"What's really going on?" A study of lawyer and scientist inter-disciplinary discourse.
Publication: Rutgers Computer & Technology Law Journal
Date: Tuesday, June 22 1999
I. THE TWO CULTURES OF LAW AND SCIENCE
In the modern world the influence of science is everywhere. "At every turn," as a leading commentator puts it, "we encounter new material indicators of [science's] progress: air bags and antilock brakes, electronic mail, fax machines and bank cards,
Science intersects with law at almost every turn as well. As Peter Schuck explains:
[T]he law of intellectual property, especially patents, takes its very content from science, both pure and applied. The law of evidence often demands scientific support for the use of certain techniques, such as DNA typing and epidemiology, and for the drawing of particular inferences from testimony, such as causation. Medical malpractice cases usually involve (indeed, they may require) testimony by scientific experts. Antitrust litigation relies heavily upon technical economic analysis of product markets. Employment discrimination often looks to statistical analyses of labor markets for evidence of bias [and so on, and so forth].(3)
In some ways, common law courts have always dealt with disruptions arising from scientific and technological advances of one kind or another.(4) However, science and law have become pervasively intertwined with the advent of the industrial and electronic revolutions in the nineteenth and twentieth centuries. It is now routine for social change, particularly the kind calling for legal regulation, to be augmented, if not brought about, by scientific and technological change. Science based choices and problems pervade the most difficult issues of social regulation facing legislatures and courts. Consequently, law and science are inevitable bedfellows, whether they want to be or not. Not working effectively with one another is no longer an option for either discipline, if it ever was.
Notwithstanding the need to coordinate their efforts, however, law and science, or more accurately, the practitioners of law and science, do not get along all that well with one another, and perhaps never really have.(5) Part of the difficulty is explained by the fact that law and lawyers, mostly in the form of personal injury lawyers and products liability and malpractice litigation, threaten the economic livelihood of scientists (including doctors), as well as restrict their ability to control the terms and conditions of their work.(6)
Money and power are the oldest, simplest, and most common sources of friction between social groups, so no doubt part of the law-science conflict is explained in this way. But money and power, by themselves, seem inadequate to account for the level of antipathy expressed by scientists for lawyers and vice versa. Law's threat to the income of scientists, while real, is not likely to move scientists as a group from one economic class to another, and the explanation based on a lack of control over work suffers from some of the same difficulties. No professional group has unilateral control over its work, nor could it hope to in a political and economic system as multi-faceted, interdependent, and complex as our own, even if law was not in the picture. It is not the lack of control per se that is troubling to scientists, so much as it is the ceding of control to those who are thought not to know what they are doing. The foundation of scientists' dislike for lawyers starts with an objection to the way in which control is exercised and to the people exercising it, rather than an objection to the loss of control in and of itself. To understand this conflict fully, then, one must look deeper into the professional cultures of the two disciplines, to see what it is about each that sets the other off.
It is commonly understood that law and science are different enterprises, organized around different central values, animated by different incentives and constraints, constituted by different analytical and investigative methods and techniques, and driven by different biases and orientations.(7) Perhaps because they are so different, lawyers and scientists complain about one another in much the same way, with the arguments of each placing a heavy emphasis on the themes of vulgarity and obtuseness. Scientists bemoan law's lack of understanding of science, its inability to separate good science from bad, its demand that scientific findings be expressed in the language of certainty rather than probability, and the limited opportunity provided by legal procedures for keeping decisions provisional or contingent, subject to further testing and reconsideration in light of new information or understanding.(8) They also object to the adversarial method of inquiry used by lawyers, with its perceived (by scientists) preference for "relative" rather than "absolute" truth, and for "strong[]" (i.e., rhetorically persuasive) rather than "right" answers.(9) Additionally, scientists believe that legal concepts like "guilt, fault, intention, responsibility, liability, obligation, [and] duty," cannot be verified by appeals to scientific law.(10) Karl Menninger expressed these objections in the language of an earlier generation of scientists when he wrote, "[t]he very word of justice irritates scientists. No surgeon expects to be asked if an operation for cancer is just or not. No doctor will be reproached on the grounds that the dose of penicillin he has prescribed is less or more than justice would stipulate."(11)
Lawyers complain just as assiduously about scientists' failure to understand the fundamental purposes and methods of law.(12) The familiar disjunction, that law pursues justice and science truth,(13) while accurate to a degree, conceals a more complex reality which is easily misunderstood from each direction. As the sociology of science has taught, "scientific facts are not immanent [sic] in an objective reality waiting to be discovered by any scientists who look in the right place. Instead, they are constructed and validated ... through a ... process ... [that is] shaped by scientific paradigms, ... [and these paradigms, in turn,] hold sway for reasons that may have less to do with their intrinsic merit than with their support of existing social structures, including the scientific establishment."(14) Moreover, the search for scientific truth "is not guided solely by [scientists'] autonomous, spontaneous curiosity. [It] is [also] constrained and channeled by resources available for research, which in turn reflect the priorities of politicians, corporations, foundations, and other sources of funding for science."(15) Much of the time, therefore, in its data, methods, findings, and even in the extent of its authoritativeness, science is as contextual, contingent, and controversial as law.
By the same token, lawyers claim, justice is not purely subjective. While it is true that notions of justice vary with time and place, the concept also contains an objective component that remains constant over the same categories. This is because "[l]aw's legitimacy, at least in the long run, rests in part on its ability to generate outcomes that ... comport [more or less,] with the common morality and common sense of the lay community" being regulated.(16) Ironically, this common morality and common sense also demand, among other things, that law not deviate unacceptably from scientific truth, at the peril of being thought illegitimate if it does. While it may be difficult to determine what degree of deviation a society will accept as legitimate at any given moment, this consistency with common sense requirement, hardwired into the concept of justice, causes scientific and legal truth to merge in a complicated, but real, way. Legal truth is not identical to scientific truth, but it also is not wholly at odds with it. Moreover, legal truth cannot ignore or fly in the face of scientific truth without losing its claim to legitimacy. Lawyers argue that scientists do not understand the nature or extent of this interrelationship, when they criticize law for its failure to take scientific truth seriously.
