Law's knowledge: Science for justice in legal settings

American Journal of Public Health

Volumn 95, Issue SUPPL. 1, 2005, Pages

  Jasanoff, Sheila ^a  

^a HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COURT; DECISION MAKING; JUSTICE; LAW; LAW SUIT; REVIEW; SCIENCE; UNCERTAINTY;

DRUG INDUSTRY; EXPERT TESTIMONY; GOVERNMENT REGULATION; HUMANS; JUDICIAL ROLE; KNOWLEDGE; LIABILITY, LEGAL; PUBLIC HEALTH; PUBLIC POLICY; SCIENCE; SOCIAL JUSTICE; SUPREME COURT DECISIONS; UNITED STATES;

EID: 22744443316     PISSN: 00900036     EISSN: None     Source Type: Journal    
DOI: 10.2105/AJPH.2004.045732     Document Type: Review

References (45)

1. The late sociologist Robert K. Merton explicitly attributed such norms to science, although very similar norms could also be attributed to judging. See Merton RK. The normative structure of science. In: Merton RK, ed. The Sociology of Science: Theoretical and Empirical Investigations. Chicago, Ill: University of Chicago Press; 1973, 267-278. To be sure, legal decisions are always case-specific in that they are grounded in the facts of a specific case; at the same time, the case stands for a rule of general application, the validity of which is not ordinarily limited to the facts of that individual case. It is important to both law and science that the rules they generate are able to travel beyond the specificities of the context in which they were articulated.
2. Writings on the topic of law and science include the following: Foster KR, Huber PW. Judging Science: Scientific Knowledge and the Federal Courts. Cambridge, Mass: MIT Press; 1997;
3. Angell M. Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case. New York, NY: Norton; 1996;
4. Jasanoff S. Science at the Bar: Law, Science and Technology in America. Cambridge, Mass: Harvard University Press; 1995;
5. Huber PW. Galileo's Revenge: Junk Science in the Courtroom. New York, NY: Basic Books; 1991.
6. Daubert v Merrell Dow, 509 US 579 (1993).
7. General Electric Co v Joiner, 522 US 136 (1997).
8. Kumho Tire Co v Carmichael, 526 US 137 (1999).
9. In May 2003, the United States, joined by several producer nations, brought a case in the World Trade Organization challenging Europe's "illegal" moratorium on the importation of genetically modified foods. See Loewenberg S. Precaution is for Europeans. New York Times. May 18, 2003;sect 4:14.
10. The earlier admissibility rule was named after a federal appellate court decision to exclude lie detector testimony in a murder trial. Evidence was deemed admissible if it was "generally accepted" by the relevant scientific community. Frye v United States, 293 F 1013 (DC Cir 1923).
11. More accurately perhaps, the authors of the Daubert majority opinion asked trial court judges to think like scientists as they imagined scientists think.
12. Jasanoff S. Science and the statistical victim: modernizing knowledge in breast implant litigation. Soc Studies Sci. 2002;32:37-70.
13. For a discussion of the term "regulatory science," contrasting it with research science, see Jasanoff S. The Fifth Branch: Science Advisers as Policymaker. Cambridge, Mass: Harvard University Press; 1990.
14. The Supreme Court ruled in General Electric Co. v Joiner that admissibility decisions by trial judges are reviewable only for abuse of discretion. This is a high standard that virtually immunizes trial judges against review of routine admissibility decisions.
15. See, for example, Faigman DL. Legal Alchemy: The Use and Misuse of Science in the Law. New York, NY: Freeman, 2000.
16. "Paradigm" was the term used by the philosopher of science Thomas Kuhn to designate the system of assumptions within which scientific work is always conducted. See Kuhn T. The Structure of Scientific Revolutions. Chicago, Ill: Chicago University Press; 1962.
17. This is not a surprising coincidence because the early experimental traditions that launched the scientific revolution borrowed their core procedural devices from the law. Historians of early modern science have shown that experimental scientists in that period drew on legal models in creating processes for testing scientific claims. See Shapin S, Schaffer S. Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life. Princeton, NJ: Princeton University Press; 1985.
18. The observation that science, too, is "situated knowledge," despite efforts to attain universalism, is most clearly articulated in the work of feminist critic of science Donna J. Haraway. See Haraway DJ. Simians, Cyborgs, and Women: The Reinvention of Nature. New York, NY: Routledge; 1991.
