Science And Law Research Paper

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The relationship between science and law has occupied scientists, philosophers, policymakers, and social analysts since the early modern period. Nature, according to science’s early modern practitioners, was governed by law-like regularities—God’s laws—and the work of science lay in discerning and revealing these laws of nature. In time, however, human law came to be seen as a fallible institution in need of rationalization, to be made more like a science in order to avoid arbitrariness. For early twentieth-century legal reformers, science provided a model of regularity for law to aspire to. At the same time, law and science were viewed by their practitioners as independent institutions, each with its own organization, practices, objectives, and ethos. Similarities and differences between the two fields were noted by many observers, with frequent commentary on conflicts between the law’s desire for justice and science’s commitment to the truth.

By the end of the twentieth century, a new preoccupation with the law’s instrumental uses of science emerged, which led to divergent schools of thought about the epistemological status of scientific evidence and the ways in which legal and policy institutions should interact with scientific experts. The growth of the state’s regulatory powers increased governments’ dependence on scientific methods and information, and disputes developed about the extent to which science could reliably answer the questions put to it by legislators, regulators, and litigants. An influx of technically complex disputes caused judicial systems to reassess their handling of scientific and technical evidence. Analysts of these processes grappled with questions about the law’s capacity to render justice under conditions of scientific and social uncertainty, as well as the continued relevance of the lay jury and the role of legal proceedings in the production of scientific knowledge.

This research paper reviews the resulting scholarship on the nature and consequences of the law–science relationship under four major headings. One concerns the role of these two institutions in shaping the authority structures of modernity, particularly in legitimating the exercise of power in democratic societies. A second relates to the law’s impact on the objectives, status, and professional practices of scientific disciplines relevant to the resolution of social problems. A third focuses on responses by courts and their critics to the challenges posed by experts in the legal system, including shifts in the rules governing expert testimony. Fourth and finally, an emerging line of research looks at the law as a site for generating scientific and technical knowledge and inquires into the implications of collaboration between law and science for individual and social justice.

1. Law And Science In The Transition To Modernity

Since the origins of modern scientific thought, the term ‘law’ has been used to describe both the regularities discernible in nature and the rules laid down by religious or secular authorities to guide human conduct. Both kinds of laws, it was once popularly assumed, embodied principles that should work always and everywhere in the same fashion, even though Robert Boyle, an early modern founder of experimental science, cautioned against too literal an assimilation of the behavior of matter under natural law to the behavior of human agents under civil law (Shapin 1994, pp. 330–1). As certain facts about human nature and behavior (such as the approximate equality of humans, their vulnerability, and the limits of their resources and altruism) came to be accepted as given, modern legal theorists adopted more synthetic views regarding the relationship between science and law. According to the renowned British scholar of jurisprudence H. L. A. Hart, for example, these natural facts underwrite a ‘natural law’ which human societies require in order to maintain their salient moral characteristics (Hart 1961). The American legal theorist Lon Fuller took a more sociological tack in his account of the ‘morality of law.’ Echoing Robert Merton’s well-known essay on the norms of science, Fuller argued that law and science resemble each other because each institution possesses an internal morality resulting from its distinctive arrangements, practices, and fiduciary demands (Fuller 1964). Later legal scholarship compared the ‘cultures’ of law and science and likewise called attention to their normative and procedural particularities (Goldberg 1994, Schuck 1993), but these institutional characteristics were now seen as a source of conflict, or culture clash.

As elite institutions, science and law historically have drawn upon each other’s practices to build their authority. Thus, early modern experimentalists in the natural sciences enlisted the support of witnesses, both real and ‘virtual’ (Shapin and Schaffer 1985), as if they were proving a case in a court of law. The Enlightenment of the eighteenth century and the rise of liberal democracies brought science, now prized for its practical utility (Price 1985), into a more openly instrumental partnership with the law. In the USA, Thomas Jefferson drafted the first Patent Act of the fledgling American republic in 1793, thereby implementing the constitutional grant of power to Congress ‘to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ Where Jefferson saw the state as sponsoring science, some modern scholars have seen science’s open, self-regulating, nonhierarchical modes of governance as offering a model or prototype for democracy (Polanyi 1962). Others, however, regard the relationship of scientific and political authority as one of mutual dependency. Democratically constituted governments, they argue, need science and technology in order to answer constant public criticism and make positive demonstrations of their worth to citizens. States, therefore, have harnessed science and technology to instrumental projects in both war and peace. In these legitimation exercises, the public attests to the state’s technical performance, much as scientists bore witness to each other’s observations in early modern experimental laboratories (Ezrahi 1990). The law’s procedural forms in this way have underwritten the credibility of both modern science and the state.

