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Wal-Mart and Beyond: Can Social Science be Itself in Court? (Response to Professor Winship)

Amy Myrick is a doctoral student in sociology at Northwestern University. Amy completed her JD from Northwestern University Law in 2009. Amy helped draft the Amicus Brief filed by the ASA about the Wal-Mart case and is a coauthor with Laura Beth Nielsen on related papers.  The following is a response to Chris Winship’s earlier post about the Amicus Brief.

Wal-Mart attacked Sociology.  The ASA responded. 

An important overlooked point for those who think the ASA should have abstained:  the ASA decided to file a brief in this case to defend sociology at large, not to defend Bill Bielby or his conclusions.  Wal-Mart’s Supreme Court brief – widely read and reported in both academic and non-academic circles – attacked not just the expert in this case, but sociology’s basic legitimacy in a way that demanded a response.  Wal-Mart claimed that because women employees could not identify a specific discriminatory policy, they had to rely on “statistics, sociology, and anecdote.”  Wal-Mart then derided each of these sources of evidence, devoting an entire section of its brief to the discipline that ASA helms and to which we all belong.  At minimum, Wal-Mart picked the fight.

Wal-Mart then used an article from a law review (not peer-reviewed) to summarize what sociology “does” and is incapable of doing, even adopting a term – social framework analysis – that sociologists do not own, and that fails to capture sociology’s actual capabilities.  According to Wal-Mart, “Dr. Bielby’s social frame-work analysis fails because it lacks a reliable, scientific basis for linking general research to the corporate setting.”  This assertion does two things:  it labels sociology with legal jargon and claims that, per methodological shortcomings, its cumulative research has no “scientific” value in court.

Had ASA not filed a brief, Wal-Mart would have been allowed to redefine sociology as part of a sham triumvirate that has nothing “scientific” to say about corporate practice in cases like this.  Walking away would have been an embarrassing surrender.  The ASA brief is clear that it aims to show how sociology can make supported claims about how particular cases are likely to work based on cumulative research, and that reliable methods govern this process – in other words, this is science.  Bielby comes in only in reference to whether or not he used those methods.  In the ASA’s own words:

While we offer no opinion on the substance of Dr. Bielby’s testimony or conclusions, we stress that the methods through which he reached these conclusions are widely accepted and are the bases for research published in the top peer-reviewed social science research journals.”

The ASA defended Bielby’s Methods.  Some Disagree.

            If only sociology’s reputation were at stake, the ASA could have filed a brief that did nothing more that explain what sociology is and try to differentiate itself from (bad, in Wal-Mart’s view) statistics and anecdote, thereby defending its relevance.  But the ASA brief went farther – it placed a disciplinary stamp of approval on Bielby’s specific methods.  To review, that method was to: (1) review aggregate literature on employment practices and their effects, (2) make qualified (“may”/ “might”) claims about the likely effects of Wal-Mart’s practices on the organization’s vulnerability to discrimination; (3) using discovery materials provided by Wal-Mart, based on how they relate to the cumulative findings.

This is where Professor Winship says he diverges.  While he agrees that sociology “obviously” should play a role in court cases, he rejects Bill Bielby’s form of participation (delivery of expert testimony in support of plaintiffs) as generally “problematic” because it falls short of sociology’s standards for research, which, from the legal side, are also what Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) requires for admissibility.  Professor Winship believes, contrary to the ASA, that Bill Bielby and other sociologists who testify for plaintiffs do not meet scientific standards.

Professor Winship offers three ways that scientific rigor is compromised by experts like Bielby:  1) Their “appropriate participation” is hampered by litigation dynamics that select for scientists with extreme views, conceal their testimony from peers, give judges wide power to choose what to admit, and preclude original research; 2) The logic of law requires a scientist to ignore conflicting evidence, whereas the logic of science requires her to weigh and address it; and 3) Sociology’s public image will be tarnished if people see it as adversarial, partisan, or changing over time.

