The Overlapping Magisteria of Law and Science: When Litigation and Science Collide

Abstract

The Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts' evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert's methodology has been published in a peer-reviewed journal.

This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.

In this Article, I explore these phenomena and the criticisms of them, as well as the history of peer review itself. Contrary to the critics, I ultimately conclude that each, in fact, can strengthen both law and science through cross-fertilization, if appropriate checks are established. Such efforts will better reflect law and science's overlapping magisteria (a term roughly meaning the disciplines' area of authority). A better recognition and understanding of this overlap will create incentives to improve both law and science.

Keywords: Daubert, peer review, litigation-driven scholarship, research subpoenas

JEL Classification: K13, K41