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Notes
1 For a sample of Popper’s best known discussion of his philosophy of science, see Conjectures and Refutations (London: Routledge & Kegan Paul, 1963) and The Logic of Scientific Discovery (London: Hutchison, 1959). For some standard philosophical critiques of Popper’s philosophy, see Alan Chalmers, What is this Thing Called Science (St.Lucia: University of Queensland Press, 1976), pp. 35–46
; David Oldroyd, The Arch of Knowledge (Kensington: New South Wales University Press, 1986), pp. 297–317 . It is important to indicate that it is not our intention in the following discussion to offer a philosophical critique of Popper’s philosophy per se.2 Frye v US, 293 F. 1013 (D.C.Cir. 1923); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed.2d 469, 113 S. Ct. 2786 (1993).
3 For a critical examination of this litigation and its legal analysis, see Gary Edmond and David Mercer, “Litigation Life: Law-Science Knowledge Construction in (Bendectin) Mass Toxic Tort Litigation,” 30 Social Studies of Science 265 (2000).
4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 125 L. Ed.2d 469, 483, 113 S. Ct. 2786, 2797 (1993). (emphasis added)
5 One of the early authoritative legal sources for discussions of authority is John Henry Merryman, “The Authority of Authority: What the California Supreme Court Cited in 1950,” 6 Stan. L. Rev. 613 (1954).
6 Michael Green, “Expert Witnesses and the sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation,” 86 Northwestern U. L. Rev. 643 (1992)
. See also Michael Green, Bendectin and Birth Defects: The Challenges of Mass Toxic Substances Litigation (Philadelphia: University of Pennsylvania Press, 1996).7 Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2797 (1993). Compare Claar v. Burlington Northern R. Co., 29 F.3d 499, 501 (9th Cir. 1994); Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994); In re Paoli R.R. Yard P.C.B. Litigation, 35 F.3d 717, 743-745, 746 (3rd Cir. 1994); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1399, 1411 (D. Or. 1996).
8 522 U.S. 136, 139 L Ed 2d 508, 519, 118 S. Ct. 512 (1997). See also Gary Edmond, “Deflating Daubert: Kumho Tire Co. v Carmichael and the inevitability of general acceptance (Frye),” 23 U. New South Wales L. J. 38 (2000).
9 509 U.S. 579, 594. 125 L. Ed.2d 469, 483, 113 S. Ct. 2786, 2797 (1993). (emphasis added)
10 Such as the cases of Smith, Williams, Downing and Jack Weinstein and Margaret Berger’s textbook, Federal Evidence.
11 Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed.2d 469, 486 (1993). In December 2000, Rule 702 was amended. See Catherine Brixen and Christine Meis, “Codifying the Daubert Trilogy: The Amendment to Federal Rule of Evidence 702,” 40 Jurimetrics J. 527 (2000).
12 Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 487 (1993).
13 Steven Goldberg, Culture Clash: Law and Science in America (New York: New York University Press, 1994)
; Gary Edmond and David Mercer, “Manifest Destiny: Law and Science in America,” 10 Metascience 40 (1996) . A similar tendency is apparent in some autopoetic approaches. Compare, e.g., Richard Nobles and David Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (Oxford: Oxford University Press, 2000) , and Gary Edmond, “Whigs in Court: Historiographical Problems with Expert Evidence,” 14 Yale J. L. & Humanities 123–75 (2002) .14 Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed. 2d 469, 485 (1993), p. 485. (emphasis added)
15 Elsewhere we have examined how judicial expressions of causation are frequently couched with similar sorts of qualifications in order to distinguish legal causation from articulations by philosophers and scientists. See Gary Edmond and David Mercer, “Rebels without a cause: Judges, scientific evidence and the uses of causation,” in Ian Freckelton and Danuta Mendelson, eds., Causation in Law and Medicine (Dartmouth: Ashgate, 2002), pp. 83–121.
16 John Schuster and Richard Yeo, eds., The Politics and Rhetoric of Scientific Method (Dordrecht, the Netherlands: Reidel 1986)
; David Mercer, “Scientific Method Discourses in the Construction of ‘EMF Science’: Interests, Resources and Rhetoric in Submissions to a Public Inquiry,” 32 Social Studies of Science 205–33 (2002).17 For an analysis of the implications of classification, consider: Geoffrey Bowker and Susan Starr, Sorting Things Out: Classification and its Consequences (Cambridge, MA: MIT Press, 1999).
18 For a succinct background discussion of Popper and Hempel set against broader traditions in the philosophy of science, see John Losee, A Historical Introduction to the Philosophy of Science, 4th ed. (Oxford: Oxford University Press, fourth edition, 2001), pp. 143–176.