Professor Winship presents this broad swath of concerns as collectively threatening to scientific standards, and therefore relevant to how (although he seems to mean “whether”) social scientists can participate in litigation.  But, unpacked, they seem to threaten in different ways that suggest different responses.  While some deal with methods and veracity of knowledge – perhaps the most central issue for ASA – others deal with format, and a third set relate to extra-scientific issues of reputation.

1. The Epistemic Critique:  Unscientific Because It’s Wrong or Unsupported?            

Some of Professor Winship’s concerns revolve around whether the epistemic content of expert testimony can meet rigorous scientific standards – in other words, whether experts can know what they claim to know.  This concern echoes Wal-Mart by suggesting that the kind of sociological conclusions that experts reach are simply not supportable by methods that draw on cumulative research.  Winship, too, worries that because experts “cannot conduct the types of research that they might otherwise,” their conclusions in cases are scientifically suspect.  He notes that Barbara Reskin, an experienced plaintiff’s expert, has refused to draw “scientific conclusions” and admitted that her testimony would not be published in peer reviewed journals.

Winship’s concerns about the quality of knowledge suggest that scientific “rigor” only attaches at the point of publication.  In reality, producing research involves lots of steps.  The first step – forming a non-arbitrary, testable hypothesis based on what cumulative research suggests about the case at hand – is closest to what social science experts do when litigation constraints prevent them from conducting new research.  As Barbara Reskin notes, her role “is to use my scientific expertise and to draw on social science knowledge to try …to understand what might be going on.”  This is something that sociologists do all the time in research, most often at the hypothesis-making stage.  Unless one thinks that there is no “rigorous” method at work in hypothesis formation, or that this task is unscientific, Winship’s concern is overblown.

From the legal side, the correct Daubert standard is not whether the expert opinion is publishable as scientific research.  Again, this is impossible given what can be delivered in the courtroom context.  Instead, Daubert requires that the methods be legitimate within the discipline for the purpose they are being used.   There are lots of different purposes in science, everything from conducting original causal research, to reviewing aggregate findings, to forming a preliminary hypothesis.  In litigation, the expert’s purpose is to offer an informed (not arbitrary or subjective) opinion about a particular case that she cannot access first-hand, drawing on her background knowledge.  Daubert then requires this to be done in a way that meets disciplinary standards.  It is a fallacy to say that Daubert requires all expert testimony to be the equivalent of academic publication.  Publishing is only one of many things that social scientists do.  Expert testimony is much more akin to making an informed hypothesis based on currently available information and cumulative past findings.

The difference, of course, is that expert hypotheses delivered in court normally cannot be tested at a later time.  So, they remain forever preliminary.  But, preliminary doesn’t mean “unscientific” or “un-rigorous”; it simply invokes a different stage of the process.

2. The Formatting Critique: Unscientific Because It’s One-Sided?

A major theme for Professor Winship is that expert testimony cannot be scientific if it presents only one of multiple possible views.  This concern underwrites his point about the different logics of law and science, the latter of which he claims is consensual, and therefore requires scientists to address conflicting evidence.  Here Professor Winship seems to conflate the presentation stage of research with the conclusion-forming stage.  The latter does, indeed, require scientists not to ignore conflicting evidence when reaching their conclusions about data.  But, the reason for this mandate is accuracy (see above on epistemic content) – not a logic of consensus.  In Wal-Mart, the question is whether the expert had information that he believed would contradict his conclusion (that Wal-Mart’s employment practices may be discriminatory because they have been linked to discrimination) but chose not to consider it.  That would be unscientific.  Professor Winship has not made this claim (yet!).

Luckily, the “adversarial logic” of law doesn’t require experts to downplay conflicting evidence when reaching their conclusions.  They are, of course, under an oath to speak truthfully, and Daubert requires them to speak as good disciplinarians.  The law requires experts to state a conclusion that they believe is valid according to generally accepted scientific standards.

