Saturday, May 06, 2006

On the Argument that Amended Rule 702 Supersedes Pre-2000 Precedents

Last November, when Professor David Bernstein first floated his novel theory that the 2000 amendments to Fed. R. Evid. 702 announced new and stricter standards for expert testimony -- standards that allegedly superseded those announced by the Supreme Court in Daubert and its progeny -- we contented ourselves with some preliminary scoffing, promising to revisit the issue if Bernstein's theory didn't die aborning.

The theory apparently lives still. This morning brought news of a new Bernsteinian salvo on the subject, cross-posted (like his first) at The Volokh Conspiracy and Point of Law.

So now we're forced to pay closer attention. That's unfortunate, in a way. If we lived in a perfect intellectual meritocracy, where ideas received notice solely as a function of whether they rested on reasonably sturdy intellectual foundations, we don't think many people would give this theory a second glance -- not without a far more substantial defense than Bernstein has yet offered. And if we discuss the theory here, even to rebut it, it may gain some slight increment of additional currency. However small that increment might be, it is arguably more than the theory has yet been shown to deserve.

But we must face facts, and the modern marketplace of ideas is unmeritocratic to the following extent: it is short on barriers to entry. (We know this because a copy of Microsoft FrontPage is all we needed to crash the party.) If an idea, however benighted, makes its way onto one or two prominent blogs, it can very rapidly take on an aura of intellectual respectability, regardless of its merit.

In this case, that outcome must be resisted. We'll do our best. It may take more than one post. In this one, we want to focus on three basic points.

First, although Bernstein remains pretty vague about the details of his theory, his fundamental thesis, as stated, is bold and sweeping. According to Bernstein, the 2000 amendments to Rule 702 did not merely codify the teachings of Daubert and its progeny. Bernstein says those amendments also announced new and stricter standards, not adopted in the Daubert trilogy itself, and that those standards affirmatively displace various "dicta" from those Supreme Court decisions, as well as lower court authority having relied on those "dicta." So much so, Bernstein says, that "you shouldn't be relying on any precedent on expert evidence from before 2000." (Um, wow.)

Second, in public discussion to date, Bernstein has offered substantially no analysis or precedential support for this bold and sweeping theory. That lacuna may or may not be cured in his promised forthcoming paper. For the moment, however, the theory rests on Bernstein's largely unexplicated interpretation of the language of amended Rule 702 -- coupled, perhaps, with a vaguely "textualist" approach to the Federal Rules of Evidence that may draw inspiration from contexts involving statutory construction, or conceivably from Bernstein's favored theories of constitutional interpretation. To date, Bernstein has cited no decisional authority following, or even articulating, his theory. Nor has Bernstein attempted to support the theory by reference to the closest thing we have to a legislative history: viz., the Advisory Committee Notes to the 2000 amendments (which the reader will scour in vain, we suspect, for any hint of an intention to overthrow anything from Daubert or its pre-2000 progeny).

Third, despite the conspicuous absence of authority or analysis offered in support of this theory, Bernstein presents it dogmatically, as though it were a self-evident legal truth, in which all reasonable persons professing to be learned in the law would be forced to concur after a brief visit to the law library (as opposed to a tendentious position espoused by a single commentator hoping to interject a new line of argument into an ongoing debate). That might be all to the good at a venue like Point of Law -- an excellent site, which we greatly enjoy visiting whenever our blood pressure needs a little boost, but one with an openly controversialist mission. The Volokh Conspiracy is another matter. Although several VC contributors are known to have a libertarian streak, VC presents itself as an academic blog. That obviously does not mean that its contributors never take strong positions. But it does create truth-in-labeling expectations -- a legitimate assumption by the readership that contributors will explicitly distinguish neutral and uncontroversial descriptions of existing law, on the one hand, from legal argument, on the other.

That distinction is of special importance here because Bernstein presents his theory in a "note to federal district court judges, and their clerks." Some novitiate clerks, in particular, might mistake it for a fair and impartial description of prevailing legal doctrine. If so, they would be misled.

For those novitiate clerks, then, we have a little note of our own: You know better, we're sure, than to believe everything you read in a blog -- even a reputable blog. So do what your judge hired you to do. You could start by doing some legal research. See if any substantial decisional authority supports the proposition that the 2000 amendments to Rule 702 were intended to displace the substantial corpus of precedents rendered under Daubert up to then, in hundreds of judicial opinions spanning the better part of a decade. See if the Advisory Committee Notes lend any credence to that idea. See how much support you can find for this idea in the secondary legal literature.

Do some thinking too, because that's also part of your job. Think about whether revisions to the Federal Rules of Evidence obey the same logic as statutory repeals-by-implication, or a different logic more suited to their different institutional provenance and function. Think about whether it would be wise, or plausible, for the authors of the amendments to wipe the precedential slate clean, on the theory that better guidance would be afforded by the 84 Delphic words of amended Rule 702, on whose meaning any consensus has proved notoriously elusive. And think, if that were their intention, about whether they would announce the change explicitly, or whether they would instead implement it so quietly, and so coyly, that its very existence might well have gone undiscovered, but for the later researches of a legal academic.

More anon.

Update 5/7/06: Professor Bernstein has now offered a fuller and (we think) more modulated expression of his views, to which we are likely, in turn, to have a more modulated response. If our post was unduly harsh, we apologize. In extenuation, we plead strong feelings about the relevant ideas. No personal disrespect toward Prof. Bernstein was intended. In fact, you should buy his books.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.