ABSTRACT
This chapter explores how scientists evaluate the reliability of science, the phenomenon of “junk science,” and to what extent non-scientists can test the reliability and merit of scientific conclusions and opinions. Evaluating the reliability of science in the U.S. courtroom setting presents several challenges:
There is disagreement concerning the standards that should be applied, e.g., how much risk society should tolerate, and how the cost of adverse consequences should be distributed between the manufacturer, the victim and the public.
The litigating party that is adversely affected by the scientific facts and interpretation has an incentive to denigrate science, distract from it, and diminish its relevance, and to accuse the expert witness of bias.
100In the U.S. common law system, the trier of fact depends on what the parties chose to present in court, and is not allowed to conduct an independent inquiry.
Most of the litigators, who serve as ambassadors of science, lack the basic mathematical and scientific foundation necessary to fully understand the underlying scientific problems. 1
The triers of facts, including most judges, lack the basic mathematical and scientific foundation necessary to distinguish between pseudo-science and science.
As used by the courts, the term “science” includes any field where knowledge is acquired through study and practice, 2 i.e., not only natural sciences, engineering and social sciences, but also clinical medicine, and other fields that use conflicting methodology and have conflicting goals.
Science and the court are bound by different laws and have different goals. As the Daubert case states it, the judge must resolve legal disputes in a “quick, final and binding” manner. 3 His guiding principles are justice and judicial economy. The judge does not search for “cosmic understanding;” 4 he narrows the issues and rules only to those issues that are absolutely necessary to decide a case. His primary tool is the application of the rules of evidence which allow him to exclude anything that does not seem relevant and reliable to him, as outlined in the Federal Rules of Evidence and in Joiner. If the plaintiff does not meet all of the elements of his cause of action, the case is dismissed.