The law’s own dependence on science has grown by distinctive pathways in the USA, as could be expected in a society where public decisions are exceptionally transparent and significant policy change commonly proceeds through litigation. By the beginning of the twentieth century, ideological and political shifts fostered the idea that social policies enacted by the state could and should be responsive to findings in the sciences. An icon of the Progressive era, US Supreme Court Justice Louis D. Brandeis, spurred this development through his historic ‘Brandeis brief’ in Muller . Oregon (1908). Written to defend the state’s 10-hour working-day restriction on women’s employment, the 100-page brief is widely regarded as the first attempt to bring social science insights into the courts. Brandeis, then a public interest lawyer in Boston, argued successfully that women were sufficiently different from men to justify special legislative protection, thereby distinguishing the Oregon case from the Court’s earlier, infamous decision in Lochner . New York (1905), which struck down a similar state law curtailing working hours for (male) bakers.

Social science evidence received a further boost when, in overturning the ‘separate but equal’ doctrine that was the basis for racial segregation in public schools, the Supreme Court in Brown . Board of Education (1954) relied on psychological studies of segregation’s ‘detrimental effect upon the colored children.’ In later years, students with disabilities would benefit from similar sorts of evidence in claiming rights to special education (Minow 1990). Employment discrimination, racial segregation, antitrust, capital punishment, and environmental liability were among the many litigated subjects that brought social science testimony into the US courts in the latter decades of the twentieth century. These cases kept alive the view that objective scientific information could be invoked in legal proceedings to combat various forms of oppression and social injustice.

If science was allied with the search for justice in US courts, its role in policymaking was primarily as the voice of reason. Government’s increasing involvement in welfare policy in the New Deal, intensified by the rise of social regulation in the 1970s, created new demands for rational decisions concerning a host of costly and potentially explosive problems, such as race and the environment. As can be observed in the context of environmental regulation (Jasanoff 1990), federal agencies proved increasingly less able to take refuge in generalized claims of expertise. Much work went into separating science from politics and creating new institutions to deliver putatively independent advice to government, although episodes like the 1995 dissolution of the Office of Technology Assessment, an advisory body to the US Congress, called attention to the fragility of such efforts. New types of scientific expertise also evolved to support governmental decisions with substantial distributive impacts, as discussed in the next section.

The relationship between law and science in modern European states was in some ways more covert than in the USA, but nonetheless pervasive. The crises of industrialization in the nineteenth century and the ensuing rise of the welfare state ushered in a demand for credible public action that states could not satisfy without rapid increases in their capacity to order society through newly accredited social science disciplines (Wagner et al. 1991). In turn, the classifications offered by the human sciences in particular supplied the basis for new forms of self-understanding, normalization, and social control. Whether in medicine, psychology, criminology or studies of intelligence, science offered the means for dividing people into categories of normal and pathological, mainstream and deviant. The scientific study of human characteristics thus enabled members of society to see and discipline each other without the need for constant, formal regulatory oversight by the state (Foucault 1990). Science, on this account, not only provided supports for legal authority but actually replaced some of the ordering functions of positive law.

European institutions at first resisted the pressures that fed attempts to separate science from politics in US legal contexts. Expert advisory bodies were routinely constituted to include political as well as technical expertise, although judgments about the need for lay or nonprofessional expertise varied from country to country. European courts, for their part, dealt with more focused and on the whole less politically salient disputes than in the USA, so that there were fewer reasons to contest expert judgments. By the 1990s, however, a number of developments tried public confidence in European governments’ uses of science, chief among them the growing political influence of the European Union’s technical bureaucracies and the fallout from the UK government’s botched response to the bovine spongiform encephalopathy (BSE) crisis, which cast doubt on the integrity and impartiality of experts. European lawmakers, regulators, and courts began reconsidering the adequacy of their institutional arrangements for science-based decision-making, as the issue of science and governance rose to new prominence on political agendas.

