Elevating Form over Substance: A Reply to Professors James Liebman, Jeffrey Fagan and Valerie West
![handle is hein.journals/walq80 and id is 443 raw text is: ELEVATING FORM OVER SUBSTANCE: A
REPLY TO PROFESSORS JAMES LIEBMAN,
JEFFREY FAGAN AND VALERIE WEST
ADAM L. VANGRACK*
I. INTRODUCTION
My recent Note, Serious Error with Serious Error: Repairing A
Broken System of Capital Punishment,' discussed problems that I found with
the study released in June 2000 by Professors James Liebman, Jeffrey Fagan,
and Valerie West entitled A Broken System: Error Rates in Capital Cases.2 I
am delighted to discuss a number of these concerns with the study's authors
in a public forum to elaborate on my previous comments and extinguish any
misunderstandings they may have regarding my prior valid statements.
While certain differences of interpretation in terms of form versus
substance exist between the authors of A Broken System and myself, my Note
did not contain any misstatements, inaccuracies, or statements with no
credible support or basis.,3 Further, the fact that the Washington University
Law Quarterly expressed concern over the authors' letter to the journal's
Editor in Chief does not mean that the Law Quarterly or any person
associated with the journal agrees with any of the authors' assertions against
my Note. Whether such assertions are valid or not, one would hope that an
established journal would (1) express concern if certain peers claimed that
the journal had published misstatements, and (2) address those claims
directly and in a public forum. This Reply will address, in order, the three
areas of the Note to which the authors of A Broken System refer in their
Rejoinder. Part II will discuss the Note's assertion that the lack of availability
of the data from A Broken System is problematic. Part III will address
* A.B. (1998), Washington University in St. Louis; J.D. (2002), Washington University School
of Law. I would like to thank Professors Stuart Banner and Lee Epstein for their tremendous help in
this project and regarding this Reply.
1. Adam L. VanGrack, Note, Serious Error with Serious Error: Repairing A Broken System
of Capital Punishment, 79 WASH. U. L.Q. 973 (2001).
2. James S. Liebman, Jeffrey Fagan, & Valerie West, A Broken System: Error Rates in Capital
Cases, 1973-1995 (June 12, 2000), at http://justice.policy.net/jpreport/index.html [hereinafter A
Broken System] (labeled Liebman Study in VanGrack, supra note 1, reprinted in James S. Liebman,
Jeffrey Fagan, Valerie West, & Jonathan Lloyd, Capital Attrition: Error Rates in Capital Cases, 1973-i
1995, 78 TEX. L. REv. 1839 (2000) (abridged version of the original)) [hereinafter Capital Attrition].
3. Jeffrey Fagan, James S. Liebman, & Valerie West, Misstatements of Fact in Adam
VanGrack's Student Note: A Letter to the Editors of the Washington University Law Quarterly, 80
WASH. U. L.Q. 417, 417 (2002) [hereinafter Rejoinder].](ViewImageLocal?handle=hein.journals/walq80&div=20&collection=journals&method=preview&ext=.png&size=3)
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Elevating Form over Substance: A Reply to Professors James Liebman, Jeffrey Fagan and Valerie West
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