Science, Law and Entertainment: The Message of Daubert - Educating Lawyers for the 21st Century
15 Pages Posted: 9 Oct 2017
Date Written: October 8, 2017
The history of Daubert reflects a scientifically-averse judiciary and legal community – which once eagerly relied on the consensus of the scientific community upon which to base decisions (as directed per the Frye decision). Until Daubert, outlawed that practice, that is.
Following Daubert, this practice was barred as judges were charged with vetting scientific evidence and deciding for themselves if the proffered evidence was scientifically reliable (actually its validity is to be examined as well, an overlooked feature of the case).
Following, Daubert, some commentators noted an uptick in exclusions of evidence deemed scientifically weak or unacceptable. Some theorists ascribed the changes to the Daubert decision itself. This essay suggests that other factors may have been at play – factors which should be considered in designing the legal curriculum of the 21st century.
In comparing judicial decisions in the century and a half before Frye – beginning from the advent of modern scientific expert witnesses in the late 1700s – with decisions following Daubert, one notices a similarity that has nothing to do with legal decisions. Just as judges and lawyers then were more scientifically sophisticated – so was the laity. In the years pre Frye (and Post Daubert), as this essay illustrates, science was a source of entertainment. Lawyers and laity embraced scientific pursuits then – Justas now, via TV, internet and movies.
It is suggested that the more scientifically astute audiences of today will be more demanding of its lawyers (and judges) than in the decades preceding Daubert. The legal curriculum needs to reflect this.
Keywords: judicial education, legal education, scientific literacy of lawyers, daubert, expert witnesses, frye
JEL Classification: I21, K41, K32, K13
Suggested Citation: Suggested Citation