19 Popper’s popularity may be, in part, attributable to his willingness to explicitly link his ideals of scientific method to normative and quite prescriptive accounts of the nature of science. Some of the normative orientation, associated with his early career, can be linked to his Cold War political views, and in his later career to fears that the images of science promoted by Kuhn and others represented a dangerous skepticism towards the scientific enterprise. See discussions in: Oldroyd, supra note 1; John Horgan, The End of Science: Facing the Limits of Knowledge in the Twilight of the Scientific Age (London: Abacus, 1998), pp. 32–41
; Brian Magee, Popper (London: Woburn Press, 1974) ; Randal Albury, The Politics of Objectivity (Melbourne: Deakin University Press, 1983), pp. 18–33 ; “Symposium: Karl Popper, 1902–1994, Learning from Negative Instances,” 70 Radical Philosophy 2 (1995); Imre Lakatos and Alan Musgrave, Criticism and the Growth of Knowledge (Cambridge: Cambridge University Press, 1974).20 This sits oddly with some of the discussion of liberality associated with Frye and the FRE. We acknowledge that the majority Daubert judgment explicitly claims that it is acting in fulfillment of the liberalization of admissibility laws required by the enactment of the FRE in 1975. Indeed, after the Daubert judgment was handed down both parties publicly claimed victory. While the Court might have been disingenuous in its account there are alternative explanations considered by or consistent with the thrust of this article. Briefly, in some courts Frye had been used to actively exclude evidence so that alternative tests may have been conceived as more liberal. Another possibility is that the judges — acting as naïve realists — were interested in the model of science, championed by authoritative amici such as the NAS and AAAS, as relevant and useful criteria for identifying genuine and implicitly reliable knowledge.
We should also indicate that we do not intend to make a teleological claim about the Supreme Court’s designs. These may have developed diachronically as the exclusionary ethos seems to have been intensified in the later cases of Joiner and Kumho.
21 It would seem that by characterizing the Daubert decision as some type of judicial accommodation, by which we mean a type of pragmatic eclecticism, the question of why particular authors and images of science were preferred remains obscured. We suggest that appropriation is a better description because accommodation implies an inclusive dimension to divergent philosophical positions which are neither accommodated in the Supreme Court judgments nor in subsequent judicial practice. The Daubert and Kumho appeals were heard because of social and legal concerns about expert opinion evidence in the federal courts. Even if the judges were originally ambivalent or to some degree accommodating of various theoretical positions, a more plausible reading of the Supreme Court appeals from Daubert to Kumho is that they constitute an escalating judicial response to perceived socio-legal problems with few indications of any incorporation of constructivist or critical approaches to the sciences. For some discussion of these issues, consider: Sheila Jasanoff “Beyond Epistemology: Relativism and Engagement in the Politics of Science,” 26 Social Studies of Science 393, 403 (1996)
; Sheila Jasanoff, Science at the Bar: Law, Science and Technology in America (Cambridge, Mass.: Harvard University Press, 1995) p. 63 . See also David Caudill and Richard Redding, “Junk Philosophy of Science?: The Paradox of Expertise and Interdisciplinarity in Federal Courts,” 57 Wash. & Lee L. Rev. 685 (2000) ; Gary Edmond and David Mercer, “Representing the sociology of scientific knowledge and law,” 19 Science Communication 307 (1998) . Our own work has been cited in several Australian federal court judgments and in oral argument before the Australian High Court. However, we would be reluctant to suggest that these citations provide much evidence for its impact on Australian jurisprudence.22 Notwithstanding its apparent simplicity, research into scientific practice and scientific controversies has been used to demonstrate some of the potential difficulties associated with attempts to determine what should count as a valid test. We would contend that much non-mainstream and novel “science” placed before courts could still claim to be, in some way, testable or have arisen from some form of testing. Where there is fundamental theoretical disagreement one party in a scientific dispute may argue that some claims are not testable because experiments are measuring phantom effects that are theoretically implausible or that a given test is flawed. Informal and relatively flexible considerations of whether a test and a result are theoretically plausible appear to be more important than the mechanical application of abstract philosophical models of scientific method. According to Michael Mulkay and Nigel Gilbert, “Putting Philosophy to Work: Karl Popper’s Influence on Scientific Practice,” 11 Philosophy of the Social Sciences 389, 398 (1981)
:[Assessments of conformity to Popper’s basic rule of scientific method hinge on scientists’ interpretation of the term “falsification”; and the meaning of “falsification” depends entirely on researchers’ technical and scientific judgments. In situations of scientific uncertainty these judgments, and hence the meaning of the Popperian rules, will be variable. Consequently, when there is uncertainty, the Popperian rules cannot provide a straightforward guide for scientists’ actions or decisions. There is a gap between the rule and particular action which can only be bridged by the very scientific choice which the rule is intended to constrain.
