Whigs in Court: Historiographical Problems with Expert Evidence
Whigs in Court: Historiographical Problems with Expert Evidence Gary Edmond* I. INTRODUCTION The trouble with all this is that it is setting the jury to decide, where doctors disagree.... But how can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? -Learned Hand (1901)1 At the beginning of the twentieth century, Learned Hand ex- pressed concern at the assessment of expert disagreement by the lay jury. While the debate over jury competence has continued, Hand's disquiet would appear to apply equally to historians, lawyers, and judges commenting on litigation involving protracted disputes between experts Hand's comment may actually raise the method- ological question: how should historians and legal commentators approach and explain disagreements among experts and scientists during trials and appeals? This Article endeavors to sketch some tentative answers to that question, primarily through the review of several cases exemplifying the recent historiographical treatment of expert evidence. Recent approaches are conspicuous because, where B.A. (Hons), University of Wollongong, L.L.B. (Hons), University of Sydney, Ph.D., Cambridge University. Faculty of Law, University of New South Wales, Sydney 2052, Aust- ralia, and Visitor, Law Program, Research School of Social Sciences, The Australian National University, Canberra 0200 Australia. The author would like to thank David Mercer, Wilfred Prest, Rob Nelson, Ivan Crozier, Penny Pether, Paul Roberts, Mike Redmayne, Leighton Mc- Donald, John Gava, John Williams and members of the Research Discussion Group, Adelaide University. 1. Learned Hand, Historicaland PracticalConsiderations Regarding Expert Testimony, 15 HARV. L. REv. 40,54 (1901).
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