“For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”[1]
“Judges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind … .”[2]
The emergence of complex scientific issues in post-World War II American litigation has challenged state and federal legal systems, both civil and criminal. Various issues, such as the validity of forensic science and biological causation, have tested the competency of lawyers, both judges and counsel. This scientific complexity also questions whether lay juries can or should be continued in their traditional role as fact finders[3]. Some commentators have suggested that complexity should be a basis for reallocating fact finding to judges.[4] Other commentators remain ideologically or constitutionally committed to the jury as fact finder.
The superiority of judges as fact finders in complex scientific cases remains to be shown. Clearly juries often perform better than individual lay judges as scientific fact finders, but their time commitment is inadequate. Furthermore, the jury decision process is typically a binary decision without any articulation of reasoning. The jury’s hidden reasoning process on important scientific issues violates basic tenets of transparency and due process. Many modern cases present such difficult scientific issues that some authors have argued that we should establish scientific courts or institute procedures for blue-ribbon juries[5]. The constitutionality of having scientists, or specially qualified judges, serve as fact finders has never been clearly addressed.[6] Other commentators have argued in favor of the existing set of judicial tools, such as appointment of testifying “neutral” expert witnesses and scientific advisors for trial judges.[7] These approaches have been generally available in federal and some state trial courts, but they have rarely been used. Some examples of their deployment include the silicone gel breast implant litigation[8], and cases involving Parlodel[9] and Bendectin[10].
Over 20 years ago, in 1993, the United States Supreme Court handed down its Daubert decision. In large measure, the Court’s insistence upon trial court gatekeeping of expert witnesses has obscured the discussion and debate about science courts and alternative procedures for addressing complex scientific issues in litigation. With fear and trembling, and sometimes sickness not quite unto death, federal and state judges, and lawyers on both sides of the “v,” must now do more than attack, defend, and evaluate expert witnesses on simplistic surrogates for the truth, such as personal bias or qualifications. Lord have mercy, judges and lawyers must now actually read and analyze the bases of expert witnesses’ opinions, assess validity of studies and conclusions, and present their challenges and evaluations in clear, non-technical language.
The notion that “law is an empty vessel” is an imperfect metaphor, but it serves to emphasize that lawyers may have to get their hands wet with vessel’s contents, now and then. In litigating scientific issues, lawyers and judges will necessarily have to engage with substantive matters. Lawyers without scientific training or aptitude are not likely to serve clients, whether plaintiffs or defendants, well in the post-Daubert litigation world. Untrained lawyers will choose the wrong theory, emphasize the wrong evidence, and advance the wrong conclusions. The stakes are higher now for all the players. An improvident claim or defense will become a blot on a lawyer’s escutcheon. A poor gatekeeping effort or judicial decision[11] can embarrass the entire judicial system[12].
Over a decade ago, Professor David Faigman asked whether science was different for lawyers. Professor Faigman emphatically answered his own question in the negative, and urged lawyers and courts to evolve from their pre-scientific world view.[13] Both lawyers and judges must learn about the culture, process, and content of science. Science is often idealized as a cooperative endeavor, when in fact, much scientific work can be quite adversarial.[14]Some judges and commentators have argued that the scientific enterprise should be immune from the rough and tumble of legal discovery because the essential collaborative nature of science is threatened by the adversarial interests at play in litigation. In becoming better judges of science, judges (and lawyers) need to develop a sense of the history of science, with its findings, fanaticisms, feuds, and fraud. The good, bad, and the ugly are all the proper subject for study. Professor George Olah, in accepting his Nobel Prize in Chemistry, rebutted the lofty sentiments about scientific collegiality and collaboration[15]:
“Intensive, critical studies of a controversial topic always help to eliminate the possibility of any errors. One of my favorite quotation is that by George von Bekessy (Nobel Prize in Medicine, 1961).
‘[One] way of dealing with errors is to have friends who are willing to spend the time necessary to carry out a critical examination of the experimental design beforehand and the results after the experiments have been completed. An even better way is to have an enemy. An enemy is willing to devote a vast amount of time and brain power to ferreting out errors both large and small, and this without any compensation. The trouble is that really capable enemies are scarce; most of them are only ordinary. Another trouble with enemies is that they sometimes develop into friends and lose a good deal of their zeal. It was in this way the writer lost his three best enemies. Everyone, not just scientists, needs a few good enemies!’”