Regardless of the fact that justice and truth, in some ways fundamentally different ends, law and science also differ principally in the time frames in which they work, and the language each uses to express its results. Law is usually in more of a hurry to decide than science. Judges must resolve cases that come before them on the basis of the best evidence available at the time, even if that evidence is not wholly adequate by scientific standards. They do not have the option of waiting until a professional scientific consensus emerges. In making these decisions, judges frequently will be forced to choose among competing scientific theories even when they are not competent (in scientific terms) to do so, and when scientists are not ready to do so for them.(17) If this was not enough, judges also must justify their decisions in non-technical and relatively simple language, so that they may be understood and applied by people generally, acting without professional help and with limited resources. This necessarily causes law to draw lines "and create[] categories that force many legal decisions into a binary mode," where the difference between being in and outside of the category means everything.(18)
"[T]his tendency toward categorical reductionism," as Professor Schuck explains, also "reflects [law's] commitment to the jury as a lay decision-maker."(19) Based on populist premises, the legal culture in this country "enshrines the cognitive and behavioral standards of ordinary people ... rather than expert standards, as the test of legally approved conduct."(20) The jury affirms these populist values by "serving as the voice of common morality, a bulwark of common liberty, and a decentralized organ of popular government, ... reflect[ing] the legal culture's singular compromise between professional autonomy ... and popular sovereignty...."(21) Legal opinions are never likely to be as nuanced as the realities they seek to shape then, given the need to decide cases quickly, at the time they are presented for decision, whether the science is in place to support such decisions or not, and the need to justify such decisions in non-technical terms. Scientists' criticism of law fails to take this simple reality into account and strike lawyers as uninformed, and thus, irrelevant.
It should be clear that the issues on which law and science divide are not easy ones to resolve. They embody timeless and in some ways intractable problems, and make up what has come to be known as the "two cultures" debate,(22) perhaps the most well known intellectual fracas in western thought.(23) To understand this debate we need to go back a little in time. At the beginning of the seventeenth century, "the age of Harvey, Boyle, Newton, and a host of other thinkers who profoundly influenced the development of modern science," science rejected the idea of authority based on the wisdom of the "Ancients."(24) Making a semi-clean break with the analytical method grounded in deductive logic and derived from Aristotle,(25) science (in the person of propagandists such as Francis Bacon) insisted instead on an inductive approach to knowledge, based on the patient accumulation of verifiable facts.(26) Such "empirical" study was superior to "literary" (or "philosophic") alternatives, Bacon and others claimed.(27) So that, when the investigation of factual matters is involved, scientific methods should be used instead of these alternatives. With the issue so joined, science found, and finds, it difficult to mesh its way of thinking with a broad range of other systems of disciplinary (including most famously, but not limited to, religious) thought.
There have been many noteworthy moments in this now three hundred-year-old debate. A famous example is the exchange between Matthew Arnold and Thomas Huxley at the end of the nineteenth century over the relative merits of science versus humanities instruction in the British Public School curriculum highlights this debate.(28) And many celebrated thinkers and writers have taken part, from William Wordsworth, Thomas Love Peacock, John Ruskin, John Ciardi, Maxwell Anderson, Archibald MacLeish, George Orwell, Erich Fromm, E.M. Forster, and D.H. Lawrence, and others, on the side of literature or philosophy, to Stuart Chase, John Baker, Bertrand Russell, Aldous Huxley, H.G. Wells, and Jacob Bronowski, among others, on the side of science. But perhaps the most famous moment, and the one which gives the debate its name, is the "Two Cultures" exchange between C.P. Snow and F.R. Leavis at Cambridge University in the early 1960s.(29) Snow led off with his 1959 Rede Lecture, "The Two Cultures and the Scientific Revolution,"(30) and Leavis responded with his 1962 Richmond Lecture, "Two Cultures? The Significance of C.P. Snow."(31) The lectures provoked a set of spirited responses, mostly in literary journals and magazines, from partisans on each side, resulting in a sort of intellectual food fight.(32) Today, the lectures and their responses read a little like quaint period pieces, peculiar in the extent to which they use adjectives rather than nouns and verbs to carry the brunt of their arguments; yet in the early 1960s they created a major stir in intellectual and academic circles on both sides of the Atlantic. They also illustrate, however, perhaps better than anything else, the difficulties involved in reconciling scientific and non-scientific ways of looking at the world.
In substance, if not in tone, much of what Snow and Leavis had to say, directly or by implication, about cold war politics, the relative merits of socialism versus democracy (or of living in Russia versus living in the United States), the place and prestige of science in British culture and British education, High Table conversation at Cambridge, the extent to which literary intellectuals are "natural luddites" in matters of science but not vice versa, the possibility of effectuating the Hegelian dream of reason taking over the management of the world, and the like, even though related to points in the present discussion, may safely be put to one side.(33) So too with the lectures' boisterous ad hominem style. Even by today's standards, Snow and Leavis appeared to really go at one another, often looking a little like two pigs wrestling in the mud, with each getting dirty, but each also seeming to enjoy it (perhaps Leavis a little more than Snow).(34) Anyone worried about the tone of contemporary academic discourse has only to read the "Two Cultures"(35) debate to feel confident that development in the field of academic manners has been linear and progressive.
