What relevance does a decade old, academically elitist and somewhat obscure hoax have for the U.S. judicial system? A lot, it would seem.
When Alan Sokal, a physics professor at NYU, wanted to test the intellectual rigor of his colleagues, he wrote an article titled, "Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity." Admittedly, Sokal’s goal was to determine if he could publish a completely unfounded article in a leading cultural studies journal that was “littered with nonsense” if it merely sounded good and followed the ideological leanings of the journal’s editors. It could, and it did. Sokal had his parody published in the 1996 spring/summer issue of Social Text, and in what subsequently became known as Sokal’s Hoax, he exposed a careless regard for sound evidence; especially, it would seem, if the conclusion favored a certain outcome.
In court rooms across the nation, evidence and conclusion have not always been sufficiently linked. Nowhere is this better illustrated than through the growth of junk science. Countless products and industries, from Vioxx to silicone breast implants, have found their way into the courts, often with expert opinions and empirical evidence proffered from every imaginable angle, resulting in mountains of evidence that seems to implicate everyone.
Given this judicial climate, how are we to decipher what is sound science, and what is a hoax? In what became known as the Daubert trilogy — Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Jointer and Kumho Tire Co. v. Carmichael – the U.S. Supreme Court sought to answer just that question. In its decision the court superseded an older “general acceptance” test, and pointed to new guidelines to be used to determine the validity of scientific testimony.
Central were the Federal Rules of Evidence (FRE) 702 which allowed, but were not limited to, a set of standards based on testable theories and techniques that had been peer reviewed; known potential rates of error; the existence and maintenance of standards controlling operations and a general acceptance of the underlying science in question. In addition, it was ruled that judges would act as “gatekeepers,” charged with upholding the new measures and responsible for determining the validity of scientific evidence.
Yet not everyone has been happy with these results. Some critics of Daubert, such as the Federal Judicial Center, the Federal Judiciary’s research and education wing; along with much less impartial groups like SKAPP, a silicone breast implant litigation trust fund associated with George Washington University, claim that judges are incapable of fulfilling their role as gatekeeper. They argue that Daubert puts judges in an unfamiliar role of becoming “amateur scientists,” no better at making decisions concerning the validity of expert testimony than the average juror.
This is simply not true. First, judges are not expected to act as “scientists,” donning white coats and entering the lab to determine what constitutes sound scientific evidence. The gatekeeping role is meant only to ensure that scientific testimony meets a sufficient level. Second, judges have more resources at their disposal to help ensure that any decision-making process passes beyond an “amateur” level. And third, judges are more likely to be held accountable for their decisions and much less likely to rule based on sympathy toward plaintiffs or preconceived notions and generalizations about defendants and their motives.
In subsequent years, results showed judges did place a higher burden of proof on expert testimony and the underlying science it espoused. Post-Daubert studies, including one conducted by Rand Corp., indicated that judges were more rigorous in assessing reliability as well as determining expert qualifications and relevance. As a result, challenges to expert testimony rose, and Daubert was successful at its stated goal, the removal of scientific testimony that was created and shaped for trial.
The post-Daubert world has not been without problems, however. One of the unintended consequences has been an increase in forum shopping. Lawyers have moved their cases to jurisdictions and states that do not adhere to Daubert. They’ve also taken to suing individuals, rather than companies that they work for, to avoid federal court. This has created a major log-jam in certain jurisdictions, preventing legitimate cases from being heard and costing tax-payers thousands each year.
And because this avenue still exists for the creative lawyer, companies and individuals at risk of being sued must continually engage in unnecessary and overbearing preventative measures to help avoid frivolous litigation. The cost of these measures, especially in vital industries like pharmaceuticals, makes new products more expensive to develop and puts them increasingly out of reach for American consumers.