Working Paper No. 07-49:
Daubert's Debut: The Supreme Court, the Economics of Scientific Evidence, and the Adversarial System
Date Posted: 2007
In Daubert v Merrell Dow Pharmaceuticals, Inc., the Supreme Court replaced the prevailing rule of evidentiary admissibility for scientific testimony with a new standard. Under the older Frye rule, admissibility was determined by whether the expert's views enjoyed "general acceptance." Under Daubert, the trial judge will simply determine whether the expert's testimony is sufficiently "scientific" to be admitted. This article argues that the Daubert approach is economically superior because it reduces the incentives for external interest groups to influence the content of admitted testimony. The article also considers more general proposals to displace adversary party control of evidentiary presentation with more active judicial supervision or with other external constraints. The article concludes that such external constraints are unnecessary and would probably be socially undesirable.