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75 N.Y.U. L. Rev. 1563 (2000)
The Heuristics of Intellectual Due Process: A Primer for Triers of Science

handle is hein.journals/nylr75 and id is 1579 raw text is: ARTICLES TEE HEURISTICS OF INTELLECTUAL DUE PROCESS: A PRIMER FOR TRIERS OF SCIENCE ERICA BEECHER-MONAS Scientific evidence is an inescapable facet of modern litigation. The Supreme Cour; beginning with the seminal case of Daubert v. Merrell Dow Pharmaceuti- cals, Inc, and continuing with General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael, has instructed federal judges to evaluate the scientific validity of such evidence in determining the evidence's adinissibiliV. In this Article, Professor Erica Beecher-Monas argues that many judges ignore the science component of their gatekeeping duties, focusing instead on rules of convenience that have little scientific justification. As a result, size demonstrates that judges reject even scientifi- cally uncontroversial evidence that would have little trouble finding admissibility under the pre-Daubert general consensus standard and admit evidence that is scientifically baseless. Such faulty analysis of scientific evidence deprives litigants of intellectual due process from judges and undercuts the proper functioning and credibility of the judicial system. Beecher-Monas contends that understanding cer- tain basic principles underlying all fields of science will enable judges to make bet- ter admissibility decisions. Based on the language of science and criteria scientists use to assess validity, as well as the Supreme Court's requirements in Daubert, Joiner, and Kumho Tire, Beecher-Monas proposes a five-step framework for sound analysis of scientific evidence Size then demonstrates the usefulness of the heuristic in two cases where applying the heuristic would have changed the outcome dramatically. The franzework proposed in this Article will allow triers of science to make scientifically justifiable admissibility assessments, and in so doing will give litigants in cases involving scientific evidence the intellectual due process they deserve Introduction .................................................... 1564 I. Evaluating Scientific Argument: What Is the Scientific Method Anyway? ....................................... 1572 A. Scientific Method: The Myth ....................... 1573 B. Scientific Method: The Reality ..................... 1578 1. Probabilistic Reasoning ......................... 1580 2. Falsifiability, Criticism, and Rationality ......... 1584 3. Explanatory Power ............................. 1588 * Assistant Professor of Law, University of Arkansas at Little Rock. B.A., 1976, M.S. (Anatomy), 1978, J.D., 1988, University of Miami; LLM., 1995, Columbia University. This Article is written in partial fulfillment of the J.S.D. requirements of the Columbia Univer- sity School of Law. The author is deeply grateful to the late Curtis J. Berger for his com- ments and encouragement, and to Frank P. Grad, Martha A. Fmeman, Theresa Beiner, and John DiPippa for their helpful comments and criticism. For her excellent research assis- tance and unflagging enthusiasm, the author thanks Patti Stanley. 1563 Imaged with the Permission of N.Y.U. Law Review

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