Scientifically complex cases challenge the expertise of federal trial judges.' Nonetheless, the United States Supreme Court has held that federal trial judges must take an active role in deter- mining the admissibility of scientific evidence. The Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. expressed its view that the adversary system is capable of handling most scientific issues, and noted that trial judges may seek the help of third-party experts. Thus, the federal trial judge confronted with a scientifically complex case may rely on the adversaries or may seek help from a third-party expert. When faced with this choice, judges usually rely on the adversaries. Some commentators lament this choice. They cite systematic flaws within the adversary system and argue that judges should rely on third-party experts more frequently. To com- bat judicial reluctance, influential observers including Justice Breyer have called for greater "cooperative efforts" between scien- tists and judges. The Court Appointed Scientific Experts ("CASE") demonstration project is such an effort. CASE facilitates appointment of third-party experts by identifying qualified and willing scientists for judges who wish to appoint a third-party expert.
The conclusion that judges should seek help from people with more knowledge about the subject at hand makes common sense: If you do not know, ask somebody who does. Recourse to third-party experts, however, creates its own problems. Article III vests the federal judicial power in judges who are appointed to serve life terms and whose compensation cannot be lowered." If third-party experts exercise too much judicial power, judges abdicate their constitutional role, and Article III is violated. Thus, the Constitution limits judges' ability to delegate authority to non- Article III actors.
Robert L. Hess, II,
Judges Cooperating with Scientists: A Proposal for More Effective Limits on the Federal Trial Judge's Inherent Power to Appoint Technical Advisors,
54 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss2/8