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Displaying: 1-10 of 99 documents

1. The Journal of Philosophy, Science & Law: Volume > 16 > Issue: 2
Sarah Lucy Cooper Forensic Science Identification Evidence: Tensions Between Law and Science
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For decades, courtrooms around the world have admitted evidence from forensic science analysts, such as fingerprint, tool-mark and bite-mark examiners, in order to solve crimes. Scientific progress, however, has led to significant criticism of the ability of such disciplines to engage in individualization i.e., “match” suspects exclusively to evidence. Despite this, American courts largely reject legal challenges based on arguments that identification evidence provided by these forensic science disciplines is unreliable. In so holding, these courts affirm precedent that it is the adversarial system’s function to weed out frailties in forensic evidence, and find that criticism of the forensic sciences lacks sui generis qualities. This article provides an independent critique of relevant American case law, from which three themes emerge. These themes are (1) the law’s misuse of science; (2) law’s scepticism towards change; and (3) law’s narrow construction of rationality, which generates reductionist concepts, and divorces science from its social context. As such, this article shows how the American judiciary’s approach to this global issue provides a contemporary illustration of key institutional tensions between science and law, and offers some recommendations for reforms that aim to facilitate the legal process to utilize the most reliable forensic science evidence possible.
2. The Journal of Philosophy, Science & Law: Volume > 16 > Issue: 1
Clifton Perry Different Mistakes in the Law and the Difference They Make
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3. The Journal of Philosophy, Science & Law: Volume > 15 > Issue: 3
Carl Mitcham Book Review: Wendell Wallach’s A Dangerous Master: How to Keep Technology from Slipping Beyond Our Control
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4. The Journal of Philosophy, Science & Law: Volume > 15 > Issue: 2
Roger Stanev Data and Safety Monitoring Board and the Ratio Decidendi of the Trial
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Current decision-making by a Data and Safety Monitoring Board (DSMB) regarding clinical trial conduct is intricate, largely limited by cases and rules, and essentially secretive. Decision-making by court of law, by contrast, although also intricate and largely constrained by cases and rules, is essentially public. In this paper, I argue by analogy that legal decision-making, which strives for a balance between competing demands of conservatism and innovation, supplies a good basis to the logic behind DSMB decision-making. Using the doctrine of precedents in legal reasoning as my central analog will lead us to an analogy for much more systematic documentation and transparency of decisions in clinical trials. My conclusion is twofold: every DSMB decision should articulate a clear general principle (a ratio decidendi) that gives reason for the decision; and all such decisions should be made public. I use reported DSMB experiences of the Women’s Health Initiative Clinical Trials to illustrate my analogical argument.
5. The Journal of Philosophy, Science & Law: Volume > 15 > Issue: 1
Jason Borenstein, Carol Henderson Reflections on Daubert: A Look Back at the Supreme Court’s Decision
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6. The Journal of Philosophy, Science & Law: Volume > 15 > Issue: 1
Mark Amadeus Notturno Falsifiability Revisited: Popper, Daubert, and Kuhn
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The Supreme Court’s 1993 Daubert v. Merrell Dow Pharmaceuticals decision acknowledged a change in the Federal Rules of Evidence for the admissibility of expert scientific testimony in legal proceedings. Two of the most controversial aspects of the decision were the Court’s general comments about science, and its appeal to Karl Popper’s notion of falsifiability as “a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact.” Indeed, Chief Justice Rehnquist acknowledged in his dissenting opinion that he did not know what falsifiability meant and that he thought other judges would not understand it either. This paper explains what Popper meant by falsifiability, why it has been misunderstood, why it is important today, and how the Court’s decision reflects the larger move from foundationalism to fallibilism that has taken place in epistemology over the course of the twentieth century.
7. The Journal of Philosophy, Science & Law: Volume > 15 > Issue: 1
Tony Ward An English Daubert? Law, Forensic Science and Epistemic Deference
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A test for the admissibility of expert evidence, partly derived from Daubert, has recently been introduced into English criminal law by the unusual mechanism of aPractice Direction.This article compares the Daubert trilogy and the English Practice Direction as responses to the problem of epistemic deference by juries to experts. Juries areoften justified in deferring to experts as to the relevance of the underlying evidence examined by the expert, including what inferences can be drawn from it. There is a concern, however, that juries may also defer to experts’ claims about the weight of their own evidence: how strongly or confidently those inferences can be stated. Overly deferential jurors may place excessive weight on forensic science evidence that rests on shaky foundations. The new English admissibility regime (drawing on recommendations by the Law Commission) appears better tailored than Daubert to address this issue about the strength of inferences presented by expert witnesses. As a result, however, it places considerable demands in judges, advocates and expert witnesses, and how successful it will be in practice remains to be seen.
8. The Journal of Philosophy, Science & Law: Volume > 15 > Issue: 1
Daniella McCahey, Simon A. Cole Human(e) Science? Demarcation, Law, and ‘Scientific Whaling’ in Whaling in the Antarctic
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This paper analyzes a recent case in which a court, like the Daubert Court, was asked to demarcate legitimate from illegitimate science. The court was the International Court of Justice (ICJ), and it was asked by the state of Australia to find the state of Japan in violation of the International Convention for the Regulation of Whaling because of its licensing of a research program that engaged in killing whales ostensibly “for purposes of scientific research.” Australia premised a good portion of its argument on a four-part definition of “scientific research,” reminiscent of the four notorious “Daubert criteria,” and the claim that the Japanese research program, “JARPA II,” failed to comply with this definition. The paper suggests that the Court’s judgment, which forced Japan to temporarily cease whaling, illustrates the merits for courts of avoiding the temptation to engage in demarcation exercises.
9. The Journal of Philosophy, Science & Law: Volume > 14 > Issue: 3
Yvette Pearson Expanding Opportunities for People with Disabilities: Promoting a More Cautious Approach
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10. The Journal of Philosophy, Science & Law: Volume > 14 > Issue: 3
Kevin Todd Mintz Sexual Intimacy, Social Justice, and Severe Disabilities: Should Fair Equality of Opportunity in Health Extend to Surrogate Partner Therapy?
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The 2012 film The Sessions tells the story of a man with polio who loses his virginity by undergoing Surrogate Partner Therapy (SPT). In light of ensuing controversy surrounding the legal and moral status of SPT, this article uses Norman Daniels’ framework of fair equality of opportunity in health to argue that SPT is a legitimate form of treatment for sexual dysfunctions and should be evaluated alongside other such treatments. I begin by showing how sexual dysfunctions constitute deviations in normal species functioning. I then show that sexual capacities are a matter of fair equality of opportunity because they affect the ability to cultivate the sexual intimacy that is crucial for forming a family and often necessary for maintaining a healthy one. Recognizing that some might object to SPT as a form of prostitution, I proceed by showing how the treatment might avoid some of the objections raised against prostitution, and conclude by affirming that societies committed to fair equality of opportunity in health should work to make SPT legal and safe.