The adversarial logic of law, however, allows them to make a one-sided presentation after conclusions have been reached.  But here there is no conflict with science.  It is perfectly acceptable, and standard, for sociologists to present work that offers their interpretations alone.  Sociologists who find that culture drives vote choice need not present conflicting research that the economy drives vote choice in order to satisfy disciplinary logics, consensual or otherwise.  At the presentation stage, format is negotiable.  So, there is nothing “unscientific” about providing a one-sided presentation.  Selectively forming conclusions, in disregard of data, is unethical, but that allegation about experts remains to be made.  Barring that, each adversary is responsible for presenting work that supports its position – not too different from an ASA conference panel.

3.  The Reputational Critique: Unscientific Because of Popular Perception? 

Finally, Professor Winship is concerned that by participating in litigation, sociologists will sully their reputation for scientific objectivity.  He worries that sociology will lose its “authoritative” voice if people see it as 1) open for adversarial retention, 2) partisan, or 3) evolving in its views.

These concerns suggest that sociologists should chill useful knowledge in the interests of reputation management.  We find this idea especially appalling.  Professor Winship says he chose his field because he wanted to use science to help “make[] a better world.”  In the area of employment discrimination, social science has moved toward that goal by generating reams of knowledge about how actual practices work, and has the tools to frame valid knowledge for use in the courts.  But, worried that it will not reflect well on its creators, Professor Winship urges sociology  to think about ourselves instead of the world.  Yes, discrimination has become a partisan issue.  But in truth, the overwhelming bulk of principled research shows that it continues to happen in organizations.  So, should sociologists step away from these findings because politics has given them an additional significance?  We find his idea that the evolving nature of science threatens its credibility to be especially puzzling.  A science that doesn’t evolve – see, e.g., creationism – is totally discredited in the eyes of most people.

In addition, Professor Winship seems to think that non-participation promotes an objective reputation. Why?  Does a social scientist who spends a career researching discrimination, then calls repeatedly for sociology to step away from Wal-Mart and other large corporations when they get sued, appear objective?  Non-participation is clearly political.  Witness people who say the courts should “stay out” of everything – does anyone think they are objective?

Finally, as a trained lawyer, I dispute Professor’s Winship’s idea that sociology seems most legitimate outside the discipline when it is most removed.  To the contrary, many lawyers feel that social science is irrelevant and has nothing to say to the real world.  Actual participation is the way to change that sad reputational liability.

Professor Winship maintains that social science “obviously” should play a role in court cases.  But what’s left after his multi-pronged critique?  It is difficult to imagine an institutional design that would satisfy not only his concerns about methods and validity, but also his insistence on format, and fears about the reputational consequences of participation.  If these inescapable features of litigation are thought to block scientific insight, his road seems to lead only to the academic bunker.

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Written by orgtheoryguest

May 20, 2011 at 6:50 pm

21 Responses

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  1. That’s what I meant.

    Like

    Philip Cohen

    May 20, 2011 at 7:55 pm

  2. > Wal-Mart’s Supreme Court brief – widely read and
    > reported in both academic and non-academic circles
    > – attacked not just the expert in this case, but
    > sociology’s basic legitimacy in a way that demanded
    > a response.

    Ok, so I just read the relevant parts (mostly, pages 27-31) of the defendant’s brief. Does it evince skepticism at inferring the existence of actionable and class-certifying discrimination in the absence of a concrete mechanism, preferably in the form of a smoking gun? Absolutely. Does it show an unrealistic scientistic fetishism in demanding point estimates for the magnitude of the effects? Again, yes.

    However that’s pretty much all it says about Bielby’s testimony. Nowhere does it say “a sociologist, are you fucking kidding me?” or “come on, couldn’t the plaintiff find a real scientist, like an economist or something?”

    I honestly don’t see how this represents a gauntlet slap across the collective face of the discipline that demanded satisfaction. Whether it is an attack on the relevance of sociology to legal arguments is debatable, but it’s not an attack on our “basic legitimacy.”

