Religious beliefs and values can play a significant and potentially necessary role in the judicial disposition of cases, particularly those in which the positive law is meaningfully underdeterminate. With some exceptions, however, the permissible role of such beliefs and values in various stages of the judicial process is not often appropriately addressed within public and even academic circles. To the contrary, the issue tends by most commentators to be either largely overlooked, perhaps due to its delicacy or complexity, or categorically disposed of pursuant to a debatable theory of public discourse or a distinctive reading of the Constitution’s religion clauses. The central thesis of this Essay is that the relationship between judging and religious influences, as a result of these and other circumstances, is one defined substantially by concealment, much of it unconscious, rather than by truly principled and effective regulation. The Essay’s purposes, accordingly, are to develop this thesis more fully; to examine its chief consequences, especially for the legitimacy of judicial decisionmaking; and, to the extent that these consequences are unfavorable, to suggest some modest corrective measures.
Essay
Does Frye or Daubert Matter?: A Study of Scientific Admissibility Standards
Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state’s choice of scientific admissibility standard matter? A growing number of scholars suspect that the answer is no. Under this theory, the import of the Supreme Court’s Daubert decision was not in its doctrinal standard, but rather in the general consciousness it raised about the problems of unreliable scientific evidence. This Essay empirically examines this question. Using data provided by the Federal Judicial Center, the National Center for State Courts, and the New York and Connecticut court systems, it applies a novel approach of using removal from state to federal court to measure litigants’ perceptions of scientific admissibility standards in practice. The analysis strongly supports the theory that a state’s choice between Frye and Daubert does not matter in tort cases. The results raise larger questions about the efficacy of tort reform through procedural rules, suggesting that the judiciary in some contexts may be more responsive to educative measures than to doctrinally based procedural reforms.
Halpin on Dworkin’s Fallacy: A Surreply
In my recent essay, Dworkin’s Fallacy, or What the Philosophy of Language Can’t Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), I argued that a particular confusion between linguistic and legal practices – evident most notably in the work of Ronald Dworkin – causes legal theorists to misderive jurisprudential conclusions from semantic premises. Because much, if not most, jurisprudential interest in the philosophy of language is motivated by Dworkin’s fallacy, I argued that the philosophy of language does not generally have jurisprudential consequences. But in the conclusion to my essay I identified three areas where Dworkin’s fallacy does not apply and the philosophy of language has genuine, albeit very limited, consequences for the philosophy of law.
Halpin argues that I neglected a number of important connections between the two disciplines. But the connections Halpin describes are in fact those that I identified as genuine in the conclusion to my essay. What is more, Halpin appears to agree with me that these connections, although genuine, are very limited, in the sense that they yield few substantive jurisprudential consequences. Halpin sees a disagreement between us on these matters only because he misunderstands the confusion of linguistic and legal practices at issue in Dworkin’s fallacy.
But Halpin does argue for a connection between the philosophies of language and law that is different from those I entertained in my essay. I was interested in whether the philosophy of language can yield conclusions in the philosophy of law. Halpin appears to agree with me that it cannot. But Halpin argues that the philosophy of law can yield conclusions in the philosophy of language. Although Halpin’s argument here is suggestive, it is insufficiently detailed to allow me to come to a firm conclusion about its merits.
In my essay I offered Dennis Patterson’s legal theory, with Dworkin’s, as examples of Dworkin’s fallacy in action. Halpin argues that Patterson’s theory does not suffer from Dworkin’s fallacy. I end my response to Halpin with a defense of my critique of Patterson, by expanding what was admittedly a compressed argument in the original.