The disjuncture between science and law became a significant practical, rather than theoretical, problem in 1993 when the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. Daubert was a radical break from a tradition of judicial deference to scientific norms and conventions on questions of the admissibility of scientific evidence. The Court called upon the federal judiciary to slam the gate on all scientific evidence that is not "'scientific knowledge' . . . derived from the scientific method."' Since 1993, the Supreme Court has issued three opinions clarifying Daubert, and countless judges and legal commentators have wrestled with the application of Daubert's judicial "gatekeeping" requirement. Although the Court intended Daubert and its progeny to enhance the developing relationship between science and law, this promise of Daubert has not yet been realized. Instead, Daubert has imposed a foreign and unwieldy burden on judges who must resolve questions of scientific admissibility, lawyers who must master the scientific theories of expert witnesses, and legal and scientific scholars searching for meaning and direction.
Joelle A. Moreno,
Beyond the Polemic Against Junk Science: Navigating the Oceans that Divide Science and Law with Justice Breyer at the Helm
, 81 B.U. L. Rev. 1033
Available at: http://ecollections.law.fiu.edu/faculty_publications/22