Sunday, December 10, 2006
Interesting commentary in the New York Times -- When Questions of Science Come to a Courtroom, Truth Has Many Faces, by Cornelia Dean. One of the ongoing debates in mass torts is of course the role of science, and the Daubert standard puts judges in a position of determining scientific reliability, which can be awkward given judges' usual lack of scientific training. The issue was highlighted this week when during oral argument in a global warming case, Justice Scalia was corrected about the ultimate destination of carbon dioxide, and Justice Scalia responded, "Troposphere, whatever. I told you before I’m not a scientist.” Here's an excerpt:
[I]n a large case involving silicone breast implants, the judge chose a panel of advisers to recommend experts to review scientific aspects of the accusations. Their report cleared the implants of any role in systemic disease, but only after a multibillion-dollar trust had been established to compensate the supposed victims.
Other judges, worried about their ability to hear cases hinging on complex topics, have organized their own seminars on subjects like DNA evidence. According to Sheila Jasanoff, a lawyer and professor of science and technology studies at the Kennedy School at Harvard, scholars and officials have from time to time also proposed creating a judicial or quasijudicial “science court” to resolve factual disputes. Generally, lawyers don’t like these ideas, in part because they fear the influence such a supposedly objective entity might have with juries.
The idea “has largely been abandoned as unworkable,” Dr. Jasanoff wrote in her book “Science at the Bar” (Harvard University Press, 1997).
But even if lawyers and judges could routinely absorb a thorough grounding in the scientific issues they confront, there would still be trouble. For one thing, the state of scientific knowledge changes rapidly. Sometimes, there are multiple scientific views of a given issue, all potentially credible. And sometimes research on an issue does not even begin until it works its way into court. To an extent, that was the case with the silicone breast implants.