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Don't Knock Daubert Until We've Tried It

An arms race of scientific studies may be good for both science and the law.
Judges in Lab Coats?

See what Michael L. Martinez and Jay P. Kesan have to say in a debate related to this paper.

Federal Rule of Evidence 702 establishes the ground rules for admitting expert testimony at trial. The problem is determining what the rule means by "scientific, technical or other specialized knowledge." The rule is unclear, suggesting mainly that testimony must be based on "reliable principles and methods." The 1993 case of Daubert v. Merrell Dow Pharmaceuticals doesn't provide hard lines about what should be admitted either. Instead, it offers a list of factors that judges should consider.

A forthcoming article by William Childs considers the unintended fallout of one of Daubert's most important factors: whether scientific conclusions are validated by peer review. Childs, a law professor at Western New England College, shows how the value placed on peer review by the courts has led to a proliferation of scholarly studies funded by litigation, as well as to discovery requests about and investigations into the peer review process. Both trends seem unpalatable. Litigation-funded science may be more prone to bias, and discovery requests can feel like harassment of an otherwise self-contained scientific community.

But Childs contends that we should regard these trends as checks on each other that have grown up around Daubert. The party commissioning a study facilitates more scholarly production, the party in opposition scrutinizes the fruits of that labor. Litigation-funded science and discovery into peer review may even benefit society by encouraging faster, better, and more science.

Still, Childs doesn't believe that the current system of checks and counter-checks should be left untouched. He endorses some limits on discovery, recommends greater disclosure of funding sources in scientific journals as well as the courtroom, and proposes that courts hire outside experts to help put evidence in perspective. Daubert acknowledged that science serves law, and Daubert's fallout has been to see how law can also serve science. Both fields, Childs argues, stand to benefit from this partnership that happens to be driven by profits. SSRN Working Papers Series

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