23 See, e.g., Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996).
24 Jasanoff is cited, in Daubert, for limitations to peer review and publication. These citations and references tend to displace her constructivist theoretical position, and apart from qualified reference by a dissentient in the case of Westman (discussed below) she is never cited for, or associated with, constructivist insights or a relativist epistemology. Superficially, Jasanoff’s analysis of peer review bears resemblance to other works, such as Daryl Chubin and Edward Hackett, Peerless Science: Peer Review and US Science Policy (Albany: State University of New York Press, 1990)
and Marcel LaFollete, Stealing Into Print: Fraud, Misconduct and Plagiarism in Scientific Publishing (London: University of California Press, 1992) , and those of Relman, Angell and Horrobin, which do not share all of Jasanoffs theoretical predispositions. See also Jasanoff, supra note 21. For a recent review of academic peer review, see Juan Miguel Campanario, “Peer Review for Journals as it Stands Today-Part Two” 19 Science Communciation 277 (1998) and the empirical work of Harry Collins, “Tantalus and the aliens: Publications, audiences and the search for gravitational waves,” 29 Social Studies of Science 163 (1999).25 At the very least, a respectable, or perhaps safe, model for legal purposes.
26 877 F.Supp. 1504, 1529 (N.DAla. 1995).
27 For a discussion of the contestation and negotiation around the construction of scientific boundaries, consider: Thomas Gieryn, Cultural boundaries of science: Credibility on the line (Chicago: University of Chicago Press, 1998)
, and Bowker and Starr, supra note 17.28 Note the tautological loop. The selection of falsification as the scientific method and the appropriate means of identifying scientific knowledge, in effect determines what is scientific and therefore to be considered reliable.
29 US v Havvard, 117 F.Supp.2d 848, 852 (S.D.Ind. 2000). See also Simon Cole, Suspect identities: A history of fingerprinting and criminal identification (Cambridge, Mass.: Harvard University Press, 2001)
; Jennifer Mnookin, “The Image of Truth: Photographic Evidence and the Power of Analogy” 10 Yale J. L. & Humanities 1 (1998) .30 In re Joint Eastern and Southern District Asbestos Litigation, 827 F. Supp. 1014, 1026–1027 (S.D.N.Y. 1993); National Bank of Commerce v. Dow Chemical Co., 965 F.Supp. 1490, 1494 (E.D.Ark. 1996); National Bank of Commerce v. Associated Milk Producers, Inc., 22 F.Supp.2d 942, 947-948 (E.D.Ark. 1998); Savage v. Union Pacific Railroad Company, 67 F.Supp.2d 1021 (E.D.Ark. 1999). The last three judgments were all written by Judge Eisele.
31 43 F.3d 1311, 1316 (9th Cir. 1995).
32 Peter Huber, Galileo’s Revenge: Junk science in the courtroom (New York: Basic Books, 1991)
. Compare: Kenneth Chesebro, “Galileo’s retort: Peter Hubers junk scholarship,” 42 American U. L. Rev. 1637 (1993) ; Edmond and Mercer supra note 13; Gary Edmond and David Mercer, “Trashing ‘junk’ science,” Stan. Tech. L. Rev. <http://stlr.stanford.edu/STLR/Articles/98_STLR_3/contents_f.htm> (1998).33 Huber, supra note 32 at 192–228. Although a more detailed reading of Popper reveals that despite his best known claims for falsification as a clean philosophical/logical criteria for demarcating science from non-science he also stipulated the need for scientists to nurture the appropriate critical attitude. See Oldroyd, supra note 1, and Horgan, Albury, Magee, supra note 19.
34 43 F.3d 1311, 1317. It is worth observing that Blackmun J’s cosmological caveat might actually be invoked, in response to the Court of Appeals’ approach to Daubert on remand, to argue that courts will not always require pure or idealized models of expert opinion. In endeavoring to resolve refractory problems expeditiously, courts may divert from the quest for cosmological understanding that purportedly underpins the modern sciences.
35 Ronald Allen, “Expertise and the Daubert Decision,” 84 J. Crim. L. & Criminology 1157 (1994).
36 US v. Director of Illinois Dept. of Corrections, 963 F.Supp. 1473 (N.D.Iii. 1997).
37 963 F.Supp. 1473, 1489–1490 (N.D.Ill. 1997).
38 Kenneth Foster and Peter Huber, Judging science: Scientific knowledge and the federal courts (Cambridge: MIT Press, 1998)
. Compare Gary Edmond and David Mercer, “Juggling science: From polemic to pastiche,” 13 Social Epistemology 215 (1999).39 Ironically, because the Supreme Court endorsed an eclectic and highly idealized model of scientific method, that was not based on actual study of what scientists do in their day-to-day work, expert witnesses have become increasingly dependent upon lawyers to translate and frame their practices and evidence into legally tractable forms. By invoking Popper, courts have to some extent exacerbated the very conditions they were endeavoring to ameliorate. This is one of the costs of both Blackmun J’s inoculation and Rehnquist CJ’s prophylactic approach. In addition, the new standards provide means to challenge almost any submission, on the basis of inadequacies of testing and replication. See Harry Collins, Changing Order: Replication and Induction in Scientific Practice (London: University of Chicago Press,1985)
, and Collins and Pinch, supra note 22; Mike Lynch, “The Discursive Production of Uncertainty: The OJ Simpson ‘Dream Team’ and the Sociology of Knowledge Machine,” 28 Social Studies of Science 829 (1998) .40 55 F.Supp.2d 62, 65 (D.Mass. 1999).
