Science and the Law

How does science work in the court? How should it work? Who says? For what end?

The subject comes into public view every now and again, and an esteemed batch of science and technology studies (STS) scholars have done well to explain the relationships (Sheila Jasanoff, at Harvard's Kennedy School of Government probbaly highest among them). This New York Times commentary yesterday (5 Dec) by science writer Cornelia Dean -- "When Questions of Science Come to a Courtroom, Truth Has Many Faces" -- broaches the subject in light of "the first global warming case to come before the court."

Quoting:

As the case [that the EPA has ignored the requirements of the Clean Air Act and otherwise shirked its responsibilities by failing to regulate emissions of heat-trapping gases] made its way to the court, it generated interesting questions like whether states have a right to bring such a suit and whether E.P.A. action would amount to unauthorized interference in foreign policy.

But much of the argument hinged on scientific questions. Is the earth's climate changing? If so, are human activities contributing to the change?

Mainstream science has answers to these questions (yes and yes). But while it is impossible to argue that earth has not warmed up a bit in the last century, there are still some scientists with bright credentials and impressive academic affiliations who argue that people don't have much do to with it. As Justice Anthony M. Kennedy suggested on Wednesday, maybe the court will decide to decide this issue for itself.

Dean summarizes the main points of contention when science and law meet up in the courtoom. (And sure, here's where you can go ahead and pile on social epistemologist Steve Fuller and the Dover case and I.D. and all that):

1. "the standard of proof."

Typically, scientists don't accept a finding unless, statistically, the odds are less than 1 in 20 that it occurred by chance. This standard is higher than the typical standard of proof in civil trials ("preponderance of the evidence") and lower than the standard for criminal trials ("beyond a reasonable doubt").

2. "when scientists confront a problem, they collect all the information they can about it and then draw conclusions." Lawyers do the opposite, since they start with their answer and then gather suport to make that answer clear.

3. "what scientific evidence or testimony should be considered in the first place"

Dean calls this "the knottiest problem," and it certianly comes up every time scientific matters are judged within a courtroom. The Daubert case from 1993 is now the primary reference point here. At that time, and since, with some minor tweaks, the justices said that not only did the evidence have to be "generlaly acepable" by the scitnific community (whch had been the "Frye" standard since the 1920s, then updated in the 1970s) but that it had to be wrung through that fabled peer review process too.

Jasanoff (see her Science at the Bar (Harvard, 1997)) talks about science advisory boards and special "science courts," but also notes that they would be basically unworkable. Lots of others are addressing the same issues. But what to do? Dean notes:

But even if lawyers and judges could routinely absorb a thorough grounding in the scientific issues they confront, there would still be trouble. For one thing, the state of scientific knowledge changes rapidly. Sometimes, there are multiple scientific views of a given issue, all potentially credible. And sometimes research on an issue does not even begin until it works its way into court. To an extent, that was the case with the silicone breast implants.

The issues, as ever, it seems to me, are about authority and credibility. Who knows what? How do they know it? And why do we believe them? And before we all say "evidence," or "better evidence," or "more evidence" or "empirical methods" or "rationality," I guess the point is that what counts as evidence is the very issue at hand, not simply that one has evidence while the other doesn't.