Snow argued that the thinking world was divided into two camps, the scientific and the literary (or what today might be called philosophical), each of which was grounded in a different set of values and beliefs, organized knowledge in a different way, and proceeded by means of different methods of investigation and analysis.(36) He claimed that the inhabitants of these two camps lived in what amounted to different "cultures," and that between the two cultures there existed "a gulf of mutual incomprehension -- sometimes ... hostility and dislike, but most of all a lack of understanding."(37) Culture, for Snow, described a set of "common attitudes, common standards and patterns of behavior, [and] common approaches and assumptions," shared by members of a social group, which cut "surprisingly wide and deep," across "other mental patterns, such as those of religion or politics or class."(38) As he states in a frequently repeated phrase, "[w]ithout thinking about it, [members of a culture] respond alike. That is what a culture means."(39) One could quibble with this definition; for example, Matthew Arnold thought that culture "was the best that has been said and thought in the world,"(40) and Martin Green claimed that the term culture had "fifty meanings."(41) But Snow's definition seems to have identified something true and timeless in the concept.
Scientific culture, for Snow and kindred spirits,(42) was marked mostly by an optimism about the possibility of improving the human social condition.(43) The middle decades of the twentieth century, when Snow wrote, were a particularly productive period for science, so much so that it seemed to many at the time that there were no limits on what science could be made to do. Such a view was unduly upbeat as subsequent events have shown, but at the time it was a widely shared view. While acknowledging that the individual human condition was lonely and tragic ("you live 60 to 70 years, and then you die alone"),(44) Snow felt that there was a "moral trap" in this insight, and that scientists as a group were less likely than non-scientists to fall into the trap.(45) In Snow's words:
[Scientists] see no reason why, just because the individual condition is tragic, so must the social condition be. Each of us is solitary: each of us dies alone: all right, that's a fate against which we can't struggle--but there is plenty in our condition which is not fate, and against which we are less than human unless we do struggle.(46)
Rather than sit back, complacently resigned to humanity's tragic condition, "scientists ... are inclined to be impatient to see if something can be done: and inclined to think that it can be done, until it's proved otherwise."(47)
Snow acknowledged that this optimism sometimes led scientists to "regard the other culture's social attitudes as [too quiescent, and thus morally] contemptible," but he criticized this view as "too facile."(48) The fact that he reported the view at all, however, subjecting it to only a mild rebuke, suggests, as Lionel Trilling has noted, that he thought "[the view was] essentially ... right."(49) Snow admitted that in individual cases, literary, or what he also sometimes called "traditional," intellectuals could be as progressive and optimistic as anyone, but scientists as a group were this way by inclination and training.(50) They had, as he put it, "the future in their bones, ... [whereas] the traditional culture responds by wishing that the future did not exist."(51) Here too, Snow may have been overly influenced by contingent external events. Many literary intellectuals, to his mind, had been unduly sympathetic to, or at least insufficiently critical of, the rise of fascism and national socialism in the first half of the twentieth century.(52) As he put it, "nine out of ten of those who have dominated literary sensibility in our time [were] ... not only politically silly, but politically wicked.... [T]he influence of all they represent [brought] Auschwitz that much nearer."(53)
The other distinctive characteristic of the scientific culture, identified by Snow, but described with more eloquence by Bertrand Russell earlier in the century, has to do with the special properties of the "scientific habit of mind."(54) "The kernel of the scientific outlook," as Russell described it, is a "refusal to regard [one's] own desires, tastes, and interests as affording a key to the understanding of the world."(55) In Russell's words:
The scientific attitude of mind involves a sweeping away of all other desires in the interest of the desire to know--it involves suppression of hopes and fears, loves and hates, and the whole subjective emotional life, until [one] becomes subdued to the material, able to see it frankly, without preconceptions, without bias, without any wish except to see it as it is, and without any belief that what it is must be determined by some relation, positive or negative to what [one] should like it to be, or what [one] can easily imagine it to be.(56)
Lest one think Russell decidedly unmodern, or a little thickheaded about the role of the observer in constructing the content of scientific observation, it should be added that he also wrote:
Human beings cannot ... wholly transcend human nature; something subjective, if only the interest that determines the direction of our attention, must remain in all our thought. But science comes nearer to objectivity than any other human pursuit, and gives us, therefore, the closest contact and the most intimate relation with the outer world that it is possible to achieve.(57)
As a consequence, "science ... represents, though as yet only in a nascent condition, a higher stage of evolution than any pre-scientific thought or imagination, and, like every approach to self-transcendence, it brings with it a rich reward in increase of scope and breadth and comprehension."(58)
There is a good deal of self-serving, chest-thumping, and tendentiousness in this way of putting things, of course, and few would use Russell's words verbatim today. Scientists understand the influence of context, circumstance, ideological commitment, self-interest, and the like (including pettiness, venality, jealously, arrogance, spite),(59) in shaping the content of scientific discovery better now than they did at the time Russell wrote. This is due, in major part, to the work of historians, philosophers, sociologists, and rhetoricians of science. In a post-Kuhnian world we are all social constructivists to some extent.(60) Yet, Russell's view is not all that different from Snow's,(61) and many noteworthy scientists in the present day espouse a version of the same view.(62) While contemporary beliefs may be more nuanced and variegated than Russell's,(63) it is fair to say that many scientists believe that the intellectual disciplines are organized in a hierarchy, with science located at the top.(64) They view scientific understanding and method as a purer and more advanced form of understanding and method than philosophically based equivalents, even if they also believe that one must be careful about where, and with whom, one expresses this view.(65) While ravaged somewhat by the passage of time, and the work of the meta-critics of science, the "science as first among equals" view is a major source of the tension between science and law in the present day.(66)
Scientists' confidence in their intellectual primacy of place can be traced in principal part to the belief that they are the only academics who work in the pursuit of objective truth. They are philosophical realists, whether self-consciously so or not,(67) whose data consists of an external, physical world independent of human sense perception and language based description. This physical world has the singular advantage of staying put from interpretive moment to interpretive moment, and from interpretive era to interpretive era, so that all scientists in a given field, whenever and wherever they work, in a real but not literal sense, participate in the same intellectual investigation. In this view, for example, Einstein, Hubble, Newton, Kepler, Galileo, Copernicus, Ptolemy, and others all looked out onto the same universe(s) and worked on the same problems, improving upon one another's work and causing scientific understanding to grow cumulatively in the process.(68) Similarly, each generation of scientists in whatever field, standing on the shoulders of the generations before it, moves scientific understanding closer to some notion of objective truth, some final explanation of how the physical universe, or whatever is the subject of their study, works. Final understanding, or objective truth, is the holy grail of science.
