Science and the Law

A dozen years ago, the Carnegie Corporation of New York, under the leadership of David Hamburg, established a commission to explore the broad terrain bounded by the title, “Science, Technology, and Government.” The Carnegie Commission’s formation reflected two important but neglected realities: First, decisionmakers in all three branches of government increasingly rely on, and to decide wisely must understand, the disciplines and products of science. Second, actions by executive officials, by Congress, and by the courts profoundly affect not only the resources and the opportunities of the scientific community but also the conduct of its affairs. The numerous reports subsequently issued under the auspices of the commission documented the interdependence of science and legal rules and institutions, and offered recommendations for a more productive collaboration between them.

Events over the past decade have confirmed the perception and foresight of the Carnegie Commission architects by dramatizing the connections, and sometimes the tensions, between science and law. The Supreme Court in three noteworthy cases has addressed the criteria for admission of scientific and other technical evidence in civil litigation, and on two occasions essentially adopted the views advanced by organizations representing the scientific community as amici curiae. More recently, Congress has enacted a controversial law, the so-called Shelby Amendment, which was designed to permit public access to research data generated by scientists who receive federal funding. In the debates that attended the Office of Management and Budget’s effort to implement the Shelby Amendment through notice-and-comment rulemaking, strong differences arose between scientists who resented any intrusion of the sort and others who argued that the economic and policy impacts of “regulatory science” justified broad public access to the underlying research.

Thus, in different contexts each of the three branches has confronted claims that advances in information technology threaten individual rights of privacy. Debate over the appropriate boundaries of legal protection for scientific discoveries swirls around the human genome project and the commercial exploitation of genetic technologies. And concern about the adequacy of legal safeguards for participants in medical and social science research permeates congressional oversight hearings.

The members of the Carnegie Commission correctly foresaw that the linkages between science and law were not episodic but continuous and that their interdependence was not static but proliferating. Sharing these beliefs, several years ago the National Academy of Sciences, National Academy of Engineering, and Institute of Medicine began to think about a structure that would permit representatives of these important dominions to debate, study, and perhaps occasionally resolve issues of joint concern but differing interest. These internal deliberations were encouraged and substantially aided by the wise and enthusiastic counsel of Justice Stephen Breyer, the Court’s most visible advocate for collaboration between the disciplines, whose influential views are set forth in the article that follows this one.

In 1999, the National Academies established the Panel on Science, Technology, and Law. We have the privilege of cochairing the panel, which consists of roughly two dozen members, including leaders in scientific and engineering research and research management, and representatives from the practicing bar, the legal academy, and the courts. Our task is to monitor and explore the growing number of areas in which the processes of legal decisionmaking utilize or impinge on the work of scientists and engineers.

This is potentially a vast territory, and the panel inevitably must proceed selectively. Plainly, it cannot hope to explore all of the issues that cry out for discussion and resolution. For that reason, and because other institutions and organizations are actively working in this field, one of the panel’s main functions will be to serve as a clearinghouse, collecting and sharing information about important initiatives by others, such the expert witness selection project that has been launched by the American Association for the Advancement of Science. (For a list of activities in the general area of science, technology, and law, see http://www4.nas.edu/pd/stl.nsf.)

In developing its own agenda, the panel has investigated a diverse set of issues, selecting two for immediate exploration and placing others on a mid-term agenda. The first topic the panel will explore is at once familiar and emergent. The Supreme Court’s important Daubert decision recognized the important role that scientific research and expert testimony must inevitably play in civil litigation. Although the Court’s formal focus was limited to the question of admissibility, its opinion inevitably raised questions about judicial training and education, the responsibility of expert witnesses and the lawyers who offer them, and the capacity of jurors to understand and thoughtfully interpret the technical evidence with which they will be increasingly confronted. These and other issues are touched on in the article by Margaret Berger (a member of our panel) and in the book review by Patrick Malone (another panel member) that appear later in this issue.

The second topic that the panel has chosen for immediate attention is inspired by, but broader than, the Shelby Amendment and its provision that would open public access to the data generated by federally funded academic researchers. The circumstances that prompted Sen. Richard Shelby (R-Ala.) to introduce, and his congressional colleagues to enact, the amendment involved a controversial, costly, and at the same time potentially important public health initiative by the Environmental Protection Agency. Passage of the Shelby Amendment, as Frederick Anderson’s essay in this issue points out, can be said to recognize a new right of citizens to contest the scientific premises of governmental rules, but it may also burden and impede federally funded investigators and increase the cost of research. The panel will evaluate the competing interests affected by this congressional initiative and explore alternative ways of ensuring the validity of research findings on which government regulators rely.

Among the other topics that contend for the panel’s attention is a growing concern that the current law’s recognition of intellectual property in research methodologies may stifle rather than facilitate academic research. That concern clearly relates to the continuing debate over the patenting of gene sequences, the mapping of which is the goal of the Human Genome Project and several private ventures. Can/should patents be issued on DNA fragments (expressed sequence tags) whose function has not been worked out? Is the Patent and Trademark Office scientifically equipped to deal with the scientific issues that are suddenly flooding it? As Todd Dickinson’s provocative article here suggests, the entire domain of intellectual property protec- tion is coming under reexamination. The National Academies’ Science, Technology, and Economic Policy Board is leading this reexamination.

Uncertainty also surrounds the law’s less well-developed protections for individual privacy in an era of exploding information technology and increasing collectivization of medical care. That subject is explored in this issue’s “roundtable” with Janlori Goldman, Paul Schwartz, and Paul Tang, and in Priscilla Regan’s review of Simson Garfinkel’s thoughtful, retrospective survey of several older, but not dated, predictions of privacy loss.

Several articles in this edition of Issues thus track many of the topics that the Academies’ new Panel on Science, Technology, and Law has identified for exploration, either immediately or in the near term. These several contributions confirm the importance and contemporary relevance of the panel’s mission and at the same time demonstrate the potential scope of its assignment. Our panel cannot hope to canvass the entire terrain. Instead, we hope to become one of several contributors to the growing dialogue between science, engineering, and law; a supporter of initiatives by other organizations; and a catalyst for promoting productive collaboration among participants from all affected disciplines.