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10th Anniversary Of Supreme Court's Daubert Ruling
scraggly codger writes "Slashdot readers might find it interesting to learn about the ongoing legal controversy over the role of federal judges as gatekeepers for scientific evidence in civil and criminal litigation in the US. Ten years ago the Supreme Court provided guidelines for admissibility of scientific evidence in the Daubert ruling. Readers might find it hard to believe from the text of the ruling, but the result has been a huge increase in the power of judges to exclude scientific evidence from presentation to juries, based on what many scientists and other observers consider an incredibly naive (or perhaps merely self-serving) model of science. There's been a spate of news stories covering the topic, perhaps the most prominent in the WSJ of Friday, 27 June, "'Junk Science' Ban Also Keeps Jurors From Sound Evidence" (regrettably not freely available online). I particularly recommend Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of."
Anyone else read that as the "Dogbert" Reading?
overturn Bowers v. Hardwick (the 1986 ruling upholding anti-sodomy laws) and since the effects of this ruling allow judges to a) capriciously decide cases and b)protect corporations by excluding "controversial" research that indicates their malfeasance, I'm not holding my breath for a reversal anytime soon.
...this is an opinion article ("in our opinion") and reeks strongly of a slant in favor of mass-tort attorneys.
Article Translation: "We need all the weapons we can get to launch mass-tort lawsuits, and it's not fair that a judge might have to judge something other than the guilt or innocence of the defendent. Not that they're innocent...we wouldn't sue them otherwise, would we?"
I may sound bitter, but I work for a large legal company (not a firm) and have to deal with the mass-tort vampires all day.
Don't get me wrong, I want to see companies that knowingly fuck over the consumer get their comeuppance, but at the same time, throwing out this ruling would open the floodgates for millions of lawsuits over the smallest infractions that a lawyer could find a scientist to support.
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I mean...look at all the saps who buy magnet bracelets, ionic breeze air purifiers, OxyClean, and a billion other crap products! Yes, valid science might have to wait until it is more accepted before it can be using in court, but I find that the better alternative. This is also why I like the fact that you can't use your goddamn Jesus in court.
Blar.
Well, I for one WELCOME our new computer overlords.
If tits were wings it'd be flying around.
"Your honor, I have here two peer-reviewed, meticulous studies which show how the Daubert decision prevents legitimate science from being submitted ..."
"Evidence denied. Next case!"This is a great example of the power of judges in our system. The first judge to encounter a new case says
"I can judge this." or "I cannot judge this."
By doing this, he essentially grants or denies himself (and subsequent judges) the authority to govern a situation, use a bit of information, or overule a law enacted by representative government.
Isn't it nice to know that the judicial system is only one third of the whole pie. God bless litigious America.
It's sad that good science is gettign trounced in this way. However, conversely, junk science is being used as a means of extortion for so many lawyers. The recent "Fast Food" trial calls are an example. Lawyers and Judges alike are to blame to a certain extent. Not enough are willing to say "We're not going to hear this case because it's baseless and meaningless." If given the chance good science should always win over junk science, but not always. Look at how many people have swallowed the "Greenhouse Theory" despite the vast amounts of good science that refutes it. >
I remember hearing (on 60 Minutes IIRC) that a Pennsylvania judge is questioning fingerprint analysis as legit evidence. I bet Daubert is responsible for that contraversy as well. Wonder how that turned out.
Practice Kind Randomness and Beautiful Acts of Nonsense.
And in our practice proceedings I have to make Daubert motions quite often. It really helps when you have a scientist/doctor (anyone who is going to give scientific/medical/technical testimony) and you know they don't know what they're talking about. It's really nothing more than a chance to examine their knowledge on certain subjects pertaining to what they're testifying on.
IAALS.
http://www.phuber.com/huber/js/js.htm
You may also find interesting materials on his web site:
http://www.phuber.com/
"Oh, the tragedy of math gone wrong. I can't even talk about it." -Wil Wheaton http://www.wilwheaton.net
The court stated that scientific evidence is admissible only if the principle upon which it is based is " `sufficiently established to have general acceptance in the field to which it belongs.' "
This is just more of the system protecting the sytem. The late, great Dr. Richard Feynman said it best, and said it almost 30 years ago in a speach he gave at Caltech.
If they let the evidence in, however, it will be the jury examining the scientific methods used. Most anyone who gets jury duty and is interviewed for a case that relied on science will be thrown out by one side or the other if they have a college education. The jury simply won't be equipped to properly judge scientific data either.