2. Disciplines, Professions, And The Law

The interactivity of law and science has spurred new disciplinary formations and helped to change professional norms and practices, especially in the human sciences, which serve both as allies in regulation and law enforcement and as uneasy subjects of the law’s skeptical gaze. This dual relationship with the law has prompted novel lines of scientific research and theorizing, accompanied by periodic legal encroachment upon science’s professional autonomy. Developments in the fields of risk analysis and psychology clearly illustrate these patterns.

The scientific study of risk is an outgrowth of state efforts to manage the hazards of industrial production and an extension of modern governments’ growing reliance on formal decision-making tools to rationalize difficult political decisions. Uncertainty about technology’s risks and benefits rose through the twentieth century along with the size and complexity of systems of production. From village-based economies, in which injured parties presumed they knew the agents as well as the causes of harms inflicted on them, the global economy pulled consumers into webs of relationships that diffused both the knowledge of risks and the responsibility for regulation and compensation. Epitomizing the plight of industrialization’s innocent victims, millions of asbestos workers in mines, shipyards, and other industries were unknowingly exposed to severe health hazards, and hundreds of thousands died of consequent illnesses. Resulting lawsuits financially crippled asbestos manufacturers without adequately recompensing injured workers. A 1984 accident at a US subsidiary’s chemical plant in Bhopal, India, again produced hundreds of thousands of victims, with massive scientific and legal uncertainties clouding the settlement of claims.

As the pervasiveness of industrial hazards became apparent, legislatures sought to ensure that regulation would not wait for proof in the form of ‘body counts’: risk, not harm, became the basis for action under new laws safeguarding health, safety, and the environment, and state agencies struggled to develop credible processes for assessing and mitigating risks before anyone was injured. The sciences, for their part, responded with attempts to mobilize existing knowledge and methods to provide more useful tools for analyzing risks and crafting preventive strategies.

From relatively modest beginnings, rooted largely in the engineering and physical sciences (as in assessing the risks of meltdown in nuclear power plants), risk assessment in support of regulatory standards grew into an important, and increasingly contested, branch of the social sciences. Risk studies acquired the indicia of professionalization, with dedicated journals, societies, curricula, and centers at major universities. One focus of research and development in this field, particularly in the USA, was the construction of reliable models for measuring risk, from the use of animal species as surrogates for humans to sophisticated methods of representing uncertainty in risk estates (National Research Council 1994). Risk assessment presented not only methodological difficulties for scientists and engineers, but also institutional challenges for governments needing to persuade industry and the public that their decisions were scientifically sound and politically balanced (Jasanoff 1990). Lawsuits questioning the risk assessment practices of federal agencies were not uncommon and led to several significant judicial decisions, including Supreme Court rulings on the validity of the occupational standard for benzene in 1980 and the air quality standard for ozone and particulates in 2001.

Other researchers meanwhile approached risk from the standpoint of social psychology, asking why lay observers frequently diverged from experts in their judgments concerning the relative significance of different types of risk. This question engendered a sizeable body of experimental and survey work on risk perception (Slovic 2000), as well as theoretical critiques of such work, showing problems in both the framing and characterization of lay attitudes (Irwin and Wynne 1994). While some social scientists occupied themselves with identifying and measuring ‘real’ risks, or perceptions of them, others treated risk itself as a new organizing principle in social life, noting that vulnerability to risk did not map neatly onto earlier divisions of society according to race, class or economic status (Beck 1992). By contrast, the US environmental justice movement generated data suggesting that social inequality still mattered in the distribution of industrial risks, which fell disproportionately on poor and minority populations (Bullard 1990). This strategic, though controversial, research led in 1994 to a presidential executive order demanding that US federal agencies should consider the equity implications of their actions; equity analysis emerged in this way as an offshoot of existing methodologies for assessing risk and offered formal justification for legal claims of environmental injustice.

