Science at the Bar: Law, Science, and Technology in America.

• Author: Dreyfuss, Rochelle Cooper

By Sheila Jasanoff. Cambridge: Harvard University Press. 1995. Pp. xvii, 285. $29.95.

In 1991, Peter Huber, a scientist, lawyer, and fellow of the Manhattan Institute, published Galileo's Revenge: Junk Science in the Courtroom, a book with a catchy title that extensively examined -- in its author's words -- "[s]cientific humbuggery in court."(1) Although the book did not point to a problem that was particularly new (Huber himself cites articles and cases that go back well over a century),(2) it hit a nerve, generating considerable debate in both scientific and legal circles. Huber was concerned centrally with product liability litigation, where the judiciary had -- in his view -- become overly hospitable to claims of little scientific merit. To Huber, the courts' willingness to take testimony from pseudoscientific experts was leading to verdicts (principally jury verdicts) that stirred unwarranted fears, hurt business, and chilled innovation. To counter this trend, Huber suggested that courts should defer to scientists. Only testimony on which there is consensus in the scientific community should be admissible in court.(3)

Arguably, it was Huber's thesis and the ensuing controversy that led the Supreme Court to lay down new guidelines on the admissibility of scientific evidence. Stressing that judges must function as gatekeepers, the Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.(4) held that under the Federal Rules of Evidence, only testimony resting on accepted principles of scientific reasoning is admissible. But although the Court gave a substantial role to the scientific community's judgment as to what should be considered valid science, it was not willing to go as far as Huber recommended and make scientists' judgments dispositive.(5) Instead of resolving the debate, Daubert inflamed it, thus producing yet another outpouring of articles and symposia on the question of how courts should handle science.(6)

Marcia Angell's Science on Trial and Sheila Jasanoff's Science at the Bar are two of the most recent and provocative entries into this discourse. Both books begin by enlarging on Huber's thesis and end with recommendations for easing the problems he identified. Like Huber, Angell, the Executive Editor of the New England Journal of Medicine, focuses primarily on products liability cases. She uses her own expertise in medicine to elucidate Huber's premise with a detailed examination of the breast implant litigation. Jasanoff, Chair of the Department of Science and Technology at Cornell University, takes a broader approach. With the specialized lens of a lawyer trained in sociology and linguistics, she investigates the many ways in which law and science intersect.

I found neither book wholly successful on its stated terms. Because Angell focuses so exclusively on the difficulties that courts have in assessing scientific evidence in tort cases, she seems to assume that general approaches to dispute resolution are uniquely aimed at the adjudication of disputes involving science. As a result, her suggestions are of breathtaking dimensions. In addition to giving scientists the exclusive right to decide what should be considered science for legal purposes, Angell would, to varying degrees, curtail civil jury trials and the right to subpoena witnesses, end contingency fees and punitive damages, and reestablish a requirement of privily between manufacturers and buyers (Angel, pp. 203-06). These recommendations are made without considering what due process requires by way of giving parties the opportunity to present their cases or whether jury trials are a necessary legitimating (or, for federal courts, a constitutionally required(7)) component of litigation. She views tort law as based on fault and as having only a compensatory function;(8) no mention is made of why an "assault on the citadel" of fault -- or privily -- was ever mounted.(9) To be sure, some of these recommendations could be interpreted as aimed exclusively at products liability litigation. If, however, that was her intent, Angell should have then considered the consequences of departing from transubstantive procedure.(10)

