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INTRODUCTION 1855 I. RACE-ING EVIDENCE 1857 II. FRYE, DAUBERT, RULE 702, AND MAGICAL WORDS 1862 III. REIMAGINING RULE 702 1872 CONCLUSION 1876 INTRODUCTION Although it might not be apparent from [...]

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible [...]

INTRODUCTION 485 I. NATIONAL CHALLENGES TO FORENSIC SCIENCE 490 II. THE GOOD: NFPA 921 AND CIVIL CASE EXPERT REVIEW 495 A. NFPA 921: The Gold Standard in Fire Investigation 495 [...], Fire science, a field largely developed by lay "arson investigators," police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now-debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts' ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases, notwithstanding that both criminal and civil courts are required to operate under the same exclusionary rules for expert evidence. Judges are capable of ensuring that the forensic science evidence they admit at trial is reliable in both criminal and civil proceedings. In addition, the law mandates that they do so. The Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. demand the application of the same standards to vet the admissibility of expert evidence in criminal and civil cases. Moreover, Kumho Tire v. Carmichael expands that mandate to exclude capricious forensic evidence regardless of whether it is characterized as scientific or technical. Unfortunately, thirty-one states have failed to embraced the holding of Kumho Tire. As a result, litigants are not entitled to raise Daubert challenges to fire evidence that courts deem technical, rather than scientific, knowledge in the overwhelming majority of American jurisdictions. The ongoing admission of flawed fire science in criminal litigation brings us back to the problem Daubert sought to address: the courts' failure to exclude junk science in American trials. Criminal courts must follow their civil counterparts and rigorously enforce gatekeeping procedures when prosecutors proffer questionable forensic "science" evidence in order to secure a conviction. Moreover, criminal defense attorneys must invoke Daubert and challenge unreliable forensic science during the trial proceedings. As several courts have held, the failure to do so falls below the constitutional requirements that attend to effective advocacy.

ABSTRACT The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the [...]

INTRODUCTION Until approximately thirty years ago, expert witnesses hired by parties to litigation in the United States could testify almost without limit about any relevant issue within the scope of [...]

"[I]t is better that ten guilty persons escape, than that one innocent suffer." (1) I. INTRODUCTION Legal literature, periodicals, and judicial decisions have spilled much ink on the propriety and [...]

I. INTRODUCTION Imagine someone picking up another person's shell casings at the firing range and placing them at the scene of a crime. Following a trace of the shell casing [...]

ABSTRACT Neuroimaging techniques have been in heavy rotation in the news lately. Increasingly, companies have used neuroimaging techniques--specifically, functional magnetic resonance imaging (fMIRI)--in an attempt to determine whether an individual [...]

INTRODUCTION The characteristic goals and the inherent exuberance of science generate a natural tendency toward progress and expansion. (1) That tendency finds particular expression in today's courtroom, where science offers [...]

I. INTRODUCTION II. WHAT SCIENTIFIC DISPUTES ARE LIKELY TO EMERGE IN CLIMATE CHANGE LITIGATION? III. DAUBERT AND FEDERAL RULE OF EVIDENCE 702--JUDGES AS GATEKEEPERS IV. HOW CLIMATE CHANGE PLAINTIFFS CAN [...], Can climate change plaintiffs use Daubert challenges to exclude testimony by defense experts? Since the Supreme Court announced the standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., it has been used almost exclusively to the benefit of defendants. There is no theoretical reason, however, why plaintiffs could not use Daubert challenges to exclude testimony by defense witnesses in a scientific field in which the great weight of scientific research supports the plaintiffs' claims. It is likely that in many cases climate change litigation will present such a situation. This Note considers four Ways in which plaintiffs may use the Daubert standard and the Federal Rules of Evidence to exclude and restrict defense testimony: challenge the witness, challenge the reliability of the evidence, challenge the fit of the evidence to the case, and challenge the conclusions a witness may draw from otherwise admissible evidence. Part II of this Note examines the field of climate change litigation and considers the kinds of scientific disputes that are likely to arise in future litigation. Part III looks at the Daubert standard and Rule 702 of the Federal Rules of Evidence. Part IV applies the Daubert standard to actual cases of 'experts' and scientific assertions that prominent climate change skeptics have publicly advanced in the debate over climate change. Part V considers what conclusions can be drawn from this analysis, both for the future of climate change litigation and for the broader public debate over climate change. This Note suggests that Daubert challenges by climate change plaintiffs may impact not only climate change lawsuits, but could also provide a blueprint for Daubert challenges by plaintiffs in other litigation contexts. The Note also suggests that changing the debate over climate change in the courtroom could improve the quality of the debate in the public arena. Even if every climate change plaintiff loses his or her case, climate change litigation may still have beneficial consequences if these lawsuits can help steer the national discourse away from spurious debates over uncertainty and toward a more honest evaluation of what is going on and what we can do about it.

INTRODUCTION As earlier chapters indicate, economic testimony is useful at virtually all stages of an antitrust case and for various purposes. Because Daubert challenges can and have occurred through motions [...]