Abstract
Litigation routinely employs scientific evidence to aid judicial fact-finding and decision-making. This is especially important in areas like family law, where legal standards—such as the best interests of the child—often depend in part on scientific findings. Yet the legal system’s gatekeeping doctrines (Frye, Daubert, and Federal Rule of Evidence 702) apply primarily to expert testimony, leaving other pathways through which scientific evidence reaches courts largely unchecked. These other pathways include citations in briefs and opinions to non-peer-reviewed or non-scientific sources such as law reviews, treatises, and self-published materials, which often become outdated and are not well positioned to assess scientific validity. Such sources have emerged as key intermediaries in the knowledge network linking courts and the scientific community. Understanding these pathways helps explain how flawed science enters courts and why even scientific claims that were once accepted—but later discredited—can persist and influence judicial decisions long after the scientific community has deemed them fundamentally unsound.
This paper applies network analysis to an original dataset containing all sources related to Parental Alienation Syndrome (“PAS”)—a controversial theory introduced into child custody litigation in the 1980s. By analyzing judicial opinions, peer-reviewed science, law reviews, and self-published materials relevant to the topic, the study traces how PAS entered the court system and continued to influence legal outcomes long after it was rejected by the scientific community. It further shows that this flawed science became entrenched not through active endorsement, but through courts filtering, repeating, and reinforcing scientific claims over time. The paper concludes by suggesting that with this better understanding of how invalid science enters and gets stuck in the court system, it will be possible to devise interventions—beyond fine-tuning the standards that govern the introduction of expert testimony and reports—that can help ensure only reliable science enters and that invalid science is expelled in a timely manner.
Recommended Citation
H. A. Spitzer,
Sticky Science in Court,
104 Neb. L. Rev.
(2026).
Available at: https://digitalcommons.unl.edu/nlr/vol104/iss3/3