In more philosophical modes of inquiry, however, including that used by law, truth is made more than discovered. Truth is temporary, contingent, provisional and partial. It is the truth of language and ideas, constructed in different ways by different groups at different times, and not found pre-existing in nature. There are many reasons for this, but ultimately they reduce to the fact that law operates in a social, not physical, world.(69) Because "the [social] past cannot be recovered," as Richard Posner explains, "it [is] difficult to verify or falsify hypotheses about it.... [This means that] there are ... a large number of legal cases in which the question of what happened is indeterminate, and must be resolved by a decision on who shall bear the burden of producing evidence or of persuading the trier of fact."(70) This problem is exacerbated by the fact that law places a "heavy but largely unremarked reliance on being able to determine counterfactual ... causes and consequences."(71) This is a particularly difficult process when the question to be answered is why something was done rather than what was done, as is often the case in law. As if this was not enough, in the American legal system, truth is also in competition with many other goals, "such as economy, preserving certain confidences, fostering certain activities, [and] protecting constitutional norms."(72)
As Judge Posner explains further:
... neither the fact that lawyers, like scientists, use induction, nor the intriguing suggestion that scientists, like lawyers, are judgmental rather than mechanical in their use of induction ... makes [legal fact finding] scientific in an interesting sense. What is missing from law are penetrating and rigorous theories, counterintuitive hypotheses that are falsifiable but not falsified, ... precise instrumentation, an exact vocabulary, a clear separation of positive and normative inquiry, quantification of data, credible controlled experiments, rigorous statistical inference, useful technological by-products, dramatic interventions with measurable consequences, and above all and subsuming most of the previous points, objectively testable -- and continually retested -- hypotheses.... [L]aw is closer to theology and to metaphysics than to science. Lawyers are not only quick but unashamed to make emphatic assertions on matters of fact ... without attempting, desiring, or even being willing to subject those assertions to an empirical test.(73)
Practices deeply woven into the fabric of law may place even the aspiration of systematic, disinterested factual inquiry beyond law's reach.(74) In short, fact inquiry in law usually will be more context-specific than timeless, more discontinuous than cumulative. And scientists see the pursuit of objective truth as more developmentally advanced than the pursuit of relative truth, or partial truth, or truth good enough for the situation.
This belief in the existence of a kind of disciplinary hierarchy, with science at the top, makes it more difficult for scientists to accept legal rules and methods of proceeding when they clash with scientific alternatives. A less advanced system of inquiry should defer to a more advanced one on matters of common application, everything else equal, scientists believe, and this means that on matters having to do with the investigation of empirical fact, for example, law should defer to science. Scientists can understand that law would sometimes get factual truth wrong. Evidence can be confusing, correct interpretations can be elusive, and charlatans can be as rhetorically gifted as geniuses. However, for a system of regulation, with the power to deprive people of their liberty and property, to work with facts it knows to be false (or could know if it thought about it correctly), and investigative methods it knows to be imperfect (when better methods are available), is seen as indefensible, especially to persons trained to regard truth as the overriding end of work. Scientists simply cannot understand how it could ever be better, or even fairer, for a legal system to be unconcerned with, ignorant of, or oblivious to factual truth.
The cultural tension between law and science is also exacerbated by the self-contained and exclusivist nature of disciplinary thought. All intellectual disciplines analyze data from different vantage points, originate in different starting-point insights, use different analytical methods, work with different basic theory, concepts and vocabularies, and identify the nature of the problems to be solved in different ways. It is not that disciplinary thought, by its nature, is hostile to other ways of thinking about data, but just that disciplinary systems aspire to completeness. They try to take account of, and explain, the data of the particular universe with which they are concerned, and when they cannot do this, they see themselves as not yet fully developed. Given their mutual aspirations to completeness, therefore, it is not surprising that science and law do not reach out to, or interlock with, one another conceptually. Because they are equally self-contained bodies of thought, there is no reason for either to look to anything beyond itself to explain the universe over which it rules. If they meshed to any substantial degree, it is more likely that they were parts of the same disciplinary system to begin with, and not separate bodies of thought.
The cultural divide between law and science seems definitional, and thus a permanent feature of the landscape. Legal systems will always need to act more quickly, and explain decisions more simply, than science would prefer, so that law and science will always be relegated to some sort of oil and water relationship. If the two systems cannot be linked conceptually, however, perhaps they can cross-pollinate, so to speak, in practitioner discourse. If lawyers and scientists could learn to talk with one another across disciplinary boundaries, explaining themselves and their methods as they work, the two systems of thought might be able to work out satisfactory ad hoc accommodations to one another's concerns in the process of resolving individual problems. The cultural dimension of the law/science problem has been analyzed extensively, but this inter-professional communication corollary has not.(75)
In the next section I will take up this topic,(76) using a case study of lawyers and scientists talking with one another about a complicated inter-disciplinary problem. In the process, I hope to identify some of the possibilities and difficulties presented by a "communication" remedy to the law/science incompatibility problem.(77)
I should reiterate, the need for law and science (and a fortiori lawyers and scientists) to work together is important for several reasons. When law and science do not coordinate law is denied the benefits of the different insights, theories and methods science brings to bear on the complicated problems citizens bring to courts, agencies, legislatures, and law offices in the modern day. As a result, legal resolutions are less intelligent, less stable, and less relevant. This failure to incorporate science, accurately understood, into legal resolutions also undercuts the legitimacy of those resolutions. When judges, legislators and lawyers make inescapably fact-based decisions based on blatantly or demonstrably mistaken understandings of empirical fact, or misapplications of scientific theory and method, it is difficult for those who recognize the mistakes to take such decisions seriously, and to abide by them. Just the opposite, scientifically sophisticated observers are more likely to criticize law as vulgar or unintelligent, and to encourage others to ignore its pronouncements. Such a scenario does not bode well for either law or science.
