10 Pages Posted: 30 Nov 2010
Date Written: 2008
Junk science has no place in the legal system. But when a scientist says, "I'm not sure, but the data are suggestive," the scientist's words are not necessarily a tell-tale sign of junk science. On the contrary, they may be a sign that real science is occurring. The Supreme Court's Daubert trilogy appears to have allowed the continuation of junk science, while denying individuals their day in court when their proof includes real science at a state of incomplete knowledge. The solution, we believe, must lie in the legal system, judges and lawyers alike, recognizing what it means to be a gatekeeper with respect to scientific truth. And that, in turn, requires the legal system to come to understand just what it is that scientists do.
Author’s Note: I post this brief essay shortly after Margaret Berger’s passing on November 18, 2010. She was a close friend and brilliant colleague, and I will always miss her. Because the ideas in this essay, at least in large part, grow out of a perspective that she developed over many years, I thought it important to make it more salient to the academic community at this time. LMS
Keywords: evidence, science, expert
Suggested Citation: Suggested Citation
Berger, Margaret A. and Solan, Lawrence M., The Uneasy Relationship between Science and Law: An Essay and Introduction (2008). Brooklyn Law Review , Vol. 73, No. 3, p. 847, 2008; Brooklyn Law School, Legal Studies Paper No. 212. Available at SSRN: https://ssrn.com/abstract=1716880