Federal Philosophy of Science: A Deconstruction—And a Reconstruction
When they feel the need to distinguish genuine science—the real thing—from pretenders, or to understand what is distinctive about the scientific method, U.S. courts have sometimes called on Karl Popper’s conception of falsifiability as the hallmark of the genuinely scientific, and his account of the method of science as conjecture and refutation. Sometimes the legal issue before the courts is the interpretation of the Establishment Clause in application to biology teaching in public high schools, and the question is whether “creation science” is really science, or only religion in disguise. Much more often, though, the legal issue is one of evidence law, and the question is whether this or that scientific expert testimony is reliable enough to be admissible. This will be my focus here.
As anyone familiar with the legal history will know, this story begins with the Supreme Court’s first-ever decision on the admissibility of expert testimony, Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). Ruling for a unanimous Court that Federal Rule of Evidence 702 (1975) had superseded the old Frye rule, but that courts still had a responsibility to screen proffered expert testimony for both relevance and reliability, Justice Blackmun went on (now speaking only for the majority) to suggest that in determining whether a theory or technique is “scientific knowledge that will as-sist the trier of fact,” ordinarily, “a key question to be answered will be whether it can be (and has been) tested.” And in this context, he cites Popper.
