Daubert Asks the Right Questions: Now Appellate Courts Should Help Find the Right Answers

Daubert is one of the more important decisions of the twentieth century because it changed fundamentally the relationship between law and science. Prior to Daubert, the law deferred to the scientific community on the question whether answers that scientists provide are sufficiently grounded in theory and practice to be trusted and acted upon by courts. After Daubert, judges are charged independently to appraise what science has to offer, in effect screening out evidence offered as science if it is invalid or unreliable. To put it another way, a pre-Daubert judge who might have hesitated to exclude what seemed to be testimony on a matter of science could say, in effect, “it is not the court who rejects what you say, but other experts in your field.” A judge fearful of criticism for admitting such testimony could say, in effect, “it is not the court who endorses what this expert has to say, but credentialed people in a recognized discipline.” A post-Daubert judge has less room to hide. If he excludes evidence proffered as science he is expected to say “the court finds that what you say is not sufficiently grounded in theory or