Be sure to catch the latest article from CPR member scholar Lisa Heinzerling, "Doubting Daubert, forthcoming in the Brooklyn Journal of Law & Policy. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court announced that it was liberalizing the rules on admissibility of expert scientific evidence by rejecting a requirement that such evidence be generally accepted in the scientific community. Daubert has had, Heinzerling notes, just the opposite effect from the one the Court said it intended. Among other reasons:

• it has narrowed rather than enlarged the range of expert evidence admitted by courts, as courts have taken dicta from the case and applied them as a rigid test;
• it has encouraged more junk science in legal cases rather than less, as courts have scrutinized studies paper by paper rather than looking, as scientists do, at the larger universe of studies to identify the weight of the evidence;
• it has encouraged the industry assault on science by reiterating the industry talking points about "junk science" -- talking points that have been circulating precisely because science so often reveals that corporate special interests are harming us all;
• and it has legalized science, as legal precedents codify scientific (or anti-scientific) conclusions and then are applied in subsequent cases as the law.

Proposals to extend Daubert to the administrative setting should be rejected, Heinzerling concludes, and the courts should pull back from Daubert itself. Download the article.