Unlike risk analysis, which is a product of twentieth-century concerns, law and the mental health disciplines have existed in a relationship of close reciprocity at least since 1843, when the British House of Lords laid down the so-called M’Naghten rule for determining whether a criminal defendant is entitled to relief on grounds of insanity. The rule holds that a person may be released from criminal responsibility for actions taken while he or she was unable to distinguish between right and wrong as a result of mental disease or defect.

More recently, the human sciences’ ability to sort people’s behavior and capacities into seemingly objective, ‘natural’ categories has served the needs of both democratic and totalitarian states in a growing variety of legal settings. The need to determine people’s mental states in civil as well as criminal proceedings was an important driver of the legal system’s enrolment of professionals from these fields. In US law, for example, psychiatric evidence was used to determine whether a criminal accused could stand trial, whether conditions for sentencing leniency or parole were met, and whether a convicted criminal posed a sufficient threat of long-term dangerousness to deserve the death penalty. While these intersections provided new professional opportunities for psychiatry and psychology, spawning a thriving pedagogic specialty of law and mental health (Gutheil and Appelbaum 2000), entanglements with the law also disclosed frequent divisions among experts and undermined disciplinary authority in other ways.

The most visible challenge to professional autonomy occurred in the 1974 US case of Tarasoff . Regents of the University of California (redecided in 1976), in which the California Supreme Court ruled that psychiatrists were required to warn (later changed to a duty to protect) third parties threatened by their patients. Although the decision did not open the floodgates to liability as many therapists had feared, Tarasoff was widely seen as influencing therapeutic practice, often in counterproductive ways. In another notable decision affecting the mental health field, the US Supreme Court in Barefoot . Estelle (1983) essentially ignored an amicus brief by the American Psychiatric Association stating that psychiatric predictions of dangerousness are wrong in as many as two out of three cases. The Court expressed confidence in juries’ capacity to evaluate expert evidence even if it is weak or deficient.

By the end of the twentieth century, the alliance between law and the human sciences—joined, eventually, by the nascent science of genomics—helped to define a host of novel disorders and syndromes that were invoked to extenuate or penalize various types of conduct. Post-traumatic stress disorder (PTSD), for example, along with its specific manifestations such as rape trauma syndrome, entered the DSM-IV, the official diagnostic handbook for psychologists. So codified, PTSD became not only an identifiable and presumably treatable medical condition, but also a basis for asserting new legal claims (as in lawsuits for stress-related psychological injury in the workplace) or defending oneself against them (as in murder trials of sexually abused defendants). Possibly the most notorious example of synergy between law and psychology occurred in a rash of so-called recovered memory and child abuse cases, which became especially prevalent in the US in the 1980s (Hacking 1995). Initially gaining credibility from psychiatric experts, who testified to the reliability of recovered childhood memories, these cases caused scandal as witnesses recanted and it became apparent that some experts had more likely instilled than elicited the shocking ‘memories.’ The profession eventually organized to deny the scientific validity of the claims and repudiate the expertise of the claimants (Loftus and Ketcham 1994).

Research on eyewitness identification, another branch of research dealing with memory and recall, also received its chief impetus from the legal process. Prompted by insupportably high error rates on the part of eyewitnesses, psychologists tested people’s ability to recognize persons they had encountered in stressful situations and discovered that many factors, such as race, inhibit accurate identification under these circumstances (Wells 1988). These findings began to have an impact on police procedure by the late 1990s as awareness dawned that relatively simple changes, such as sequential rather than simultaneous presentation of suspects in line-ups, could substantially improve the reliability of eyewitness testimony.

3. Scientific Evidence And Expert Witnesses

Whereas civil law systems relegated the production of scientific and technical evidence largely to national forensics labs and court-appointed experts, common law proceedings traditionally left it to the parties themselves to produce evidentiary support for their claims. The adversary process, with its right of cross-examination, was assumed to be equal to the task of testing the evidence, no matter how arcane or technical, thereby permitting the fact-finder—the judge or jury—to ascertain the truth. Although commentators sometimes deplored the practice of treating experts as hired guns, the parties’ basic right to present their evidence was not in doubt, and courts rarely used their legally recognized power to appoint independent experts who might offer a more disinterested view (Jasanoff 1995).