In other words, peer review is a shabby substitute for cross-examination and an adversarial process.[16] That adversarial process cannot always unfold fully and fairly in front of a jury.
Chief Justice Rehnquist no doubt spoke for most judges and lawyers in expressing his discomfort with the notion that courts would have to actually look at science (rather than qualifications, demeanor, and credibility)[17]:
“I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its ‘falsifiability’, and I suspect some of them will be, too.”
Before the Daubert decision, some commentators opined that judges and lawyers were simply too innumerate and too dull to be involved in litigating scientific issues[18]. Today, most federal judges at least would not wear their ignorance so proudly, largely because of the efforts of the Federal Judicial Center, and its many educational efforts. Judges (and lawyers) cannot and should not be scientific or statistically illiterate[19]. If generalist judges think this is beyond their ken, then they should have the intellectual integrity to say so, and get out of the way. If the scientific tasks are beyond the ken of judges, then they are likely beyond the abilities of ordinary jurors as well, and we should start to think seriously once again about science courts and blue-ribbon juries.
Astute and diligent gatekeeping judges and qualified juries can get the job done[20]. Certainly, some judges have seen through expert witnesses’ evasions and errors in reasoning, and lawyers’ shystering on both sides of litigation. Evaluating scientific evidence and drawing inferences from scientific studies do require understanding of basic statistical concepts, study design, and scientific apparatus, but at the bottom, there is no esoteric “scientific method” that is not careful and skeptical reasoning about evidence in the context of all the facts.[21] Surely, judges with university educations, “20 years of schooling,” and at least 10 years of exemplary professional practice should, in theory, be able to get the job done, even if a few judges are unqualified or ill suited by aptitude or training. To take an example from the breast implant litigation, understanding a claim about immunology may well require some depth in what the immune system is, how it works, and how it may be altered. This understanding will require time, diligence, intellectual energy, and acumen. Surely, ordinary lay juries often do not have the time to devote to such a case to do justice to the issues. If judges do not have the interest or the time to render the required service, they should say so.
And what about lawyers? Twenty years into the Daubert era is time enough for law schools to implement curriculum to train lawyers to understand and to litigate scientific issues, in civil, criminal, and regulatory contexts. Many law schools still fail to turn out graduates with basic competence to understand and advocate about scientific issues.[22] Lawyers who want to litigate scientific issues owe their clients and themselves the commitment to understand the issues. It has been a long time since C.P. Snow complained of the “two cultures,” science and the humanities, and the hostility he faced when he challenged colleagues about their ignorance of science.[23] Law schools have a role in building a bridge between the two cultures of science and the humanities. Just as tax programs in law schools require basic accounting, law schools should ensure that their graduates, destined to work on scientific litigation, legislation, and regulation, have had some education in statistics, probability, and scientific method.
Becoming or remaining scientific literate is a daunting but essential task for busy lawyers who hope to serve clients well in technical litigation. There are many resources available for the “scientific legal counselor.” Dr. David Schwartz at Innovative Science Solutions LLC has published a resource guide, The Litigator’s Guide to Combating Junk Science, available at his firm’s website.[24] Sense About Science, a charitable trust, has worked hard to advance an evidence-based world view, and to help people, including lawyers, make sense of scientific and medical claims. Its website offers some helpful publications,[25] one of the more interesting being its recent pamphlet, Making Sense of Uncertainty.[26]
The Sense About Science group’s annual lectures are important events, which have featured lectures by:
- Dr Fiona Godlee, the editor of the British Medical Journal, on “It’s time to stand up for science once more,” in 2010.[27]
- Dr Olivia Judson, scientist and science journalist, on “Why Experiment?” in 2009.[28]
- Professor Alan Sokal, quantum physicist and famous perpetrator of the Sokal hoax[29] that helped deconstruct the post-modernist deconstructionists, on “What is Science and Why Should We Care?” in 2008.[30]
- Sir John Krebs FRS, discoverer of the Krebs cycle, on “Science Advice, Impartiality and Policy,” in 2006.[31]
In addition to keeping abreast of scientific developments, science lawyers need to understand both how science is “made,” and how it goes bad. The National Institutes of Health website has many resources about the grant process. Science lawyers should understand the grant process and how to use the Freedom of Information Act to obtain information about research at all stages of development. Contrary to the fairy-tale accounts of idealized science, the scientific research process goes astray with some frequency, so much so that there is a federal agency, the Office of Research Integrity (ORI) tasked with investigating research misconduct. News of the ORI’s investigations, and findings, is readily available through its website and its informative blog.[32] Research misconduct has resulted in an ever-increasing rate of retractions in peer-reviewed journals. The Retraction Watch[33] blog offers a fascinating window into the inadequacies of peer review, and the attempts, some successful, some not, of the scientific community to police itself.
