Judicial craft skills
The scientific method
The obvious place to begin a discussion of judicial approaches to Science is with a
brief examination of the uses of ‘scientific method’. Numerous legal and scientific
commentators have celebrated the importance and centrality of a prescriptive,
efficacious and transferable scientific method underlying the triumphal rise and
progress associated with Science.
The power of the scientific method – I acknowl-
edge that some commentators and judges employ the plural, methods (not that this
resolves the problem of which method(s)) – is seen to lie in an approach to the natural
world capable of expunging the social commitments and values of investigators.
A recent high point in the judicial celebration of method was the promotion of
falsificationism by the US Supreme Court in their Daubert vMerrell Dow
Pharmaceuticals, Inc judgment. Citing the philosophers Popper and Hempel,
Blackmun J explained:
Ordinarily, a key question to be answered in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact will be whether it can be (and has been)
tested. ‘Scientific methodology today is based on generating hypotheses and testing them to
see if they can be falsified; indeed, this methodology is what distinguishes science from
other fields of human inquiry.’9
Given the level of abstraction it might not be surprising to find that Chief Justice
Rehnquist voiced dissent, in terms which questioned the utility and application of
such method doctrines, especially in the guise of falsification.10
In practice, few judgments have offered a sustained review of Daubert’s terse
references to the scientific method. On remand, the Ninth Circuit made the
following observation about scientific method, which might explain their use of
other criteria to evaluate the scientific evidence: ‘As the record in this case
illustrates, scientists often have vigorous and sincere disagreements as to what
research methodology is proper for the existence of a ‘‘fact,’’ and whether
information derived by a particular method can tell us anything useful about the
subject under study.’11 In Daubert, the Supreme Court proposed scientific method,
in the guise of falsification (as testing) as the central consideration in the
admissibility and assessment of scientific evidence. Subsequently, the Ninth
Circuit Court of Appeals revealed a somewhat different approach to Scientific
Some examples include: S. Mason, A History of the Sciences (New York, Collier MacMillan, 1962); R.
Harre´, The Method of Science (London, Wykeham, 1970); F. Ayala and B. Black, ‘Science and the
Courts’ (May–June 1993) 81 American Scientist 230, 234: J. Bourke, ‘Misapplied Science: Unreliability
in Scientific Test Evidence’ (1993) 10 Australian Bar Review 183, 192; A. Roisman, ‘Conflict
Resolution in the Courts: The Role of Science’ (1994) 15 Cardozo Law Review 1945; C. Hutchinson and
D. Ashby, ‘Daubert vMerrell Dow Pharmaceuticals, Inc: Redefining the Bases for Admissibility of
Expert Scientific Testimony’ (1994) 15 Cardozo Law Review 1875, 1885–88 (1994); D. Faigman,
‘Mapping the Labyrinth of Scientific Evidence’ (1995) 46 Hastings Law Journal 555, 560, 579.
8 An example was provided by In re Bendectin Litigation 857 F.2d 290, 319 (6th Cir 1988). Compare P.
Feyerabend, Against Method (London: New Left Books, 1975); H. Collins, Changing Order:
Replication and Induction in Scientific Practice (London: Sage, 1985); J. Schuster and R. Yeo (eds),
The Politics and Rhetoric of Scientific Method (Dordrecht: Reidel, 1986); D. Gooding, T. Pinch and
S. Schaffer (eds), The Uses of Experiment (Cambridge: CUP, 1989).
9Daubert vMerrell Dow Pharmaceuticals Inc 113 S.Ct 2786, 2795–97 (1993). See G. Edmond and D.
Mercer, ‘Keeping ‘Junk’ History, Philosophy and Sociology of Science out of the Courtroom:
Problems with the reception of Daubert vMerrell Dow Pharmaceuticals Inc’ (1997) 20 University of
New South Wales Law Journal 48.
10 n 9 above, 2799–2800 (1993).
11 Daubert vMerrell Dow Pharmaceuticals, Inc 43 F.3d 1311, 1316 (9th Cir. 1995).
The Modern Law Review [Vol. 63
218 ßThe Modern Law Review Limited 2000