    Like

    gabrielrossman

    May 20, 2011 at 8:34 pm

  3. What Gabriel said…and then some:

    I don’t see how this is any different than the old “but there is something WRONG on the internets” defense. Last time I looked, ASA was not tasked with responding to every impolite thing said about sociology, nor should it be. Moreover – and I realize there is a large generational gap here – it is often the case that the appropriate response is no response. It is _excruciatingly_ clear that this was one of those times. As I said elsewhere in in the course of this discussion, there is the practical problem that Walmart will almost certainly prevail at the Supreme Court. Again, will the end result be that “they” take “us” more or less seriously when all is said and done?

    Like

    Als Beruf

    May 20, 2011 at 8:59 pm

  4. What does one expect from a defendant’s brief? In this case, Walmart attacked Bielby, not sociology. And it wouldn’t make sense to attack sociology, since obviously they might have to call on a sociologist at trial to counter Bielby.

    I think readers of this blog should go read the Walmart brief and decide from themselves.

    Like

    janecausal

    May 20, 2011 at 10:52 pm

  5. Als said “Last time I looked, ASA was not tasked with responding to every impolite thing said about sociology, nor should it be.”

    If there were ever a time to defend sociology, indeed social science, it is in a case to the Supreme Court. We’re not talking about a snarky post by Brad DeLong here, we are talking about a body that has the ability to set precedence regarding the discipline’s standing in all courts in this country. If there is a swipe, I would say this is the time to defend ourselves.

    Als further says, “As I said elsewhere in in the course of this discussion, there is the practical problem that Walmart will almost certainly prevail at the Supreme Court.”

    So we should only enter the fray when we presume our side will win? Organizations file briefs in cases they know they are likely to lose all the time because they believe in the principles they are fighting for. More importantly, they provide help to potential dissenters (since this case is likely to be decided on a 5-4 decision either way).

    Why are those dissenters important? Let’s take a look at the way Wal-Mart uses one in their petition in what I see is the most damning case made against sociology in this entire brief. In several instances, Wal-Mart cites a dissent by Kennedy in a gender discrimination case. In particular, on page 28, they cite footnote #5 in Kennedy’s dissent and summarize that footnote thus: “explaining that ‘Title VII creates no independent cause of action for sex stereotyping’ and questioning validity of sociologist expert testimony regarding such stereotyping.” I would say that this argument (targeted for obvious reasons at Justice Kennedy) is pretty damning to the profession. It might not be a body-blow, but let’s not pretend that the brief doesn’t take shots at the discipline.

    I am not so naive to believe that we can fight every injustice. We must be smart about where to spend limited resources, and it is obvious that Als and I disagree (as do many others on this blog) about the strategic value of involvement in this case. But both of us — not just me by arguing on behalf of action — are making decisions and we carry the responsibility for those decisions. What I find most frustrating is the characterization of those, like myself, who side for involvement as taking action and are therefore responsible while those who prefer to remain mute on the topic are above the fray. Staying out of a debate is also a decision, one that maintains complicity with the status quo.

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    mike

    May 21, 2011 at 5:19 am

  6. It might help your argument a bit more if Susan Fiske, the subject of Kennedy’s footnote, was actually a sociologist.

    We’ll only know over the course of the next five years or so whether the ASA’s explicit endorsement of a standard of causality that is lower than prevails in all other social sciences (and, I would argue, sociology itself) has consequences for (a) gender inequality or (b) sociology’s reputation. My prediction is no impact on gender inequality and zero or negative impact on sociology’s reputation. This is the only way to judge the action, not whether it makes some people feel good that sociology is a courageous discipline that wants to fight, even at the risk of embarrassment.

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    janecausal

    May 21, 2011 at 2:21 pm

  7. I’m distressed by the line of argument that seems to say that ASA Council should have assessed the odds of a given side prevailing in a Supreme Court case before deciding to submit a brief. Seems awful and unscientific to me as a general principle, so it is strange that it is coming from people who are otherwise trying to stake out the scientific high ground.

