Federal Judges Research Articles

Submissions to Senate Standing Committee on Legal and Constitutional Affairs re Modifications to the Supreme Court Act

The Committee has been asked to consider sections 471 and 472 of Bill C-4, which modify the Supreme Court Act. It has been asked to consider them in the midst of an important controversy. In late September, 2013, Prime Minister Harper nominated the Honourable Justice Marc Nadon, then a member of the Federal Court of Appeal, to replace the retiring Morris J. Fish as a member of the Supreme Court of Canada. After Justice Nadon was sworn in, but before he could take an active part in proceedings before the Court, a challenge was launched to the legality of his nomination. Mr. Rocco Galati, a Toronto lawyer, contended amongst other things that Justice Nadon was not eligible for elevation to one of the three seats on the Court reserved for jurists from Quebec. Justice Nadon stepped aside pending the resolution of the challenge to his nomination. Subsequently, the federal government took two steps. It proposed modifications to the Supreme Court Act as part of Bill C-4. And it referred two questions to the Court for the decision: whether federal court judges can be appointed to the Court pursuant; and whether Parliament can enact declaratory provisions to end the ongoing uncertainty about the validity of Justice Nadon’s appointment and to confirm for the future that judges from the federal courts can be elevated to the Court.In my written submissions, I propose to address three issues: (1) Can a member of the Federal Court or Federal Court of Appeal be appointed to one of the three Quebec seats on the Supreme Court of Canada in accordance with the provisions of the Supreme Court Act? (2) Do the provisions of Bill C-4 alter the existing law? (3) Do the provisions of Bill C-4 require a constitutional amendment? A brief summary of my answers is as follows: (1) No: The most natural reading of the English and French versions of ss. 5 and 6 of the Supreme Court Act is that sitting or former judges and lawyers with 10 years’ experience are eligible for appointment (s. 5), but that in the case of the three seats on the Supreme Court of Canada reserved for Quebec there is an additional requirement that the appointee be a current judge or practitioner from the province (s. 6). A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Quebec judges on the Court have current knowledge of Quebec’s Civil Code. This is confirmed by the legislative history leading to the adoption of s. 6 and its subsequent evolution. The purpose of ensuring familiarity with civil law underpinned the policy choice to list the Quebec courts and Quebec bar as the sole sources from which the Quebec seats on the Court could be filled.(2) Yes: Parliament may enact declaratory provisions to cure doubts or mistaken interpretations of existing law by declaring the law’s ‘true meaning’ not only for the future but also for the past. A court faced with the question will have to take the declaratory provisions into account and will likely conclude that the proposed ss. 5.1 and 6.1 serve to put the appointment of Justice Nadon beyond all doubt. Whether the deployment of Parliament’s powers in the judicial domain is desirable is a separate question. (3) Maybe: It remains to be seen what approach the Supreme Court of Canada will take to the interpretation of the amending formulas set out in Part V of the Constitution Act, 1982. There is scope for it to take an approach which would protect core provisions of the Supreme Court Act from unilateral amendment by Parliament. The Court may well conclude that a change to s. 6 of the Supreme Court Act constitutes a change to the “composition of the Supreme Court of Canada” and requires a constitutional amendment. There is accordingly a risk that s. 6.1, declaratory or not, is beyond the powers of Parliament because alterations to s. 6 of the Supreme Court Act can be accomplished only by a constitutional amendment. Equally, however, the Court may conclude that the Supreme Court Act can be amended by Parliament.

An Overview of U.S. Whistleblowing Law

Although efforts to encourage whistleblowers to come forward date back to 1778, the United States has enjoyed a conflicted history with respect to whistleblowers. While some commentators pillory Edward Snowden, some privacy rights advocates praise his actions. Perhaps reflecting these conflicting sentiments, current protections in the U.S. are a patchwork collection of industry-specific legislation.The current slate of legislation is largely the result of the confluence of recurring waves of media publicity exposing government fraud, the growth in government spending and involvement, and Congress’s attempts to respond to adverse publicity concerning government fraud. The succession of public crises running from Watergate to the wasteful spending in the Iraq War, to the collapse of the financial and securities industries have demonstrated that the government needs whistleblowers to help expose fraud and waste. As successive legislative attempts to extend whistleblower protections have demonstrated, reform “is usually precipitated by some crisis or new political movement that disrupts the preexisting status quo.” Ironically, in this fight to extend protections, Congress has often found itself at odds with federal judges who have repeatedly narrowed the scope of whistleblower protections and raised numerous hurdles whistleblowers.