The only solution I can think of is to have a seperate pre-trial jury for scientific evidence, but the methods of selecting those jurors will be both highly selective to get scientific experts and will probably have to prevent the attorneys for both sides from rejecting them. If we do that, it's no longer really a trial by our peers, but a trial (at least in part) by appointed scientists.
It's nothing but crumpled porno and Ayn Rand.
The problem with this argument is that Daubert has not and will not reduce the number of tort suits.
What it does do instead is take a lot of credible science out of the courtroom and force jurors to decide on feeling rather than scientific findings.
The defendants could use a reversal of Daubert to their advantage too. Science should not be locked out of the court by over-zealous judges who are motivated by emotion.
So, we've got the lawyers on one side saying "this evidence should be allowed", and the judges saying "no, it shouldn't". Under the current system, where the judge prevails, apparently this is "chilling". I'm presuming that if the lawyers were to prevail (and therefore be able to admit any "scientific" evidence they damn well pleased), the effect would not be "chilling".
Hmmm. Excuse me while I chew on that one for a second.
Daubert itself suggests the following criteria for determining admissability:
1) is the evidence based on a testable theory or technique;
2) has the theory or technique been peer reviewed;
3) in the case of a particular technique, does it have a known error rate and stan-dards
controlling the techniques operation; and
4) is the underlying science generally accepted?
Not seeing any problems with that so far. I'm also not seeing any good examples of cases which failed because obviously valid expert testimony was barred from the court room. I further note that the anti-Daubert website (see the PDF) claims that "Scientific evidence and opinion is especially crucial in toxic tort cases, when a plaintiff relies on scientific experts to demonstrate causality". That, to me, sounds remarkably similar to: "Shaky science allows us to sue to living shit out of anybody we want to, because even a 1% increase in the occurance of a particular disease sounds scary, and some scientist somewhere will be willing to testify in court for a few bucks."
I don't mean to sound overly cynical, but when I see lawyers complaining about (what judges define as) bad science being disallowed from the courtroom, you're going to have to do a bit better to convince me that I should be up in arms about this.
ZFS: because love is never having to say fsck
From the ruling:
"Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly."
Incredible.
The real problem is it's apples and oranges. When they say "law" they mean "court cases". Legislation and common law (i.e., precedent) are infinitely and capriciously mutable. When they say "scientific conclusions" they don't mean "experimental results" but "theory", as the data gained from experiment is immutable, though its interpretation may be mutable, and the point of science is that theory is mutable but provably true within the known scope and margin of error. Whereas, as I said, the law is simply whatever a majority in a body (or an executive alone) accepts as agreeable, if not true. The law does not seek the truth, it seeks decisions consistent with its past decisions.
The law courts are therefore the last place that the validity of scientific theory should be tested.
1. Judge are being asked to determine whether or not a scientific evidence is "valid-enough" for juries to consider.
2. Judges are too harsh in the judgement.
So what? Who would you rather have make the decision on the validity of the scientific evidence; a judge who at least has one or more post-graduat degree (even if that is not science related), or some Joe Schmuck who can barely add?
When it comes to a tort lawsuits, emotions rule the day FAR more than scientific evidence. If the jury sees some 12 year old kid with no hair with leukemia, all jury want is SOMEONE to tell them that somebody caused it, no matter how truthful it is.
Just look at Corning! The company is now BANKRUPT all based on what is now fully dis-credited "junk science" that somehow linked immunodeficiency illnesses to silicone breast implants. It doesn't matter than study after study since the lawsuits began have proven the link to be ineffectual at best, the company is still bankrupt.
The article is basically arguing that the Federal judges are setting bars that are too high, that juries should be the ones who decides whether or not the scientific claims are valid. PHOOEY!!! All there are arguing for is a shift in responsibility, and I for one would rather have the responsibliity on shoulders of a person who is TRAINED to judge and decide.
I'm curious who funds this group? They seem so happy about Toxic tort suits.
They press on and on about how bad the science is, e.g., how many thousands of chemicals there are, and how hard it is to get accurate science on them:
"This burden on the plaintiff
is considerable because very little is known about the toxicity of the 100,000 chemicals
or their derivatives that are registered for use in commerce. A study by the
National Research Council found that the most basic toxicity data on 75 percent of
the nation's 3,000 high-volume chemicals cannot be found in public records."
