Cover: Science in the Court:  Is There a Role for Alternative Dispute Resolution?

Science in the Court: Is There a Role for Alternative Dispute Resolution?

Published 2004

by Deborah R. Hensler

Purchase Print Copy

 Format
Add to Cart Paperback23 pages Free

As a result of changes in legal doctrine and litigation practices there has been a recent explosion of tort cases (e.g. medical liability and product liability cases) for which scientific questions are central. Although there are many reasons for the problematic character of this litigation, some observers have suggested that the problems associated with thee types of cases could be mitigated by modifying court procedures for dealing with the scientific questions on which most cases turn. Coincidentally, while these substantive developments in tort liability have been taking place, a significant procedural change has occurred in the civil litigation process. Increasingly, alternative dispute resolution (ADR) mechanisms (e.g. arbitration and mediation) are being substituted for traditional court decisionmaking processes, such as jury trial. Many proponents of ADR are primarily interested in reducing the transaction costs of civil case processing. But some have asked whether ADR might remedy perceived problems in court procedures for dealing the scientific questions in court cases. This article examines this question. It reviews the concerns that have been raised about court resolution of scientific issues and the criticisms that have been voiced regarding medical malpractice, products liability, and toxic tort litigation. It reviews the objectives of the ADR movement, describes the major forms of ADR in use today, discusses their use in medical malpractice, products liablility, and mass toxic tort cases, and summarizes the empirical evidence on the consequences of utilizing each of these forms for key aspects of dispute resolution. Finally, it considers whether and how ADR can contribute to improving court procedures for dealing with scientific questions.

Originally published in: Law and contemporary problems, v. 54, no. 3, Summer 1991, pp. 171-193.

This report is part of the RAND reprint series. The Reprint was a product of RAND from 1992 to 2011 that represented previously published journal articles, book chapters, and reports with the permission of the publisher. RAND reprints were formally reviewed in accordance with the publisher's editorial policy and compliant with RAND's rigorous quality assurance standards for quality and objectivity. For select current RAND journal articles, see External Publications.

This document and trademark(s) contained herein are protected by law. This representation of RAND intellectual property is provided for noncommercial use only. Unauthorized posting of this publication online is prohibited; linking directly to this product page is encouraged. Permission is required from RAND to reproduce, or reuse in another form, any of its research documents for commercial purposes. For information on reprint and reuse permissions, please visit www.rand.org/pubs/permissions.

RAND is a nonprofit institution that helps improve policy and decisionmaking through research and analysis. RAND's publications do not necessarily reflect the opinions of its research clients and sponsors.