The Federalist Society: how conservatives took the law back from liberals

Over the last thirty years, the Federalist Society for Law and Public Policy Studies has grown from a small group of disaffected conservative law students into an organisation with extraordinary influence over American law and politics. Although the organisation is unknown to the average citizen, this group of intellectuals has managed to monopolise the selection of federal judges, take over the Department of Justice, and control legal policy in the White House. Today the Society claims that 45,000 conservative lawyers and law students are involved in its activities. Four Supreme Court Justices - Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito - are current or former members. Every single federal judge appointed in the two Bush presidencies was either a Society member or approved by members. During the Bush years, young Federalist Society lawyers dominated the legal staffs of the Justice Department and other important government agencies. The Society has lawyer chapters in every major city in the United States and student chapters in every accredited law school. Its membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, who differ with each other on significant issues, but who cooperate in advancing a broad conservative agenda. How did this happen? How did this group of conservatives succeed in moving their theories into the mainstream of legal thought? What is the range of positions of those associated with the Federalist Society in areas of legal and political controversy? The authors survey these stances in separate chapters on regulation of business and private property; race and gender discrimination and affirmative action; personal sexual autonomy, including abortion and gay rights; and American exceptionalism and international law.

Federal Judges Need Competing Information to Rival the Misleading Guidelines at Sentencing

Research Article| October 01 2013 Federal Judges Need Competing Information to Rival the Misleading Guidelines at Sentencing Wes Reber Porter Wes Reber Porter Associate Professor Golden State University School of Law Search for other works by this author on: This Site PubMed Google Scholar Federal Sentencing Reporter (2013) 26 (1): 28–34. https://doi.org/10.1525/fsr.2013.26.1.28 Views Icon Views Article contents Figures & tables Video Audio Supplementary Data Share Icon Share Facebook Twitter LinkedIn Email Tools Icon Tools Get Permissions Cite Icon Cite Search Site Citation Wes Reber Porter; Federal Judges Need Competing Information to Rival the Misleading Guidelines at Sentencing. Federal Sentencing Reporter 1 October 2013; 26 (1): 28–34. doi: https://doi.org/10.1525/fsr.2013.26.1.28 Download citation file: Ris (Zotero) Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search nav search search input Search input auto suggest search filter All ContentFederal Sentencing Reporter Search This content is only available via PDF. © 2013 Vera Institute of Justice.2013 Article PDF first page preview Close Modal You do not currently have access to this content.

Profissionalismo, diferença e diversidade na advocacia e na magistratura paulistas

Em contraste com abordagens que enfatizam a identidade profissional construída a partir da semelhança, este artigo dá atenção à problemática da diferença entre profissionais do mundo do Direito, contrastando experiências e significados atribuídos por advogadas e advogados, juízas e juízes. Focaliza a interseção do profissionalismo com marcadores sociais, em especial o gênero e a sexualidade. A base de dados é a composição das sociedades de advogados e dos tribunais de justiça estadual e federal de São Paulo, a partir da qual se compara a estratificação por gênero nestas carreiras. Foram realizadas entrevistas qualitativas com 24 advogados, 18 juízes estaduais e 10 juízes federais, homens e mulheres, na capital e no interior paulista, que permitem classificar percepções de inclusão e diversidade ou de preconceito e discriminação.

Experts are born, then made: Combining prospective and retrospective longitudinal data shows that cognitive ability matters

Does cognitive ability matter in the development of expertise in educational and occupational domains? Study 1 reviewed prospective longitudinal data from the top 1% in ability within two cohorts of the Study of Mathematically Precocious Youth (SMPY; Total N=1975) and examined four cohorts of a stratified random sample of America's population (Project Talent; Total N=1536) to see whether ability differences at a younger age made a difference in the attainment of a higher percentage of educational degrees and specifically doctorates (e.g., JDs, MDs, or PhDs) at a later age. Compared to the general population, the top 1% in ability earned a much higher percentage of educational degrees at each level. And even within the top 1% of ability, ability differences made a difference in obtaining a doctorate degree. Study 2 reviewed retrospective longitudinal data from five groups of America's elite (Total N=2254)—Fortune 500 CEOs, federal judges, billionaires, Senators, and members of the House of Representatives—to determine what percentage of each group was in the top 1% of general ability at a younger age. A large percentage of individuals within each of these areas of occupational expertise were found to be in the top 1% of ability. By combining multiple samples of both prospective and retrospective longitudinal data, cognitive ability was found to matter in the acquisition of educational and occupational expertise.