II. THE INTER-DISCIPLINARY CONFERENCE ON TOXIC TORTS
My interest in lawyer-scientist communication in general, and this article in particular, grew out of an opportunity recently provided to observe lawyers and scientists talking with one another about their respective disciplines at a conference on toxic torts.(78) The conference, entitled "Lessons From A Civil Action: Environmental Torts and the Woburn Litigation,"(79) was based on one of the most famous law-science lawsuits of recent years, the leukemia cluster litigation against W.R. Grace & Co. ("Grace"), and Beatrice Foods Co. ("Beatrice"), by a group of residents of Woburn, Massachusetts.(80) The sponsors of the conference(81) brought together key participants in the lawsuit -- clients, lawyers and scientists alike -- several years after the case had concluded, to discuss what, on reflection, had been learned from the litigation now that most of the information on its effects was likely to be in.(82)
The underlying case itself was prompted by an outbreak of leukemia in Woburn, Massachusetts, during the nineteen-sixties and seventies.(83) Studies eventually linked the outbreak to city well water contaminated by industrial chemicals, principally trichloroethylene and tetrachloroethylene.(84) Thirty-three plaintiffs from eight families, including five administrators of the estates of children who died allegedly as a result of being exposed to the chemicals, filed a wrongful death and conscious pain and suffering action against Grace and Beatrice in federal district court in Boston in May of 1982, claiming that the chemicals contaminating the city wells had come from Grace and Beatrice plants.(85) Thus began what the United States Court of Appeals for the First Circuit would eventually call a "litigatory trek of unusual length and complexity."(86)
While pre-trial proceedings were uncommonly protracted and contentious, the most difficult management problems in the case had to do with trial. As Judge Walter Skinner, the district judge assigned to the case, told the lawyers, "I've been trying to picture what this trial is going to look like.... You've got thirty-three plaintiffs, and to submit all thirty-three of these causation and damage issues in one trial may be unbelievably cumbersome. It's very complicated."(87) To solve the problem, on the eve of trial and after the jury had been empanelled, Judge Skinner decided to trifurcate the case, that is, to separate the trial into three distinct phases.(88) The first would be the "waterworks" phase in which the issue would be whether Grace and Beatrice wells had contaminated the City wells.(89) Next, the medical causation phase in which the issue would be whether the chemicals in the wells had made the plaintiffs sick and killed the children,(90) and finally the "damages" phase, in which the issue would be, in Judge Skinner's words, "[h]ow much is that worth? How much compensation do you give somebody for the loss of a child?"(91) If the defendants' chemicals did not contaminate the City water supply, the court reasoned, there was no need to take up the issues of medical causation or damages.(92)
In the waterworks phase of the case the plaintiffs ended up winning "half a loaf," as one commentator puts it.(93) The jury found the evidence insufficient to conclude that chemicals from the Beatrice plant had leached through the soil and into the City drinking water, but did find Grace responsible for contaminating the City wells.(94) The district court entered a judgment in Beatrice's favor, and the plaintiffs appealed.(95) While this appeal was pending, the plaintiffs learned that Beatrice had withheld an important hydro-geological report requested during discovery, and moved to set aside the judgment on that basis.(96) The district court denied this motion, plaintiffs appealed, and that appeal was consolidated with the original appeal on the merits.(97)
The First Circuit affirmed the judgment on the merits in favor of Beatrice, but remanded the appeal from the denial of the motion to set aside the judgment, for a determination of whether Beatrice had knowingly or intentionally concealed the hydro-geological report.(98) On remand, after an extensive evidentiary hearing described by one commentator as "longer than most major trials,"(99) the district court concluded that "[w]hile the Report might well have been very helpful to the plaintiffs in establishing the transport of chemicals from the [defendants' plant] to [the] wells, ... concealment of the Report ... did not constitute substantial interference with the [plaintiffs'] preparation of [the] ... case."(100) The district court then recommended that its earlier denial of the motion to set aside the verdict be sustained, and the First Circuit agreed.(101) Following their loss in the waterworks phase of the case, about nine years after the lawsuit had begun, Grace settled the case with the plaintiffs for eight million dollars.(102)
The Woburn case is important for many reasons. To begin with, the case was one of the first multi-causal, multi-victim, toxic-tort cases brought against major corporate defendants, tried before a jury, at least in part. Such cases often settle because they are usually thought to be too expensive and too risky to try, for different reasons, by both plaintiffs and defendants. Therefore, Woburn remains a principal training ground for lawyers on both sides of the toxic tort litigation field on the difficulties inherent in full blown adjudication, to a lay jury, of cases based on complicated, and controversial, scientific evidence. The case is also important as a lesson in the limits of the law and lawyers to prevent or undo the harms occasioned by the negligent, and sometimes reckless use of science in the modern state. As much money as the Woburn plaintiffs spent,(103) and as well as they did comparatively,(104) no one involved in the lawsuit is likely to describe the outcome as making anyone whole.(105) In addition, as pure narrative, the case had more of the qualities of high drama than most fiction. It was a David and Goliath story of sorts, played out by larger than life characters living on the edge.(106) The stakes were life and death, and the state (mostly in the form of the district judge who tried the case), loomed ominously in the background, sometimes intervening, not always in an impartial manner.(107) It is the sort of story that makes for a good novel, and it has,(108) a good television documentary, and it has several times,(109) and a good movie that is now out with John Travolta in the lead lawyer role.(110) Moreover, as the topic of an inter-disciplinary conference on law and science, it was a natural.
