How Good is Good Enough?: Expert Evidence Under Daubert and Kuhmo

24 Pages Posted: 8 Mar 2016 Last revised: 9 Mar 2016

See all articles by David H. Kaye

David H. Kaye

Pennsylvania State University, Penn State Law; Arizona State University - Sandra Day O'Connor College of Law - School of Life Science

David L. Faigman

University of California Hastings College of the Law

Michael J. Saks

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Joseph Sanders

University of Houston Law Center

Date Written: 2000

Abstract

This essay replies to Professor Edward Imwinkelried's suggestion that our treatise, "Modern Scientific Evidence," supports a "best evidence" rule with respect to expert witnesses that would radically reshape admissibility decisions under the Federal Rules of Evidence. We agree that such a rule would be a mistake and did not propose such a rule. We do support what could be called a "better evidence" principle. We believe that in a number of ways, the courts already have adopted this principle and that, by and large, they have used it wisely. They have not used the principle to create impossible burdens for parties who could not under any circumstances produce better evidence. On the other hand, they have used the principle to restrict expert testimony when better evidence is reasonably available. We explain how a better evidence principle promises to produce certain beneficial effects.

Suggested Citation

Kaye, David H. and Faigman, David L. and Saks, Michael J. and Sanders, Joseph, How Good is Good Enough?: Expert Evidence Under Daubert and Kuhmo (2000). Case Western Reserve Law Review, Vol. 50, pp. 645-667, 2000; [included in Penn State Law Research Paper Series]. Available at SSRN: https://ssrn.com/abstract=2744773

David H. Kaye (Contact Author)

Pennsylvania State University, Penn State Law ( email )

University Park, PA 16802
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

Arizona State University - Sandra Day O'Connor College of Law - School of Life Science ( email )

111 E Taylor St.
Phoenix, AZ 85004
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

David L. Faigman

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Michael J. Saks

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Joseph Sanders

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-743-2125 (Phone)
713-743-2299 (Fax)

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