Vol. 6, No. 3 (March, 1996) pp. 59-61

SCIENCE AT THE BAR: LAW, SCIENCE, AND TECHNOLOGY IN AMERICA by Sheila Jasanoff. Cambridge: Harvard University Press, 1995. 285 pp. Cloth $29.95.

Reviewed by Ira H. Carmen, Department of Political Science, University of Illinois at Urbana-Champaign.

"American political culture," writes Sheila Jasanoff, "derives its distinctive flavor as much from faith in scientific and technological progress as from a commitment...to resolving social conflicts through law" (p.1). This scholarly and informative book tells the story of how the world of science, where the search for truth predominates, interdigitates with the world of judicial decision making, where the search for justice predominates. As one of a few academic researchers well-grounded in the study of science and technology policy, law, and social science, Jasanoff has attempted the challenge of providing us a coherent characterization of that interdigitation. Writing with her usual clarity, craftsmanlike, and balanced perspective, she has surely succeeded.

There is a myth, Jasanoff contends, that science and the law possess diverse "inner logics"; from this friction tensions naturally arise. Jasanoff's view is that the boundary between science and law is far less than firm. Relying upon an empirical investigation of the range of significant court cases in this diverse area, she argues effectively, that "the cultures of law and science are in fact mutually constitutive," that is, "these institutions JOINTLY (emphasis in text) produce our social and scientific knowledge" (p.8).

Following an introductory chapter which states the above framework, Jasanoff presents four chapters devoted to science in the courtroom and 4 chapters devoted to technology in the courtroom. Under "science" are subsumed such heterogeneous litigation rubrics as products liability and environmental cases, the role of expert witnesses with special attention given to disputes over DNA typing and the shift from the FRYE rule to the DAUBERT rule, regulatory matters including competing notions of risk assessment, and the unappreciated complexities surrounding peer review and informed consent. Under "technology" are subsumed discussions of toxic tort controversies, genetic engineering cases, with much discussion centering around CHAKRABARTY and "deliberate release" issues, new reproductive procedures, and the question whether "death" is a term best defined by scientists, judges, or neither.

One of the salutary features of these case studies is that Jasanoff is sensitive to relevant political theory and data. She understands the role of judicial attitudes and ideologies, the play of interest groups, and the fact that jurisprudence is very much a politically defined term of art. In her study, there are neither heroes nor villains. Judges may have unmasked the inadequacies of DNA fingerprinting in CASTRO, but FRYE's "general acceptance" criterion "was too blunt a standard to allow for the desired fine-tuning of the fit among risk, evidence, and action" (p.79). As for Justice Blackmun's opinion in DAUBERT, it was merely philosophically incoherent. Scientists and technologists fare no better; each defensible value position seems to have an erroneous or spurious opposite number.

Jasanoff's analytic track record over the broad swath of case studies presented here

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stands on higher ground than her own assessment of how well scientists and legalists have done in pursuing their respective agendas. But every now and again her recitations and inferences suffer from the failings she attributes to others. For example, in her controversial Chapter 8 entitled "Family Affairs," she reviews the abortion cases, concluding her discussion of ROE by astutely asserting that "(t)he trimester approach addressed a moral dilemma through what looked suspiciously like a balancing of political interests, but the interests at stake were unequally represented in the Court's deliberations" (p.166). Becoming more even-handed in its approach, the Justices in WEBSTER "recognized the rights of state legislatures to protect fetal life throughout pregnancy" (p.167). I had always thought that WEBSTER was an artifact of the MAHER-HARRIS line of analysis, a case dealing with the public funding and subsidy of reproductive choices. Her reading of CASEY ("the majority...held that states could regulate abortions at any stage provided that their actions did not unduly burden' a woman's fundamental right to terminate her pregnancy") (pp.167-168) is surely wrong. Chief Justice Rehnquist and Justices White, Scalia, and Thomas were just as hostile to the "undue burden" test as were Justices Blackmun and Stevens. In fact, it is to me incredible that the right to terminate a pregnancy could possibly be considered a "fundamental right" if laws which only "burden" escape "heightened scrutiny." For Jasanoff, "the Court [as a result of WEBSTER and CASEY]... appeared to have gained new insights into the interpretation of constitutional reasoning and social action" (pp.168-169). Given that the Justices are currently divided 3-3-3 on how to address this constitutional conundrum (pun on the defunct trimester scheme intended), I fail to detect any "new insight" of any description. Certainly I see nothing in Jasanoff to persuade me that a woman has a constitutional right to abort an embryo/fetus without first informing her husband, a critical "new insight" achieved almost via epiphany by the enlightened O'Connor, Kennedy, Souter plurality, all of whom, incidentally, were nominated to the Court because they passed the Ed Meese prolife "litmus test" which Jasanoff disparages (p.162) without, incidentally, any analysis whatever on her part.