The one-day conference consisted of three formal panel presentations, each followed by an audience question and answer session.(111) The first panel described the clients' perspective on the lawsuit.(112) The principal named plaintiff in the litigation, generally agreed to be the person most responsible for calling attention to the contaminated water problem in the first instance, and a Woburn parish priest who helped her to organize the plaintiff class and convince federal and state regulatory agencies to take the problem seriously, were among the panelists.
The second panel described the lawyers' perspective.(113) It included three attorneys experienced at toxic tort litigation, two of whom had participated in the lawsuit, and one of whom had read the book. The first was the director, at the time of the lawsuit, of one of the largest and most influential plaintiff, public-interest litigation law firms in the country.(114) The second was a partner in a major, big-city law firm specializing in large-scale personal injury litigation, including toxic torts, for plaintiffs.(115) The third was a partner in another major, big-city law firm representing corporate defendants, including some of the most powerful corporations in the country, in toxic torts litigation.(116) The third panel provided the scientists' perspective, and included environmental and public health professors from two major Boston area universities, each of whom had been retained as an expert by the plaintiffs in the Woburn case.(117)
All of the lawyer and scientist panelists were highly regarded. Each was a major figure in his (the lone women scientist dropped out on the day of the conference) particular field. Each had written extensively about the generic issues involved in the lawsuit, and one of the scientists had even produced original research data for the Woburn case based on an innovative new theory for proving causal relationship.(118) Each had an appointment at a major research university or, in the case of the lawyers, was a well-known instructor in national continuing education programs. Each had well defined and sophisticated views on the substantive and methodological issues in the "two cultures" debate, and four of the five had participated in the Woburn litigation in one capacity or another. It was a blue-chip, or gold-plated, panel of experts in any sense of the term. The audience was almost equally expert, containing as it did, scientists and lawyers of considerable repute in their own right, many of whom had worked on cases or projects raising issues similar to those in the Woburn litigation.
The conference discussions provide particularly attractive data for the study of lawyer-scientist interaction, not only because they examined such interaction explicitly, but also because they modeled it, or tried to, at the same time. The participants in the conference, panelists and audience members alike, were engaged in the very behavior that they also were attempting to analyze, giving an observer an independent vantage point, free from the weaknesses latent or explicit in the speakers' espoused theories, from which to judge the efficacy of what they said. One can compare the panelists espoused views with how they acted, to determine what to believe about the possibilities and limits of lawyer/scientist cooperation. It also helps that all of the conference panelists, and several members of the audience, were experienced at inter-disciplinary cooperation, most having worked with members of the other profession in a wide variety of law related activities (e.g., drafting legislation, commenting on administrative rules, testifying in court, and the like). Each of the panelists also was generally regarded as very good at this process. At several instances during the course of their respective presentations, for example, panelists commented favorably on the sophistication of the other panelists' understandings of the issues under discussion, and excepted them explicitly from the criticisms then being made of the other profession. The conference participants, panelists and audience members alike, were aware of the obstacles to lawyer/scientist cooperation, and were committed to finding ways to make the process work. As a group, they believed in the possibility of inter-disciplinary work, and thought that none of the difficulties encountered in producing it were insurmountable. In short, the conference participants were an ideal group for making the process of inter-disciplinary cooperation work.(119)
III. LAWYERS AND SCIENTISTS IN CONVERSATION
A number of times during the conference, the lawyers and scientists in attendance, both on the panels and in the audience, joined issue, or almost joined issue, over major substantive questions in the "two cultures" debate.(120) In this section I will reproduce and analyze one extended example of such a discussion.(121) In analyzing this discussion I will sometimes comment on the substantive issue under consideration (i.e., the role of uncertainty in law and science), only because it is not possible to talk about what the panelists said without talking about what they said, so to speak. But my primary focus will be on how the panelists analyzed the issue of uncertainty, not with whether they got the analysis fight. The uncertainty issue is one of the most difficult in the intersection of law and science, and it is not realistic to expect to resolve it, or even give it an adequate airing, in this article. But it is possible to determine whether the manner in which the speakers discussed the issue made their conversations more productive, and made each side's position clearer to the other.
A. The "Uncertainty" Exchange
The following discussion is taken from a question-and-answer session following the formal presentations by the three members of the lawyers' panel.(122) The panelists had been asked to comment generally on what they thought were the most significant lessons to be learned from the Woburn litigation. The first panelist ("AR"), was the only one who had participated in the Woburn case directly. He began his presentation with a kind of "only in America" point, extolling the "wonders of a civil justice system" which allows a dispute like Woburn to be resolved in a court, on the basis of law, rather than in the streets, on the basis of force, as it would have been in some "third world country."(123) He then spent a few minutes making a plea for the defeat of tort reform proposals in Congress, seemingly as a matter of habit.(124) When he turned his attention to the Woburn case, he praised the outcome as a "bonanza recovery" for the plaintiffs, notwithstanding that two plaintiff representatives from the previous panel had excoriated the outcome, the lawyers who produced it, as well as AR's assumption that money was the best standard for measuring success.(125) He also described one of the scientists on the next panel as the finest expert in the country working on the problem of proving a linkage between exposure to toxic material and harm, and characterized the Woburn case as a kind of modern day "To Kill a Mockingbird" story, in which the lawyers involved showed how it was still possible to do both well and good in the practice of law.(126) He concluded by speculating about who would play his part in the movie.(127) He was charming (or insufferable, depending upon whom one asked) throughout.