41 Alexander Morgan Capron, “Daubert and the Quest for Value-Free “Scientific Knowledge” in the Courtroom,” 30 U. Rich. L. Rev. 85 (1996)
; Margaret Farrell, “Coping with Scientific Evidence: The Use of Special Masters,” 43 Emory L. J. 927 (1994) and “Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemiology and Legal Process” 15 Cardozo L. Rev. 2183 (1994); Peter Schuck, “Multicultural Redux: Science, Law and Politics,” 11 Yale L. Policy Rev. 1 (1993) .42 US v. Hines, 55 F.Supp.2d 62, 65 (D.Mass. 1999).
43 There has been an ongoing assault on evidence generated through the examination of handwriting. This accords well with our general discussion of anxieties about forms of unreliable science. See, e.g., D. Michael Risinger, Mark Denbeaux and Michael J. Saks, “Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification Expertise,” 137 U. Pa. L. Rev. 731 (1989)
.44 880 F.Supp. 1027 (S.D.N.Y 1995).
45 880 F.Supp. 1027, 1040. (italics added) See also Freeman v. Case Corp., 924 F.Supp. 1456, 1466 (W.D.Va. 1996).
46 126 F.3d 679, 685 (5th Cir. 1997). Citing Green, Popper and Faigman, Judge Dennis distinguished between “hard” or “Newtonian” science and “knowledge outside the realm of hard science.” The term Newtonian stems from the work of the eminent evidence scholar Imwinkelried and appears to be based on a very casual analysis of the history and philosophy of science, Green, supra note 6; Edward Imwinkelried, “The Next Step After Daubert, Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony,” 15 Cardozo L. Rev. 2271 (1994)
; David Faigman, “To have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy,” 38 Emory L. J. 1005 (1989) . Judge Dennis also cited the case of Starzecpyzel.47 143 L. Ed.2d 238 (1999).
48 Kumho Tire Co. v. Carmichael, 143 L. Ed.2d 238, 252 (1999).
49 General Electric Co. v. Joiner, 522 U.S. 136, 139 L. Ed.2d 508, 519, 118 S. Ct. 512 (1997).
50 This is an escalation from “role” (Rehnquist CJ) and “responsibility” (Blackmun J) espoused in Daubert.
51 Kumho Tire Co. v. Carmichael, 143 L. Ed.2d 238, 253, 257 (1999). Justice Stevens was critical of this practice. Nevertheless, the majority’s exemplification and the ideological value of casting Carlson as a junk scientist was significant: “We further explain the way in which a trial judge may consider Daubert’s factors by applying these considerations to the case at hand.” See Gary Edmond, “Legal Engineering: Contested representations of law, science (and non-science) and society,” 32 Social Studies of Science (2002)
(forthcoming).52 Kumho Tire Co. v. Carmichael 143 L Ed 2d 238, 253 (1999). It is not our intention to enter this non-reflexive debate about the adequacy of Carlson’s opinion, other than to suggest that the Supreme Court’s orientation is not the only way to interpret the case, and to indicate how different models of science and particular emphases enable judges, and others, to represent and treat expert evidence in quite inconsistent ways. See, e.g., Gary Edmond, “Science, Law and Narrative: Helping the ‘Facts’ to Speak for themselves” 23 S. Ill. U. L. J. 555 (1999).
53 Kumho Tire Co. v. Carmichael, 143 L. Ed.2d 238, 251 (1999).
54 Even if the inclusion of qualifications was a form of judicial accommodation, subsequently they could be elided and displaced. Of course, Supreme Court judges do not have complete control over the use of their decisions.
55 Several articles and books have examined the case of McLean v Arkansas, see Michael Ruse, ed., But is it Science? The Philosophical Question in the Creation/Evolution Controversy (New York: Prometheus Books, 1996)
; “Special Section on Creationism, Science, and the Law,” 40 Science Technology and Human Values 9 (1982); Thomas Gieryn, G. Bevins and S. Zehr, “Professionalization of American Scientists: Public Science in the Creation/Evolution Trials,” 50 American Sociological Review 392 (1985) ; Marcel LaFollette, Creationism, Science and the Law: The Arkansas Case (Cambridge, Mass.: MIT Press, 1983).56 529 F.Supp 1255 (E.D.Ark. 1982).
57 529 F.Sup 1255, 1267.
58 529 F.Supp. 1255, 1268.
