August 19, 2006
The Ethics of Scientific Evidence
Blog 702 (here), an excellent resource on all things Daubert, offers this quote from Judge Kessler's opinion in United States v. Philip Morris USA, Inc.:
Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.
What a sad and disquieting chapter in the history of an honorable and often courageous profession.
For more, and a copy of the opinion, see here.
Lawyers/Judges Should Read Science
Possibly the biggest impediment to lawyers' and judges' use of scientific research is their general lack of training in the subjects of statistics and research methods. Short of returning to graduate school for courses in these subjects, it would serve legal professionals well to read books and articles written by scientists. But any suggested reading list, I think, should go well beyond the specific topic of science and law. To truly appreciate the way scientists approach the empirical world, we should all be reading general science that is written for a lay audience. There are, of course, many science writers well worth the time and effort, including such notables as Steven Pinker (see example), Edward O. Wilson (see example), Antonio Damasio (see example), Carl Sagan (see example), and Stephen Jay Gould (see example). Along these lines, I would also suggest that legal professionals consider reading Science Magazine, a resource that offers insights into the world of scientists and which regularly contains articles of pressing importance to law and society. Indeed, Dr. Donald Kennedy, Science's editor, has devoted considerable attention to the question of the law and science connection. His editorial on forensic science from a couple of years back was a valuable contribution to the debate over the current condition of, and future prospects for, forensic science (see here).
August 18, 2006
What is the Science and Law Blog?
This Blog is directed at the intersection of science and law. Its focus concerns the integration of applied scientific research and the substantive law. It thus is not limited by subject area, on either the law or science side of the ledger. Topics of interest, therefore, include everything from mass toxic torts to fingerprint identification. Of course, Daubert and its progeny are very much within the realm of topics of discussion, but this is not a Daubert or Rule 702 Blog. Several excellent resources on Daubert already exist, including a blog (here), and a tracking service (here). Instead, this page is organized around the single question of how does, and how should, courts and policy makers use the more or less certain findings (or lack of findings) from science when making decisions. On the law side, therefore, not only are evidentiary matters of concern, but this question implicates substantive areas of law, including, but not limited to, torts, criminal, administrative, and constitutional. On the science side, subjects of interest will include, but are not limited to, psychology, sociology, political science, economics, toxicology, and epidemiology.
I hope the discussion and postings here will be of interest to both lawyers and scientists. Indeed, the blog will be organized around this hope. Increasingly, the two communities of professionals are recognizing the need for cooperation and understanding. Indeed, I think Daubert is largely premised on the principle that lawyers and judges must know something about the elements of science and hypothesis testing in order to use any claimed insights from the research. Also, scientists and scientific organizations, have begun to recognize the need to become involved in evaluating and explaining the import and limitations of scientific work. I hope to create some intellectual bridges between the two communities in order to facilitate their working together more effectively in the future.