The Consensus Rule: A New Approach to Scientific Evidence

Abstract

Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise, and begins with a basic question: how can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focus on expert communities. Specifically, when dealing factual issues involving expertise, the legal system should not ask factfinders the actual substantive questions, but instead should reframe its questions to be deferential to the relevant expert community. To satisfy the requirement of proving causation in a toxic tort case, the question should not be: Does drug A causes disease X? The more appropriate question is: Does the scientific community believe that drug A causes disease X? This deferential approach solves the epistemic competency problem, repairs many of the unintended structural distortions created by Daubert, and ultimately reflects a better understanding of science. The Article also responds to possible legitimacy, policy, and implementation concerns raised by its deferential approach.