1. For other discussions of the late nineteenth-century anxiety about the use of experts in court, see the citations at Mnookin, Jennifer L., “Expert Evidence, Partisanship, and Epistemic Competence,” Brooklyn Law Review 73 (2008): 1009–33Google Scholar, at 1010.

2. See, for example, Holden, Livia, ed., Cultural Expertise and Litigation: Patterns, Conflicts, Narrative (London: Routledge, 2011)CrossRefGoogle Scholar; Good, Anthony, Anthropology and Expertise in the Asylum Courts (London: Routledge-Cavendish, 2007)CrossRefGoogle Scholar; Rosen, Lawrence, “Leave It to the Experts? The Anthropologist as Expert Witness,” in Rosen, Lawrence, The Judgment of Culture: Cultural Assumptions in American Law (London: Routledge, 2018), 57–93Google Scholar; Good, Anthony, “Cultural Evidence in Courts of Law,” in The Objects of Evidence, ed. Engelke, Matthew (New York: Wiley, 2009), 44–57Google Scholar; Wilson, Molly J. Walker, “Cultural Understandings of Risk and the Tyranny of the Experts,” Oregon Law Review 90 (2011): 113–89Google Scholar; Yanni, Stephen J., “Experts as Final Arbiters: State Law and Problematic Expert Testimony on Domestic Violence in Child Custody Cases,” Columbia Law Review 116 (2016): 533–72Google Scholar; and Zenker, Olaf, “Anthropology on Trial: Exploring the Laws of Anthropological Expertise,” International Journal of Law in Context 12 (2016): 293–311CrossRefGoogle Scholar. See also the articles in the issue on “Conventions in Science and Law,” Law & Contemporary Problems 72 (2009): 1–189.

3. See Lanni, Adriaan, Law and Justice in the Courts of Classical Athens (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar.

4. See Rosen, Lawrence, Islam and the Rule of Justice (Chicago: University of Chicago Press, 2018)CrossRefGoogle Scholar.

5. For examples of states that have placed limitations on “professional experts” in medical malpractice cases, see Mnookin, “Expert Evidence,” 1012, note 6.

6. See the Recognition of Aboriginal Customary Laws Report, https://www.alrc.gov.au/publications/report-31 (accessed July 21, 2019). Although very few of the report's recommendations have been adopted, it has influenced discussions on the subject and has played more of a role in the sentencing stage of a criminal trial than in other kinds of cases.

7. See, for example, Edmond, Gary, “Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure,” Law & Contemporary Problems 72 (2009): 159–89Google Scholar; and Yarnall, Megan A., “Dueling Scientific Experts: Is Australia's Hot Tub Method a Viable Solution for the American Judiciary?” Oregon Law Review 88 (2009): 311–40Google Scholar.

8. “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle of discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

9. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). See generally, Shuman, Daniel W. and Sales, Bruce D., “The Impact of Daubert and Its Progeny on the Admissibility of Behavioral and Social Science Evidence,” Psychology, Public Policy & Law 5 (1999): 3–15CrossRefGoogle Scholar.

10. Although the Daubert standard was, in part, intended to eliminate “junk science” and “pseudoscience,” it has not, however, resulted in a clear distinction between what can be designated science and what might be mere technical proficiency. The later case Kumho Tire Co. v. Carmichael did permit less than full scientific credentials to suffice for qualification as an expert, but in other respects, elements of the earlier Frye rule persist, mainly in terms of showing that a proposition has received broad acceptance in the discipline. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). See generally, Cheng, Edward K. and Yoon, Albert H., “Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards,” University of Virginia Law Review 91 (2005): 471–513Google Scholar; and Lepore, Jill, “On Evidence: Proving Frye as a Matter of Law, Science, and History,” Yale Law Journal 124 (2015): 1092–158Google Scholar.