59 This position is supported by the images of science presented in amicus curiae briefs submitted in a later appeal — involving another creation science case — to the Supreme Court in Aguillard v Edwards, 482 U.S. 578, 107 S. Ct. 2573 (1987). In that case, the images of science propounded again reflected the exigencies of the case (context of use), and also the federal jurisprudence. In a brief submitted on behalf of 72 Nobel laureates (and others) general acceptance — the dominant legal standard prior to Daubert — is invoked in addition to the testing of naturalistic explanations. For example: “Neither appellants nor their affiants suggest that their definition of “creation science” is generally accepted” and “Science is devoted to formulating and testing naturalistic explanations for natural phenomena…. The scientific method involves the rigorous, methodological testing of principles that might present a naturalistic explanation for those facts…. An explanatory principle that is by its nature cannot be tested is outside the realm of science.” It is interesting to note the emphasis placed in a secondary account of the construction of the amicus brief produced by the Nobel laureates in the work of Michael Shermer, director of the The Skeptics (US). In his account the brief is portrayed as if it represented a unique point in the construction of a unified image of the scientific method. Shermer does not acknowledge that other briefs may have produced or endorsed different definitions and emphases, see Michael Shermer, Why People Believe Weird Things: Pseudoscience , Superstition, and other confusions of our time (New York: Freeman, 1997), pp. 154–172
.Another brief in Edwards also placed different emphases. In the brief submitted by the NAS, they suggest that scientific findings “have confirmed the essential validity of the theory of evolution developed by Charles Darwin and others.” They also stress that: “Creation-science is not science. It cannot meet any of the criteria of science. Indeed it fails to display the most basic characteristic of science: reliance upon naturalistic explanations… . Science welcomes new discoveries and ideas. Scientists operate within a system designed for continuous testing of ideas.”
60 Overton’s J judgment, following the testimony of philosopher of science Michael Ruse, tends to treat testability and falsification as overlapping categories, see Michael Ruse, “Witness Testimony Sheet, McLean v. Arkansas,” in Ruse, supra note 55 at 302. Our own research has identified some unusual twists in the use of Popperian philosophy in an Australian trial which concerned claims made about the existence of Noah’s Ark. See Gary Edmond and David Mercer, “Saving science: Creating (public) science in the Noah’s Ark case,” 8 Public Understanding of Science 317 (1999)
. Others have noted the willingness, depending on the specific context, for proponents of creation science to bolster their claims by enrolling images of scientific practice from the philosophy of science. See, e.g., Dorothy Nelkin, Science Textbook Controversies and the Politics of Equal Time (Cambridge, Mass,: MIT Press, 1977) ; Simon Locke, “The Use of Scientific Discourse by Creation Scientists: Some Preliminary Findings,” 3 Public Understanding of Science 403 (1994) . At various times during his career Popper questioned the falsifiability of the central plank of Darwinian evolution by natural selection, namely “the survival of the fittest.” See K. Popper, Unended Quest (La Salle, Ill.: Open Court,1976) pp. 167–79, 234–35 . The possibility of using Popper’s philosophy as a tool to challenge the scientific veracity of Darwinism raises some interesting ironies. Consider the discussion in Michael Ruse, “Prologue: A Philosopher’s Day in Court” in Ruse, supra note 55 at 13–35; Larry Laudan, “Science at the Bar: Causes for Concern” 7 Science Technology & Human Values 61 (1982) ; Philip Quinn, “The Philosopher of Science as Expert Witness,” in James Cushing, C.F. Delaney and Gary Gutting, eds., Science and Reality: Recent Work in the Philosophy of Science (Notre Dame, Ind.: University of Notre Dame Press, 1984) pp. 32–53.61 We would not contend that these isolated uses are as systematic as the Daubert-inspired references after 1993.
62 756 F.Supp. 1097 (N.D.Ill. 1991).
63 756 F.Supp. at 1099, 1101. Such an onerous standard seems to conform to Zagel J’s anxiety that courts are too liberal in their admissibility decisions: “Neither courts nor scientists agree what precise degree is required for entry into the canon of science or admissibility. I would be satisfied if we excluded what we sometimes admit, that is, expertise with virtually no reliability and no validity.”
64 Notably, here Zagel J makes no attempt to distinguish fact-finding in law from scientific inquiry. This is inconsistent with the dichotomy developed in relation to Blackmuns’J Daubert opinion. Note that after Daubert Zagel J endorsed a Popperian approach in US v. Director of Illinois Dept. of Corrections.
65 874 F.2d 307, 309 (5th Cir. 1989), citing Bert Black, “A Unified Theory of Scientific Evidence,” 56 Fordham L. Rev. 595 (1988)
and Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962), pp. 5–7.66 Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L. Ed.2d 469, 485.
67 For discussion of Merton and the traditional “standard” sociological view of science, see Michael Mulkay, Science and the Sociology of Knowledge (London: George Allen and Unwin, 1979), pp. 19–26.