Before Daubert was decided, the legal system emphasized credentials and qualifications of witnesses, “authoritative texts,” and general acceptance. Science, however, is built upon an evidence-based foundation. Since 1663, the Royal Society has sported the motto: “Nullius in verba”: on no person’s authority. When confronted with a pamphlet entitled “100 Authors against Einstein,” Albert Einstein quipped “if I were wrong, one would have been enough.”[34] Disputes in science are resolved with data, from high-quality, reproducible experimental or observational studies, not with appeals to the prestige of the speaker. The shift from authority-based decision making to evidence-based inferences and conclusions has strained the legal system in the United States, where people are free to propagate cults and superstitions. The notion that lawyers who spend most of their time litigating leveraged boxcar leases can appreciate the nuances, strengths, weaknesses, and flaws of scientific studies and causal inference is misguided. Litigants, whether those who make claims or those who defend claims, deserve legal counsel who are conversant with the language of their issues. Law schools, courts, and bar associations must rise to the occasion to meet the social need.
[1] Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harv. L. Rev. 457, 469 (1897)
[2] Oliver Wendell Holmes, Jr., Collected Legal Papers 230 (1921).
[3] An earlier version of this post appeared as a paper in David M. Cohen & Nathan A. Schachtman, eds., Daubert Practice 2013: How to Avoid Getting Sliced by Cutting-Edge Developments in Expert Witness Challenges (PLI 2013).
[4] See Ross v. Bernhard, 396 U.S. 531, 538 n.l0 (1970) (suggesting that the right to a jury trial may be limited by considerations of complexity, and that practical abilities and limitations of juries are a factor in determining whether an issue is to be decided by the judge or the jury). See also Note, “The Right to a Jury Trial in Complex Civil litigation,” 92 Harv. L. Rev. 898 (1979) (considering the implications of footnote 10 in Ross for complex litigation; noting that the Ross test has been applied infrequently, and in the limited contexts of antitrust or securities cases); Peter Huber, “Comment, A Comment on Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence by E. Donald Elliott,” 69 Boston Univ. L. Rev. 513, 514 (1989) (arguing that judges cannot make difficult scientific judgments). See also George K. Chamberlin, “Annotation: Complexity of Civil Action as Affecting Seventh Amendment Right to Trial by Jury,” 54 A.L.R. FED. 733, 737-44 (1981).
[5] James A. Martin, “The Proposed Science Court,” 75 Mich. L. Rev. 1058, 1058-91 (1977) (evaluating the need and feasibility of various proposals for establishing science courts); Troyen A. Brennan, “Helping Courts with Toxic Torts,” 51 U. Pitt. L. Rev. 1, 5 (1989) (arguing for administrative panels or boards to assist courts with scientific issues); Donald Elliott, “Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence,” 69 Boston Univ. L. Rev. 487, 501-07 (1989) (discussing various models of ancilliary peer review for courts); Paul K. Sidorenko, “Comment, Evidentiary Dilemmas in Establishing Causation: Are Courts Capable of Adjudicating Toxic Torts?” 7 Cooley L. Rev. 441, 442 (1990) (recommending administrative panels of scientific experts in toxic tort litigation); John W. Osborne, “Judicial Technical Assessment of Novel Scientific Evidence,” 1990 U. Ill. L. Rev. 497, 540-46 (arguing for procedures with specially qualified judges); Edward V. DiLello, “Note, Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level,” 93 Colum. L. Rev. 473, 473 (1993) (advocating establishment of specialist judicial assistants for judges). For a bibliography of publications on the science court concept, see Jon R. Cavicchi, “The Science Court: A Bibliography” (1994) <http://ipmall.info/risk/vol4/spring/bibliography.htm>, last visited on July 27, 2014.
