Publication Details

Edmond, G. & Mercer, D. W. 2002, 'Conjectures and exhumations: Citations of history, philosophy and sociology of science in US federal courts', Law and Literature Special Edition: Scientific Narratives in Law, vol. 14, no. 2, pp. 309-366.


This article examines the circumstances in which a version of Sir Karl Popper's philosophy of science became US law. Among historians, philosophers and sociologists of science, as well as legal commentators, the US Supreme Court's Daubert v. Merrell Dow Pharmaceuticals, .Inc. (1993) decision has received considerable attention. The case is significant because America's most senior court produced a definition of science (for legal purposes). This definition was authorized by the symbolic exhumation, celebration and appropriation of key elements of the philosophy of science developed decades earlier by Popper. Significantly, it was not just Popper's philosophy that was exhumed and resurrected but also his standing and the social authority of philosopy more generally. This article explores how the US Supreme Court invoked a mediated and essentialized representation of Popper's philosophy of science - in a context where the quality of expert evidence seems to have been conceived as a pressing socio-legal problem - to support the inauguration of a more onerous response to admissibility decision making in federal courts. In undertaking this task we also reflect on the use of the writings of other philosophers, historians and sociologists of science which have appeared somewhat erratically in recent judgments. These later references have been conspicuously less influential than the Supreme Court's attempt to grapple with the nature of science in Daubert.

In order to substantiate our claims we provide an analysis of references to the history, philosophy and sociology of science which have appeared in US federal court decisions. Our sample was gathered using the relatively straightforward methodology of searching the WESTLAW database for references to well-known authors from the history, philosophy and sociology of science. The search covered the period from the 1940's up to the time of writing. Our analysis is not quantitative (there were only a small number of relevant citations), but rather, qualitative. The significance and meaning of citations will be assessed against the backdrop of the wider socio-legal debates and judicial uses of Daubert.



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