Science and the Courts

Two hundred years ago, the state of the world was such that leaders such as Benjamin Franklin and Thomas Jefferson could move easily between the realms of science and the law. Now, as this book makes abundantly clear, not only have amateur scientists disappeared from the public stage, but lawmakers, judges, and administrators lack the scientific literacy to be good consumers of the science that regularly swirls through the issues of the day.

Consider the Supreme Court. Some of its most famous and far-reaching decisions have relied on scientific propositions that do not hold up under even cursory review. In Brown v. Board of Education, the Court justified desegregation of the public schools by citing a series of social science studies that concluded that segregation of minority children “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The use of science was, as University of California law professor David Faigman points out in Legal Alchemy: The Use & Misuse of Science in the Law, an easier way to reach what is now almost universally recognized as the right result than an appeal to constitutional principles and legal precedents that contained no clear answer to the racial conundrum. Yet the science behind Brown was thin, and in ensuing years, when evidence was presented that integration could have its own deleterious effects on the hearts and minds of children, the Court said never mind, the point was that segregation was inherently unequal, whatever the research might show about the effects on those being segregated.

Unlike Brown, the court’s decision in Roe v. Wade has generated unending controversy, not least over the medical “facts” that formed the key premises of Justice Harry Blackmun’s opinion. His division of pregnancy into three neat trimesters became the basis for the court’s declaration that the states could not interfere with a woman’s right to choose abortion during the first trimester, when the risks to the mother’s health of an abortion were less than those associated with carrying the pregnancy to term, as well as its further declaration that the states could impose restrictions on abortion during the last trimester when the fetus became viable outside the womb. The trimester system quickly became outdated as medical science pushed the date of viability earlier and made late abortions safer. Yet the court stuck for nearly 20 years to the trimester system for regulating the conflicting interests of states and women desiring abortions. And even after it abandoned the trimester framework (in the Casey decision), the Supreme Court has adhered to the idea that viability outside the womb is the key trigger for when a state’s interest in protecting a fetus can trump those of the pregnant woman’s–without ever explaining why a state might not have an even stronger interest in protecting a not-yet-viable fetus.

Where settled science has run counter to an outcome that the Court deems appropriate, it has not hesitated to disregard the science. This is seen strikingly in Faigman’s discussion of the Supreme Court’s 1983 decision in Barefoot v. Estelle. Barefoot was a convicted murderer trying to avoid execution. At his sentencing hearing, a psychiatrist who never met Barefoot testified nonetheless that he was “100 percent” certain that if Barefoot was not executed, he would be violent again. This doctor, popularly known in Texas as “Dr. Death” for his frequent appearances on behalf of the state in sentencing hearings, was opposed by the American Psychiatric Association, which submitted a brief to the Supreme Court describing a multitude of studies that concluded that psychiatric predictions of long-term dangerousness were wrong about two out of three times–less reliable than a flip of the coin. Undeterred by the research, the Court held that as long as dangerousness is a criterion for imposing the death penalty and lay jurors are required to make that determination, it should be left to the adversarial process of cross-examination to sort out the good from the bad in psychiatric testimony.

Ten years later, the Court reversed field. In the 1993 case of Daubert v. Merrell Dow, the Supreme Court ushered in a new era of judicial scrutiny of science by declaring that judges must act as “gatekeepers” to ensure that juries hear evidence only from expert witnesses offering “valid” science. And how does one tell “valid” from “invalid”? A host of legal tests has been offered, and judges and lawyers are still struggling to come to grips with the issue. Anyone reading Faigman’s account of how the Supreme Court justices themselves routinely abuse science will be pardoned for wondering how lower court judges can possibly carry out the task evenhandedly.

Faigman is just as critical of the way other branches of government use science. Whether he is discussing Congress’s bone-headed abolition of its Office of Technology Assessment or the Fish and Wildlife Service’s efforts to put gray wolves into Yellowstone National Park, the author shows how scientific data are routinely tortured, abused, mishandled, or ignored in the interest of governance. Faigman makes the simple point that all branches of government must become more sophisticated consumers of science. Amateur scientists are not needed, but judges, lawyers, legislators, and government bureaucrats who can read a scientific paper and spot its hidden biases and shaky methodologies would certainly be welcome.

Faigman avoids the naivete of many nonscientists for whom the power of science is its regular production of pure, value-free “facts,” which soon become holy unassailable Truth. Indeed, he exposes numerous examples of lawmakers hiding their value judgments behind ostensibly objective science. Scientists themselves, of course, are no strangers to this game. Faigman gives a few examples such as biologist Edward Wilson’s testimony to a Senate committee on behalf of the Endangered Species Act, in which he provided stunning statistics about how many species were becoming extinct without explaining how high rates of extinction would be even if humans did not exist; and the creation by psychologists of “battered woman syndrome” as an effort to expand the bounds of the traditional doctrine of self-defense in criminal law. Mainly, though, his book is filled, as its title suggests, with examples of the legal system misusing science, rather than science misusing the law.

Where’s the beef?

Therein lies the book’s major flaw. Faigman’s work is long on engaging anecdotes. He offers glib tour-guide accounts of everything from the Scopes trial to the superconducting supercollider project, with asides on air bags, breast implants, saccharin, and the Salem witch trials, to mention but a few, but he comes up short on cogent analysis. A better book would have had one-third the anecdotes and three times more analytical detail about each.

Indeed, Faigman spends so much of this slim volume’s pages on documenting the failings of the past that he leaves himself little room for discussion about where we go from here. For instance, in considering the Daubert gatekeeping role of the courts, Faigman offers hardly more than the truisms that creating standards for the admissibility of expert testimony “will not be an easy task” and “will probably take considerable time and effort.” He divides expert testimony into five categories, yet he fails to place into his schema some of the most common yet problematic expert testimony–medical testimony that exposure X causes disease Y–except to suggest that it should be admitted into evidence when supported by good research and not admitted when not. Thanks, professor.

Faigman does recognize that although legislators, administrators, and judges all can profitably borrow technical expertise from science by the appropriate use of advisory boards, commissions, and panels, the ultimate responsibility for setting policy has to remain with the nonscientists. Lawyers and lawmakers, in short, need to understand and share in the culture of science without abdicating to it. This basic point has been recognized at least since C. P. Snow’s The Two Cultures was published in the late 1950s.

But how leaders can become effective and sophisticated “consumers of science” (Faigman’s term) remains an elusive task. Faigman offers a half-facetious “12-step” program of “recovery” from scientific illiteracy or innumeracy. Step 10, for instance, declares: “I will endeavor to understand the nuts and bolts of the scientific method and not simply the conclusory testaments offered by scientists or those pretending to that title.” This is a key insight, because the power of science to make good public policy lies more in the rigor of its method than in the “facts” it discovers, which are always subject to revision. And the power of science to make bad policy lies in the failure to scrutinize critically the unspoken values implicit in many scientific “truths.” Lawyers are trained in logical thinking, or so we pride ourselves, so the rigors of scientific methodology should be welcome in legal circles; at least in theory, or until we remember that law schools and legislatures are some of the last havens of relatively smart generalists who wouldn’t know a chi-square from a T-square.

What should be the role of the scientific establishment in promoting better use of science in the law? Faigman says little about this, and it’s a shame. His failure to put some of the burden on scientists for the current state of affairs perpetuates the myth of scientific institutions as citadels of rectitude in a depraved world. But doesn’t it take two to tango? And before we can learn to dance together, maybe we ought to try a conversational icebreaker or two.

“Hey, can we talk? I love your methodology . . .”