68 Well known studies by Merton include his Weberian inspired thesis, Science Technology and Society in Seventeenth Century England (New York: Harper and Row, 1970), [originally published in Osiris (1938)], where he linked the rise of modern science to the cultural ethos of Puritanism. Merton also made major contributions to methodology in the sociology of science, The Sociology of Science: Theoretical and Empirical Investigations (Chicago, University of Chicago Press, 1973); T. Gieryn, ed., Science and Social Structure (A Festschrift for RK Merton) (New York: New York Academy of Sciences, 1980)
. Interestingly, Merton and his students were influential in the development of scientometrics and bibliographical studies of scientific texts. Debates about the respective value of qualitative versus quantitative approaches continue in the sociology of science. For a recent example of work which is critical of the more qualitative work produced by sociologists of scientific knowledge consider: Stéphane Baldi, “Normative Versus Social Constructivist Processes in the Allocation of Citations: A Network-Analytic Model,” 63 American Sociological Review 829 (1998).69 Barry Barnes, T.S. Kuhn and Social Science (New York: Columbia University Press, 1982)
; Michael Mulkay, “Norms and Ideology in Science,” 4/5 Social Sciences Information 637 (1975) .70 94 S. Ct. 1879 (1974). See also Lotus Dev. Corp. v. Paperback Software Intern., 740 F. Supp. 37, 77–79 (D. Mass. 1990).
71 94 S Ct 1879, 1890 (1974).
72 94 S Ct 1879, 1890 (1974).
73 These claims are more consistent with the work of Mitroff and Mulkay. Ian Mitroff, “Norms and Counter-norms in a select group of the Apollo Moon Scientists: A Case Study in the Ambivalence of Scientists,” 39 American Sociological Review 579–595 (1974)
; Michael Mulkay, “Interpretation and the use of rules: The case of the Norms of Science,” in T. Gieryn, ed., Science and Social Structure (A Festschrift for RK Merton) (New York: New York Academy of Sciences, 1980), p. 111 . For some recent studies providing overviews of the shaping by commercial, state and public interests of the reward system, normative ethos and professional ideologies of science, see Henry Etzkowitz and Andrew Webster, “Science as Intellectual Property,” in Sheila Jasanoff, et al, eds., Handbook of Science and Technology Studies (Thousand Oaks: Sage, 1995), pp. 480–505 ; Helga Nowotny, Peter Scott and Michael Gibbons, Rethinking Science: Knowledge and the Public in an Age of Uncertainty (Cambridge: Polity Press, 2001) ; Philip Mirowski and Esther-Mirjam Sent, eds., Science Bought and Sold: Essays in the Economics of Science (Chicago: University of Chicago Press, 2002).74 587 F.2d 1128 (D.C.Cir. 1978).
75 587 F.2d at 1147–1148.
76 74 F.Supp.2d 803 (N.D.Ill. 1999).
77 74 F.Supp.2d at 804.
78 74 F.Supp.2d at 807.
79 60 F.3d 913 (2nd Cir. 1994).
80 Compare the rhetorical importance of the (Huber inspired) laboratory-centered and generally more restrictive models of science elaborated by the Court of Appeals in the remand from Daubert, supra note 31.
81 60 F.3d at 933.
82 60 F.3d at 934–935.
83 Legal support for this proposition is drawn from: Weissmann v. Freeman, 868 F.2d 1313, 1324 (1989). Judges often seem to prefer legal authority to other sources of authority, even when confronted with non-legal specialized knowledges. This tendency was conspicuous in early judicial descriptions of DNA typing technology, where prior judgments were as common as scientific texts; both as authority for admission and use as well as descriptions of appropriate practice and the limitations associated with the technology.
84 Once again these representations are quite different to the motivations characterized as legitimate by Huber, supra note 32.
85 60 F.3d at 940–941.
86 52 F.3d 967 (Fed. Cir. 1995).
87 Perhaps they were not clearly understood by judges. On the basis of support from preeminent institutions such as the AMA, NAS and AAAS, they may have — embracing some kind of naïve realism — actually thought that Popper’s theory captured what is often conceived as the privileged epistemology of science.
88 Though, we suspect many commentators such as Foster and Huber, supra note 38, were not.
89 Oldroyd, supra note 1 at 308–315.
90 K. Popper, The Open Society and its Enemies, 2 volumes (London: Routledge & Kegan Paul, 1945).
91 Albury, supra note 19.
92 Magee, supra note 19.
93 See, e.g., Stephen Odgers and James Richardson, “Keeping bad science out of the courtroom - Changes in American and Australian expert evidence law,” 18 U. New South Wales L. J. 108 (1995)
; Ian Freckelton, “Contemporary comment: When plight makes right – The forensic abuse syndrome,” 18 Criminal Law Journal 29 (1994) ; Huber, supra note 32; Foster and Huber, supra note 38; David Bernstein, “Junk science in the United States and the Commonwealth,” 21 Yale J. International L. 123 (1996).94 Gilbert and Mulkay, supra note 22.; Michael Mulkay, Sociology of Science: A Sociological Pilgrimage (Milton Keynes: Open University Press, 1991), p. 130.
