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Mind the Analytical Gap!: Tracing a Fault Line in Daubert

How did it come about — given that Daubert describes the old Frye Rule as “austere,” and the new regime introduced with Federal Rule of Evidence [FRE] 702 as more flexible, more favorable to the admission of expert testimony — that, at least in civil cases, the effect of Daubert seems to have been to make the admission of expert testimony more difficult, rather than less, and even to shift admissibility closer to sufficiency? Is there something about the character of relevance and reliability, the key concepts of Daubert, that explains this development? How did these two concepts get built into Daubert to begin with? Are these post-Daubert developments to be welcomed? Or are they not only unintended, but also undesirable consequences of a potentially dangerous fault line?Haack starts by sketching enough of the pre-history of Daubert to suggest how the concepts of relevance and reliability came to play their central role (§1). Then she explores some complexities of these concepts, most importantly their gradational character (§2). Next, she argues that the mismatch between the gradational concepts of relevance and reliability and the categorical concept of admissibility presents courts with a problem about the degree of relevance and degree of reliability to require; and shows by means of a sampling of rulings on Daubert issues that, while some courts have maintained a clear distinction, others have set the bar of relevance and/or of reliability so high as to blur the line between admissibility and sufficiency (§3). And finally, tugging at the normative strands in her knot of problems, she explains why she finds the elision of admissibility into sufficiency disturbing (§4).