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45 Jurimetrics 473 (2004-2005)
On Falsification and Falsifiability: The First Daubert Factor and the Philosophy of Science

handle is hein.journals/juraba45 and id is 483 raw text is: ON FALSIFICATION AND FALSIFIABILITY: THE FIRST DA UBERT FACTOR AND THE PHILOSOPHY OF SCIENCE* D.H. Kaye** ABSTRACT: In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993), the Supreme Court suggested that in evaluating the admissibility of scientific evidence, federal courts should consider whether a theory or technique ... can be (and has been) tested. Several commentators have thought that this suggestion represents an adoption of the philosophy of science of Karl Popper, and several courts have treated the abstract possibility of falsification as sufficient to satisfy this aspect of the screening of scientific evidence called for in Daubert. This essay challenges these views. It first explains the distinct meanings of falsification and falsifiability. It then argues that while the Court did not embrace the views of any specific philosopher of science, inquiring into the existence of meaningful attempts at falsification is an appropriate and crucial consideration in admissibility determinations. Consequently, it concludes that courts that are substituting mere falsifiability for actual empirical testing are misconstruing and misapplying Daubert. CITATION: D.H. Kaye, On Falsification and Falsifiability: The First Daubert Factor and the Philosophy of Science, 45 Jurimetrics J. 473-481 (2005). *This essay is adapted from DAVID H. KAYE, DAVID E. BERNSTEIN & JENNIFER L. MNOOKIN, THE NEW WIGMORE, A TREATISE ON EVIDENCE: EXPERT EVIDENCE (2004). Brian Leiter supplied helpful comments and corrections. The grant of permission that appears at page ii to make copies of articles in this issue for educational use does not apply to this article. **Regents' Professor, Arizona State University College of Law, and Fellow, Center for the Study of Law, Science, and Technology. SUMMER 2005

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