Voting Rules and Constitutional Law

Anyone concerned that Bush v. Gore may have been unprincipled or at least insufficiently precise in its reasoning should have the same concern about the leading voting law case emanating from the 2012 presidential election, Obama for America v. Husted. That case is just as fact-specific in its holding as Bush v. Gore was. Moreover, both cases are signs of a pervasive problem in contemporary election law: the judicial evaluation of electoral rules under the prevailing Fourteenth Amendment jurisprudence is woefully indeterminate, as also revealed in the Supreme Court’s 2008 decision in Indiana’s voter identification case (Crawford v. Marion County Election Board). When one attempts to put Crawford together with Bush v. Gore, as the lower courts attempted to do in Obama for America v. Husted and other voting related litigation in 2012, one is at a loss as to the specificity of the standard to apply to the facts of the pending case. This indeterminacy is especially problematic in election cases because it tempts judges to decide these politically fraught cases according to their own partisan preferences, rather than according to objectively discernible principles. An alternative approach would be to have federal judges focus explicitly on the problem of partisanship. The new test of a voting procedure’s constitutionality under the Fourteenth Amendment would be whether it was imposed as an effort to tilt the electoral playing field in favor of a particular political party. One advantage of this new test is that it would substitute a relatively straightforward single inquiry — did the relevant arm of state government engage in improper partisan manipulation of the electoral process? — for the currently incommensurate balancing of electoral burdens and administrative benefits. Another advantage of this new test would be that, by making federal judges more consciously (and, in their opinions, expressly) attuned to the risks of improper partisanship, it would increase the likelihood that federal judges would do a better job at policing their own temptations towards partisan rulings in high-stakes election cases.

Unaccountable Justice? The Decision Making of Magistrate Judges in the Federal District Courts

Modern federal district courts delegate vast decision-making powers throughout criminal and civil cases to magistrate judges—judicial actors that, unlike other federal judges, serve without an Article III political appointment. Through the lens of principal-agency theory, this study seeks to rectify the relative paucity of systematic work on these actors by using original filing and motion-level district court data to examine magistrates' decision making empirically. Our results support our expectations that magistrates are often constrained by the preferences of the district judges in and the institutional characteristics of their district while issuing reports and recommendations and serving as assigned judges by the consent of the parties.

Blind Justice or Blind Ambition? The Influence of Promotion on Decision Making in the U.S. Courts of Appeals

Ambition is theorized to motivate many types of political behavior. However, as a motivation for federal judges, ambition has been largely ignored. Scholars have dismissed the possible influence of ambition by citing the low probability of receiving a promotion to a higher bench. Although a promotion is unlikely, judges may place substantial value on being promoted. Using a measure designed to capture a judge's promotion potential, I investigate the possibility that ambition exerts an independent effect on judicial behavior. The results demonstrate that court of appeals judges alter their behavior in a manner consistent with attempting to secure a seat on the United States Supreme Court.

Mandating Use of Predictive Coding in Electronic Discovery: An Ill‐Advised Judicial Intrusion

