In 1993, the Supreme Court attempted to ensure the reliability of scientific, medical and technical evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc. The Court held that judges act as gate keepers to, and provided various criterion to guide judges in the admissibility of, technical and scientific evidence. This article examines one criterion, peer review publication, to determine whether changes in scientific publishing over the last twenty-three years have weakened peer review’s usefulness as a guide for judges. The author analyzes the decline of peer review, as a clear standard for measuring the reliability of articles, by examining four problems scientific publishing has encountered in recent years: a parade of hoaxes; an epidemic of fraudulently published results; the apparent failure to reproduce published findings; and the growth of online, faux journals. These four problems undermine peer review as arguably the most important criteria of the Daubert approach, and bring Daubert’s continuing viability into question.
Kevin D. Hill, The Crisis in Scientific Publishing and its Effect on the Admissibility of Technical and Scientific Evidence, 49 J. Marshall L. Rev. 727 (2016)