What's Wrong with Litigation-Driven Science? An Essay in Legal Epistemology

32 Pages Posted: 31 Jul 2008 Last revised: 12 Sep 2008

See all articles by Susan Haack

Susan Haack

University of Miami - School of Law; University of Miami - Department of Philosophy

Abstract

Rehearing Daubert on remand from the Supreme Court, Judge Kozinski introduced a fifth "Daubert factor" of his own: that expert testimony is based on "litigation-driven science" is an indication that it is unreliable. This article explores the role this factor has played in courts' handling of scientific testimony, clears up an ambiguity in "litigation-driven" and some uncertainties in "reliable," and assesses the reasons courts have given for reading such research with suspicion. This analysis reveals that research that is litigation-driven in the stronger of the two senses distinguished is inherently less likely to be evidentially reliable; but also that it is so hard to determine whether research is litigation-driven in this strong sense that this new Daubert factor is not as helpful as Judge Kozinski imagined.

Keywords: law, science, Daubert, Kitzmiller, forensic science, professional expert witnesses, statutes of limitations, court-appointed experts

Suggested Citation

Haack, Susan, What's Wrong with Litigation-Driven Science? An Essay in Legal Epistemology. Midwest Studies in Philosophy, Vol. 32, pp. 20-35, 2008; Seton Hall Law Review, Vol. 38, No. 3, 2008; University of Miami Legal Studies Research Paper Series 2008-30. Available at SSRN: https://ssrn.com/abstract=1175083

Susan Haack (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-3541 (Phone)
305-284-6506 (Fax)

University of Miami - Department of Philosophy ( email )

P.O. Box 248054
Coral Gables, FL 33124-4670
United States

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