Bernstein on "Junk Science" in WSJ Op-Ed
Professor David Bernstein warns of the ongoing presence of "junk science" in state courts in a recent Wall Street Journal op-ed. Bernstein urges state judges to follow the lead of their federal counterparts and use the tools at their disposal to eradicate junk science from their courtrooms.
Quackspertise, The Wall Street Journal, September 30, 2006. By David E. Bernstein.
"Plaintiffs with personal injury claims backed by dubious (or worse) expert testimony have thus become ever more determined to keep their lawsuits in state courts -- where, naturally, plaintiff attorneys have fought every effort to adopt Daubert and Rule 702. The trial lawyers have inertia on their side; and Daubert's reception has been particularly unfriendly in some of the most populous and influential states. California, Florida, Illinois, New York, New Jersey and Pennsylvania, for example, have all refused to follow the federal lead.
"The result is a hodgepodge. At one extreme, some states such as Wisconsin apply a qualifications-only test, meaning that any marginally qualified expert can testify to just about anything without meaningful judicial oversight. Most other non-Daubert states, including New York, apply the older "general acceptance" test (Frye v. U.S.), which requires that expert testimony be generally accepted in the relevant scientific community. Unfortunately, in most jurisdictions Frye is not a significant barrier to the admissibility of junk science."