The second panelist ("RS"), described himself as an advisor to the plaintiffs' lawyers in the Woburn case, but not a direct participant in the case itself. His remarks, particularly those about the relationship between law and science, were perhaps the most provocative of any made by the panelists. He described four categories of lessons to be learned from Woburn: ethics, politics, science, and psychology.(128) The ethics lesson was a reprise of the well known point that choosing one's clients is as much of an ethical issue as deciding how to conduct a representation, and that, everything else being equal, one ought to choose clients who are completely (or perhaps mostly) in the right.(129) The political significance of Woburn lay in the fact that it was the first major effort by toxic torts plaintiffs to litigate, rather than settle a lawsuit based on complicated scientific evidence, against well financed corporate defendants.(130) He agreed with AR that the outcome of the case was the high water mark in plaintiff's success stories for such litigation to date. The science lesson in Woburn was about the nature of "uncertainty" in law and science.(131) This was the most interesting of RS's four points, and probably the impetus for the discussion set out below. Since I reproduce this discussion verbatim, I will not summarize RS's point here. RS's final lesson, about the psychology of Woburn, was a provocative defense of the right, even the need, for plaintiffs' lawyers to take control of complicated and messy cases such as Woburn away from their clients when all of the parties do not agree on either optimal outcome, or preferred strategy.(132) This claim appeared designed to respond to a member of the earlier client panel, who had criticized the plaintiffs' lawyers for not taking the principle of client control more seriously.
The third and final speaker ("BB"), was the only member of the lawyers' panel who customarily represented defendants, and who, except for reading the Civil Action book, had no connection with the Woburn case. Understandably, his views on what could be learned from the litigation were different from those of his co-panelists. He started with a series of small, discontinuous, practical points about strategic choices involved in tort representation generally, elaborating on each for a paragraph or two, without developing any in great detail.(133) Many of these points had the potential to be controversial, particularly those describing the way in which the legal system "distorts" stories by translating them into legal terminology and legal categories, but BB's cryptic treatment of the points gave a listener very little with which to contend.(134) Like RS, BB also raised the uncertainty issue, asking at one point, "How much certainty should the law require?" but unlike RS, he did not offer an answer to the question, or suggest ways in which one could go about arriving at an answer.(135) He was the last of the panelists to speak.
Almost immediately upon the conclusion of the panelists' remarks a scientist in the audience asked what appeared to be a heartfelt and sympathetic question about the legal system's stance toward uncertainty.(136) This question provoked a somewhat remarkable set of responses from the lawyer-panelists, and those responses are set out verbatim below.(137) This exchange between the audience member and the lawyer-panelists provides an extended look into the way lawyers explain themselves, and the legal system, to a scientist confused about the law's response to a problem central to both disciplines.(138)
Since the scientist's question was probably provoked, or at least encouraged, by the comments about uncertainty RS made during his panel presentation, I will begin with those comments.(139) Then, I will set out the scientist's question, followed by the panelists' responses.(140) Finally, I will discuss the comments of another member of the audience, also a scientist and on the next panel, made during the course of the discussion of uncertainty.(141) Though the entire exchange is quite long, lasting almost fifteen minutes at the conference, I will reproduce it in its entirety, analyzing it as I go. I do this because it is difficult to understand any single subset of the discussion without being aware of all that was said.
About halfway through his panel presentation, RS made the following statement about the relationship between legal and scientific proof, and the role of certainty in each.(142)
RS:
(01) ... Now there's obviously an enormous difference (02) between legal and scientific proof. Right. I think (03) that goes without saying. And there's been an ongoing (04) debate about how much proof is necessary. I'm not going (05) to argue that point to you, only to point out that there (06) are significant differences. I think the major (07) philosophical thing I want to point out to you, though, (08) is this: that the notion that legal and scientific proof (09) are very different ... and this is something DO [a (10) scientist on the next panel] ... is in and of itself (11) based on a misconception that I think almost everybody (12) shares. And that misconception is that science provides (13) a kind of scientific or accounting certainty that really (14) it doesn't provide. That people would like to believe, (15) doctors would like to believe, scientists would like to (16) believe, and the rest of us would believe that science (17) involves certainty. Now, how do we know this is not (18) true? I think most people believe that the two (19) great leading ... among the two great scientific minds (20) in our time are Stephen Hawking and probably Doctor (21) Feynman. Stephen Hawking said in the introduction to (22) his book that all physicists of any knowledge at all (23) believe that there are two principles that govern (24) twentieth-century physics. The first are the principles (25) of large forces, general relativity and gravity, and the (26) other set of principles are those of quantum mechanics, (27) small particles, and how they interact. And then (28) Hawking goes on to say that every physicist, after (29) recognizing it, also recognizes that these two theories (30) are inherently inconsistent, and that one of them is (31) wrong. Now that's sort of a shocking comment because (32) it's so inconsistent with what most of us think of (33) science. Science tells us how things are done, and we (34) really know the answers. Now these points are important (35) because in the legal question of how much certainty is (36) needed, there tends to be a belief that, oh, if it's not (37) written right there, that it's been proven somebody's (38) found it, then it's not scientifically proven. Now (39) what's wrong with that thinking? What's wrong with the (40) idea that science is really more certain? Well, the (41) answer is that when you go to the doctor, those of you (42) that go to the doctor every day, many of the things that (43) the doctor does are not scientifically proven. There's (44) limited information about the effect of the drug, (45) limited information about you, and limited information (46) about how it might or might not work, and judgments are (47) made. There's no proof as to what'll happen. Some (48) doctors will tell you that the medical method that's (49) most used is like this: the patient comes in on the (50) first day and says that they have a condition. The (51) doctor's never seen it before, and the doctor looks very (52) serious, and says hmm, this is a very unusual condition, (53) aah, have you ever had it before? The patient says, (54) "Yes I did. When I had it the doctor told me to do X, (55) Y, and Z." And the doctor says, "Well, if it worked (56) before it would be a very good principle to try that (57) again. It's not known to hurt anybody and why don't you (58) do that." And of course the next time the patient comes (59) in with this problem the doctor says, "Well, that's a (60) fairly rare condition, it's not written about much in (61) the articles, but in the past if you do X, Y, and Z, (62) it's been shown to have some positive effect." And by (63) the third time, of course, it's a well known condition. (64) O.K. How does this kind of uncertainty play in toxic (65) cases? [RS then shifts to a discussion of the difficulties in using epidemiological evidence to prove cancer.](143)
