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Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article proposes a new framework for handling expert evidence. It draws from the social and philosophical literature on expertise and begins with a basic question: How can laypersons make intelligent decisions about expert topics? From there, it builds its evidentiary approach, which ultimately results in an inference rule focused on expert communities. Specifically, when dealing with factual issues involving expertise, the legal system should not ask factfinders the actual substantive questions, but instead should reframe its questions to be deferential to the relevant expert community. To satisfy the requirement of proving causation in a toxic tort case, the question should not be: Does drug A cause disease X? The more appropriate question is: Does the scientific community believe that drug A causes disease X? This deferential approach solves the epistemic competency problem, repairs many of the unintended structural distortions created by Daubert, and ultimately reflects a better understanding of science.
Introduction
Since Daubert v. Merrell Dow Pharmaceuticals, Inc.1 was decided in 1993, it has framed nearly every debate about experts in court and spawned an enormous literature. What constitutes science? Have judges been imposing the correct standard, and if not, what factors should they use to determine whether experts are reliable? Should judges only focus on an expert's methods, or the conclusions as well? All of these questions and more-none of which have been (or can be) easily resolved-are the offspring of Daubert.
But hardly anyone asks the more foundational question: How does a court-a lay decisionmaker-make intelligent decisions about expert topics?2 Daubert assumes that the answer involves judicial gatekeeping. This assumption is in many ways natural and intuitive. After all, judges enforce evidentiary rules, and evidentiary rules are primarily designed to ensure reliable evidence and promote accurate decisionmaking. If we have concerns about expert evidence, then surely judges should be the ones who ensure that the expert witnesses are reliable.
Yet, are Daubert's assumptions correct? Is gatekeeping indeed the best way to promote more accurate legal decisions about expert...