Communicating Scientific Uncertainty: A Lawyer's Perspective
Date | 01 February 2015 |
Author |
2-2015 NEWS & ANALYSIS 45 ELR 10159
Communicating
Scientific
Uncertainty:
A Lawyer’s
Perspective
by Michael Traynor
Michael Traynor is President Emeritus of the American
Law Institute and Senior Counsel at Cobalt LLP.
Summary
Scientic uncertainty is both inevitable and the source
of communication challenges: science, law, and jour-
nalism each have dierent views of and uses for uncer-
tainty. When dealing with uncertainty on policy
issues such as climate change, these diering perspec-
tives can lead to misunderstanding, controversy, and
gridlock. e author oers his reections on the legal
process and legal ethics as applied to issues of scientic
uncertainty. He concludes that lawyers can strengthen
their ability to serve clients and the public if they
enhance their understanding of scientic uncertainty
and obstacles to communication and learn ways to
communicate more eectively.
I. Introduction
Humans instinctively want certainty. e world, however,
is uncertain. Communicating intelligently is an everyday
challenge. e challenge is daunting when the subject is
technical, when statistical correlation may be confused
with causation, and when there a re asymmetries among
communicating parties. At any time, wide variations in
skills, knowledge, information, experience, cultural iden-
tication, and beliefs may impede eective communica-
tion.1 And over time, even a message that once successfully
reached an audience may lose reliability; for example, peer-
reviewed scientic studies published by respected journals
that cannot be replicated.2
Recogni zing that there w ill be dierent v iews, I aim
simply to provide the perspective of one lawyer who has
attempted to grapple, in practice for many years and
through the America n Law Institute (ALI),3 with various
1. ELI has recently launched a new website on the ethics of communicating
scientic uncertainty, available at http://www.eli.org/scientic-uncertainty
(last visited Jan. 1, 2015).
2. See, e.g., Editorial, , 496 N-
398 (2013); Editorial, Error Prone, 487 N 406 (2012); Edito-
rial, , 30 N B 806 (2012); Bruce
Booth, Science Being Studied: Replication, Publication, and Resource Alloca-
tion, F, Nov. 8, 2013 (also discussing the Reproducibility Initiative);
George Johnson, , N.Y. T, Jan. 20,
2014. On recent eorts to improve reproducibility, see, e.g., Editorial, Jour-
, 515 N 7 (2014); Jonathan W. Schooler,
515 N 9 (2014).
3.
e American Law Institute was founded in 1923 in response to
concerns that the body of American common law was both uncer-
tain and complex.... e ALI addresses uncertainty in the law by
developing restatements of legal subjects for use by courts and law-
yers applying existing law.... e ALI also examines and analyzes
legal areas in need of reform....
A L I, A R 2013-2014, at 4 (2014). e
annual report and other information about the ALI and its projects are
available at http://www.ali.org (last visited Jan. 1, 2015).
and my daughter, Kathleen Traynor DeRose, a chartered nancial
analyst. I also acknowledge with appreciation the constructive
and perspective-shaping conversations I have had over many years
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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