Document Type

Article

Publication Date

5-1-2025

Abstract

Debates about a “post-truth” society, the nature of expertise, and the malleability of facts that are unfolding in public spaces outside of legal institutions raise two related questions about the administration of justice. First, if knowledge and experience are politicized, what information is reasonably within a jury’s baseline, particularly in highly normative areas of law, such as antidiscrimination? And, second, if knowledge and experiential baselines are deficient, do current institutional mechanisms—education, media, political debate, law and legal procedures and rules—have ways of remedying or mitigating harm to litigants? Institutional devices—such as the regulation of jury pools, the use of expert testimony, judicial notice, and jury instructions— designed to mitigate biases and educate a jury to carry out its charge may fall short in the context of certain kinds of information, social norms, and experiences. This Essay attempts to wrestle with these epistemic questions and their consequences in a specific area of public information deficits: disability. In this area, I make a descriptive intervention and lay the groundwork for further normative and prescriptive work. I argue that we now have information to suggest that society’s common base of knowledge and experience about disability is so flawed that jurors may enter the courthouse ill-equipped to decide the substance of cases involving the rights and duties of people with disabilities. Furthermore, current structural devices—in particular, the use of expert witnesses designed to account for information deficits—may be insufficient because information about disability is highly normative and less technical than people imagine it to be. For example, answering a threshold question of whether a person has a “disability” under antidiscrimination laws draws on moral, political, and social views and yet, by practice, has become a question for seemingly objective medical expertise. The design of dispute resolution, the relatively short life of a trial, the defined role of the expert, and the presentation of expert evidence work better for the transfer of technical rather than adaptive knowledge because lay fact finders may react to the sociopolitical dimensions of information they view as less fact based or less objective. Disability may appear both foreign and familiar to lay people, thus walking a fine line between information and experiences they believe they have and those they believe require expertise beyond their capacity. The central argument proceeds in four parts. Part I contextualizes our evidentiary binary between common and specialized knowledge with a brief overview of its origins related to the jury. Part II then turns to the question of information deficits in jury decision-making in the context of disability. How do we know whether there is a problem with baseline norms? For one, Congress explicitly acknowledged the operation of outdated social norms of disability as a catalyst for the Americans with Disabilities Act. Additionally, empirical studies over the past three decades have reinforced the dangers of problematic disability norms to the conceptualization, exercise, and adjudication of rights. Part II offers another source of support for the existence of information deficits in the general population: a recent survey conducted by The Arc of the United States. Key findings further suggest that the public lacks certain information and experience with disability and disabled people. Part III explores the current institutional mechanisms for mitigating knowledge and experiential deficits about disability and raises questions about their remedial capacity. Information deficits are typically addressed in courts: for example, through expert evidence regulated by federal and state evidentiary rules and doctrinal standards such as those articulated by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire v. Carmichael. Yet these legal rules and doctrinal standards themselves may impose barriers to the introduction of curative evidence. Part IV considers other informational touchpoints with prescriptive potential and concludes with special considerations and open questions for further development.

Keywords

disability, evidence, disability law, law and humanities, evidence law, juries, law & society, daubert, federal rules of evidence

Publication Title

Boston University Law Review

Publication Citation

105 B.U. L. Rev. 1113 (2025)

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