[6] See Ross v. Bernhard, 396 U.S. at 538 n.l0.
[7] John W. Wesley, “Scientific Evidence and the Question of Judicial Capacity,” 25 William & Mary L. Rev. 675, 702-03 (1984).
[8] See Karen Butler Reisinger, “Expert Panels: A Comparison of Two Models,” 32 Indiana L.J. 225 (1998); Laural L. Hooper, Joe S. Cecil & Thomas E. Willging, Neutral Science Panels: Two Examples of Panels of Court-Appointed Experts in the Breast Implants Product Liability Litigation, (Federal Judicial Center 2001), available at http://www.fjc.gov/public/pdf.nsf/lookup/neuscipa.pdf/$file/neuscipa.pdf
[9] Soldo v. Sandoz Pharms. Corp., 244 F. Supp. 2d 434 (W.D. Pa. 2003); see also Joe S. Cecil, “Construing Science in the Quest for Ipse Dixit,” 33 Seton Hall L. Rev. 967 (2003).
[10] DePyper v. Navarro, No. 191949, 1998 WL 1988927 (Mich. Ct. App. Nov. 6, 1998)
[11] See, e.g., Wells v. Ortho Pharmaceutical Corp., 615 F. Supp. 262 (N.D. Ga. 1985), aff’d and rev’d in part on other grounds, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S.950 (1986).
[12] See, e.g., James L. Mills and Duane Alexander, “Teratogens and ‘Litogens’,” 15 New Engl. J. Med. 1234 (1986); Samuel R. Gross, “Expert Evidence,” 1991 Wis. L. Rev. 1113, 1121-24 (1991) (“Unfortunately, Judge Shoob’s decision is absolutely wrong. There is no scientifically credible evidence that Ortho-Gynol Contraceptive Jelly ever causes birth defects.”). See also Editorial, “Federal Judges v. Science,” N.Y. Times, December 27, 1986, at A22 (unsigned editorial); David E. Bernstein, “Junk Science in the Courtroom,” Wall St. J. at A 15 (Mar. 24,1993) (pointing to Wells as a prominent example of how the federal judiciary had embarrassed American judicial system with its careless, non-evidence based approach to scientific evidence); Bert Black, Francisco J. Ayala & Carol Saffran-Brinks, “Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge,” 72 Texas L. Rev. 715, 733-34 (1994) (lawyers and leading scientist noting that the district judge “found that the scientific studies relied upon by the plaintiffs’ expert were inconclusive, but nonetheless held his testimony sufficient to support a plaintiffs’ verdict. *** [T]he court explicitly based its decision on the demeanor, tone, motives, biases, and interests that might have influenced each expert’s opinion. Scientific validity apparently did not matter at all.”) (internal citations omitted); Troyen A. Brennan, “Untangling Causation Issues in Law and Medicine: Hazardous Substance Litigation,” 107 Ann. Intern. Med. 741, 744-45 (1987) (describing the result in Wells as arising from the difficulties created by the Ferebee case; “[t]he Wells case can be characterized as the court embracing the hypothesis when the epidemiologic study fails to show any effect”). Kenneth R. Foster, David E. Bernstein, and Peter W. Huber, eds., Phantom Risk: Scientific Inference and the Law 28-29, 138-39 (MIT Press 1993) (criticizing Wells decision); Hans Zeisel & David Kaye, Prove It With Figures: Empirical Methods in Law and Litigation § 6.5, at 93 (1997) (noting the multiple comparisons in studies of birth defects among women who used spermicides, based upon the many reported categories of birth malformations, and the large potential for even more unreported categories); id. at § 6.5 n.3, at 271 (characterizing Wells as “notorious,” and noting that the case became a “lightning rod for the legal system’s ability to handle expert evidence.”).
