For a thoughtful critique of Daubert including a suggestion about how courts might deal with scientific claims effectively and efficiently, see Representation and Re-Presentation in Litigation Science by Sheila Jasanoff, Harvard University, Cambridge, Massachusetts, USA.
Jasanoff describes scientific claims as representations and and the presentation of those claims as performances both of which judges could effectively evaluate by requiring the parties to create and to agree on a process for the creation and evaluation of scientific evidence. She argues, persuasively in our view, for a more nuanced judicial approach to science than described in Daubert. Her description of the vital role that litigation played in the development of DNA evidence is fascinating and is by itself reason enough to read her mini-monograph.
Her bottom line seems to be that litigation itself can play a useful role in the process of scientific inquiry, and that courts ought not automatically to bar scientific evidence that was not generally accepted independent of the case in which the evidence is sought to be introduced. (Editor’s Note: Ms. Jasanoff writes more clearly than we do. We suspect that readers whose interest in the subject of science and litigation dragged them across the finish line of this post will find Ms. Jasanoff’s article a much more enjoyable, interesting and useful experience.)