Bench & Bar May/June 2025

FEATURE: INTELLECTUAL PROPERTY

Stop Citing My Work, The Atlantic (Mar. 20, 2024), https://www.theatlantic.com/ideas/ archive/2024/03/courts-junk-science-foren sics-evidence/677739/, last visited March 26, 2025. 6 Id . 7 Ivan Oransky & Adam Marcus, There’s Far More Scientific Fraud Than Anyone Wants to Ad mit, The Guardian (Aug. 9, 2023), https://www. theguardian.com/commentisfree/2023/aug/09/ scientific-misconduct-retraction-watch, last vis ited March 26, 2025. 8 Nick Fountain, Jeff Guo, Keith Romer & Emma Peaslee, Fabricated Data in Research About Honesty. You Can’t Make This Stuff Up. Or Can You?, Nat.’l Pub. Radio (July 28, 2023, 4:15 AM), https://www.npr.org/2023/07/27/1190568472/ dan-ariely-francesca-gino-harvard-dishones ty-fabricated-data, last visited March 26, 2025. 9 See Committee on Identifying the Needs of the Forensic Sciences Community, National Re search Council, Strengthening Forensic Science in the United States: A Path Forward, Nat’l Acad. of Sciences, 176 (2009), https://www.ojp. gov/pdffiles1/nij/grants/228091.pdf, last visited March 26, 2025. Other “pattern evidence” meth ods associated with wrongful conviction cases include forensic serology, ABO blood typing, secretor status, and microscopic hair analysis, though those instances involve much older cas es. Gerald M. LaPorte, Wrongful Convictions and DNA Exonerations: Understanding the Role of Forensic Science, Nat’l Inst. of Just. (Sep. 7, 2017), https://nij.ojp.gov/topics/articles/wrong ful-convictions-and-dna-exonerations-un derstanding-role-forensic-science, last visited March 26, 2025. 10 Liz Essley Whyte, How Science Lost Amer ica’s Trust and Surrendered Health Policy to Skeptics, Wall Street Journal (November 14, 2024) (quoting Dr. Paul Offit), https://www.wsj. com/health/healthcare/kennedy-trump-vac cines-covid-skeptics-cfdef1bd, last visited March 26, 2025. 11 Wesley J. Smith, Scandal! Science Busts Allegedly Bogus Neurological Science, Nat.’l Rev. (Oct. 1, 2024), https://www.nationalreview.com/corner/ scandal-science-busts-allegedly-bogus-neuro logical-science/, last visited March 26, 2025. 12 Jackie Flynn Mogensen, Science Fiction: Why Are so Many Studies Being Retracted—and How Can we Fix it? Mother Jones, https://www.moth erjones.com/politics/2023/10/why-are-so-ma ny-studies-being-retracted/, last visited March 26, 2025. 13 See , e.g., Kelsey Piper, A Harvard Dishonesty Researcher Was Accused of Fraud. Her Defense is Troubling, Vox (Mar. 22, 2024), https://www. vox.com/future-perfect/24107889/francesca-gi no-lawsuit-harvard-dishonesty-researcher-aca demic-fraud, last visited March 26, 2025. 14 Renuka Rayasam & KFF Health News, As More States Target Disavowed ‘Excited Delirium’ Di agnosis, Police Groups Push Back, Popular Sci ence (Mar. 20, 2024), https://www.popsci.com/ health/pushback-excited-delirium/, last visited March 26, 2025. 15 Michah L. Berman & Annice E. Kim, Bridging the Gap Between Science and the Law: The Ex ample of Tobacco Regulatory Science, Nat.’l Libr.