    I don’t really see the negative ramifications for the reputation of sociology that people are anticipating as fallout from ASA’s participation in this case per se. Granted, I too would like “sociologist” to carry more credibility as a potentially neutral honest-broker source on issues that have ideological sides, but that horse seems far, far out of the barn at this point. It’s easier for me to see where the outcome of the Wal-Mart case could have real implications for gender in the workplace.

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    jeremy

    May 21, 2011 at 3:19 pm

  8. janecausal: “Walmart attacked Bielby, not sociology. ”

    I think this is the key paragraph from Wal-Mart’s brief, pp. 28-29 (also cited by mike above):

    “As the district court described it, Bielby’s testimony suggests only that Wal-Mart’s delegation of ‘a substantial range of discretion’ to local managers ‘provides a wide enough conduit for gender bias to potentially seep into the system.’ The most that Bielby could do was critique Wal-Mart’s equal employment policies and pay and promotion systems as potentially ‘vulnerable’ to discrimination. But alleged ‘‘[v]ulnerability’ to sex discrimination is not sex discrimination.’ (Kleinfeld, J., dissenting); see also Price Waterhouse, (Kennedy, J., dissenting) (While ‘[e]vidence of use by decision-makers of sex stereotypes is . . . relevant to the question of discriminatory intent,’ ‘[t]he ultimate question . . . is whether discrimination caused the plaintiff’s harm’).

    “Bielby’s hypothesis that Wal-Mart may be ‘vulnerable’ to gender stereotypes because it (like other organizations, including government agencies) has a ‘strong corporate culture’ does not identify any discriminatory practices or procedures actionable under Title VII. By Bielby’s lights, one would have to examine each individual pay or promotion decision—and there are millions of them—to determine whether it was actually infected with bias. As a result, Bielby’s testimony affirmatively does not support, but affirmatively defeats, any finding of commonality in this case.'”

    My take: Wal-Mart is arguing that sociological arguments (regardless if they are made by sociologists, mgmt professors, or psychologists) about managerial discretion have no place in cases like this. In order to allow the plaintiff to sue as a class, they need to show that Wal-Mart had some policy or practice (like the AT&T “total person test”), mandated from up high, that unnecessarily led to the stark underrepresentation of women in upper-levels of store management. So when a corporate manager is stupid enough to implement such a policy, then sociology is OK. Otherwise, it is not.

    Bottom-line of Wal-Mart’s argument: sociology is only relevant when you have a neanderthal employer like those in the 1970s.

    Like

    joshtk76

    May 21, 2011 at 3:47 pm

  9. Jeremy: But that’s the way the law works. People who submit amicus curiae briefs are always assessing whether this is the fight they want to join, or rather whether they want to stay out of it until an opportune moment. Generally, they all pile in when it goes up to the supreme court on the merits. Here, I just think the ASA went too far with this particular brief. And the brief they wrote gave an impoverished version of the discipline’s standards by giving a false impression that our standards for causal claims are lower than they are. The ASA basically said that the ASA agrees that Bielby’s conclusions are sound scientific conclusions based on the discipline’s standards for scientific conclusions. I just don’t think that is true. (And, by the way, the Empirical Legal Studies crowd, which often sees the law and society crowd as politicized and nutty, seems to have adopted a more stringent counterfactualist mode of causal analysis, in contrast to the ASA’s confused ‘leads to’ and ‘contributes to’ semantics. That’s my take, but you can go judge for yourself at two conferences on the topic being held at Northwestern law this summer. Maybe I’ll see you there? Anyway, does sociology really want to be on the other side of evidentiary standards than the people presenting at that conference? Seems unwise to me, but I guess I don’t serve as an expert witness trying to oversell general social science insights as proof for actual causal effects in the real world.) Anyway, I don’t, abstractly, have a problem with the ASA writing a brief. They could have written a better one, and none of the authors, and no one on council, has provided an explanation for why they didn’t consult broadly with sociologists who have expertise on all sides of this. So, my bottom line is an ex post judgment: given the choice of this brief or no brief, I think it should have been no brief. Please, therefore, don’t misconstrue the arguments of those of us with this position by implying that we are saying ‘no brief at all’. A better brief was possible.

