Does Amended Federal Rule of Evidence 702 Go Beyond the Daubert Trilogy?:

I've argued before that it does, in particular in absolutely requiring that a technique be used properly in the case at hand, but other vehemently disagreed. One common criticism has been that I seemed to be the only person who adopted this position. I now have company. Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence 66 (4th ed. 2007) ("The amendment goes beyond merely codifying Daubert and Kumho. It requires the proper application of the technique in the particular case."). Of course, all three of us could be wrong, but it's nice to have some distinguished allies.

jimbino (mail):
That is an illustration of a major problem in the law: you feel you need "distinguished allies" rather than bright, rational, well-reasoning, etc, ones. If physicists were so insecure and ass-kissing, nobody would have noticed the papers of the unknown patent examiner in 1905.
6.12.2007 6:06pm
Waldensian (mail):
I vehemently agree with Prof. B. So that's three distinguished allies.
6.12.2007 6:09pm
logicnazi (mail) (www):

No, this seems a quite correct attitude of a discipline to other areas of knowledge. Just like physics law doesn't insist that only distinguished lawyers can win cases or come up with novel legal theories. The legal profession correctly realizes that they lack the expertise to evaluate claims in physics so they sensibly rely on the physics community to evaluate the worth of claims in physics.

Just as Einstein eventually became a world renowned physicist we should expect in most disciplines the correct answers will float to the top. Thus demanding a distinguished expert is just a means of bootstrapping off the relevant expert communities internal means of evaluating claims. I don't see how the law could hope to do better at evaluating claims in chemistry, physics or whatever better than the physicists and chemists themselves.

It's much like the situation with global warming or other complex scientific issues. If you really are an expert in the area you should just evaluate the arguments and ignore what the community thinks or who is the most distinguished. Once you realize you lack the training to evaluate the evidence yourself your best indicator of the truth is the accepted wisdom of the community. It's the same way that if you are a doctor your diagnosis should always be based on the symptoms and research papers you've read but if your a lay person your better off going with the opinion of the experts at the hospital than trying to second guess their diagnosis.

I do think there is a problem in how the courts treat medical experts. Unfortunately doctors are often allowed to testify in cases about disease/toxicity when the expertise that is really required is that of a medical researcher. The social authority that doctors carry with them makes it hard for the jury to completely dismiss their testimony even if it is claiming some absurd effect (say vaccines cause autism). However, this is a problem with choosing an expert in the wrong field and the prejudicial effect of allowing a doctor to testify not relying on distinguished individuals.


As an aside can someone remind how this works in appeal. What sort of standard does an appellate judge apply to overturn a case on the grounds that the technique was not used properly? Is this a back door to de novo review of the case when it hinges on expert testimony?
6.12.2007 6:54pm
jimbino (mail):

Physicists, as opposed to lawyers, are not accustomed to bribing and kissing the ass of those in a position to vet and approve their arguments.

If there were any lawyers or judges who had the slightest understanding of hard science, we'd be a lot better off. As it is, anyone who has a case that depends on understanding of science would be well-advised to avoid appealing to the SCOTUS, where ignorance of science is what reigns supreme.
6.12.2007 7:03pm
Zathras (mail):
jimbino: Physicists, as opposed to lawyers, are not accustomed to bribing and kissing the ass of those in a position to vet and approve their arguments.

You've clearly never been around actual physicists. How do you think tenure happens? The requisite asskissing levels are pretty high. And while there is no overt bribery, it is understood that physicist have to bring in buckets of grant money in order to get the brass ring.
6.12.2007 7:36pm
Shelby (mail):
Disinclined though I am toward jimbino's argument, logicnazi doesn't refute it. David Bernstein was glad to have distinguished colleagues in the legal profession who share his view on a strictly legal, non-scientific issue: what does FRE 702 require of litigants for expert evidence to be admissible?

The reason, of course, is that points of law are frequently not a matter of "proof", such as showing that, given certain baseline assumptions, E=MC^2. They are rather a matter of interpretation and application, and distinguished colleagues lend credibility to one's argument that a given interpretation is the proper one.
6.12.2007 7:45pm
jimbino (mail):
Shelby, don't you think it's just a little bit sad that none of the Supremes and almost no judges or lawyers have even studied math and hard science? If jews, women, catholics and blacks were systematically excluded from the bench, you might find a problem there.

Roberts: History
Stevens: English Literature
Scalia: History
Kennedy: Economics
Souter: Philosophy
Thomas: English
Ginsburg: Government
Breyer: Economics
Alito: Public and International Affairs

O'Connor: Economics
6.12.2007 9:10pm
Justin (mail):
jimbino, you're not serious, right? You didn't happen to check here, did you?

Or look at the Patent Bar (both the formal one and the informal litigation bar)?
6.12.2007 9:22pm
Shelby (mail):
Yes, jimbino, I think i's unfortunate there aren't any hard-science majors on that bench (though I think such majors are underrepresented in the legal profession generally, so it's unsurprising.) At least those with econ training should have a handle on statistics and calculus.

However, as an English major with substantial science background in college (eg astrophysics) I know that one's major gives minimal information about one's education. I also think that history, philosophy, government, and public/international affairs are all useful training for an appellate judge.
6.12.2007 9:25pm
Shelby (mail):
I'm sorry, I was focused more on your list of SCt justices' majors. I don't think there's any discrimination against science majors in law school or legal employment; in fact, they're highly desirable and can net a substantial cash bonus, as well as opening up professional tracks (such as patent prosecution).

I do, however, think that people trained in math and the hard sciences face special difficulties in the law, especially in the first year of law school. They've learned to look for the right answer, or at least the best one, not to reason in a legal fashion -- rhetoric, as learned in history and English programs, is more immediately helpful.

Plus, from a crasser perspective, few engineers want to give up a good, well-paying job to take a chance on law school. Though I've known a few science PhD/JDs, often disappointed with the professional prospects for a newly minted doctorate.
6.12.2007 9:32pm
David Muellenhoff (mail):
I think it should count for something that the experts cited are extremely well-respected in this particular field. I'm not a criminal attorney, but IIRC professor Imwinkelreid, in particular, is considered one of the Evidence gods by many, and not just those of us who were lucky enough to have him for Crim Law and Evidence classes!

I've always nursed a pet theory that what distinguishes authorities at the top of a field from the rest of the pack is the quality of their writing. Winkie's writing always struck me as a model of clarity and economy. I still have his California Evidentiary Foundations on my bookshelf just because it's fun to reread from time to time.
6.13.2007 6:24pm
TruePath (mail) (www):

I seem to have misunderstood your point. I thought you were talking about the substance of rule 702 (which could be seen as requiring the experts you bring in to be distinguished and regarded as something besides a quack). On second glance I seem to have been totally off the mark. I take it you were referring to the benefits of having distinguished legal allies rather than distinguished experts testifying for you.

In which case I completely agree. It shouldn't be reputation all the way down. The actual judges and legal scholars should be making their conclusions based on the quality of the arguments not the people who made them. Unfortunately it is hard to see how to square this with the obvious benefits to the law of stability and respect for precedent.
6.14.2007 10:17pm
TruePath (mail) (www):
Oops, I'm logicnazi BTW just changed my display name
6.14.2007 10:17pm