The Law's Scientific Revolution: Reflections and Ruminations on the Law's Use of Experts in Year Seven of the Revolution

In 1993, the shot was fired that ignited the revolution over the way the law employs expert knowledge. That shot was Daubert v. Merrell Dow Pharmaceuticals, Inc. 1 The scientific revolution finally had reached the law. Now, seven years later, numerous battles have occurred and each side, revolutionary and counter-revolutionary alike, has variously charged the opposition, fallen back onto the ramparts, and declared victory. However, the view from the battlefield reveals an abundance of smoke and fire, numerous and ongoing skirmishes, and considerable confusion. It is clear that this revolution has yet to reach its denouement. Who shall prevail remains in considerable doubt. Thus, I offer these observations of the battle as a snapshot of a dynamic struggle whose conclusion cannot yet be discerned. Three main camps are involved in the law's scientific revolution, and they will be my main focus of attention. First are the judges, who occupy the front-lines; it is in their ranks where the revolution will be won or lost.2 The second camp contains the experts themselves, who comprise most of the notso-innocent bystanders that are either swept along or crushed by the revolution as it passes. Finally, the third group are the legal academics, who play the part of either the intelligentsia for the new order, or apologists for the old. Mariano Azuela observed, "Thinkers prepare the revolution, bandits carry it out."3 The academics should be responsible for preparing this revolution, and now the judges and lawyers must carry it out. The experts presently are caught in the whirlwind, but should join the ramparts or be removed from the field. I. The Courts The United States Supreme Court is responsible for starting the scientific revolution in the law and maintaining its energy over the last seven years. In 1993, Justice Blam wrote in Daubert that trial courts must be gatekeepers and are responsible for assessing the scientific validity of proffered scientific expert testimony.4 Daubert was followed by General Electric Co. v. Joiner.5 Importantly, Joiner was authored by Chief Justice Relinquist,6 who had concuffed separately in Daubert to express doubt about the wisdom of making judges gatekeepers.7 In Joiner, Rehnquist and the Court not only reiterated the trial court's obligations to evaluate scientific evidence, but also stressed that this obligation extended to the conclusions the eVert sought to offer.8 And in Kumho Tire Co. v. Carmichael,9 the Court took its most significant step, perhaps, when it held that the gatekeeping role must be applied to all experts who seek to testify, scientist and non-scientist alike.10 Yet, despite the High Court's enthusiasm for the scientific revolution - the holdings in all three cases were unanimous, though with concurrences - lower courts appear distinctly unenthusiastic for it.11 Although there are many exceptions to this statement,12 and as time passes these exceptions grow in number, the number of exceptions continues to be too low. At every tun, it seems, numerous lower courts have sought to frustrate the Daubert reforms.13 After Daubert, those who did not like the idea of judges as gatekeepers argued that the opinion stressed the liberal nature of the rules and that the holding was limited to the methods and principles the expert relied upon, not the conclusions he or she asserted. …