"What's really going on?" A study of lawyer and scientist inter-disciplinary discourse.

• Author: Condlin, Robert J.

1. THE TWO CULTURES OF LAW AND SCIENCE

   In the modern world the influence of science is everywhere. "At every turn," as a leading commentator puts it, "we encounter new material indicators of [science's] progress: air bags and antilock brakes, electronic mail, fax machines and bank cards, heart transplants and laser surgery, genetic screening, in vitro fertilization, and a burgeoning pharmacopoeia for treating mental and physical illness."(1) "In just one generation the space program has expanded the physical frontiers of human experience, while discoveries in the biological sciences have revolutionized our ability to manipulate the basic processes of life so as to fight infertility, aging, hunger and disease."(2) Moreover, individuals use the lessons of science, sometimes without realizing it, to make most of the ordinary and basic decisions of everyday life, such as where and in what to live, what to eat and wear, what household and consumer products to use, what medicines to take, what type of work to do, what recreational activities to engage in, and the like. Similarly, public agencies and large-scale private organizations use science to make social policy decisions about the allocation of risk, the distribution of resources, and the structuring of economic incentives and constraints, to determine, among other things, how to create jobs, prevent environmental degradation, and provide cost-effective health care. Additionally, these agencies and organizations use science to decide what types of technological innovation and economic arrangements to encourage and nurture, and whom to blame and sometimes also hold liable for individual and collective harms. Science informs nearly all of the long and short term lifestyle and policy choices presented by the modern world. Our very understanding of that world is mediated through, if not shaped by, science. One can be ignorant of science, but one cannot escape it.

   Science intersects with law at almost every turn as well. As Peter Schuck explains:

   [T]he law of intellectual property, especially patents, takes its very content from science, both pure and applied. The law of evidence often demands scientific support for the use of certain techniques, such as DNA typing and epidemiology, and for the drawing of particular inferences from testimony, such as causation. Medical malpractice cases usually involve (indeed, they may require) testimony by scientific experts. Antitrust litigation relies heavily upon technical economic analysis of product markets. Employment discrimination often looks to statistical analyses of labor markets for evidence of bias [and so on, and so forth].(3) In some ways, common law courts have always dealt with disruptions arising from scientific and technological advances of one kind or another.(4) However, science and law have become pervasively intertwined with the advent of the industrial and electronic revolutions in the nineteenth and twentieth centuries. It is now routine for social change, particularly the kind calling for legal regulation, to be augmented, if not brought about, by scientific and technological change. Science based choices and problems pervade the most difficult issues of social regulation facing legislatures and courts. Consequently, law and science are inevitable bedfellows, whether they want to be or not. Not working effectively with one another is no longer an option for either discipline, if it ever was.

   Notwithstanding the need to coordinate their efforts, however, law and science, or more accurately, the practitioners of law and science, do not get along all that well with one another, and perhaps never really have.(5) Part of the difficulty is explained by the fact that law and lawyers, mostly in the form of personal injury lawyers and products liability and malpractice litigation, threaten the economic livelihood of scientists (including doctors), as well as restrict their ability to control the terms and conditions of their work.(6)

   Money and power are the oldest, simplest, and most common sources of friction between social groups, so no doubt part of the law-science conflict is explained in this way. But money and power, by themselves, seem inadequate to account for the level of antipathy expressed by scientists for lawyers and vice versa. Law's threat to the income of scientists, while real, is not likely to move scientists as a group from one economic class to another, and the explanation based on a lack of control over work suffers from some of the same difficulties. No professional group has unilateral control over its work, nor could it hope to in a political and economic system as multi-faceted, interdependent, and complex as our own, even if law was not in the picture. It is not the lack of control per se that is troubling to scientists, so much as it is the ceding of control to those who are thought not to know what they are doing. The foundation of scientists' dislike for lawyers starts with an objection to the way in which control is exercised and to the people exercising it, rather than an objection to the loss of control in and of itself. To understand this conflict fully, then, one must look deeper into the professional cultures of the two disciplines, to see what it is about each that sets the other off.

   It is commonly understood that law and science are different enterprises, organized around different central values, animated by different incentives and constraints, constituted by different analytical and investigative methods and techniques, and driven by different biases and orientations.(7) Perhaps because they are so different, lawyers and scientists complain about one another in much the same way, with the arguments of each placing a heavy emphasis on the themes of vulgarity and obtuseness. Scientists bemoan law's lack of understanding of science, its inability to separate good science from bad, its demand that scientific findings be expressed in the language of certainty rather than probability, and the limited opportunity provided by legal procedures for keeping decisions provisional or contingent, subject to further testing and reconsideration in light of new information or understanding.(8) They also object to the adversarial method of inquiry used by lawyers, with its perceived (by scientists) preference for "relative" rather than "absolute" truth, and for "strong[]" (i.e., rhetorically persuasive) rather than "right" answers.(9) Additionally, scientists believe that legal concepts like "guilt, fault, intention, responsibility, liability, obligation, [and] duty," cannot be verified by appeals to scientific law.(10) Karl Menninger expressed these objections in the language of an earlier generation of scientists when he wrote, "[t]he very word of justice irritates scientists. No surgeon expects to be asked if an operation for cancer is just or not. No doctor will be reproached on the grounds that the dose of penicillin he has prescribed is less or more than justice would stipulate."(11)

   Lawyers complain just as assiduously about scientists' failure to understand the fundamental purposes and methods of law.(12) The familiar disjunction, that law pursues justice and science truth,(13) while accurate to a degree, conceals a more complex reality which is easily misunderstood from each direction. As the sociology of science has taught, "scientific facts are not immanent [sic] in an objective reality waiting to be discovered by any scientists who look in the right place. Instead, they are constructed and validated ... through a ... process ... [that is] shaped by scientific paradigms, ... [and these paradigms, in turn,] hold sway for reasons that may have less to do with their intrinsic merit than with their support of existing social structures, including the scientific establishment."(14) Moreover, the search for scientific truth "is not guided solely by [scientists'] autonomous, spontaneous curiosity. [It] is [also] constrained and channeled by resources available for research, which in turn reflect the priorities of politicians, corporations, foundations, and other sources of funding for science."(15) Much of the time, therefore, in its data, methods, findings, and even in the extent of its authoritativeness, science is as contextual, contingent, and controversial as law.

   By the same token, lawyers claim, justice is not purely subjective. While it is true that notions of justice vary with time and place, the concept also contains an objective component that remains constant over the same categories. This is because "[l]aw's legitimacy, at least in the long run, rests in part on its ability to generate outcomes that ... comport [more or less,] with the common morality and common sense of the lay community" being regulated.(16) Ironically, this common morality and common sense also demand, among other things, that law not deviate unacceptably from scientific truth, at the peril of being thought illegitimate if it does. While it may be difficult to determine what degree of deviation a society will accept as legitimate at any given moment, this consistency with common sense requirement, hardwired into the concept of justice, causes scientific and legal truth to merge in a complicated, but real, way. Legal truth is not identical to scientific truth, but it also is not wholly at odds with it. Moreover, legal truth cannot ignore or fly in the face of scientific truth without losing its claim to legitimacy. Lawyers argue that scientists do not understand the nature or extent of this interrelationship, when they criticize law for its failure to take scientific truth seriously.

   Regardless of the fact that justice and truth, in some ways fundamentally different ends, law and science also differ principally in the time frames in which they work, and the language each uses to express its results. Law is usually in more of a hurry to decide than science. Judges must resolve cases that...