    Joshtk76: Where in all of that do you find an assault on sociology? It is only an assault on Bielby’s invocation of some social science literature in an attempt to argue that the plaintiffs have a case that they should be considered as a class. I see nowhere in which they argue sociology (its literature or its practitioners) cannot in general serve the courts with their expertise. What am I missing? Walmart may be an evil corporation on many counts, but they have a plausible argument that deserves to be taken seriously. Do general insights and general conclusions from an esteemed sociologists constitute sufficiently strong evidence to support the plaintiff’s claim that they are a class. Well, their argument is that it depends on the data that Bielby considered, and their position is that he has an inadequate basis for his claims. This is an adversarial system, and would anyone just expect them to roll over and say ‘oh, we agree Bielby, and yeah his data analysis is great.’ Of course not.

    Like

    janecausal

    May 21, 2011 at 6:21 pm

  10. Amy: You seem like a very sharp lawyer (and I’m sure will be a terrific sociologist), and you have written some very good points for Chris to respond to. But re the issue at hand, I simply have no idea how you got the idea that sociology (as part of a “sham triumverate”) was under attack. As janecausal, Gabriel, and others have said, there is absolutely no basis for this assertion. See here: https://orgtheory.wordpress.com/2011/05/18/walmart-and-the-asa-a-guest-post-by-chris-winship/#comment-96034.

    Like

    ezrazuckerman

    May 21, 2011 at 8:50 pm

  11. janecausal: First, I never said there was an “assault on sociology”.

    I do not buy the argument that this primarily hinges on Bielby’s methodology. My reading of Wal-Mart’s argument is that they concede, for the sake of argument, Bielby’s claim that Wal-Mart’s decentralized personnel policies make them ‘vulnerable’ to discrimination. They’re basically granting the causal claim (Wal-Mart’s policies “contribute to” or are “one cause of many” of the potential for discrimination). They are faulting primarily the relevance of his argument, not his methods.

    They say the Bielby needs to show something OTHER than what he is arguing. He needs to show that there was some specific company policy that directly led to discrimination, like AT&T’s total person test, even though that was not Biebly’s argument. Or he needs to find some expressions of sexism in Wal-Mart’s corporate culture. But Bielby is not arguing that Wal-Mart managers are more sexist than those at other firms; personnel policies giving them more discretion over promotions just lets their stereotypes get translated into discrimination. Or he needs to directly show many instances of discrimination in hiring or promotion decisions.

    Bear in mind that the plaintiffs have a statistical report (the Drogin report) showing that female Wal-Mart workers have longer tenure at the store and they have higher performance ratings. Yet they are severely underrepresented at higher levels of store management. They have another report (the Bendick report) showing that other big-box retailers do not have this problem with female underrepresentation in mgmt. I am really interested in understanding how these patterns came about. Bielby’s report offers a very plausible explanation, although I suppose there could be others. But if Wal-Mart has its way, the plaintiffs won’t be certified as a class, the lawyers won’t hash it out, and frankly our understanding of what’s going on in this setting will be impoverished.

    Unless Bielby or the ASA distorted the literature on workplace discrimination, I am fine with an amicus brief saying that discrimination can occur because of the the policies that Bielby outlined in his report. Maybe the brief got tangled up in causality issues it should have avoided, but I’m not sure that’s enough to convince me that doing nothing was preferable to the brief that was actually produced.

    Like

    joshtk76

    May 21, 2011 at 8:57 pm

  12. Josh:

    I understand your position now, and I think it is a coherent and reasonable one. I am not convinced to take it on as my own position, but thank you for explaining.

    Like

    janecausal

    May 21, 2011 at 10:39 pm

  13. Well, WalMart is a corporation with many retail sales stores, “hypermarts” in many cities in the United States, so, if they corporatively say something in a press release or legal brief or advertisement, it must be important enough to invest your own time and money in. Suppose they claimed that the Earth is fat and the Moon is made of green cheese. Would NASA be compelled to reply? Would we be abuzz and agog?

