From Sex for Pleasure to Sex for Parenthood: How the Law Manufactures Mothers

Beth A. Burkstrand-Reid

Volume 65, Issue 1, 211-259

In Sargon Enterprises, Inc. v. University of Southern California, the California Supreme Court decided arguably the most important expert testimony decision that it has rendered in at least two decades. Prior to Sargon, California appeared steadfastly committed to the classic “general acceptance” test, which required judges to assess whether an expert’s theory or technique had gained general acceptance in the relevant fields. In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court announced a new empirical validation test. In the years since 1993, most state courts adopted some version of Daubert, but until Sargon the California Supreme Court had refused to follow the federal lead.Sargon undoubtedly moves California jurisprudence toward the Daubert approach. In Sargon, the court adopted the fundamental perspective of Daubert and embraced key terminology from the Daubert opinion and its progeny. These parallels have prompted some commentators to declare that California is now in the Daubert camp.Although Sargon is a step toward the Daubert approach, it is premature to conclude that Sargon goes that far for at least two reasons. First, even post-Sargon, the California approach may be laxer than the federal approach. In Daubert, Justice Blackmun stated that Federal Rule of Evidence 104(a) governs the trial judge’s admissibility decision, which mandates that the judge probe deeply into the bases for the expert’s opinion, even including assessing credibility. Sargon stops short of explicitly going that far. Second, the California approach may prove to be more demanding than the federal approach. In a footnote, Sargon indicates that the Frye test is still good law in California. If so, then some proponents may face the daunting task of surmounting both hurdles to admissibility.

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