95 We accept that the extent of the revolution is open to contestation. In part it depends upon the emphasis of elements of novelty as opposed to continuity. It would be our contention that falsification is frequently unworkable or of limited value as an admissibility criterion. This is not to suggest that Daubert is insignificant, but rather to interpret the Daubert, Joiner, Kumho “trilogy” as a shift in ethos or the inauguration of a new regime which encouraged federal judges to be more critical about admissibility decisions.
96 In this regard Judge Weinstein’s oft-cited contention is emblematic: “An expert can be found to testify to the truth of almost any factual theory, no matter how frivolous.” Jack B. Weinstein, “Improving Expert Testimony,” 20 U. Rich. L. Rev. 473, 482 (1986).
97 For some discussion of the role of a literary or discursive technology consider: Timothy Lenoir, “Inscription practices and materialities of communication,” in Timothy Lenoir, ed., Inscribing Science: Scientific texts and the materiality of communication (Stanford: Stanford University Press, 1998), pp. 1–19
; Simon Schaffer, “The Leviathan of Parsontown: Literary Technology and scientific representation” in Inscribing Science: Scientific texts and the materiality of communication, supra at pp. 182–222 ; Alan G. Gross, Joseph E. Harmon and Michael Reidy, Communicating Science: The Scientific Article from the 17th Century to the Present (Oxford: Oxford University Press, 2002) .98 The following are references to amicus curiae briefs submitted to the Supreme Court in relation to the Daubert appeal. AAAS and NAS, pp. 6, 7, 8, 10: “Science … represents a process for refining theoretical explanations about the world that are subject to further testing and refinement,” “science does proceed through a series of interrelated steps centered on the generation and testing of hypotheses,” “An hypothesis is accepted as generally valid to the extent that it has survived repeated attempts at falsification”; AMA, pp. 6–7, 9, 10, 11: “The scientific method involves replicable, empirical testing of hypotheses”; New England Journal of Medicine, p. 2; Carnegie Commission, pp. 5, 6, 9, 11, 12: “Scientists proceed by formulating hypotheses that they then test.” Other briefs which endorsed Popper or testing include: American Law Professors; Pharmaceutical Manufacturers, p. 13; Respondent, p. 21; American Tort Reform Association, p. 8; Product Liability Advisory Council, pp. 16–17; American College of Legal Medicine, p. 11; Bloembergen et al, pp. 3, 5, 7, 8, 12. It is also worth noting that many of the briefs stressed the importance of publication and peer review, several citing Angell and Relman. Notably, the NAS and AAAS brief cited Relman and Angell, Horrobin, Green and Ziman. A brief submitted by eminent physicians, scientists and historians of science seems to have made little identifiable impact.
99 Given their seniority and Popper’s waning popularity, it is quite possible that Popper’s philosophical writings were encountered by some of the judges during their university education.
100 Recourse to Popper’s work may have also opened the Court to exogeneous criticism — Rehnquist CJ’s concern — and this may be one of the reasons why Popper is eventually, in Barthes’ terminology, exnominated.
101 Historians and anthropologists seem to have been more reflexive about their participation in legal settings and the judicial use of their professional work. See, e.g., Ruse, Laudan and Quinn supra note 60.
102 See, e.g., Mary Bobinski, “Citation Sources and the New York Court of Appeals,” 34 Buffalo L. Rev. 965 (1985)
; Russell Smyth, “What do judges Cite? An Empirical Study of the Authority of Authority’ in the Supreme Court of Victoria,” 25 Monash U. L. Rev. 29 (1999) . Compare: G. Nigel Gilbert, “Referencing as Persuasion,” 7 Social Studies of Science 113 (1977) ; John Law and R.J. Williams, “Putting Facts Together: A Study of Scientific Persuasion,” 12 Social Studies of Science 535 ; Steven Yearley, “Textual Persuasion: The Role of Social Accounting in the Construction of Scientific Arguments,” 11 Philosophy of the Social Sciences 409 (1981) ; Steve Woolgar, “Discovery: Logic and Sequence in a Scientific Text,” in Karin Knorr, Roger Krohn and Richard Whitley, eds., The Social Processes of Scientific Investigation (Dordrecht: D. Reidel Publishing Company, 1980) 239 ; G. Nigel Gilbert and Michael Mulkay, “Warranting Scientific Belief,” 12 Social Studies of Science 383 (1982) . For a more general critical appraisal of qualitative and quantitative approaches consider the classic position advanced by Aaron Cicourel, Method and Measurement in Sociology (New York: The Free Press, 1964).103 It appears as no coincidence that after the Daubert judgment the relevance of Popper (and Daubert) was contested in the various amicus curiae briefs submitted to the Supreme Court in relation to the admissibility standard for non-scientific expert evidence. See also Edmond (2002), supra note 51.
