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.
Volume 91
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.