Defending Daubert: It's Time to Amend Federal Rule of Evidence 702

49 Pages Posted: 4 Oct 2015

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Eric Lasker

Hollingsworth, LLP

Date Written: October 2, 2015


The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702's mandate altogether or by aggressively reinterpreting the Rule’s provisions.

Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish the job it began in 2000. Rule 702 should be amended to secure the promise of Daubert and effectively protect future litigants and juries from the powerful and quite misleading impact of unreliable expert testimony.

Keywords: admissibility, Daubert trilogy, expert testimony, Federal Rules of Evidence, Rule 702, judicial disregard, objectively testable methodology, reliability

JEL Classification: K41

Suggested Citation

Bernstein, David Eliot and Lasker, Eric, Defending Daubert: It's Time to Amend Federal Rule of Evidence 702 (October 2, 2015). William & Mary Law Review, Vol. 57, No. 1, pp. 1-48, 2015, George Mason Legal Studies Research Paper No. LS 15-29, Available at SSRN:

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)


Eric Lasker

Hollingsworth, LLP ( email )

United States

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