A cognitive scientist looks at Daubert.

Abstract

Our system of justice requires that trials be maximally fair. It is part of what holds this society together. Indeed, it is part of the genius of the justice system to have a kind of balance between strict and nurturant morality within the judicial system, so that the system itself provides a kind of moral and political balance. Daubert v Merrell Dow Pharmaceuticals, Inc (1993) has upset that balance and has made our judicial system significantly less fair and more politically conservative. Daubert is not just about the application of some procedural rule (Rule 702). Daubert functions in its application as a strategic initiative that significantly moves America in a conservative direction, in the moral and political spheres, as well as in the legal sphere.