"Even when toxicity data is available, researchers rarely reach definitive conclusions that
proclaim: "exposure to toxic substance A will cause disease B." What they do find is that
a group of people, when exposed to a certain substance, are more or less likely to develop
a particular disease or condition than those not exposed."
The question for me is that if this science is so subjective how can they blast the judge for being forced to make a subjective judgement, e.g., it seems the subjective opinion has to be made by someone-- judge or jury. The problem is that a jury is far more likely to buy into the "science" because most people, I honestly believe, don't understand itm and don't want to. If they hear the little guy with numbers, graphs and pretty pie charts they're going to cast a judgement with huge rewards to discourage bad behavior of a company that is " more or less likely to develop a particular disease" by putting the company out of business and stuffing lawyers pockets.
Think about it, how many cell phone companies could withstand the barrage of people blaming them for cancer? Heck even Oreo was sued for transfats in it's cookies. IMHO if you're going to be putting people out of work you better have more than just a "suspicion" the company "might" be causing problems.
The backing of this organization seems to be the "Tellus Institute," a environmental lobby it's no wonder the organization wants to tip the balance of power.
But so what, I'm just an anonymous coward compared to a thousand lawyers and a PDF debiew on slashdot. Bah!
I'm surprised to see this story on /. without a link to Daubert on the Web. This is a very important case with a lot of angry followers, and there's some great stuff on this site. I happen to have some of it bookmarked, as IAAL (I Am A Lawyer).
There's also a listing of other cases where this ruling has been applied. One of the most interesting is United States v. Villarman-Oviedo, which is a narcotics case where the admissibility of the evidence was confirmed despite the fact that the expert was obviously drunk when he took the stand.
Also, the arson case of United States v. Diaz where the handwriting expert's opion was admissible, despite the fact that the handwriting expert was actually a phrenologist.
Clearly, this ruling has hand a profound negative impact on our judicial system.
Consensual sex is boring.
Science cares about external consistency. Scientists build models of the world, test them, and throw them away when they are inconsistent with observation.
Law cares about internal consistency. One of the most important considerations is precedent - "we did it this way last time". When the world changes, precedent gets overturned - eventually.
Science cares about reality. The gold standard in science is the published, reproducible procedure.
Law cares about verisimilitude - believable stories. The gold standard in law is getting twelve members of the community to believe your story, and not just any twelve people - if a person has any expertise related to the matter in court, they will be filtered out of the jury pool.
Science is never the last word. Observation can always make you change your model. Newton was the last word for centuries, now he's an approximation to Einstein.
Law is supposed to be final, and it defends its finality fiercely - witness the resistance to checking old decisions with new DNA techmology, whereas in science the first thing you do with a new tool is compare it with your old measurements.
Yeah, yeah, I know, Thomas Kuhn, postmodernism, yadda yadda... the above is the idealized way science works - reality is more complex and slow, but by and large peer review works.
To a Lisp hacker, XML is S-expressions in drag.
There's been a spate of news stories covering the topic, perhaps the most prominent in the WSJ of Friday, 27 June, "'Junk Science' Ban Also Keeps Jurors From Sound Evidence" (regrettably not freely available online)
Our good friends at Corbis have scanned in this article for us! There is also a good article at Tech Centeral Station.
HIV Crosses Species Barrier... into Muppets
At any rate, the first point I want to make is that someone has to be the gatekeeper. In most matters, it is the judge. I also want to point out that scientific evidence is not the ONLY thing that judges keep out of court. There's a lot of other stuff, too, that kicked out for one reason or another.
The second point I want to make is that judges DO NOT work in a vacuum. They are not just novices off the street and working solely what they are given. In most larger municipalities, there are judges with some technical training or expertise. Further, they know how to do their own research, where to find literature, and it is all at their disposal. They do not want to go into the case ignorant and they are the ones who are routinely assigned these cases. The assignments are not random, by the way. And if it is taking place in the Patent Court, the level of technical expertise they have on hand is quite high. So don't assume that these decisions are being made by the equivalent of someone plucked from the street, because they're not.
And for those of you who like to beat the drum of tort vampires, and so on, consider this: Your attitude is quite prevalent throughout the population. Now, juries are drawn from the general population, right? So the majority of jurors feel the same way you do, and awards are not nearly as high as you might think. In fact, if you ever take a look at types of injuries and the average awards (there are publications and services that compile these things) you'll probably find them quite reasonable.
IAAL
What I want to know is, how the hell did you sneak through the jury selection process??