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.     

Hobbes’ Frontispiece: Authorship,Subordination and Contract

In this article I argue that the famous image on Hobbes’ frontispiece of Leviathan provides a more honest picture of authority and of contract than is provided by today’s liberal images of free and equal persons, who are pictured as sitting round a negotiating table making a decision as to the principles on which to base laws. Importantly, in the seventeenth century, at the start of modern political thought, Hobbes saw no contradiction between contractual agreement and subordination. I will draw out these arguments by comparing three images of politics that employ the human body: Hobbes’ frontispiece is compared firstly with an earlier picture of the state, the illustration of the Fable of the Belly, and then with a later Rawlsian image of the social contract described above. At stake is Hobbes’ view of two associated concepts: authorship and authority. I argue that Hobbes’ image is a vivid portrayal of a ‘persona covert’, akin to the feme covert, a wife characterised in common law as so dominated by her husband that she is imagined as being ‘covered’ by his body.     

Balancing autonomy and risk: a failure of nerve in England and Wales?

Specialised mental health legislation typically provides for the hospitalisation and treatment of those with mental disorders in the absence of their consent. The article examines the possible justifications for the existence of these special powers and argues that two of the most common justifications, the protection of the patient and the protection of others, do discriminate against those with a mental, as opposed to a physical, disorder. The relationship between mental health and mental capacity, or guardianship, legislation is then considered and possible ways forward are discussed with particular reference to the current reform debate in England and Wales.     

Restrictions on legal aid in family law cases in England and Wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) resulted in significant cuts to the availability and scope of legal aid in family law proceedings. Some four years after the cuts were implemented, there has been a great deal of research about their devastating impact on vulnerable groups and individuals. This paper considers the other victim of the cuts, the family court itself. It is currently bulging under pressure from both an increase in applicants who have been forced to represent themselves in family proceedings and also from a rise in applications for injunctions linked to domestic violence. This paper will draw on case law to demonstrate that the reforms implemented through LASPO have seemingly only succeeded in passing the burden from one publicly funded agency, the Legal Aid Agency, to another, HM Courts and Tribunals Service. The family court system is currently at breaking point and further government review is urgently needed if people are going to be able to continue to use the system effectively.