The Gatekeeping Role in Civil Litigation and the Abdication of Legal Values in Favor of Scientific Values

Beginning almost two decades ago, I wrote a series of law review articles about the nature of legal proof in the context of probabilistic evidence or analysis. In these articles, I explored, in passing, some of the differences between the legal system’s concept of proof of facts, especially in the context of civil litigation, and the same subject as seen by scientists, especially those analyzing empirical data. I put that endeavor aside for what turned out to be an extended period while my career took a different turn, focusing on the intricacies of commercial law. In the last decade, much of my time has been devoted to the problems of international commercial transactions. In particular, a major portion of my work during this time has involved the negotiation of various principles to govern international transactions. In one case, I was the chair of a task force within the drafting committee preparing Revised Article 9 of the Uniform Commercial Code which developed Article 9’s rules governing international secured transactions from the perspective of domestic United States law. In another case, I spent several years as a member of the United States delegation to the working group of the United Nations Commission on International Trade Law (“UNCITRAL”) which developed an international convention (now