In twenty-first century civil litigation, discovery focuses on electronically stored information (“ESI”). Lawsuits may be won or lost because of incriminating electronic documents. While offices are moving toward less use of paper, the amount of ESI potentially discoverable in litigation has proliferated. Litigants in some cases may face the task of searching billions of electronic records for those documents that are responsive to discovery requests. That makes discovery a burdensome and expensive proposition. While production of documents may evoke images of young associates in dusty storerooms looking at thousands of individual paper documents stored in boxes or filing cabinets, discovery has changed with the burgeoning of ESI. Computers now do much of the work, culling from that vast body of ESI a smaller set of documents that may be responsive and relevant. For at least the past decade, most electronic discovery has been via keyword searching -a great improvement over oldfashioned manual review, but presenting its own problems. A newer generation of search technology is “predictive coding.” Despite advocates’ claims of improved accuracy and lower costs, attorneys have been slow to transition to predictive coding methods. Moreover, there has been a lack of precedent indicating that judges regard predictive coding as reliable and acceptable under the Federal Rules of Civil Procedure. Adjustment to advances in technology often come slowly, but good reasons may exist to proceed cautiously here, especially in lawsuits where large amounts of money or even the existence of a corporation may be at stake. Two cases, Da Silva Moore v. Publicis Groupe and Kleen Products, LLC v. Packaging Corporation of America, suddenly have brought predictive coding to the forefront in the spring of 2012. In these cases, federal magistrate judges have signaled approval of predictive coding and may be ready to mandate its use, rather than keyword searching methods, over parties’ objections. A state court in Virginia also ruled in April 2012, permitting the use of predictive coding over a party’s objection. These cases have attracted considerable attention, especially in law and technology blogs. This paper seeks to provide a detached, deeper, scholarly analysis, to provide guidance as other courts may grapple with this novel issue. After examining in greater detail these two types of technology, the facts and rulings of Da Silva Moore and Kleen Products, and the fundamental roles of the parties and the court in discovery, this paper will argue that judicial mandates of particular technologies for electronic discovery would be misguided because the parties may have legitimate, good faith concerns that lead them to prefer keyword searching rather than predictive coding and because judges do not have sufficient reasons to depart from the traditional judicial role to intervene in such decisions.

U.S. Judicial Independence: Victim in the 'War on Terror'

One of the principal victims in the U.S. so-called “war on terror” has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. I have even described the behavior of the U.S. since 9/11 as a “war on the Rule of Law.” This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. What I attempt to show is that the judiciary has virtually relinquished its valuable role in the U.S. system of judicial review. In the face of governmental claims of crisis and national security needs, the courts have refused to examine, or have examined with undue deference, the actions of government officials. Oddly enough, the mostly Republican Supreme Court has shown more stiff resistance than most of the lower courts but still has ducked some significant issues.To be clear, many of the people against whom these abuses have been levied are, or were, very dangerous if not evil individuals. But hundreds of years of history show that there are ways of dealing with such people within the limits of restrained government without resort to the hubris and indignity of unreviewed executive discretion. The turning of blind eyes by many, albeit not all, federal judges is a chapter of this history that will weigh heavily against us in the future. There is nothing new in the killing of innocents for religious or political vengeance. This violence has always been with us and will unfortunately continue despite our best efforts to curb it. Pleas for executive carte blanche power are exactly what the history of the writ of habeas corpus were developed to avoid, and what many statements in various declarations of human rights are all about. The way of unreviewed executive discretion is the way of tyranny.

The Politics of Administrative Law Judge Decision Making at the Environmental Protection Agency in Civil Penalty Cases

Regulation of the environment is often characterized as a polarizing issue that pits public health against economic growth. Although researchers have examined the decisions of federal district court judges in environmental civil penalty cases and examined the decision making of administrative law judges (ALJ), there has been no research which has examined factors that influence ALJ decision making in environmental civil penalty cases at the Environmental Protection Agency (EPA). I theorize that ALJ decisions, like federal district court judge decisions, are a function of personal policy preferences, hierarchical controls by higher courts, separation of powers influences, and case and defendant characteristics. Results demonstrate that the size of civil penalties issued by ALJs at the EPA is influenced by personal policy preferences, political constraints via Congress, hierarchical control by the Environmental Appeals Board (EAB) and the Supreme Court, litigant characteristics, and case characteristics. Overall, EPA ALJs seem to put more emphasis on their role as judge than their role as bureaucrat. The influence of attitudes raises normative concerns regarding the level of independence that is provided to ALJs as the weighing of public health versus economic growth seems to be based in personal policy preferences rather than technical expertise.

In the Absence of Scrutiny: Narratives of Probable Cause

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the “good faith” exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not find any indication of diminished scrutiny. What we do find, however, is a highly ritualized and formalistic process for the evaluation of warrants where calculations of probabilities are viewed through a legalistic rather than a pragmatic lens.

