The Reference Manual on Scientific Evidence, a guide for federal judges, includes a climate science chapter that fails to meet the evidentiary standards it teaches judges to apply, according to a forensic accountant who testifies as an expert witness in securities class actions and white-collar cases.
The chapter, authored by Jessica Wentz and Radley Horton, was withdrawn by the Federal Judicial Center, but remains available in the National Academies of Science’s online edition of the manual.
The authors thanked Michael Burger, the Sabin Center’s executive director, who also serves as counsel to Sher Edling, the plaintiffs’ firm representing municipalities in climate liability lawsuits against fossil fuel companies, a conflict of interest that was not disclosed.
Former Attorney General William Barr and others have documented these conflicts of interest, and noted that the chapter reflects a biased view of climate science, conceived of and executed by interested parties.
The climate chapter fails to meet the Daubert factors, which require that expert testimony rest on sufficient facts and data, employ reliable methods, and reflect opinions that do not overstate what the methodology can support.
The chapter’s treatment of attribution science presents contested probabilistic modeling as settled methodology, and its peer review process included individuals with conflicts of interest, such as Donald Wuebbles, who has served as a plaintiffs’ expert witness in climate cases.
The chapter’s leap from general climate trends to specific, company-attributable harms is an inferential bridge that is too wide, and would render expert testimony unreliable, according to the standards set by General Electric Co. v. Joiner.
They have a problem with the climate chapter, not just a matter of conflicts of interest or flawed methodology, but also of the chapter’s potential to influence judges’ decisions, much like the federal Sentencing Guidelines, which are formally advisory but functionally determinative for a large share of federal sentences.
It is known that judges are susceptible to anchoring bias.
Research has shown that anchoring is strongest when the anchor comes from a credible, authoritative source, such as the Reference Manual on Scientific Evidence, and judges need a reliable guide to court cases to handle complex scientific issues.
Judges need a reliable and unbiased guide to scientific evidence, which can help law firms thrive in a rapidly changing environment.
The science is strong enough to guide judges, and it is strong enough to survive the scrutiny that we apply to every other form of expert evidence.
According to the National Academies of Sciences, the Reference Manual on Scientific Evidence is a widely used guide for federal judges, and its credibility and usefulness depend on its ability to provide accurate and unbiased information.
The Federal Judicial Center and the National Academies of Sciences must take steps to ensure that the Manual meets the highest standards of reliability and credibility, and that its guidance on scientific evidence is based on the best available research and data, which is essential for judges to make informed decisions in complex cases.
The issue of climate change is complex, and judges need a reliable and unbiased guide to handle the scientific and technical questions that arise in climate-related cases.
