themselves in financial relationships that create conflicts of interest. If the financial relationship is "material" to the transactions proposed by the advisor, then non-disclosure of the relationship may be pertinent to claims of malpractice, informed consent, and even fraud, as well as to professional discipline. In these sorts of cases, materiality is closely related to the question of causation, roughly turning on whether the withheld information might have changed the decision of a reasonable advisee (i.e., a patient). The injured plaintiff will predictably testify that the information would have impacted his or her choice, but that self-serving testimony may be unreliable. The fact finder is left to speculate about the counterfactual world in which the information was disclosed. This Article shows how randomized vignette-based experimentation may create a valuable form of evidence to address these questions, for both litigation and policymaking. To demonstrate this method and investigate conflicts of interest in healthcare in particular, we recruited 691 human subjects and asked them to imagine themselves as patients facing a choice about whether to undergo a cardiac stenting procedure recommended by a cardiologist. We manipulated the vignettes in a 2 x 3 between-subjects design, where we systematically varied the appropriateness of the proposed treatment, which was described in terms of patient risk without the procedure (low or high), and manipulated the type of disclosure provided by the physician (none, standard, or enhanced). We used physician ownership of the specialty hospital where the surgery would be performed as the conflict of interest, disclosed or not, and the "enhanced" disclosure included notice that such relationships have been associated with biases in prescribing behavior. We found that the mock patients were significantly less likely to follow the cardiologist's recommendation of surgical implantation of a drug-eluting stent when he disclosed a financial conflict of interest, regardless of whether the disclosure was standard or enhanced. We also found that the mock patients were more likely to choose the treatment when they faced greater risk without it. We did not, however, find that the disclosure made patients more discerning about the appropriateness of the procedure. We discuss the implications for law and policy. Mock patients seem likely to act upon such information, declining the low-value healthcare when conflicts are disclosed. This finding suggests that the information is material to such transactions, and that disclosures may be salutary for medical decisions. Arguably, therefore, physicians already have a duty under the common law to disclose the financial relationships they choose to accept. Other regulators and policymakers should recognize and clarify this duty, and courts should embrace this form of evidence. Methodologically, although this empirical approach has limits, it reduces speculation by fact finders and policymakers, by at least focusing their attention on the right questions.

Summary. Physicians discriminate among trials of varying degrees of rigor, but industry sponsorship negatively influences their perception of methodologic quality and reduces their willingness to believe and act on trial findings, independently of the trial's quality. These effects may influence the translation of clinical research into practice.

Summary. Like all physicians, radiologists in the United States are subject to frequent and costly medical malpractice claims. Legal scholars and physicians concur that the US civil justice system is neither precise nor accurate in determining whether malpractice has truly occurred in cases in which claims are made. Sometimes, this inaccuracy is driven by biases inherent in medical expert-witness opinions. For example, expert-witness testimony involving "missed" radiology findings can be negatively affected by several cognitive biases, such as contextual bias, hindsight bias, and outcome bias. Biases inherent in the US legal system, such as selection bias, compensation bias, and affiliation bias, also play important roles. Fortunately, many of these biases can be significantly mitigated or eliminated through the use of appropriate blinding techniques. This paper reviews the major works on expert-witness blinding in the legal scholarship and the radiology professional literature. Its purpose is to acquaint the reader with the evidence that unblinded expert-witness testimony is tainted by multiple sources of bias and to examine proposed strategies for addressing these biases through blinding.