Why Legal Scholars Get Daubert Wrong: A Contextualist Explanation of Law's Epistemology

Abstract

Daubert requires the court to make judgments about scientific evidence. But judges, like jurors, are lay persons in relation to such evidence. How can those judges make valid, compelling and authoritative pronouncements about scientific evidence? Indeed, Daubert has been criticized as requiring too much of the court, and such alternatives as blue ribbon panels have been proposed. This article shows that the Daubert scholarship is significantly hampered by the way legal scholars categorize knowledge. A “contextualist” (as opposed to “invariantist”) theory of knowledge is both philosophically best, and makes sense of law's relation to science.

Keywords: Daubert, Frye, scientific evidence, Rule 702, science in law, epistemology, law and science