John Pfaff continues his interesting discussion of science, the adversarial process, and the law at PrawfsBlawg:
So far I have looked at how to incorporate systematic reviews into our current legal framework, whether through court-appointed Rule 706 experts or through special masters or technical advisors assisting judges in their Daubert or Frye decisions. In both cases, however, partisan experts remain. Rule 706 experts, for example, testify along side–not in place of–partisan experts; and special masters or technical advisors never testify at all, instead only helping to determine which partisan experts are allowed to testify. Can we go further, however? Is it even reasonable to ask whether we can abolish the partisan expert altogether and rely solely on the systematic review?
When confronted with significant epistemic shifts, the law adapts. Perhaps slowly, perhaps imperfectly, but it adapts. The changes over the past several decades are not small adjustments but a profound change in our understanding of what constitutes scientific knowledge, in our ability to produce the necessary information, and in our sense of how to compile that information into usable knowledge. It is hard to believe that the law will not adapt once more.
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