A Return to Rationality: Restoring the Rule of Law After Daubert's Disastrous U-Turn

Consistency and rationality are central to the legitimacy of the modern court system. Considerable recent attention has been focused on the Court’s overturning of established precedent on abortion in Dobbs v. Jackson Women’s Health Organization. Yet, as we empirically demonstrate, the courts, through the decisions of individual judges over thirty years, have reversed the meaning of the Daubert standard for admission of scientific evidence, thereby threatening the legitimacy of the very heart of the civil justice system. In the initial years after the Daubert decision, litigants saw its reliability standard as a stricter standard than the previously used Frye “general acceptance” standard.

But after only a short time, application of the standard became unclear. It was neither more nor less strict. Current perception of the Daubert standard has completely reversed, as our analysis shows it is now seen as a weaker standard than the Frye standard. Courts must make up to half a million Daubert decisions each year in tort cases.

To have application of a standard so prevalent in civil litigation reverse its effect in thirty years, without a decision or direct change, risks great harm to the legitimacy of the civil justice system. We contend that the problem arises because the Daubert standard’s factors are misunderstood by judges, too interrelated, and too complex. To resolve the problem, we propose that the Courts replace the multiple Daubert factors with a single factor—testability—and that once the evidence meets this standard the judge should provide the jury with a proposed jury instruction to guide their analysis of the fact question addressed by the expert evidence.