Special Issue on Daubert
Reflections on Daubert: A Look Back at the Supreme Court’s Decision
Jason Borenstein and Carol Henderson
Over two decades ago, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). The case provided significant guidance to judges on how they should assess expert witness testimony. It set an important precedent followed by federal, and most state, courts in their attempt to determine the admissibility of such testimony. More...
Falsifiability Revisited: Popper, Daubert, and Kuhn
Mark Amadeus Notturno
The Supreme Court’s 1993 Daubert v. Merrell Dow Pharmaceuticals decision acknowledged a change in the Federal Rules of Evidence for the admissibility of expert scientific testimony in legal proceedings. Two of the most controversial aspects of the decision were the Court’s general comments about science, and its appeal to Karl Popper’s notion of falsifiability as “a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact.” Indeed, Chief Justice Rehnquist acknowledged in his dissenting opinion that he did not know what falsifiability meant and that he thought other judges would not understand it either. This paper explains what Popper meant by falsifiability, why it has been misunderstood, why it is important today, and how the Court’s decision reflects the larger move from foundationalism to fallibilism that has taken place in epistemology over the course of the twentieth century. More...
An English Daubert? Law, Forensic Science and Epistemic Deference
A test for the admissibility of expert evidence, partly derived from Daubert, has recently been introduced into English criminal law by the unusual mechanism of a Practice Direction.
This article compares the Daubert trilogy and the English Practice Direction as responses to the problem of epistemic deference by juries to experts. Juries are often justified in deferring to experts as to the relevance of the underlying evidence examined by the expert, including what inferences can be drawn from it. There is a concern, however, that juries may also defer to experts’ claims about the weight of their own evidence: how strongly or confidently those inferences can be stated. Overly deferential jurors may place excessive weight on forensic science evidence that rests on shaky foundations. The new English admissibility regime (drawing on recommendations by the Law Commission) appears better tailored than Daubert to address this issue about the strength of inferences presented by expert witnesses. As a result, however, it places considerable demands in judges, advocates and expert witnesses, and how successful it will be in practice remains to be seen. More...
Human(e) Science? Demarcation, Law, and ‘Scientific Whaling’ in Whaling in the Antarctic
Daniella McCahey and Simon A. Cole
This paper analyzes a recent case in which a court, like the Daubert Court, was asked to demarcate legitimate from illegitimate science. The court was the International Court of Justice (ICJ), and it was asked by the state of Australia to find the state of Japan in violation of the International Convention for the Regulation of Whaling because of its licensing of a research program that engaged in killing whales ostensibly “for purposes of scientific research.” Australia premised a good portion of its argument on a four-part definition of “scientific research,” reminiscent of the four notorious “Daubert criteria,” and the claim that the Japanese research program, “JARPA II,” failed to comply with this definition. The paper suggests that the Court’s judgment, which forced Japan to temporarily cease whaling, illustrates the merits for courts of avoiding the temptation to engage in demarcation exercises. More...
Other Recent Articles
The articles in this special issue on disability demonstrate the importance of attending closely to the experiences of individuals with disabilities in making decisions whether to use medical, psychological, or social interventions that may affect the person’s identity and alter subsequent experiences. Though each article focuses on the problems or merits of different types of interventions—cochlear implants, surrogate partner therapy (SPT), and growth attenuation—all of the articles draw the reader’s attention to the need to reconsider the medical model of disability and attend to the potentially corrective value of the social (or psychosocial) model of disability. More...
Selected articles are available at the National Reference Center for Bioethics Literature.
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