Behrens & Trask: The Rule of Science and the Rule of Law
In an attempt to be inclusive in their treatment of scientific evidence, courts have stumbled into a rule of law crisis. Rule of law principles work best when courts apply legal rules in a robust and consistent manner. Given a known set of facts, there should be a predictable set of outcomes in a given set of cases. The rule of law does not require perfectly replicated outcomes each time; after all, cases often have variations that will create some deviations. But when the rule of law is operating properly, the parties and society at large should be able to tell roughly where a case will come out.
Today, however, there are tort outcomes that are inconsistent with the mainstream scientific consensus. Further, there is wide variability in the outcomes of substantially similar cases. The “liberal thrust” by some courts to permit expert testimony has resulted in chaos.