Lee Epstein, William M. Landes, Richard A. Posner: The Behavior of Federal Judges

Lee Epstein, William M. Landes, Richard A. Posner: The Behavior of Federal Judges

Regulatory Approaches to Ending Cigarette-Caused Death and Disease in the United States

Cigarettes result in over 400,000 preventable American deaths each year. In 2011, fewer than twenty percent of adults smoked. Since the publication of the first U.S. Surgeon General's Report on Smoking and Health nearly fifty years ago, when smoking prevalence was around forty percent, policies such as smoke-free laws, large tax increases, and litigation have collectively contributed to cut smoking prevalence in half. Unfortunately, no one expects the mix of policies currently proposed, which includes further tax increases, spatial smoking restrictions, somewhat higher minimum age restrictions, adverse publicity, and quitting assistance, to reduce U.S. smoking prevalence below fifteen percent in the foreseeable future.The rule adopted by the U.S. Food and Drug Administration (FDA) to require hard-hitting graphic warnings on cigarette packages, as is currently done in dozens of other countries, has thus far been rejected by federal judges who have found that warnings designed to arouse negative emotions violate cigarette manufacturers’ First Amendment rights.

Bargaining and Legal Development in the United States Courts of Appeals

Examining the systematic and private records of a former D.C. Circuit Court Judge, we examine the process by which federal circuit court judges craft legal opinions. We discover that private and contextual factors influence legal outcomes. More specifically, we find that workload considerations strongly influence circuit opinions, that some visiting and senior judges effect the process differently than do active circuit court judges, and that panel effects play but a minimal role in the creation of opinions. In short, we move the literature on circuit court decision making forward by employing private archival material that illuminates how private and contextual features influence opinion writing and legal policy.

Cold Case File: Indictable Acts and Officer Accountability inMarbury v. Madison

Starting from the position that officer accountability is a core value of American constitutionalism, this article reassessesMarbury v. Madisonin light of the indictable acts connected to the nondelivery of Marbury's commission. First, it reads Chief Justice Marshall's opinion against the background of personal and political hostility among the principals, including between Marbury and President Jefferson. Second, it identifies avenues of further redress open to Marbury before and after the Supreme Court's refusal of the mandamus order, and it considers why they were not pursued. Finally, having identified alternative procedural traditions on which Marshall could have drawn, and reviewed decisions by state and federal judges in analogous suits against officers, it concludes thatMarbury'sdeepest contribution was to elevate the principle of jurisdiction over the imperative of remedy in constitutional decision making.

Investigating America's elite: Cognitive ability, education, and sex differences

Are the American elite drawn from the cognitive elite? To address this, five groups of America's elite (total N=2254) were examined: Fortune 500 CEOs, federal judges, billionaires, Senators, and members of the House of Representatives. Within each of these groups, nearly all had attended college with the majority having attended either a highly selective undergraduate institution or graduate school of some kind. High average test scores required for admission to these institutions indicated those who rise to or are selected for these positions are highly filtered for ability. Ability and education level differences were found across various sectors in which the billionaires earned their wealth (e.g., technology vs. fashion and retail); even within billionaires and CEOs wealth was found to be connected to ability and education. Within the Senate and House, Democrats had a higher level of ability and education than Republicans. Females were underrepresented among all groups, but to a lesser degree among federal judges and Democrats and to a larger degree among Republicans and CEOs. America's elite are largely drawn from the intellectually gifted, with many in the top 1% of ability.

The Criminal Discovery Problem: Is Legislation a Solution?