    And Walmart does not stand alone. What if Cadbury-Schweppes denied the atomic theory or relativity or the said that a rose by any other name might smell like a horse?

    Just worrying about the Fortune 1000 could keep you up at night.

    (or maybe not)

    Like

    Michael E. Marotta

    May 22, 2011 at 1:57 am

  14. I am working on a new post for orgtheory. Not sure when it will be finished. I wonder if someone wants to try to summarize the conversations on both the orgtheory and scatterplot posts about where there is agreement and where there is disagreement.

    There has been an email exchange among ASA Council members that some of us have been copied on. I am not sure that I or anyone else has the right to share it publicly. It does make clear:

    1. That at least two perhaps more individuals abstained from the vote.

    2. Apparently, no one the Council read Bielby’s expert report.

    3. At least some Council members felt that the process was rushed and that the Council did not have the time fully consider it.

    4. Some people on the Council have qualms about what was done.

    In terms of the extended dialogue on the two posts it is clear that some individuals believe that sociology was being attacked by Walmart, and as a result it was necessary that ASA submit an amicus brief defending sociology as a science. Others can find no evidence that demonstrates to them that sociology was being attacked.

    People disagree that about whether the ASA should every file briefs.

    We have yet to have a detailed description of the process by which the brief was written, who participated, how did the authors interact with the Council, who else was asked to review the brief and comment on it. In addition, we have yet to have a detailed description of the Council’s deliberation process. Those individuals who believe that what was done was fully legitimate owe the discipline these detailed descriptions. If what was done was legitimate then there should be nothing to hide. (I will describe my somewhat complicated views on this in my next posting).

    Like

    Chris Winship

    May 22, 2011 at 7:36 pm

  15. Thanks Chris. I think another critical question is who on Council, if anyone, had read the petitioner’s brief, and how “statistics, sociology, and anecdotes” became “sociology is ‘statistics’ and mere ‘anecdoes’.

    Like

    ezrazuckerman

    May 22, 2011 at 8:02 pm

  16. It’s worth pointing out that the SCOTUS has a long-standing distrust of the idea that statistics and social science can ever be useful in a court of law–see, for instance, McClesky v. Kemp. Supreme Court Justices are experts on the law, not on the disciplinary standards of social science or on what it is we can do with statistics, and an Amicus brief is a tool we can use to increase the chance that they consider the possibility that social science evidence could matter. I am not familiar enough with the issues in the Walmart case to comment on it. But an Amicus brief would have been called for in McClesky, even though it was a losing case, for these reasons.

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    Mikaila

    May 23, 2011 at 6:14 pm

  17. […] the debate about the ASA amicus brief is a fascinating theoretical question about the link between […]

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  18. […] Science in the courts. I read Amy’s post as saying that she thinks the current way in which science is used in the currents is okay. There […]

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  19. I read the article from the law review and had the same reading as Amy. At one point, the article even seemed to suggest that the only scientifically valid analysis to prove gender discrimination here would be a controlled case of one man and one woman hired at the same time and undergoing the exact same situation, to then see if there is discriminatory treatment. This completely ignores that the social world is not a lab and requires other methods. And if this is the essence of the critiques of Bielby’s work, then ASA has a duty to not only respond, but educate.

    We see in multiple other cases the use of “doubt” to discredit scientific findings in toxic lawsuits – e.g. lead, asbestos, tobacco, vinyl… Only here doubt is being created about the ability of sociology to have anything valid to say about the social world. I think ASA was right to respond.

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    Christine Shearer

    May 25, 2011 at 6:26 pm

  20. […] case and ASA Amicus Brief in the postings and comments on the orgtheory [with subsequent posts 1, 2] and scatterplot blogs. Little, however, has been said about the literature review in the ASA […]

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  21. […] brief intervening in the Wal-Mart class-action discrimination case. See it at Orgtheory here, here, and here; and at Scatterplot […]

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