19. Researchers in science and technology studies have called attention to the fact that credibility is produced within de facto exchange systems, or economies, that operate differently inside different specialized scientific communities, as well as between experts and the public. See Shapin S. Cordelia's love: credibility and the social studies of science. Perspect Sci 1995;3: 255-275.
20. Kosinski A. The great dissenter. The New York Times Book Review. July 6, 1997:19.
21. Lower court judges are reviewed and may be overruled on their interpretations of the law. A trial court's determinations of fact, including scientific facts, are not ordinarily renewable, nor after Joiner and Kumho are most rulings on the admissibility of scientific and technical evidence.
22. Daubert v Merell Dow, 509 US 579,593 (1993).
23. It is instructive to contrast in this regard the procedures employed by federal district judges Sam Pointer of Alabama and Robert Jones of Washington in cases involving claims of injury from silicone gel breast implants. For additional details, see Jasanoff S. Expert games in silicone gel breast implant litigation. In: Freeman M, Reece H, eds. Science and Law. London, UK: Dartmouth; 1998:92-103.
24. See Knorr-Cetina K. Epistemic Cultures: How the Sciences Make Knowledge Cambridge, Mass: Harvard University Press; 1999;
25. Pickering A, ed. Science as Practice and Culture. Chicago, Ill: University of Chicago Press; 1992;
26. Latour B, Science in Action: How to Follow Scientists and Engineers through Society. Cambridge, Ill: University of Chicago Press; 1987;
27. Collins HM, Changing Order: Replication and Induction in Scientific Practice. Beverley Hills & London: Sage; 1985.
28. See Gould SJ. The Mismeasure of Man. New York, NY: Norton; 1981.
29. For an overview of this literature, see Jasanoff S, Markle G, Petersen J, Pinch T, eds. Handbook of Science and Technology Studies. Thousand Oaks, Calif: Sage; 1995.
30. For a lucid discussion of the historical and social embeddedness of science, see Kitcher P. Science, Truth, and Democracy. Oxford, UK: Oxford University Press; 2001.
31. For further details of this case, see Jasanoff S. Research subpoenas and the sociology of knowledge. Law Contemp Prob. 1996;59:95-118.
32. Daubert v Merrell Dow Pharmaceulicals, Inc, 43 F3d 1311 (9th Cir 1995).
33. Daubert v Merrell Dow Pharmaceuticals, Inc, 43 F3d F.3d 1311,1317 (9th Cir 1995).
34. Daubert v Merrell Dow Pharmaceuticals, Inc, 43 F3d 43 F3d 1311,1318 (9th Cir 1995).
35. See, in particular, Gieryn T. Cultural Boundaries of Science: Credibility on the Line. Chicago, Ill: University of Chicago Press; 1999;
36. Jasanoff S. The Fifth Branch: Science Advisers as Policymakers. Cambridge, Mass: Harvard University Press; 1990.
37. For detailed empirical studies making this point, see Jasanoff S. Science and the statistical victim: modernizing knowledge in breast implant litigation. Soc Studies Sci. 2002;32:37-70;
38. also see Smith R, Wynne B, eds. Expert Evidence: Interpreting Science in the Law. London, UK: Routledge; 1989.
39. Of course, it is a legitimate societal concern that irrational legal outcomes may have a chilling effect on technological innovation and, at the limit, cost more lives and cause wider damage. An appropriate response, however, would be to take such concerns into account in the design of remedies rather than in decisions on the admissibility of evidence.
40. One reading (albeit possibly a too charitable one) of the O.J. Simpson case, for instance, is that no amount of scientific evidence could have persuaded the jury in the criminal trial that an African American could receive justice in Los Angeles. On this reading, the initial "not guilty" verdict was just, even if scientifically ill supported. Another reading is that the jury's negative assessment of the L.A. Police Department's integrity fatally infected their evaluation of the DNA evidence; on this reading, too, arguably justice was done even if science was disregarded.
41. Contested scientific evidence was excluded in Hollander v Sandoz Pharmaceuticals Corp, 95 FSupp2d 1230 (WD Okla 2000),
42. Siharath v Sandoz Pharmaceuticals Corp, 131 FSupp2d 1347 (ND Ga 2001), and
43. Glastetter v Novartis Pharmaceuticals Corp, 107 FSupp2d 1015 (ED MO 2000), aff'd 252 F3d 986 (8th Cir) (per curiam).
44. Plaintiffs' testimony was admitted in the state courts of Kansas and Kentucky, for example, Kuhn v Sandoz Pharmaceuticals Corp, 14 P3d 1170 (Kan 2000) and
45. Sandoz Pharmaceuticals Corp v Roberts, 89-CI-653 (Ky Ct App 1996).