Beyond the Polemic against Junk Science: Navigating the Oceans that Divide Science and Law with Justice Breyer at the Helm
Boston University Law Review, Vol. 81, Issue No. 5, 2001
Florida International University Legal Studies Research Paper No. 09-01
60 Pages Posted: 29 Jul 2009 Last revised: 25 Apr 2014
Date Written: July 29, 2009
Abstract
This Article posits that the problem of science that is misused or misunderstood by judges, lawyers, and jurors is real; but that the "junk science" literature consistently ignores the range of scientific mistakes and misunderstandings that permeate the law. Junk science is neither the source nor the scope of the problem among scientists, legal scholars, and practitioners, but is instead the byproduct of an adversarial system that too often fails to seek practical methods to enhance communication and collaboration with disciplines outside the law. The Article offers a specific two-pronged response to Justice Breyer's charge that judges "must aim for decisions that, roughly speaking, approximately reflect the scientific state of the art." The first component is a new interpretation of the evidentiary standards that places the judicial exploration of scientific validity squarely in the context of a relevance inquiry. The second is a detailed and specific exploration of basic scientific terminology, methodology, and statistical concepts designed to facilitate the operation of this reenvisioned standard.
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