69 B.U. L. Rev. 517 (1989)
There Is No Archbishop of Science - A Comment on Elliot's Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence

handle is hein.journals/bulr69 and id is 525 raw text is: COMMENT
THERE IS NO ARCHBISHOP OF SCIENCE-A COMMENT
ON ELLIOTT'S TOWARD INCENTIVE-BASED PROCEDURE:
THREE APPROACHES FOR REGULATING SCIENTIFIC
EVIDENCE
ROBERT L. SCHWARTZ*
As is usual when Professor Elliott writes about turning retrospective
judge-oriented procedural rules into prospective attorney-oriented pro-
cedural incentives,' his proposal for dealing with scientific testimony not
accepted within the scientific community is both interesting and provoca-
tive. It also serves as an apology for those judges who are so in awe of
science that they believe that only they or their peers in the scientific
establishment-and not the common folk selected for jury service-are
likely to understand the complex truths that science yields.
Professor Elliott starts with the assumption that there is a need for some
kind of judicial intervention to control jury access to scientific evidence that
is unacceptable to the scientific establishment: evidence that currently pres-
tigious scientists consider quackery or junk science.' However, his
presumption in favor of screening scientific evidence (a perspective widely
held by judges and others who have addressed the issue)3 remains unsup-
* Professor of Law, University of New Mexico. The author is indebted to Profes-
sors Richard Gonzales and Ted Occhialino, who listened to early descriptions of the
thesis of this paper and offered several instructive suggestions. The author also
appreciated the encouragement provided by Professor George Priest.
I See, e.g., Elliott, Managerial Judging and the Evolution of Procedure, 53 U.
CHI. L. REv. 306 (1986); see also Elliott, Regulating Deficit After Bowsher v. Synar,
4 YALE J. ON REG. 317 (1987); Elliott, Goal Analysis versus Institutional Analysis of
Toxic Compensation Systems, 73 GEO. L.J. 1357 (1985).
2 This presumption, which is apparently self-evident to Professor Elliott, per-
meates Toward Incentive-Based Procedure: Three Approaches For Regulating Sci-
entific Evidence, 69 B.U.L. REv. 487 (1989) (hereinafter Elliott, Scientific Evidence).
See, e.g., infra notes 4-5 and accompanying text.
3 See, for example, Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.
Cir. 1988) and Sterling v. Veliscol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988) for
two Court of Appeals cases decided in the past year supporting this presumption. At
a recent symposium convened by the ABA Section on Science and Technology,
Committee on the Legal Resolution of Scientific Evidence, to discuss appropriate
changes to the screening rule for scientific evidence developed in Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), all of the diverse proposals suggested that
some form of screening was appropriate. See, e.g., Lederer, Resolving the Frye
Dilemma-A Reliability Approach, 115 F.R.D. 84 (1987); Berger, A Relevancy
Approach to Novel Scientific Evidence, 115 F.R.D. 89 (1987); Starrs, Frye v. United

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?