Frank on SKAPP (part 1)
Pending eventual publication of Professor Bernstein's book, Ted Frank has taken up my challenge to say something about the substance of SKAPP's report. He has some interesting points. One of them:
"The question should not be whether there are occasionally false negatives in the application of Daubert (there are), but whether the social cost of the false negatives (and, mind you, the false positives that still occur) when Daubert is used as a screening mechanism outweigh the social costs of a different set of mistaken decisions and different set of compliance and litigation costs under a different regime. The SKAPP report makes no effort to answer that question, and seems to simply assume that any false negatives are too many without any acknowledgement that there is a real burden to society from false positives."
More anon.
"The question should not be whether there are occasionally false negatives in the application of Daubert (there are), but whether the social cost of the false negatives (and, mind you, the false positives that still occur) when Daubert is used as a screening mechanism outweigh the social costs of a different set of mistaken decisions and different set of compliance and litigation costs under a different regime. The SKAPP report makes no effort to answer that question, and seems to simply assume that any false negatives are too many without any acknowledgement that there is a real burden to society from false positives."
More anon.
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