Jasanoff's problem is, in a way, the reverse. Far from biting off too little, she bites off too much, trudging resolutely through virtually every manifestation of the law-science problem. DNA testing, creationism, abortion, risk assessment, right to die, surrogate parenthood, patenting biotechnology, and wrongful life are just some of the issues discussed along with Daubert and the problem of product liability claims. In some instances, Jasanoff resurrects controversies so old one reads of them with a sense of nostalgia -- the debate between Judges Bazelon and Leventhal on the "hard look" doctrine in administrative law is one such example (Jasanoff, pp. 75-78). In other instances, she goes down what even she admits is an "unproductive detour."(11) Similarly, she creates (and then defends) distinctions -- for instance, between science and technology (Jasanoff, pp. 1-23) and between incompetent adults and incompetent children (Jasanoff, pp. 183-203) -- that turn out to be irrelevant to her argument. To complicate matters, she relies heavily on the terminology of sociology and linguistics, and she uses concepts such as framings, boundaries, and deconstruction, whose precise meanings are unlikely to be familiar to the lawyers and scientists who are, presumably, her intended audience. Ultimately, the reader is so buried by jargon and examples of the science-law interface that Jasanoff's many important insights are lost.

When read together, however, the books complement each other in an interesting way. Lawyers involved in the debate over science in the courts often treat it as a purely intellectual dispute on how to organize adjudication to deal with the major social dislocations created by technological innovation. It is not always like that for the scientists involved. For many of them, this is a culture war -- a war between scientists and "humanists" -- that is waged as passionately as anything occurring in front of abortion clinics. While it is true that no scientist in this "war" has killed anyone, the academic equivalent of a capital crime was committed when Professor Alan Sokal, a physicist at NYU, placed an article in Social Text under false pretenses and then represented the nature of the journal's editorial policy so as to imply that humanists are so lacking in intellectual judgment that his deception survived their peer review.(12)

In this context, the books are important for two reasons. First, Angell's railings -- against (among others) lawyers who "have embarked on a campaign to discredit and harass scientists" (Angell, p. 30), expert witnesses (Angell, p. 139), judges and courts (Angell, pp. 131-32), multiculturalists (who presumably regard "psychokinesis [and] remote viewing [as] other branches of science" (Angell, p. 179)), and "[a]nti-science feminism" (Angell, p. 188) -- bring home to lawyers the fervor existing within the scientific community. To those of us who are not (or who are no longer) scientists, the question becomes not, how should law deal with science, but rather, why are scientists fighting so fiercely? Second, both works provide clues to the source of the anger. Angell turns out to be tone-deaf; she is offended by positions that no one has taken. Jasanoff, on the other hand, is nearly mute: her jargon-packed survey of the intersection of law and science gives someone who is tone-deaf plenty of opportunity to misunderstand what is lying at that juncture. Jasanoff's muteness is, in the end, a real pity. If I understand her correctly, she actually offers some very important insights into the role that courts play in scientific disputes. If properly understood, they would go a long way toward assuaging Angell's anger. And it is only without such anger that real progress can be made in solving the problems that Huber, Angell, Jasanoff, and others have identified.

1. THE SCIENCE WARS

   Why, then, are scientists so angry? This is not the first time this question has been asked. In an essay that was published in the same volume of Social Text as the Sokal hoax, Professor Dorothy Nelkin argued that the problem stems from the eroding position of science in the past few decades.(13) Scientists came out of World War II in a position of power. Faith in science was high, public funding was plentiful, and optimism about the potential benefits of research was such that very little was imposed on scientists by way of a duty to account. Beginning in the 1960s, this began to change. Various movements -- Nelkin names the antiwar, environmental animal rights, gay rights, antiabortion, and creationism movements -- challenged the optimistic view. Moreover, the growing national deficit and dissatisfaction with high taxation rates led to a reduction in the resources available for public spending. Worse, Congress (and others) became interested in monitoring research for fraud and other unethical practices. As funding decreased and the call to regulate increased, scientists began to circle their wagons -- and to lash out at the "outsiders" who challenged their preeminence.

   There is much to Nelkin's thesis, for it makes it easy to understand why Angell and Huber want to give to scientists the exclusive right to define what counts as science. Plenary control over defining what is science and who are scientists would allow the scientific community to blame some of the public's perceptions about the negatives of science on others. It would also reduce competition for public funding and restore scientists' ability to regulate themselves.(14) But there may be more to the problem. Perhaps inadvertently, Angell's book provides a significant new insight. It is, as I said, best described as tone-deafness. Sound is heard. The noisy business of adjudication, the positions staked out by what I will call humanists -- which...