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91 Va. L. Rev. 471 (2005)
Does Frye or Daubert Matter - A Study of Scientific Admissibility Standards

handle is hein.journals/valr91 and id is 489 raw text is: ESSAYS DOES FRYE OR DAUBERT MATTER? A STUDY OF SCIENTIFIC ADMISSIBILITY STANDARDS Edward K. Cheng* and Albert H. Yoon** S INCE it was announced by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.' has become the founda- tional opinion in the modern law of scientific evidence and argua- bly one of the most important decisions in the area of tort reform. Over the years, the Daubert test for scientific admissibility has spawned countless articles, symposia, and informal discussions about its merits and drawbacks, particularly in contrast to its prin- cipal rival, the Frye general acceptance test.2 Commentators have extensively debated which test is the stricter standard,' and Assistant Professor of Law, Brooklyn Law School; J.D., Harvard Law School; M.Sc., London School of Economics; B.S.E., Princeton University. Associate Professor of Law, Northwestern University School of Law; Visiting Professor, NYU School of Law (Fall 2004); Ph.D., Stanford University (Political Sci- ence); J.D., Stanford Law School; B.A., Yale University. We would like to thank Mar- garet Berger, Joe Cecil, Jenny Diamond Cheng, Ted Eisenberg, Jesse Rothstein, Aaron Twerski, Nicole Waters, and the Vanderbilt Dean's Lunch Workshop for help- ful comments and discussions. Melissa Ballard, Jackie Debs, and Monica Falcone provided research assistance, and Victoria Szymczak provided library assistance. We would like to give special thanks to Stanley Drosky of the New York State Unified Court System Division of Technology; Linda Dykman and Jacek Aleksandrowicz of the Judicial Information Systems division of the Connecticut Judicial Branch; the Na- tional Center for State Courts (through ICPSR Study No. 9266), and the Federal Ju- dicial Center (through ICPSR Study No. 8429) for providing us with the relevant data. This study was funded by a grant from the Project on Scientific Knowledge and Public Policy (SKAPP). Major support for SKAPP is provided by the Common Bene- fit Trust, a fund established pursuant to a court order in the Silicone Gel Breast Im- pact Products Liability Litigation, with additional support from the Alice Hamilton Fund and the Bauman Foundation. Ed Cheng would also like to thank the Brooklyn Law School Dean's Summer Research Fund for additional support. 509 U.S. 579 (1993). 2 See D.H. Kaye, Choice and Boundary Problems in Logerquist, Hummert, and Kumho Tire, 33 Ariz. St. L.J. 41, 42 (2001) (Much has been written about the merits, pedigree, and operation of these standards. Each has its strengths and weaknesses, its friends and foes.). 'Erica Beecher-Monas, Blinded by Science: How Judges Avoid the Science in Sci- entific Evidence, 71 Temp. L. Rev. 55, 75-76 (1998) (describing the two sides of the 471

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