Litigation Science after the Knowledge Crisis
62 Pages Posted: 31 Aug 2020 Last revised: 30 Apr 2021
Date Written: August 14, 2020
The knowledge crisis that has been causing turmoil in the social sciences for the past few years represents a fundamental shift in scientists’ understanding of what it takes to create reliable science. This crisis, now known as the Replication Crisis, has thrown the spotlight on research practices that undermine the reliability of research results in ways that are typically invisible and cannot be remedied or made visible after the fact. There is ample reason to believe that the defects of method uncovered in the course of the Replication Crisis are at least as pervasive in litigation science as they are in academic science. Yet the legal profession has failed to recognize and address them.
This Article is the first to address the broad implications of the Replication Crisis for the production of scientific knowledge in a civil-litigation context. Drawing on insights from the Crisis, it argues that current procedural practice is simply incapable of providing a court with the information it needs to make an accurate assessment of the reliability of scientific evidence. The Article identifies a number of core principles, drawn from the response of academic science to the Replication Crisis, that can guide reforms to the treatment of scientific evidence in civil litigation. It argues that shoring up the courts’ capacity to evaluate scientific evidence requires a rethinking of the entire chain of creation of scientific knowledge and a reframing of the role of the court in that chain.
Keywords: Evidence, Scientific Evidence, Expert Discovery, Civil Procedure, Replication Crisis, Reliability
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