"Science" plays a central role in litigation today. Civil litigants spend hours briefing and arguing the value of expert testimony. Studies performed years previously are taken apart and evaluated in detail. Criminal defendants are convicted or exonerated based on DNA evidence. And all of the evidence comes in through expert testimony, from witnesses who seek to explain the scientific issues to a lay jury, often in the form of opinion testimony. This testimony can, and often does, dictate the outcome of cases. Courts wrestle with the admissibility and use of scientific evidence every day, and have developed an evolving set of standards to apply to those decisions. They are seeking, at least in part, to have legal factfinders consider only evidence that has already been deemed reliable in science-in other words, to have law follow science. The most recent iteration of the standards adopted to further those goals started, of course, with Daubert v. Merrill Dow Pharmaceuticals. With that case and throughout the cases that followed, courts have sought to use science's paradigms of "reliability" as the standards of admissibility. If the scientific community has approved of the methods or conclusions (through peer-reviewed publication and other criteria), the courts conclude that those methods or conclusions should be admitted. The courts (and many commentators) believe that making legal standards track the perceived scientific standards improves the quality of factfinding- that scientists' standards of reliability should be courts' standards of reliability. In making this Daubert shift-more closely linking admissibility to scientific standards of reliability-the courts paid little attention, if any, to the potential impact making such a shift could have on science itself, or how it could affect the nature and quality of the scientific evidence being presented to fact-finders, usually a jury. In this Article, the first in a broader project in law and science, I explore two unexpected consequences of joining science and law at the hip, and consider whether these consequences represent reciprocal contamination, or instead cross-fertilization, of law and science.
William G. Childs,
The Overlapping Magisteria of Law and Science: When Litigation and Science Collide,
85 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol85/iss3/3