In theory, legislation to enforce a prosecutor’s obligation to disclose exculpatory material to the accused should not be necessary. Although a series of U.S. Supreme Court cases have outlined a prosecutor’s legal obligation to disclose evidence favorable to the accused where the evidence is material either to guilt or punishment, in practice some prosecutors continue to violate the due process rights of defendants by failing to adhere to both their legal and ethical disclosure duties. In recent years, the prosecution, conviction, and ultimate exoneration of U.S. Ted Stevens case is the most publicized example of a federal prosecution marred by violations of prosecutorial discovery obligations. Subsequent to his conviction, an investigation revealed that some prosecutors engaged in systematic concealment of significant exculpatory evidence.Most commentators agree that part of the discovery problem lies in the “materiality” requirement for disclosure, which the Court has defined as evidence reasonably probable to change the results of the proceeding. Taken literally, a prosecutor could read this materiality standard to mean that unless the prosecutor believes that the evidence may lead to a not guilty verdict, it is not material. Because the prosecutor is convinced of the accused’s guilt, it is unlikely that she will believe that anything in her files is exculpatory evidence sufficient to undermine confidence in the outcome of the case.In response to the prosecution of Senator Stevens, Senator Lisa Murkowski proposed the “Fairness in Disclosure of Evidence Act of 2012,” which would require a federal prosecutor to disclose all favorable information to the accused. By removing the materiality requirement and requiring the disclosure of favorable information and not just evidence, the proposed law would expand a prosecutor’s legal disclosure obligation and address a major problem with the current disclosure standard.At a Senate Judiciary Committee hearing considering the proposed legislation, Deputy Attorney General James Cole testified that while what occurred in the prosecution of Senator Stevens was unacceptable it was not indicative of a systemic problem. According to Cole, whatever problem there may be is not a problem about the scope of discovery but rather one of making sure prosecutors understand and comply with their existing discovery obligations. He emphasized several steps that the DOJ was taking to enhance the training, guidance, and supervision of its prosecutors and argued that these steps would be more effective than the proposed legislation. In contrast to Cole’s testimony, commentators, the American Bar Association, a survey of federal judges, and data from exonerations and appeals all suggest that there is a discovery problem at both the federal and state levels. Against this backdrop, this Article explores the issue of prosecutorial non-compliance with disclosure obligations from the perspective of whether there is a discovery problem, and, if so, whether federal and state legislation could be a viable solution. This Article analyzes whether, contrary to the DOJ’s position, there is evidence of a discovery problem at the federal and state levels. Next, this Article explores several underlying factors that create conditions that may lead some prosecutors not to comply with current discovery obligations in federal and state jurisdictions. Finally, the Article analyzes whether legislation is a possible solution to the problem.

Wading into the Daubert Tide: Sargon Enterprises, Inc. v. University of Southern California

There are two competing approaches to determining the admissibility of expert testimony, including scientific evidence. Under the traditional, Frye approach, the question is whether the expert is relying on a theory or technique that is generally accepted in the relevant specialty fields. At one time that test was employed by the federal courts as well as 46 states. However, in 1993 in its celebrated Daubert decision, the Supreme Court construed the Federal Rules of Evidence as impliedly overturning Frye. The Court derived a new validation test from the text of Federal Rule 702. As of 2013, only a minority of courts continue to adhere to Frye while a majority of states have embraced some version of the Daubert standard. Although most states have adopted a version of the Daubert test, until recently the California Supreme Court continued to staunchly follow Frye. The California Supreme Court initially adopted the Frye test in 1976. In 1994, the year after the United States Supreme Court rendered Daubert, the California Supreme Court declined the invitation to abandon Frye. However, as more jurisdictions shifted to Daubert, in a growing number of cases advocates urged the California courts to modify their position and incorporate some elements of the Daubert approach into California jurisprudence. In November of 2012, the California Supreme Court handed down its decision in Sargon. Sargon certainly represents a step toward the Daubert approach. In Sargon, the court approvingly cited Daubert as well as the two later cases in the Daubert trilogy, Joiner and Kumho. Moreover, in its opinion the court followed many of the essential teachings of Daubert, Joiner, and Kumho. Most importantly, the substance of the analysis in Sargon is strikingly similar to the Supreme Court’s analysis in Joiner. In this light, some commentators are now declaring that California has joined the ranks of the Daubert jurisdictions. The purpose of this article is cautionary; the thesis of this article is that it is premature to proclaim that California is now a Daubert jurisdiction. To begin with, in footnote the Sargon court affirmed its commitment to Frye. Moreover, the facts in Sargon were so extreme that in future cases, attorneys will have a plausible argument for distinguishing Sargon. Finally, in Sargon the court emphasized that it was authorizing trial judges to conduct a carefully circumscribed inquiry. The court stopped well short of tasking trial judges to conduct the sort of probing inquiry that Daubert empowers federal trial judges to conduct under Federal Rule of Evidence 104(a). The California courts may have embarked on a gradual, incremental movement toward Daubert, but California is not there yet.