REVIEWS: Reviewing the Law Reviews

Reviewing the Law Reviews This is a selective bibliography of current law review literature of interest to defense counsel. Main articles are identified by naming the author or authors. The designations Note, Comment, etc. are as listed in the publication, with the authorship, if given, shown in parentheses. Symposiums are generally shown by title. THE HIGHLIGHTS In evidence law, v. Merrell Dow Pharmaceutical Inc., 509 U.S. 579 (1993), continues to be a heavily discussed case. Three articles in this bibliography look at the ramifications of on how courts examine expert testimony, particularly with respect to scientific evidence. While two of the articles are critical of the case and its progeny, one author takes on the task of defending Daubert's effect on the use of expert evidence in the courtroom. Squeezing out of the Picture, by Professor Richard D. Friedman of the University of Michigan Law School suggests that the model created by it and the cases that follow it set an inappropriate standard for admission of expert evidence. Daubert, according to Friedman, looks at the reliability of the evidence, which he regards as a misleading standard for testing the admissibility of expert evidence. Rather than excluding expert evidence not measuring up the reliability standard, Friedman suggests that judges should simply admit the evidence, notwithstanding doubts about reliability, and let the jurors make the decision. He also suggests that, in some cases, even though the court admits the evidence, it might make a comment explaining why the evidence should not be given too much weight. And finally, he suggests that in some cases courts could decide that the challenged evidence is admissible but conclude that as a matter of law that it as a whole does not satisfy the burden of proof imposed on claimants. Professor Thomas O. McGarity of the University of Texas School of Law also has concerns about Daubert's application. In On the Prospect of 'Daubertizing' Judicial Review of Risk Assessment, he looks at Duuberl as used in judicial review of federal agency assessment of risk. He believes that the use by judges of Daubert-type rules in these situations will be particularly harmful for the agencies. One reason is that judges do not always have a good sense for what is relevant in complex risk assessments. Petitioners often attack an agency risk assessment, looking for any inconsistency or instance in which the agency did not analyze a particular matter in sufficient depth. Unaware of which issue might ultimately doom a rule-making initiative, agencies will be compelled to overanalyze every issue, no matter how trivial, wasting scarce analytical resources. According to McGarity, under regulatory Daubert, this type of attack stands a good chance of undermining regulatory process. McGarity also contends that regulatory judicial review using will lead ultimately to distortion of the science underlying agency risk assessment. Risk assessments are necessarily tentative and frequently can be stated with greater confidence as additional studies help strengthen the scientific foundation. If agency risk assessments are based on science, the assessors must be permitted, perhaps with the help of qualified experts, to look at the entirety of the scientific database. Their analyses should not be confined to those studies likely to be deemed scientifically reliable by a judge, at the end of an adversarial proceeding. Finally, Professor Christopher B. Mueller of the University of Colorado School of Law, in Daubert Asks the Right Questions: Now Appellate Courts Should Help Find the Right Answers, responds to some of the criticisms that have been leveled at Daubert. In his opinion, judges can rise to the task of evaluating science and applying law. They are better able than many jurors to analyze what is relevant and can and should be considered. He also does not believe that the application of has resulted in the exclusion of too much evidence-Daubert does not require the adoption of rules that are restrictive. …