Thursday, April 19, 2007
My Nebraska Law Review piece is now out: The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, 85 NEB. L. REV. 643 (2007). I don't have hard copies yet, but it's up at both Westlaw and Lexis; if you're interested in a reprint, send me an e-mail and I'll try to get one to you. The abstract (which does not appear in the journal):
The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.
This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.
In this Article, I explore these phenomena and the criticisms of them, as well as the history of peer review itself. Contrary to the critics, I ultimately conclude that each, in fact, can strengthen both law and science through cross-fertilization, if appropriate checks are established. Such efforts will better reflect law and science’s overlapping magisteria (a term roughly meaning the disciplines’ area of authority). A better recognition and understanding of this overlap will create incentives to improve both law and science.