104 Bruno Latour and Steve Woolgar, Laboratory Life: The Social Construction of Scientific Facts (London: Sage, 1979) p. 75.
105 Although there is no simple mathematical relationship between citation or its absence indicating facticity. In some contexts citation may still act to bolster an established claim. See also Bruno Latour, Science in Action (Cambridge Mass.: Harvard University Press, 1987) pp. 21–62.
106 Latour and Woolgar, supra note 104 at 76.
107 Pierre Bourdieu, “The force of law: Toward a sociology of the juridical field,” 38 Hastings L. J. 814 (1987).
108 The transformation of citations of Popper’s falsification into a more standardized legal image of testing also resonates with Ravetz’s work on the standardization of facts. Ravetz observed that “facts” which are useful to a specific technological application may bear little resemblance to their original formulation in a research context:
[W]hen the fact undergoes standardization, not merely the nuances of its first intimation, but even some important but subtle aspects of its assertions or its objects, are smoothed over and forgotten. This seems and may indeed be, a regrettable vulgarization, especially when the end by-product is examined by an expert in the corresponding descendent field of research. But it is quite necessary, if the fact is to be useful to those who lack the time, skill, or inclination to master the elaborate theoretical context in which its sophisticated versions are comprehensible.
109 Regardless of their reality, these anxieties had been prevalent since the mid 1980’s. See Edmond and Mercer (2000), supra note 3.
110 It is arguable that the third Daubert criteria was a direct response to new diagnostic technologies like DNA typing.
111 General Electric Co. v. Joiner 522 U.S. 136, 139 L Ed 2d 508, 519, 118 S. Ct. 512 (1997); Kumho Tire Co. v. Carmichael 526 U.S. 137, 143 L Ed 2d 238, 119 S. Ct. 137 (1999). See also US v. Scheffer 523 U.S. 303, 140 L. Ed 2d 413, 118 S. Ct. 1261 (1998).
112 Several commentators have undertaken very critical reviews of the sociological work of Latour and Jasanoff See, e.g., Alan Sokal and Jean Bricmont, Intellectual Impostures (London: Profile Books, 1998), pp. 115–123
; David Bereby, “That Damned Elusive Bruno Latour,” Lingua Franca 22 (Sept/Oct., 1994) ; Norman Levitt, Prometheus Bedeviled: Science and The Contradictions of Contemporary Culture (New Brunswick: University Press, 1999) . For some overviews of the so called Science Wars see Andrew Ross, ed., Science Wars (Durham, NC: Duke University Press, 1996) ; David Mercer, “The Higher Moral Panic: Academic Scientism and its Quarells with Science and Technology Studies,” 17 Prometheus 77 (1999) ; Jay A. Labinger and Harry Collins, eds., The One Culture?: A Conversation About Science (Chicago: The University Of Chicago Press, 2001).113 Jonathan Potter, Representing Reality: Discourse, rhetoric and social construction (London, Sage, 1996).
114 Mike Michael, “Lay Discourses of Science: Science in General, Science in Particular, and Self,” 17 Science Technology and Human Values 313 (1992).
115 Clifford Geertz, “Thick description: Toward an interpretative theory of culture” in C. Geertz, The interpretation of cultures (New York, Basic Books, 1973) 3.
116 Conventionally, the long involvement of social science in US courts is linked to the introduction of the Brandeis brief in Muller v. State of Oregon, 208 U.S. 412, 28 S. Ct. 324 (1908). More recent and influential work by Monahan and Walker provides an indication of prevailing debates around the role of the social sciences. Monahan and Walker proposed that findings of social scientific work could be used by courts as a form of precedent, comparable to the use of legal precedent. We would contend that this study might illustrate some of the potential limitations to such a proposal. Because such authority is often incorporated, qualified and transmuted in judgments it would seem that, apart from the logistics of monitoring ongoing research and assessing and weighing (often competing) methodologies, such a model ignores the strategic and legitimatory flexibility central to judicial decision making. See John Monahan and Laurens Walker, “Social Authority: Obtaining, Evaluating, and establishing social science in law,” 134 U. Pa. L. Rev. 477 (1986)
; Social Science in Law: Cases and Materials (New York, The Foundation Press, Inc., 1985); Laurens Walker and John Monahan, “Scientific Authority: The Breast Implant Litigation and Beyond,” 86 Va. L. Rev. 801 (2000). s117 Consider: Harvey Sacks, “On doing ‘being ordinary,” in Maxwell Atkinson and John Heritage, eds., Structures of Social Action: Studies in Conversation Analysis (Cambridge: Cambridge University Press, 1984), p. 413
; Michael Moore, “Demonstrating the Rationality of an Occupation,” 8 Sociology 111 (1974).