Dumping Daubert, Popping Popper and Falsifying Falsifiability: A Re-Assessment of First Principles

75 Pages Posted: 2 Feb 2015

See all articles by Barbara Pfeffer Billauer

Barbara Pfeffer Billauer

Institute of World Politics; International Program in Bioethics, U. of Porto; Foundation for Law and Science Centers, Inc.

Date Written: January 31, 2015


The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’

It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, a key component of toxic tort law. Thus, the objective of this work is to sanitize the gatekeeping mindset from the philosophy of Popper, the first step in creating a new gatekeeping paradigm.

I first show that Popper’s philosophy derived from and is applicable only to the world of quantum physics and is irrelevant to the science of the courtroom: biology, chemistry and Newtonian physics. Next, I falsify Popper’s ‘falsifiability’ using scientific examples; to my knowledge the first attempt to use this approach in a systematic fashion. Third, I demonstrate, both by scientific and legal example that Popper’s falsification system is inapt for forensic use.

Finally, with the assistance of works of the philosopher Paul Hoyningen-Huene and the scientist George Gore, I recraft the definitions of ‘science’ and ‘good science’ highlighting the importance of verifiability and performance of verified experiments that produce valid and reliable results.

Keywords: daubert, popper, science, good science, junk science, evidentiary admissibility, evidence, scientific evidence, proof, scientific method, knowledge

JEL Classification: C90, D84, K13, K41, K40, 031

Suggested Citation

Billauer, Barbara P., Dumping Daubert, Popping Popper and Falsifying Falsifiability: A Re-Assessment of First Principles (January 31, 2015). Available at SSRN: https://ssrn.com/abstract=2558550 or http://dx.doi.org/10.2139/ssrn.2558550

Barbara P. Billauer (Contact Author)

Institute of World Politics ( email )

1521 16th St NW,
Washington, DC
United States
+1 202-462-2101 (Phone)

International Program in Bioethics, U. of Porto ( email )

Rua Dr. Roberto Frias
4200-464 Porto

Foundation for Law and Science Centers, Inc. ( email )

1020 16th Street NW
Suite LL1
Washington, DC 20036
United States
972 54 344 6055 (Phone)

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