Irreconcilable Differences? The Troubled Marriage of Science and the Law

Abstract

There are deep tensions between the goals and values of the scientific enterprise and the culture of the law, especially the culture of the U.S. legal system: between the investigative character of science and the adversarial culture of our legal system; between the scientific search for general principles and the legal focus on particular cases; between the pervasive fallibilism of the sciences and the concern of the law for prompt and final conclusions; between the scientific push for innovation and the legal concern for precedent; between the informal, problem-oriented pragmatism of scientific investigation and the reliance of the legal system on formal rules and procedures; and between the essentially theoretical aspirations of science and the law's inevitable orientation to policy.These tensions partly explain the difficulties encountered in handling scientific testimony.

Keywords: law, science, Daubert, Kitzmiller, forensic science, professional expert witnesses, statutes of limitations, court-appointed experts