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Judging Science: Scientific Knowledge and the Federal Courts.






Judging Science:
Scientific Knowledge and the Federal Courts
(MIT Press, 1999)

by Peter Huber and Kenneth Foster

In 1993, the U.S. Supreme Court handed down a major decision on scientific evidence, Daubert v. Merrell Dow Pharmaceuticals. Federal judges, the Court ruled, have an important, continuing role as “gatekeepers”— a responsibility to screen testimony proffered as “scientific” rather than admit it uncritically for consideration by the jury. The “overarching subject” of that inquiry, the Court ruled, “is the scientific validity…and thus the evidentiary relevance and reliability…of the principles that underlie a proposed submission.” The Court made clear that the meaning of a key phrase in the Federal Rules of Evidence—“scientific knowledge”—cannot be given intelligent meaning without venturing beyond the standard law library. Citing philosophers of science, briefs filed in the case by Nobel scientists, scientific journals, and the National Academy of Sciences, the Court described when expert testimony that purports to address “scientific knowledge” may be admitted into Federal court.

Judging Science is organized around the criteria set out in that landmark ruling. The book examines issues of fit—whether a plausible theory relates specific facts to the larger factual issues in contention; philosophical concepts such as the falsifiability of scientific claims; scientific error; reliability in science, particularly in fields such as epidemiology and toxicology; the meaning of “scientific validity”; peer review and the problem of boundary setting; and the risks of confusion and prejudice when presenting science to a jury. The book’s conclusion attempts to reconcile the law’s need for workable rules of evidence with the views of scientific validity and reliability that emerge from scientific and other disciplines.

The Supreme Court has agreed to review a follow-up to the Daubert ruling in the 1997 Term.


“This scholarly volume tackles what may be the toughest dilemma facing courts in the twenty-first century: How do judges and juries separate genuine, reliable scientific evidence from political and social commentary masquerading as science? The answer to this question affects almost every aspect of human existence, including the quality of our doctors, the reliability of our drugs, and our ability to tell the guilty from the innocent. The book will serve as a beacon to judges and lawyers who must struggle to find their way in this wilderness.”
– Alex Kozinski, Circuit Judge, United States Court of Appeals for the Ninth Circuit

“The extraordinarily reliable central body of science has emerged from the winnowing and sifting of observations and interpretations of scientists, with all their human frailties of ignorance, incompetence, self-interest, and- sometimes- dishonesty. Foster and Huber give scientists, jurists, and laymen invaluable lessons on the differentiation between the wheat of scientific fact and the chaff of scientific noise.”
– Robert K. Adair, Sterling Professor Emeritus of Physics, Yale University

“Perhaps somewhat paradoxically, scientific evidence has become one of the most speculative and subjective components in American litigation. Foster and Huber’s impressive book documents the numerous transgressions against scientific norms with a wealth of case studies. Judging Science will establish the frames of reference for the current debate over promoting scientific objectivity in the courtroom.”
– W. Kip Vicusi, Cogan Professor of Law and Economics and Director of Program on Empirical Legal Studies, Harvard Law School

“…a valuable resource for those who are interested in the intersection of science and the law. In this wide-ranging book, Foster and Huber have used the Supreme Court opinion in Daubert v. Merrell Dow Pharmaceuticals as a vehicle for a sophisticated discussion of what makes science good or bad and of how the courts should assess whether an expert’s testimony is admissible in court.”
– Joseph Sanders, A. A. White Professor of Law, University of Houston Law Center

“Foster and Huber brilliantly illuminate the landscape of courtroom debates about the consequences and uncertainties of using science and technology in society. This tour de force is both a practical guide for citizens and journalists and a path-breaking clarification for judges and policy analysis.”
– Rodney W. Nichols, President and Chief Executive Officer, New York Academy of Sciences



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