By the turn of the century, several factors combined to challenge this hands-off attitude. The sheer volume of cases demanding some degree of technical analysis was one contributing cause, especially in the US, where low entry barriers to litigation and the inadequacy of social safety nets routinely brought into the courts controversies that were resolved by other means in most common law jurisdictions. Highly publicized instances of expertise gone awry, as in the recovered memory cases, shook people’s confidence in the power of cross-examination to keep out charlatans presenting themselves as scientists. The economic consequences of successful products liability lawsuits strained the system from yet another direction, especially in a growing number of mass tort actions that threatened industries with bankruptcy. It was tempting to blame many of these developments on the perceived weaknesses of the adversary system: the passivity and low scientific acumen of judges, the technical illiteracy of juries, the gamesmanship of lawyers, the bias or incompetence of experts selected by parties. These deficits led to calls for reforming the process by which expert testimony was admitted into the courtroom.

The initial round of critique marked a turn away from the liberal ideals of the 1970s and proved to be politically powerful, although it was neither methodologically rigorous nor of lasting scholarly value. An early broadside accused courts of deciding cases on the basis of ‘junk science,’ a rhetorically useful concept that took hold with opponents of the burgeoning tort system but proved difficult to characterize systematically (Huber 1991). The barely concealed program of this and related writings was to remove as much as possible of the testing of scientific evidence from the adversary system, particularly from the jury’s purview, and to decide these issues either in judicially managed pretrial proceedings or with the aid of scientists appointed by the courts. Undergirding this literature was an almost unshakable faith in science’s self-corrective ability and a technocratic conviction that truth would eventually win out if only the legal system left scientific fact-finding to scientists (Foster and Huber 1997). These attacks also tacitly presumed that mainstream expert opinion could be identified on any issue relevant to the resolution of legal disputes. These positions would later be thrown into doubt, but not until the spate of polemical work had left its mark on American scientific and social thought.

Studies by practicing scientists, physicians and some legal academics reiterated and amplified the theme of the law’s misuse of science. Critics cited as evidence a number of tort cases in which multimillion dollar jury verdicts favorable to plaintiffs conflicted with the opinions of respected scientists who denied any causal connection between the alleged harmful agent, such as a drug or workplace toxin, and the harm suffered. Particularly noteworthy was the litigation involving Bendectin, a medication prescribed to pregnant women for morning sickness and later suspected of causing birth defects in their children. Juries frequently awarded damages despite assertions by epidemiologists that there was no statistically significant evidence linking Bendectin to the claimed injuries. Research on the role of experts in these cases showed suggestive differences in behavior (such as higher rates of repeat witnessing) between plaintiffs’ and defendants’ experts (Sanders 1998), leading some to question whether judges were adequately screening offers of scientific testimony. Another episode that drew considerable critical commentary was litigation involving silicone gel breast implants. Close to a half-million women surgically implanted with these devices sued the manufacturer, Dow Corning, claiming injuries that ranged from minor discomfort to permanent immune system damage. The company’s initial settlement offer broke down under the onslaught of lawsuits, but epidemiological studies, undertaken only after the commencement of legal action, indicated no causal connection between the implants and immune system disorders. Publication of these results in the prominent New England Journal of Medicine led its executive editor to join the chorus of accusation against the legal system’s apparent misuse of science (Angell 1996).

Rising discontent about the quality of scientific evidence led the US Supreme Court to address the issue for the first time in 1993. In Daubert . Merrell Dow Pharmaceuticals, the Court set aside the so-called Frye rule that had governed the admissibility of expert testimony for the preceding 70 years. Instead of simply demanding that scientific evidence should be ‘generally accepted’ within the relevant peer community, the Court urged judges to screen science in pretrial proceedings, in accordance with standards that scientists themselves would use. The Court offered four sample criteria: (a) was the evidence based on a testable theory or technique, and had it been tested; (b) had it been peer reviewed; (c) did it have a known error rate; and (d) was the underlying science generally accepted? Two more major evidence decisions of the 1990s cemented the high court’s message that trial judges should play a vastly more proactive gate-keeping role when confronted by scientific and technical evidence. As judicial involvement on this front increased, new complaints appeared on the horizon: that judges were using the Daubert criteria as an inappropriately inflexible checklist rather than as the guidelines they were meant to be; that mechanical application of Daubert and its progeny was trumping deserving claims; that judges were usurping the jury’s constitutional role; and that misinterpretation of Daubert was introducing unscientific biases and impermissibly raising the burden of proof in civil cases.

