Communicating Scientific Uncertainty: A Lawyer's Perspective

Date01 February 2015
2-2015 NEWS & ANALYSIS 45 ELR 10159
A Lawyer’s
by Michael Traynor
Michael Traynor is President Emeritus of the American
Law Institute and Senior Counsel at Cobalt LLP.
Scientic uncertainty is both inevitable and the source
of communication challenges: science, law, and jour-
nalism each have dierent views of and uses for uncer-
tainty. When dealing with uncertainty on policy
issues such as climate change, these diering perspec-
tives can lead to misunderstanding, controversy, and
gridlock. e author oers his reections on the legal
process and legal ethics as applied to issues of scientic
uncertainty. He concludes that lawyers can strengthen
their ability to serve clients and the public if they
enhance their understanding of scientic uncertainty
and obstacles to communication and learn ways to
communicate more eectively.
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-
tication, and beliefs may impede eective communica-
tion.1 And over time, even a message that once successfully
reached an audience may lose reliability; for example, peer-
reviewed scientic studies published by respected journals
that cannot be replicated.2
Recogni zing that there w ill be dierent 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
scientic uncertainty, available atc-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 eorts to improve reproducibility, see, e.g., Editorial, Jour-
, 515 N 7 (2014); Jonathan W. Schooler,
 515 N 9 (2014).
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 (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®,, 1-800-433-5120.

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