Vol. 10 No. 1 (January 2000) pp. 80-82.

SCIENCE IN COURT by Michael Freeman and Helen Reece (Editors). Brookfield, VT: Ashgate Publishing Co., 1998, 224 pp.

Reviewed by Peter J. Galie, Department of Political Science, Canisius College.

This work, SCIENCE IN COURT, is one of two volumes to result from a colloquium on "Law and Science" held in the faculty at University College of London (UCL) in 1997. SCIENCE IN COURT is part of the series Issue in Law and Society under the general editorship of Michael Freeman. The companion volume, LAW AND SCIENCE, is published as part of the UCL Law School's Current Legal Issues Program.

The use of science in the courtroom has been the subject of heavy media attention in the country. The Bendectin litigation, the increasing use or misuse of DNA, and most conspicuously the Silicon Breast Implant litigation, among others, have raised the question of whether or not plaintiff lawyers, with support from sympathetic juries, have extracted huge damage judgments on the basis of dubious science. From the perspective of the media the problem is the infiltration of junk science into the courtroom. Maverick scientists and "experts" willing to testify for plaintiffs in combination with the inability of lay jurors to comprehend scientific testimony has resulted in a legal "crapshoot" with little connection between the strength of scientific evidence and the outcomes. Peter Huber (1993) is the most well known exponent of this viewpoint. The striking thing about this collection is that, of the ten essays, only two, one of which is an introductory essay by Mark Freeman, focus on this aspect of the relationship between law and science. Indeed, two explicitly and others implicitly, challenge the assumption and methodology embedded in Huber's work.

The essays can be divided into two groups. The first four essays examine general and theoretical aspects of the relationship of law and science. These include: Michael Freeman, "Law and Science: Science and Law;" David Nelkin, "A Just Measure of Science;" Christine Willmore, "Codes of Practice; Communicating Between Science and Law;" and Mike Redmayne, "Bayesianism and Proof." The last six essays examine specific areas of interaction including silicon breast implant litigation, DNA evidence, the rape trauma syndrome, patent law and genetic material, and two essays on the role of science in environmental regulation.

David Nelken's essay provides a framework that allows for the categorization of the perspectives offered in the collection. The first approach, which he calls "trial pathology," sees the problem as the malfunctioning of the institutions and processes of the adversary system. Here, foolish juries, greedy trial lawyers, lazy judges, corrupt or crackpot experts are the problem. The essay by Jason Schklar "DNA Evidence in the Courtroom: A Social-

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Psychological Perspective" is illustrative. Schklar examines the problem of jurors' use or misuse of DNA evidence and suggests what needs to be done to improve juror understanding. A more sophisticated version of this approach sees the problem stemming from the incompatibility between the way that the adversary system processes information and reaches decisions and the way science proceeds. Law and science may have different concepts of truth. Indeed, as Nelken points out, the law may not be seeking truth as science understands it-witness the various rules of evidence and exclusionary policies imposed by the court that have, as their objective, not fact-finding so much as the cosseting of other values or ideals. Speaking through juries, the law may wish to embody community sentiment rather than uphold professional expertise. Relying on partisan presentation of the evidence sets severe limits to the nature and extent of legal inquiries. Legal trials must reach conclusions; scientists have the luxury of remaining tentative until "all the evidence is in." The latter is of some significance because the law's tasks include, at a minimum, dispute channeling; maintaining social order; and reaching results acceptable to the parties and society in general. The second approach, "competing institutions" focuses on law and science as powerful and often rival institutions that coexist and collaborate under conditions of "unstable compromise." From this perspective it is not surprising, but illuminating, how each institution can turn their methods on each other constructing or deconstructing one or the other's credibility. This approach focuses on the similarities between science and law and thus gives attention to "how they are articulated to look as if "separate." Jasanoff's essay, "Expert Games in Silicon Gel Breast Implant Litigation" exemplifies this approach.

The "incompatible discourse" approach is the most radical. Here the view is that collaborative strategies are doomed to fail because they do not recognize the incommensurability of their respective discourses. This approach relies on postmodern theorists who contend that any cognition, legal or scientific, is purely internal construction of the outside world. (The essay "Social Production of Rape Trauma Syndrome as Science and as Evidence" by Dobbin & Gatowski exemplifies this approach). The implication is that science can claim no privileged position: rather than being a determinative objective representation of reality, science, like everything else, is a "social product." If this approach is accurate, the law's attempt to increase certainty by engaging experts is likely to increase uncertainty and, as Nelken points out, condemning "junk science" is insufficient because "law's attempt to integrate science is bound to produce it."

Nelken neatly summarizes the thrust of each approach: the first focuses mainly on law as adjudication; the second on law as public policy; and the third on law as a form of communicative discourse. He suggests how each approach (diagnosis) leads to a different set of solutions. Most of the essays fit best in the competing institution approach. Their solutions involve not excluding science but in reducing what they see as an over-reliance on science. In place of that over-reliance, they would allow a more inclusive participatory, political, and non-adversarial process in which other voices are heard. The essays by Jasanoff and by Willmore and Warren provide examples. Although she does not explicitly say so, in her investigation of the silicon breast implant litigation Jasanoff, seems to look favorably on Alabama District Judge Pointer's resort

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to a more inclusive panel operating like a regulatory proceeding. Jasanoff implies that the science court model chosen by Oregon District Judge Hall, by its exclusion of an expert in chemistry, biased the results of the litigation in favor of the defendants. At the time of publication, Judge Hall's panel had made its decision and excluded evidence of silicon induced connective tissue diseases (CTDs). Subsequent to publication of her essay, Judge Pointer's panel released its finding: scientific evidence so far has failed to show that silicone breast implants cause CTDs. This finding does not discredit Jasanoff's approach, but it surely would have added significantly to her argument about the importance of decisions as to which experts are impaneled and what procedure is designated, if the panel had reached a different conclusion. It suggests to this review that the malleability of science may be less than these essayists appear to assume. Legitimate disputes among scientists still groping for the proper method and technical apparatus for gathering evidence and testing hypotheses are used as evidence for the conclusion that science is not more objective than any other socially produced institution. Christine Willmore offers an alternative solution, less dependent on postmodernist epistemology. She suggests that the Codes of Practice may be one mechanism, which can bridge the gap between the realm of science and the realm of law without having either discipline to cede control to the other.

These essays advance our understanding of the multi-dimensionality of the issues and problems raised by the increasing use of science in the courtroom. By providing this corrective, decision-makers armed with its insights will be less likely to ask the wrong questions and misdiagnose the problem - so one would hope.

REFERENCE:

Huber, Peter. 1993. GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM. New

York: Basic Books.


Copyright 2000 by the author.