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Monday, May 3, 2010

Article Of Interest: Susan Haack's Irreconcilable Differences? The Troubled Marriage of Science and the Law

One of the biggest problems that filmmakers face is the problem of exposition. How does the filmmaker convey the necessary backstory to the audience organically and seamlessly? Regrettably, the filmmaker usually relies upon a clunky conversation between a few of the principals or the classic storytelling crutch of someone new to a situation being told all of the details by a veteran. In Charles Shyer's 1984 movie, "Irreconcilable Differences," i.e., the movie where Drew Barrymore divorces her parents, the filmmakers avoid this problem with a neat trick: The backstory unfurls as the characters testify during the divorce trial. If only there were such a quick fix for the problems between science and the law.

Those problems are the subject of an excellent recent article of the same name by Susan Haack of the University of Miami School of Law: Irreconcilable Differences? The Troubled Marriage of Science and the Law

In the introduction, Haack lays out the core of her argument:

that there are deep tensions between the goals and values of the scientific enterprise and the culture of the law, especially the culture of the U.S. legal system:  between the investigative character of science and the adversarial culture of our legal system; between the scientific search for general principles and the legal focus on particular cases; between the pervasive fallibilism of the sciences--its openness to revision in the light of new evidence--and the concern of the law for prompt and final resolutions; between the scientific push for innovation and the legal system's concern for precedent; between the informal, problem-oriented pragmatism of scientific investigation and the reliance of the legal system on formal rules and procedures; and between the essentially theoretical aspirations of science and the legal system's inevitable orientation to policy.

In Section II, Haack traces the history of scientific expert testimony, noting that

As soon as the U.S. legal system came to rely significantly on scientific experts, complaints arose from all sides: expert witnesses--physicians especially--complained about the way they were treated under cross-examination; and both legal and scientific commentators expressed concern about the rise of what they perceived as a new class of partisan and untrustworthy professional experts. And as the use of scientific experts grew, so did the complaints.

Haack then catalogues some of the various and sundry ways that the Supreme Court and Congress have tried to allay these complaints through a variety of proposed solutions -- Frye v. United States, the Federal Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Joiner, Kumho Tire Co. v. Carmichael, and the amended Federal Rule of Evidence 702. Nonetheless, Haack concludes.

I don't suppose anyone for a moment imagines that all the problems are now fully resolved. The Daubert ruling is far from unambiguous; its philosophical underpinnings are far from sound; and its articulation of the idea of evidentiary reliability is far from transparent. Moreover, though Justice Blackmun's rhetoric suggested that the intent was to relax the standards of admissibility, in civil cases the upshot seems to have been to restrict them. The Joiner ruling distances itself somewhat from Daubert's muddled philosophy of science--but creates further concerns about the blurring of questions of admissibility with questions of the weight or the sufficiency of evidence; the Kumho Tire ruling finally acknowledges that what really matters is not whether expert testimony is science, but whether it is reliable--yet it seems to leave all the tricky stuff to courts' discretion. And the revised Rule 702, with its emphatic repetition of “reliable,” “reliably,” and “sufficient,” is apt to leave one doubtful whether any verbal formula, by itself, could make it possible to determine whether the data on which a scientific witness bases his opinion are sufficient, or whether his methods are reliable.

So it comes as no surprise that the old complaints about tainted, partial experts and ignorant, credulous attorneys, jurors, and judges are still heard-- and now, also, a new complaint, as would-be scientific witnesses whose testimony has been ruled inadmissible by a court protest the professional insult of being “dauberted out” when a judge deems their proffered testimony unreliable, even "unscientific."

In Section III, Haack explores some of the fundamental differences between the nature of science of the culture of law. For instance,

the core business of science is inquiry. And scientific inquiry is by nature tentative and thoroughly fallibilist; it focuses on the general law or principle rather than on the particular case; its core values are intellectual honesty and willingness to share evidence; its procedures are problem-oriented and informally pragmatic; it is open-ended and forward-looking; and, though it is quite often relevant to policy, it is policy-neutral. So it is hardly surprising that the legal system has had trouble handling scientific testimony, for the legal culture could hardly be more different: adversarial; focused on the specific case; formally procedurally anchored; valuing promptness and finality; relying on precedent; and not only relevant, but also sensitive, to policy.

In Section IV, Haack identifies six ways in which "courts don't do science very well":

(i) Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe.

(ii) Because the legal system aspires to resolve disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in.

(iii) Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; for related reasons, the legal system constitutes virtually the entire market for certain fields of forensic science (or quasi-science), and for certain psychiatric specialties. 

(iv) Because of its adversarial character, the legal system tends to draw in as witnesses scientists who are in a sense marginal--more willing than most of their colleagues to give an opinion on the basis of less-than-overwhelming evidence; moreover, the more often he serves as an expert witness, the more unbudgeably confident a scientist may become in his opinion.

(v) Legal rules can make it impossible to bring potentially useful scientific information to light; and the legal penchant for rules, “indicia,” and the like sometimes transmutes scientific subtleties into formulaic legal shibboleths.

(vi) Both because of its concern for precedent, and because of the desideratum of finality, the legal system has a tendency to inertia, and sometimes lags behind science.

In Part V, Haack asks whether the marriage between science and law can be saved and notes that both sides have tried to adapt somewhat although "such adaptations don't always work out quite as planned." Haack indicates that she toyed with naming this final section "We Can Work it Out" after the Beatles' song but worried about promising more than she could deliver. But looking at the closing lyrics to that song, they actually seem appropriate to Haack's article:

Try to see it my way,
only time will tell if I am right or I am wrong.
While you see it your way.
there's a chance that we may fall apart before too long.
We can work it out,
we can work it out.

So, can law and science work it out? I don't know, but if you want an excellent primer on the subject, be sure to check out Professor Haack's excellent article.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/haack--httppapersssrncomsol3paperscfmabstract_id1174769.html

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