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Wednesday, October 23, 2013

Professor David Faigman Publishes New Law Review Article on Scientific Expert Testimony

The article will be published in Volume 81 of the University of Chicago Law Review, one of the most prestigious in the county, in 2014.

David FaigmanProfessor David Faigman is one of the country’s leading experts on the law’s use of Scientific Evidence. His latest article is "Group to Individual (G2i) Inference in Scientific Expert Testimony."

Accepted for publication with The University of Chicago Law Review, a prestigious academic journal, Faigman co-wrote this article with two colleagues: John Monahan of the University of Virginia School of Law and Christopher Slobogin of Vanderbilt Law School. A prolific scholar, Faigman has also recently published the latest edition of his five-volume treatise "Modern Scientific Evidence: The Law and Science of Expert Testimony."  In addition, he has published two other articles this past year, "The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science" was published in the UC Davis Law Review earlier this year, and his article "Wading into the Daubert Tide: Sargon Enterprises, Inc. v. University of Southern California" appeared in the UC Hastings Law Journal in February 2013.

FROM THE ABSTRACT

A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably measure phenomena at the group level, trial courts typically need to resolve cases at the individual level. A basic challenge for trial courts that rely on scientific experts, therefore, concerns translating scientific knowledge derived from studying groups into information that can be helpful in the individual cases before them (what this article refers to as “G2i”). To aid in dealing with this challenge, this article proposes a distinction between two types of expert evidence: framework evidence that describes general scientific propositions and diagnostic evidence that applies the general propositions to individual cases. It then examines the evidentiary implications of that distinction. Most importantly, admissibility standards for expert testimony should differ depending on whether experts are proffering framework or diagnostic evidence. Judicial analysis of “fit,” expert qualifications, testability, error rates, peer review, general acceptance, helpfulness and other traditional admissibility criteria for expert evidence will often vary, sometimes significantly, based on this distinction. The article provides general guidelines about the best practices judges should follow in sorting through these considerations. These guidelines will permit courts to manage G2i inferences in a more informed and coherent way than they do currently.

ABOUT THE AUTHOR

Professor David Faigman is the John F. Digardi Distinguished Professor of Law at UC Hastings, the Director of the UCSF/UC Hastings Consortium on Law, Science and Health Policy, and a Professor in the School of Medicine, Department of Psychiatry, at the University of California San Francisco.  He graduated from the State University of New York, College at Oswego, where he majored in Psychology and History. He then went to the University of Virginia where he received an M.A. in social psychology and a J.D. During law school, he served on the Virginia Law Review, was elected to the Order of the Coif, and received the Roger and Madeleine Traynor Prize, awarded to acknowledge the best written work by a graduating student. After law school, Professor Faigman clerked in the chambers of the Honorable Thomas M. Reavley of the U.S. Court of Appeals for the Fifth Circuit.

Professor Faigman writes in the areas of science and the law, and constitutional law. He has published numerous books and articles concerning the use, or failure to use, scientific research in legal decision-making. His most recent book was published in 2008, entitled Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford Univ. Press). He is also the author of Laboratory of Justice: The Supreme Court's 200-Year Struggle to Integrate Science and the Law (Henry Holt/Times Books 2004) and Legal Alchemy: The Use and Misuse of Science in the Law (W.H. Freeman 1999). In addition, he is a coauthor of the five-volume treatise, Modern Scientific Evidence: The Law and Science of Expert Testimony (2013-2014 edition) (with Jeremy A. Blumenthal, Edward K. Cheng, Jennifer L. Mnookin, Erin E. Murphy and Joseph Sanders). The treatise has been cited widely by courts, including several times by the U.S. Supreme Court. Professor Faigman also lectures widely to judges and lawyers, and served on a panel for the National Academies of Science investigating the scientific validity of the polygraph.  He is currently a member of the MacArthur Network on Neuroscience and Law.

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