11. On this issue in British colonial Africa, for example, see Cotran, Eugene, “The Unification of Laws in East Africa,” The Journal of Modern African Studies 1 (1963): 209–20CrossRefGoogle Scholar; and Twining, William, “The Restatement of African Customary Law: A Comment,” The Journal of Modern African Studies 1 (1963): 221–28CrossRefGoogle Scholar.

12. For a thoughtful series of older essays on the general subject of experts and some recommendations that still have currency, see the articles in “Expert Testimony,” Law & Contemporary Problems 2 (1935): 402–527.

13. Already in the late nineteenth century, Sir George Jessel said: “An expert is not like an ordinary witness, who hopes to get his expenses, but he is employed and paid in the sense of gain, being employed by the person who calls him. Now it is natural that his mind, however honest he may be, should be biased in favour of the person employing him, and accordingly we do find such bias … Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and is so effectual that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them.” Lord Abinger v. Ashton (1873) 17 L. R. Eq. 358.

14. Sir Anthony Kenny, referring to his own country's legal system, argues: “However much we may be convinced of the merits of the Anglo-Saxon judicial system, the courtroom is not the best place, and the adversary procedure is not the right method, to decided what is and what is not a science.” Kenny, A., “The Expert in Court,” Law Quarterly Review 99 (1983): 197–216Google Scholar, at 207.

15. See Cecil, Joe S. and Willging, Thomas E., “Accepting Daubert's Invitation: Defining a Role for Court-Appointed Experts in Assessing Scientific Validity,” Emory Law Journal 43 (1994): 995–1070Google Scholar; and Reisinger, Karen Butler, “Court-Appointed Expert Panels: A Comparison of Two Models,” Indiana Law Review 32 (1998): 225–58Google Scholar. See generally, Federal Judicial Center, Reference Manual on Scientific Evidence, Second Edition, 2000, http://air.fjc.gov/public/fjcweb.nsf/pages/16 (accessed July 23, 2019). For the history of such panels, see Rosenthal, Lloyd L., “The Development of the Use of Expert Testimony,” Law & Contemporary Problems 2 (1935): 403–18CrossRefGoogle Scholar, at 406–11.

16. McCleskey v. Kemp, 481 U.S. 279 (1987). For updates on the research connecting race and the death penalty in the United States, see the Death Penalty Information Center Web site at https://deathpenaltyinfo.org/race-and-death-penalty.

17. Milirrpum v Nabalco Pty. Ltd., (1971) 17 FLR 141 (27 April 1971) Supreme Court (NT).

18. Following a discussion of whether psychiatrists can determine what may actually have happened based on what patients tell them, one scholar concludes: “The greater the significance of the historical truth to the opinions of experts, the more their testimony is likely to rest on unverified premises. Moreover, their premises are often precisely the ‘facts’ about which it is the jury's obligation to be agnostic until persuaded by those facts by admissible evidence. Liberalization of the rules of evidence surrounding expert testimony has exacerbated rather than improved this testimonial situation, and few trial lawyers have the skills to persuade the jury to set aside an expert's opinion because of a quarrel about the factual premises on which it rests.” Wesson, Marianne, “Historical Truth, Narrative Truth, and Expert Testimony,” Washington Law Review 60 (1985): 331–54Google Scholar, at 354.

19. The ‘Lady Chatterley's Lover’ Case,” Parliamentary Debates (Hansard) 227. House of Lords December 14, 1960 col. 528–74, at 541.

20. Adam Liptak, “In U.S., Expert Witnesses are Partisan,” New York Times, August 12, 2008, A1. In other instances, those preparing to testify as experts have worried, for example, whether their style of dress would affect their credibility. See, for example, Valverde, Mariana, “Social Facticity and the Law: A Social Expert's Eyewitness Account of Law,” Social & Legal Studies 5 (1996): 201–17CrossRefGoogle Scholar. See generally, Loftus, Elizabeth F., “Ten Years in the Life of an Expert Witness,” Law and Human Behavior 10 (1986): 241–63CrossRefGoogle Scholar; and Wuffle, A., “A Wuffle's Advice to the Expert in Court,” PS: Political Science & Politics 17 (1984): 60–61Google Scholar.

