Long before the United States Supreme Court decided the landmark case of Daubert v. Merrell Dow Pharmaceuticals, Inc., Judge Jack Weinstein had turned his considerable brilliance toward the problem of how best to integrate scientific research into legal decision making. His approach was to bring a sophisticated critical eye to proffered scientific evidence, much in line with Thomas Huxley’s view that “science is … nothing but trained and organized common sense.” However, although Judge Weinstein has invariably brought uncommon common sense to the subject, many lawyers and judges have not. This is likely due largely to the lack of empirical training among the bench and bar. This lack of scientific training is well illustrated in our survey of the etymology of the concept of differential etiology. Differential etiology refers to a method of determining the identity of the cause of a particular illness. While sound logically, this concept is entirely a product of judicial craftsmanship that originated in another diagnostic concept known as differential diagnosis. Differential diagnosis refers to a method of determining the identity of the illness—not its cause. Whereas differential diagnosis is a well-accepted medical principle, differential etiology has no such roots in medicine or science. The history of how courts came to employ the concept of differential etiology reveals that, for the most part, the courts simply confused the two terms, with etiology eventually substituting for diagnosis. This history is representative of the many shadows that still shroud the intersection of law and science. Judge Jack Weinstein, of course, has always possessed an uncommonly bright light that has cast aside many a shadow in the law, and his expert evidence jurisprudence is no exception.
David L. Faigman & Claire Lesikar,
Organized Common Sense: Some Lessons from Judge Jack Weinstein’s Uncommonly Sensible Approach to Expert Evidence,
DePaul L. Rev.
Available at: https://via.library.depaul.edu/law-review/vol64/iss2/9