In the last decade, the Supreme Court has heard a number of high-profile cases holding potential for major progressive reform which hinge crucially on the Justices accepting, or at least not rejecting, the findings of social science experts. Time and again, however, the Court has found ways to ignore, minimize, or misconstrue the work of highly-qualified social scientists, with Chief Justice Roberts even stating last Term that a plaintiff’s model looked to him like “sociological gobbledygook.” This Comment explores why the judiciary is especially skeptical of plaintiffs whose conduit theories of liability rely on cutting—or bleeding—edge social science, and how methodological aspects of these “soft” sciences frustrate deeply entrenched legal norms and judicial expectations for proper expertise and proof.
Because the Daubert “gatekeeper” stage is an imperfect forum, in which judges regularly scrutinize complex proof they lack the epistemic competence to evaluate independently, courts must turn from actual substance of testimony to secondary “proxy” indicia for its reliability. Utilizing proxy knowledge in this manner rewards the traditional at the expense of the new and grants undue weight to proxies with no correlation to a proof’s validity, such as its conformance with individual judges’ preexisting cultural agendas. These issues all negatively and disproportionately impact the social sciences. This institutional aversion halts desirable legal development, as a number of long-vexing systemic harms can only capably be measured with social science, and if such proof is not embraced, important rights will be left perpetually unvindicated.
This Comment argues not for an uncritical acceptance of all social science, but instead for the judiciary to acknowledge and respect it more fully as a source of knowledge. In conclusion, it calls for courts to embrace the trial setting as a means for developing more certain answers to the types of highly challenging questions that social science attempts to answer. All told, this approach will lead to desirable, common sense outcomes rather than “law based on self-induced blindness, on flagrant contradiction of known fact.”