Longtime readers will recall that every so often, I would go on a "rant" about how many federal judges were ignoring the text of Federal Rule of Evidence 702, as amended in 2000. Instead, they were relying on decisions that predated the rule, and indeed contradicted the rule. Some of these decisions relied on precedents dating back as far as the 1980s, before the Supreme Court's so-called Daubert trilogy of cases on expert evidence tightened the admissibility rules substantially, and of course before Rule 702 was amended to make it conform (and indeed, settle some existing ambiguities) with the trilogy. I also wrote an academic article on the subject.
As a result of these writings, attorney Eric Lasker invited me to co-author an article calling for a new amendment to Rule 702, one designed to call federal judges' attention to the fact that the Rule, and not preceding precedents, is what they are supposed to be applying. I agreed, but I warned Eric that professors often call for rules to be amended, and are almost just as often ignored. Our article was published in the William and Mary Law Review.
To my surprise, about a year later Professor Dan Capra, reporter for the Federal Rules of Evidence, told me that he read our article, agreed with its basic premise, and was planning to propose to the Rules Committee that it amend the rule. It took another seven years, but in December 2023, the new amendment to Rule 702 took effect:
