On 'Falsification' and 'Falsifiability': The First Daubert Factor and the Philosophy of Science

Abstract

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993), the Supreme Court suggested that in evaluating the admissibility of scientific evidence, federal courts should consider whether a theory or technique . . . can be (and has been) tested. Several commentators have thought that this suggestion represents an adoption of the philosophy of science of Karl Popper, and several courts have treated the abstract possibility of falsification as sufficient to satisfy this aspect of the screening of scientific evidence. This essay challenges these views. It first explains the distinct meanings of falsification and falsifiability. It then argues that while the Court did not embrace the views of any specific philosopher of science, inquiring into the existence of meaningful attempts at falsification is an appropriate and crucial consideration in admissibility determinations. Consequently, it concludes that recent opinions substituting mere falsifiability for actual empirical testing are misconstruing and misapplying Daubert.