of Med. (NIH) (June 13, 2015) (citing Carl N. Edwards, In Search of Legal Scholarship: Strate gies for the Integration of Science into the Prac tice of Law, 8 S. Cal. Interdisc. L. J. 1, 19 (1998) (“The last thing a lawyer wants is academic curi osity when it . . . jeopardizes her client’s interests. Lawyers are remembered for the cases they win . . . .”), https://www.ncbi.nlm.nih.gov/pmc/arti cles/PMC4465282/, last visited March 26, 2025; Peter H. Schuck, Multi-Culturalism Redux: Sci ence, Law, and Politics, 11 Yale L. and Pol’y Rev. 1, 24 n.6 (1998) (“For practicing lawyers, the de cisive incentive is the need, consistent with both self-interest and professional ethics, to effectively represent the client’s interests, whatever those in terests may be.”). 16 Lakshmi Gandhi, A History of ‘Snake Oil Sales men,’ Nat.’l Pub. Radio (Aug. 26, 2013, 11:55 AM) (“[O]rigins of snake oil …. trace back to the lat ter half of the 19th century, which saw a dramatic rise in the popularity of “patent medicines.” Of ten sold on the back pages of newspapers, these tonics promised to cure a wide variety of ailments [and in] time, all of these false “cures” began to be referred to as snake oil.”), https://www.npr.org/ sections/codeswitch/2013/08/26/215761377/a history-of-snake-oil-salesmen, last visited March 26, 2025. 17 Daubert v. Merrill Dow Pharm., Inc. , 509 U.S. 579, 590 (1993) (citing Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Or ange and Bendectin Litigation, 86 Nw. Univ. L. Rev. 643, 645 (1992)); Carl Hempel, Philosophy of Natural Science 49 (1966) (“[T]he statements constituting a scientific explanation must be ca pable of empirical test.”); Karl Popper, Conjec tures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) (“[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.”). 18 “[S]omething doesn’t become ‘scientific knowl edge’ just because it’s uttered by a scientist; nor can an expert’s self-serving assertion that his conclusions were ‘derived by the scientific meth od’ be deemed conclusive.” Daubert v. Merrill Dow Pharmaceuticals, , 43 F.3d 1311, 1315–16 (9th Cir. 1995)). 19 See Goodyear Tire & Rubber Co. v. Thompson , 11 S.W.3d 575, 577 (Ky. 2000) (applying Daubert to the KRE). 20 See Edith Beerdsen, Litigation Science After the Knowledge Crisis, 106 Cornell L. Rev. 529, 542 (2021). 21 See Eli Hager, An Expert Who Has Testified in Foster Care Cases Across Colorado Admits Her Evaluations Are Unscientific, ProPublica (Mar. 18, 2024) (explaining that expert’s decades long methodology for evaluating foster care relation ships not empirically tested and lacks standard validity and reliability), https://www.propubli ca.org/article/expert-in-foster-care-cases-ad mits-her-method-is-unscientific, last visited March 26, 2025. 22 United States v. Hebshie , 754 F.Supp.2d 89, 125 (D. Mass. 2010). 23 Max Korbmacher et al., The Replication Crisis Has Led to Positive Structural, Procedural, and Community Changes , 3 Commc’ns Psych. 1, 2 (2023).

24 Monya Baker, 1,500 Scientists Lift the Lid on Re producibility, 533 Nature 452, 452 (2016). 25 Daniele Fanelli, How Many Scientists Fabricate and Falsify Research? A Systematic Review and Meta-Analysis of Survey Data, 4 PLOS ONE 1, 3, 6 (2009). 26 Marta Serra-Garcia & Uri Gneezy, Nonreplica ble Publications Are Cited More Than Replicable Ones, 7 Sci. Advances 1, 2 (2021). 27 T.D. Stanley, Evan C. Carter, & Hristos Dou couliagos, What Meta-Analyses Reveal About the Replicability of Psychological Research, 144 Psych. Bull.1325 (2018). 28 Colin F. Camerer et al., Evaluating the Repli cability of Social Science Experiments in ‘Na ture’ and ‘Science’ Between 2010 and 2015, Na ture 2 Hum. Behav. 637 (2018). 29 Darby Dickerson, Facilitated Plagiarism: The Saga of Term-Paper Mills and the Failure of Leg islation and Litigation to Control Them, 52 Vill. L. J. 21, 26–34 (2007). 30 Derek Thompson, The Consolidation-Disrup tion Index is Alarming: Science has a Crummy Paper Problem, The Atlantic (Jan. 11, 2023), https://www.theatlantic.com/newsletters/ar chive/2023/01/academia-research-scientific-pa pers-progress/672694/, last visited March 26, 2025. 31 Nidhi Subbaraman, Flood of Fake Science Forc es Multiple Journal Closures, Wall St. J. (May 14, 2024), https://www.wsj.com/science/academ ic-studies-research-paper-mills-journals-pub lishing-f5a3d4bc. 32 Nidhi Subbaraman, The Far-Reaching Ripple Effects of a Discredited Cancer Study, WALL ST. J. (Aug. 30, 2024), https://www.wsj.com/health/ healthcare/cancer-study-retracted-research-fall out-9573f842, last visited March 26, 2025. 33 Id . 34 Retraction Watch inventories journal articles re tracted for assorted reasons—inadvertent tech nical errors to outright actual fraud, and a vari ety of related topics. The blog may be accessed at https://retractionwatch.com/. 35 Piper, supra note 13. 36 See Morgan, John. “Wrongful Convictions and Claims of False or Misleading Forensic Evi dence,” 68 Journal of Forensic Sciences 3, 908 961. 37 Jon Schuppe, Epic Drug Lab Scandal Results in More Than 20,000 Convictions Dropped, NBC News (Apr. 18, 2017, 5:30 PM), https:// www.nbcnews.com/news/us-news/epic-drug lab-scandal-results-more-20-000-convictions dropped-n747891#, last visited March 26, 2025. 38 Id . 39 David Health, Meet the “Rented White Coats” Who Defend Toxic Chemicals, Ctr. For Pub. Integrity (Feb. 8, 2016), https://publicintegrity. org/environment/meet-the-rented-white-coats who-defend-toxic-chemicals/, last visited March 26, 2025.

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