21. The case is reported at R. v. Penguin Books Ltd, [1961] Crim. L. R. 176; the statute in question is 1959 Chapter 66 7 and 8 Eliz 2.

22. See Doris Lessing, “Testament of Love,” The Guardian, July 15, 2006, https://www.theguardian.com/books/2006/jul/15/classics.dhlawrence (accessed July 21, 2019); and Edmund Wilson, “The Book that Brought Good Sex Writing to the Masses,” The New Republic, July 3, 1929, https://newrepublic.com/article/89813/edmund-wilson-dh-lawrences-lady-chatterleys-lover (accessed July 21, 2019).

23. The ‘Lady Chatterley's Lover’ Case,” Parliamentary Debates (Hansard) 227. House of Lords December 14, 1960 col. 528–74.

24. Jacobellis v. Ohio, 378 US 184 (1964).

25. For a defense of Stewart's comment, see, generally, Gewirth, Paul, “On ‘I Know It When I See It’,” Yale Law Journal 105 (1996): 1023–47CrossRefGoogle Scholar.

26. For a variety of situations in which historians have appeared as expert witnesses, see Delafontaine, Ramses, Historians as Expert Judicial Witnesses in Tobacco Litigation (New York: Springer, 2015)CrossRefGoogle Scholar; Rothman, D. J., “Serving Clio and Client: The Historian as Expert Witness,” Bulletin of the History of Medicine 77 (2003): 25–44CrossRefGoogle ScholarPubMed; Evans, Richard J., “History, Memory, and the Law: The Historian as Expert Witness,” History and Theory 41 (2002): 326–45CrossRefGoogle Scholar; Brescia, Michael, ed., “The Historian as Expert Witness,” The Public Historian 37 (2015): 8–104Google Scholar; and Kritika Agarwal, “Historians as Expert Witnesses: Can Scholars Help Save the Voting Rights Act?” Perspective in History, February 2017, https://www.historians.org/publications-and-directories/perspectives-on-history/february-2017/historians-as-expert-witnesses-can-scholars-help-save-the-voting-rights-act (accessed July 21, 2019).

27. However, many justices, including Justice Kennedy, have been shown to consult outside materials: See Robert Barnes, “Supreme Court Rule: (Other) Justices Shouldn't Conduct Outside Research,” Washington Post, March 25, 2018. See also, Kirk Johnson, “Colorado Court Bars Execution Because Jurors Consulted Bible,” New York Times, March 29, 2005.

28. 745 F.3d 837, 842 (2014). In her dissent, Chief Judge Wood, noting that the matter at issue concerned the amount of time workers had to expend without pay preparing for their compensated labors, argued: “In short, the amount of time at issue is a question that must be developed at trial; no amount of common sense, internet research, or personal experience can substitute for that.” Ibid., 850.

29. Linda Greenhouse, “How Judges Know What They Know,” New York Times, March 29, 2018.

30. See Liska, Kristin A., “Experts in the Jury Room: When Personal Experience is Extraneous Information,” Stanford Law Review 69 (2017): 911–40Google Scholar. Law professor and dean Soia Mentchikoff used to tell about the time when she was, without counsel realizing it, seated on a jury considering a case involving a commercial transactions statute. In the jury room she explained the case carefully. When asked by the other jurors how she knew so much about it she responded that she helped to write that statute. For an interesting comparative study, see Mundy, Roderick, “What Do the French Think of Their Jury? Views from Poitiers and Paris,” Legal Studies 15 (1995): 65–87CrossRefGoogle Scholar.

31. Transport Publishing Co. Pty. Ltd. v. The Literature Board of Review, (1955) 99 C. L. R. 111, 119, per Dixon, C.J., Kitto and Taylor, JJ.