In most civil law jurisdictions, by contrast, the inquisitorial approach to testing evidence, coupled with the state’s near monopoly in generating forensic science, precluded much controversy about the legitimacy of experts or the quality of their testimony. Tremors could be detected, however, arising from such episodes as the discovery of substandard or fabricated evidence in British trials of Irish terrorists and child abuse suspects and the French government’s cover-up of the contamination of the blood supply with the HIV-AIDS virus. Ironically, as US courts moved to consolidate their gate-keeping function in the 1990s, constricting the entry routes for experts, a countermove could be discerned in some European legal systems to open the courts, and policy processes more broadly, to a wider diversity of expert opinion (Van Kampen 1998).

4. Sites Of Knowledge-Making

Investigation of the law-science relationship took a considerably more sophisticated turn in the 1990s as it attracted the attention of a new generation of researchers in science and technology studies. From this disciplinary vantage point, the use–misuse framing that dominated popular writing appeared superficial in the extreme when set against the observed richness of interactions between the two institutions. Rather, as this body of work began to document, it was the hybridization of law and science that held greatest interest and significance for science and society. At this active frontier of social problem solving, one could observe in fine-grained detail how important normative and epistemological commitments either reinforced or contradicted each other in contemporary societies. For example, even within the common law’s adversarial environment, the ritualistic character of legal proceedings successfully held the line against certain forms of radical skepticism, leaving untouched traditional hierarchies of expert authority (Wynne 1982), a belief in the ultimate accessibility of the truth (Smith and Wynne 1989), and an abiding faith in technological progress (Jasanoff 1995).

At the same time, the legal process increasingly came to be recognized as a distinctive site for the production of otherwise unavailable knowledge and expertise. Even in cases where litigation arguably produced anomalous results—such as Bendectin and breast implants—resort to the courts demonstrably added to society’s aggregate store of information. Other cases were unambiguously progressive. A particularly striking example was the importation of molecular biological techniques into the arenas of criminal identification and paternity testing in the form of ‘DNA typing.’ Not only did the legal system’s needs provide the initial context for the technique’s development, but subsequent contestation over the reliability of DNA-based identification had impacts on the field of population genetics and spurred the formation of new testing methods and agencies, as well as the standardization of commonly used tests (Lynch and Jasanoff 1998). As the technique became black-boxed, new market niches for it emerged within the legal process, most spectacularly as a means of exonerating mistakenly convicted persons. The success of DNA as a forensic tool thus helped to destabilize the legal system’s longstanding commitment to eyewitness evidence, and even its reliance on the seemingly unassailable authority of fingerprints (Cole 2001), thereby facilitating critiques of a possibly antiquated privileging of visual memory (Wells 1988). But the massive uptake of forensic DNA analysis by the criminal justice system also opened up new areas of social concern, such as privacy and database protection, which called for continued vigilance and ingenuity on the part of the legal system.

The rise of DNA typing, like that of risk analysis and post-traumatic stress disorder, captured the dynamics of an epoch in which the establishment of any form of social order became virtually unthinkable without the mutual engagement of law and science. In such a time, commentary deploring the law’s alleged misuse of science appeared increasingly reductionist and out of touch with everyday reality. The emergence of science and law as a special topic within science and technology studies responded to the inadequacies of earlier analyses and showed greater intellectual promise. A major contribution of this work was to abandon once for all the pared down ‘clashing cultures’ model of the law–science relationship and to put in its place a more nuanced picture of the positive interplay between normative and cognitive authority. By exploring in detail how the law not only ‘uses’ science, but also questions it and often compensates for its deficiencies, the new scholarship on science and law invited reflection on the intricate balancing of truth and justice in technologically advanced societies.

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