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Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional and Rhetorical - and Not Just the Methodological - Aspects of Science

78 Pages Posted: 4 Nov 2003  

David S. Caudill

Villanova University School of Law

Lewis H. LaRue

Washington and Lee University - School of Law

Abstract

In response to the claim that many judges are deficient in their understanding of scientific methodology, we identify in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, we observe that courts (in the cases we analyze) are not interested in pragmatically constructing legal science, but rather attempt to ensure that science itself, conceived pragmatically (i.e., without idealizing science), is appropriated in law. We conclude that trial judges who fail to appreciate the social, institutional, and rhetorical aspects of science tend to reject reliable - albeit pragmatic - science, to welcome unreliable - albeit authoritative - science, and thereby to create a body of legal science that is out of sync with mainstream science.

Suggested Citation

Caudill, David S. and LaRue, Lewis H., Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional and Rhetorical - and Not Just the Methodological - Aspects of Science. Boston College Law Review, Vol. 45, p. 1, 2003. Available at SSRN: https://ssrn.com/abstract=462740 or http://dx.doi.org/10.2139/ssrn.462740

David S. Caudill (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States
610-519-7085 (Phone)
610-519-6282 (Fax)

Lewis Henry LaRue

Washington and Lee University - School of Law ( email )

Lewis Hall
Lexington, VA 24450
United States
540-458-8513 (Phone)
540-458-8488 (Fax)

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