32. R. v. Turner, [1975] Q.B. 834, 841.

33. Freckelton, Ian, “The Anthropologist on Trial,” Melbourne University Law Review 15 (1985): 360–86Google Scholar, at 382. See also, Malsch, Marijke and Freckleton, Ian, “Expert Bias and Partisanship: A Comparison between Australia and the Netherlands,” Psychology, Public Policy & Law 11 (2005): 42–61CrossRefGoogle Scholar.

34. Nichols, Thomas M., The Death of Expertise: The Campaign against Established Knowledge and Why It Matters (Oxford: Oxford University Press, 2017)Google Scholar.

35. Mnookin, “Expert Evidence,” 1012.

36. See Daniel Goleman, “Jurors Hear Evidence and Turn It into Stories,” New York Times, May 12, 1992, C1.

37. For an excellent example of how narrative and science interact, see Landau, Misia, Narratives of Human Evolution (New Haven, CT: Yale University Press, 1991)Google Scholar.

38. State v. Rodriguez, 25 Conn. Sup. 350, 204 A.2d 37 (Superior Court of CT 1964). On the cultural defense generally, see Renteln, Alison Dundes, The Cultural Defense (New York: Oxford University Press, 2004)Google Scholar; and Lawrence Rosen, “Defending Culture: The Cultural Defense and the Law's Theory of Culture,” in Rosen, The Judgment of Culture, 17–56. Courts in the United States have split on the question of allowing testimony about cultural background in criminal cases. See, for example, People v. Poddar, 103 Cal. Rptr. 84 (CA Ct. of App. 1972); and People v. Aphaylath, 502 N.E.2d 998 (1986). For a case holding that the cultural practice, although inappropriate, did not arise to the level of criminal liability, see State v. Kargar, 679 A.2d 81 (Sup. Judicial Ct. of Maine, 1996).

39. Although such matters, no doubt, reside in the eye of the beholder, it is hard not to find some proffered testimony by experts to be truly absurd. In the Lady Chatterley's Lover case mentioned, the lawyers defending the publication reportedly approached one of the leading literary critics of the day, Kenneth Tynan, who was well known for his irreverent (to say nothing of unusual) sexual proclivities, to testify as to the intellectual merits of the work. When, however, Tynan said that he would be delighted to appear for their side because he found the book enormously arousing, counsel politely begged off using him as their expert. Other language-related examples abound. In a copyright case that raised the question of whether the term “Lexus” infringed on the term “Lexis,” counsel actually called a professor to testify that the two were pronounced differently in Latin and were therefore not identical.

40. See generally, Clifford, James, The Predicament of Culture (Cambridge, MA: Harvard University Press, 1988), 277–346CrossRefGoogle Scholar.

41. For an interesting comparative study in this regard, see Senger, Daniel, “The Japanese Quasi-jury and the American Jury: A Comparative Assessment of Juror Questioning and Sentencing Procedures and Cultural Elements in Lay Judicial Participation,” University of Illinois Law Review 2011 (2011): 741–74Google Scholar.

42. See, for example, on the advantages and disadvantages of court-appointed experts, Deason, Ellen E., “Court-Appointed Expert Witnesses, Scientific Positivism Meets Bias and Deference,” Oregon Law Review 77 (1998): 59–156Google Scholar, at 99–121. See also the recommendation by A. Kenny, “The Expert in Court,” 215, who argues that the court should be “obliged to appoint two or more experts on any matter of expertise. The evidence should only be admissible if the two experts were in substantial agreement; it should be presented to the court by one of the experts who could then be cross-examined by either party. This would remedy the evil of the disedifying court tournaments between experts and prevent an aura of expertise being given to testimony which would be controverted within the expert's own discipline.” See also the experience in school desegregation cases as related in Clark, Kenneth B., “The Social Scientist as an Expert Witness in Civil Rights Litigation,” Social Problems 1 (1953): 5–10CrossRefGoogle Scholar.

43. Hart, H. L. A, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994), 128Google Scholar.