Federal Rule of Evidence 702 (which governs the admission of expert evidence) is under a microscope right now. The Advisory Committee for the Federal Rules is considering an amendment that would add explicit language reinforcing that expert-evidence decisions must be made by a preponderance of the evidence. As a result, we’re seeing many of the usual debates about how seriously to take junk science, and how many meritless lawsuits are necessary to preserve access to justice for entrepreneurial tort lawyers.

A new article in the Southwestern Law Review by Shook, Hardy & Bacon  L.L.P. lawyers Mark Behrens (who serves on WLF’s Legal Policy Advisory Board) and Andrew Trask argues that the debate over the role of science in litigation is not so much a policy debate about torts as it is a debate about the rule of law in our legal system.

In “The Rule of Science and the Rule of Law,” Behrens and Trask focus in depth on three areas of litigation where a lack of a rigorous standard for admitting scientific evidence has had visible effects on case-dispositive rulings, meaning that entrepreneurial plaintiffs who want to bring shaky scientific cases need only select the right jurisdiction to do so. First, they discuss the “any exposure” asbestos lawsuits in California, which hold that any exposure to asbestos, however small, is a contributing factor to mesothelioma. Then they consider the now-infamous Roundup glyphosate litigation, which is based on the outlier speculation of an international organization whose job is to foresee possible—not actual—potential cancer risks. Finally, they take on the talcum-powder litigation, the grounds for which was debunked by the Journal of the American Medical Association last year.

In each case, Behrens and Trask explain the underlying scientific misunderstandings giving rise to the litigation, as well as the specific evidentiary holdings that allowed the lawsuits to continue past the pleading stage and into trial or multi-million dollar settlements. They also discuss several possible solutions to this growing rule-of-law problem, including the amendment currently under consideration by the Advisory Committee, and some litigation strategies to strengthen arguments that admitting shaky scientific evidence is an abuse of judicial discretion. Their underlying thesis—that the rule of law requires the rule of the scientific method—is one that judges, rulemakers, and lawyers would do well to consider.