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  • Print publication year: 2006
  • Online publication date: January 2010

7 - Enhancing the Possibility of Justice under Daubert


If some courts have been using unduly constrained, idealized, or overly simple heuristics for reviewing scientific testimony on causation, how might they conduct this task differently? How can they better address complex patterns of evidence? Can their admissibility decisions better serve the aims of both law and science?

Addressing these questions is the subject of the current chapter. I briefly consider the use of court-appointed experts, and then discuss an alternative, building on suggestions made by the Supreme Court in Kumho Tire and the Third Circuit Court of Appeals. After discussing this proposal, I consider some more nuanced patterns of evidence from consensus scientific committees to illustrate some complex patterns of evidence that courts might face, should be able to recognize and review favorably. I then present some decisions in which judges have recognized the subtlety of issues they faced or in which they addressed well the shortcomings of studies or reasoning against which they needed to guard. Toward the end of the chapter, I revisit some decisions discussed in Chapter 1 to suggest more specifically some of the problems they raise.

Courts have choices in how they implement Daubert and its progeny. They can unduly restrict scientific testimony, or fail to recognize more subtle scientific mistakes that can affect litigants. By contrast, they could review admissibility decisions on expert testimony to assess whether they fall within a “zone where reasonable scientists would disagree” (adopting a guiding heuristic from the Court in Kumho Tire).

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