[13] David L. Faigman, “Is Science Different for Lawyers?” 297 Science 339, 340 (2002) (“some courts are still in a prescientific age”).
[14] McMillan v. Togus Reg’l Office, 294 F. Supp. 2d 305, 317 (E.D.N.Y. 2003) (“As in political controversy, ‘science is, above all, an adversary process’.”) (internal citation omitted).
[15] George A. Olah, “My Search for Carbocations and Their Role in Chemistry,” Nobel Lecture (Dec. 8, 1994), quoting George von Békésy, Experiments in Hearing 8 (N.Y. 1960).
[16] Nietzsche expressed Olah’s sentiment more succinctly. Friedrich Nietzsche, The Twilight of the Idols Maxim 8 (1899) (“Out of life’s school of war: What does not destroy me, makes me stronger.”).
[17] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 598 (1993) (Justice Rehnquist, C.J., concurring and dissenting).
[18] Joseph Nicol, “Symposium on Science and the Rules of Evidence,” 99 F.R.D. 188, 221 (1983) (claiming that lawyers and judges are “simply are incapable by education, and all too often by inclination, to become sufficiently familiar with scientific evidence to discharge their responsibilities toward the administration of justice.”)
[19] Robert P. Merges, “The Nature and Necessity of Law and Science,” 381 Leg. Educ. 315, 324-26 (1988) (arguing that lawyers can and should understand scientific concepts and issues)
[20] David L. Faigman, “To Have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy,” 38 Emory L.J. 1005, 1014, 1030 (1989) (contending that judges can understand science and that lawyers must probe beyond conclusions into methods by which the conclusions were reached).
[21] David H. Kaye, “Proof in Law and Science,” 32 Jurimetrics J. 313, 318 (1992) (arguing that science and law share identical methods of establishing factual conclusions); Lee Loevinger, “Standards of Proof in Science and Law,” 32 Jurimetrics J. 323, 328 (1992) (“[T]he basic principles of reasoning or logic are no different in the field of law than science.”).
[22] Howell E. Jackson, “Analytical Methods for Lawyers,” 53 J. Legal Educ. 321 (2003); Steven B. Dow, “There’s Madness in the Method: A Commentary on Law, Statistics, and the Nature of Legal Education,” 57 Okla. L. Rev. 579 (2004).
[23] C.P. Snow, The Rede Lecture 1959.
[24] Available with registration at http://www.innovativescience.net/complimentary-copy-of-our-junk-science-ebook/
[25]http://www.senseaboutscience.org/
[26] http://www.senseaboutscience.org/resources.php/127/making-sense-of-uncertainty
[27] http://www.senseaboutscience.org/pages/annual-lecture-2010.html
[28] http://www.senseaboutscience.org/pages/annual-lecture-2009.html
[29] Sokal’s famous parody of postmodern writers, the so-called “‘Sokal Hoax,” was his publication in one of the postmodernists’ own journals on how gravity was nothing more than a social construct. Alan D. Sokal, “Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity,” Social Text 217 (Nos. 46/47 1996) (“It has thus become increasingly apparent that physical ‘reality’, no less than social ‘reality’, is at bottom a social and linguistic construct; that scientific ‘knowledge’, far from being objective, reflects and encodes the dominant ideologies and power relations of the culture that produced it; that the truth claims of science are inherently theory-laden and self-referential; and consequently, that the discourse of the scientific community, for all its undeniable value, cannot assert a privileged epistemological status with respect to counter-hegemonic narratives emanating from dissident or marginalized communities.”)
[30] http://www.senseaboutscience.org/pages/annual-lecture-2008.html
[31] http://www.senseaboutscience.org/pages/annual-lecture-2006.htm
[32] http://ori.hhs.gov/blog/
[33] http://retractionwatch.wordpress.com/
[34] See Remigio Russo, 18 Mathematical Problems in Elasticity 125 (1996) (quoting Einstein).
