Measuring the Rule of Law: A Comparison of Indicators

The rule of law era has given rise to multiple indicators purporting to measure the concept. This article compares four major indicators of the rule of law and shows that their approaches to conceptualization and measurement differ. Given their disparate conceptualizations and measurement strategies, one might expect a weak correlation between them. Strikingly, however, all four indicators are highly correlated with each other (with the pair‐wise correlations between three of them exceeding 0.95). They are also correlated with the widely used measure of corruption. This suggests that the indicators might capture a more encompassing concept, like impartial administration. The article critiques the rule of law measurement enterprise as insufficiently linked to the underlying normative concept. It points to the reliance on expert perceptions and information constraints as a possible cause for the convergence. It concludes that measurement strategy, rather than differences in conceptualization, explains the convergence between the indicators.     

Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World

Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges' opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the gatekeeping role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between scientific and technical or otherwise specialized knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as science or nonscience. Moreover, judges' bench philosophy of science seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.