Science, Law and Entertainment: The Message of Daubert - Educating Lawyers for the 21st Century

15 Pages Posted: 9 Oct 2017

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: October 8, 2017

Abstract

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

Billauer, Barbara P., Science, Law and Entertainment: The Message of Daubert - Educating Lawyers for the 21st Century (October 8, 2017). Available at SSRN: https://ssrn.com/abstract=3049525 or http://dx.doi.org/10.2139/ssrn.3049525

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
Portugal

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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