The rest of this chapter is pockmarked with provocative statements and arguments that seem curiously out of sync with her generally cool and calculated approach. The notion that "wrongful-birth and wrongful-life actions could become the instrument of a new eugenics" (p.174) is sheer alarmism. The fact that 81% of the women upon whom courts in eleven states had imposed "obstetrical procedures to protect the fetus" were black, Asian, or Hispanic is a statistic better placed in a Jesse Jackson speech. And I find no merit in the statement that, "Full equality for women, a goal of abortion-rights litigation since ROE, required that Whitehead's rights [she was the surrogate mother in the "Baby M" case] be recognized as on a par with Stern's [the biological father]," particularly, she adds, given the "class bias" which favored the "relatively affluent Sterns" (p.179). If ROE protects anyone, it seems to me, it is the wife and putatively legally expectant mother, not the surrogate who freely entered into a contract (whether legal or illegal under subsequent judicial findings) which she violated with impunity. But then again perhaps the "new insights" in CASEY also contain an equal protection principle to protect the less wealthy in their dealings with the more wealthy.

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Generally speaking, Jasanoff eschews grand theory and concentrates on earthy, straight forward presentation. A glaring exception is that she is forever "deconstructing" social, legal, and scientific institutions, doctrines, and arguments. I looked carefully for some statement articulating with precision what is meant by "deconstruction." I am familiar with the writings of Jacques Derrida, and I am not predisposed toward rejecting his relationalism out of hand. Rather like transaction theory, however, my hunch is that it comes up short in providing us with the conceptual precision we need. Better is game theory, particularly if we can correct for its rational actor bias. But if we are going to deconstruct, I would like to know exactly what steps we are taking and why. That is, what precisely is the locus of inquiry or the parameters of the logic, and how do they satisfy minimal standards of validity and reliability. It seems to me that Jasanoff need only submit that she is investigating, analyzing, and evaluating. The jargon of the sociology of scientific knowledge, without careful formulation, tends to obfuscate.

Jasanoff's conclusions in Chapter 10 find her returning to the balanced perspective which is the central mood and mode of her report. She rejects revamping the legal system to accommodate the alleged special needs of science. And removing scientific questions from the ambit of judicial scrutiny is patent nonsense, she correctly concludes. The strongest POLITICAL case, she believes, is the case for incremental correction, which would include concept-sharing and workway-sharing among science and law elites as well as the greater use of multidisciplinary advisory panels and blue-ribbon commissions. Sensible stuff, indeed.

One final, but important, point. This review is being prepared for the Law and Courts Section of the APSA. My perception of this group, to which I belong, is that the vast majority of its membership will take no interest in Sheila Jasanoff's book, no matter how good or bad I say it is. From what I can discern, my public law peers work in one of the following general subareas: the quantitative analysis of judges' voting records; process-oriented empirical research examining the "inputs" and the "impacts" of judges' rulings; doctrinal explication, with a heavy emphasis on normatives; jurisprudential, philosophical treatments; "law and society" investigations; race, gender, and ethnicity issues; and cross-national perspectives. One thing is for sure: the natural sciences and their technological spinoffs, no matter how important their contribution to an understanding of political behavior and no matter how important their contribution to an understanding of our evolutionary posterity, have made no appreciable dent in how scholars of public law think about their work. This is a most regrettable state of affairs, requiring the deepest reflection on all our parts.

References:

DIAMOND V. CHAKRABARTY 443 U.S. 303 (1980)

HARRIS V. MCRAE 448 U.S. 287 (1980)

MAHER V. ROE 432 U.S. 464 (1977)

PLANNED PARENTHOOD OF S.E. PENNSYLVANIA V. CASEY NO. 93-1503

ROE V. WADE 410 U.S. 113 (1973)