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Publication Date

2013

Abstract

The thesis of this Article is that we are moving toward a
fundamentally epistemological approach to determining
the admissibility of expert testimony. The first part of the
Article notes that while many Frye jurisdictions exempted
soft science and nonscientific expertise, the Daubert line of
authority mandates that like an epistemologist, a trial
judge examine knowledge claims by any expert. The
second part addresses the question of the breadth of the
judge's analysis. The second part points out that under

the marketplace and general acceptance tests, courts
sometimes conducted a global analysis and inquired
generally whether the discipline itself was recognized and
possessed some valid knowledge. The second part
demonstrates that in contrast, under Daubert the judge
must test the reliability of the specific theory or technique
the expert proposes to rely on. Like an epistemologist, the
judge must challenge the particular knowledge claim
advanced by the expert. The third and final part of the
Article concerns the depth of the judge's scrutiny. The
third part explains that by employing acceptance tests, the
marketplace and Frye standards effectively delegated the
decision to the required acceptors - either market actors or
members of the relevant specialty field. Thus, under these
standards, the judge was obliged to accept ipse dixit
assertions by the acceptors. Instead, Daubert and its
progeny such as Joiner forbid the judge from accepting
such assertions at face value. Like a skeptical
epistemologist, the judge must demand that the proponent
establish sufficient warrant for the expert's knowledge
claim. The upshot of the new Daubert approach is that
contemporary judges must engage in an analysis that is at
once broader, narrower, and deeper than the analyses they
conducted under the marketplace and general acceptance
tests.

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