RS says a number of things here that could cause a listener to wonder about the depth of his understanding of science, or the precision with which he uses language. In fact, concerns of this sort may have been the principal reason for the discussion that followed the panel presentations. RS starts out by seeming to contradict himself. He asserts both that the differences between legal and scientific proof are "obvious," and "enormous,"(144) and that this view is "based on a misconception."(145) The misconception, as it turns out, does not have anything to do with the relationship between legal and scientific proof, but with the fact, as RS understands it, that "almost everybody," (everyone other than RS?) believes that "science provides a kind of scientific or accounting certainty."(146) This lack of connection between the two parts of RS's statement could confuse a listener, but even if not, RS's statement is a needlessly confusing way to put what is probably not a very controversial point. More importantly, there is a kind of arrogance in the way he states his point that could antagonize as well. Many first rate minds have thought about the relationship between legal and scientific proof over the years, and there is not much likelihood that RS has discovered something these thinkers have missed. Claims to having a lock on the one, true understanding of any subject do not have a good track record--they tend to be made more by mystics and charlatans than by geniuses--and in making such a claim, RS runs the risk of having his listeners think either that he cannot be taken literally, or that he is a little megalomaniacal. This loaded use of language continues in RS's description of the misconception point--that science provides "accounting" [i.e., mathematical] certainty.(147) "Science" is a somewhat unspecific category as discussed here. For RS's purposes, there is not so much something called science as there are subject-matter fields of science, many of which differ from one another as much as science generally differs from law.(148) In some of these fields, facts are sometimes known with what might legitimately be called certainty, at least in the ordinary language sense of that term, even though such conclusions may be no more than probability predictions with a very high likelihood of being true.(149) RS's casualness about such distinctions may have served as a kind of warning to members of the audience about difficulties to come.
Next, RS gets to the heart of his complaint by accusing scientists of indulging in a kind of willful self-deception, of believing "that science involves certainty" when it does not.(150) It is not clear why he thinks this is true, and he fails to explain his reasons. However, this is a fairly serious charge, not that far removed from accusing scientists of being dishonest, at least with themselves, or perhaps even being manipulative in encouraging, or not dissuading, others from believing what scientists know to be false. RS may not have intended to make such an accusation, but it is a reasonable interpretation of his comments, and from my conversations with conference participants, some listeners gave the comments this interpretation. RS's proof for this claim(151), seems to consist of a paraphrase of Stephen Hawking's description of the well known problem of reconciling general relativity and quantum mechanics,(152) and an anecdote about medical diagnostic technique. His reference to Hawking seems more for the authority value of Hawking's name than for the substance of what Hawking said, which is not described in any detail.(153) Even more so with the reference to Richard Feynman, who is mentioned only by name.(154)
It does not follow from the fact that there is no grand unified theory in physics, for example, that all science-based predictions are indeterminate. Many fields are not affected strongly by the lack of a grand unified theory.(155) It also does not follow that either relativity or quantum mechanics must be "wrong," as RS says, in some robust sense of that term.(156) Fine tuning of one or the other theory may be all that is needed. It is not clear why RS would want to get into this issue in the first place. He may not intend his words to be taken literally, but think what a strange thing it is for a member of a profession whose stock in trade is language, not to want to have his words taken literally, especially when speaking with other professionals not trained in law.
RS's basic point seems to be that knowledge in science is based on interpretive judgments about patterns and associations in data, just like knowledge in other fields of study. Such a conclusion suggests that science does not have some sort of special or unique access to a world of absolute truth.(157) This is not a startling conclusion, of course, and it is one that the scientists in the audience would agree with. In fact, several of the scientists said something similar many times over during the course of the proceedings. The difficulty with RS's point then, is not in what it says but in the way in which it is said. RS seems to see himself as debunking science, puncturing an over-inflated balloon and bringing it down to earth. But his principal evidence to illustrate that scientists are just like the rest of us is a joke. That is he tells an extended story about a doctor who, when he or she is unable to diagnose a patient's condition, appropriates the patient's self-diagnosis as her or his own (not really, since another doctor suggested the idea to the patient),(158) and then reifies it as a diagnostic category.(159) The doctor is presented as somewhat of a phony, passing off a home remedy as expert insight,(160) either oblivious to what he or she is doing, or not concerned about it. If the doctor is seen as a proxy for scientists generally, as RS seems to intend, the criticism is then made global. RS tweaks science's nose in a sense, saying "Ahah, caught you. You don't know any more than the rest of us, and don't pretend that you do." The irony in this, if that is what RS is doing, is that science is faulted for failing to meet expectations that are never explained as anything more than popular (mis)conceptions of what science does. Science is hoisted on RS's non-scientific petard.(161)
Why RS would frame the issue of uncertainty in terms of an almost rhetorical question,(162) is hard to understand. If one wants to establish credibility with an audience of scientists, taking up rhetorical questions and depicting scientific inquiry in cardboard cutout terms seems the wrong way to proceed. It could be expected to provoke a defensive or dismissive reaction more than a sympathetic or interested one. RS's statement looks a little like the advocacy stratagem of overstating a point to provoke a "How can you say that?" type of question from a listener (usually a judge), which one is then prepared to answer with a string of pre-planned and more measured arguments.(163) But why RS would want to persuade scientists of his take on their work, rather than learn their views of what they do, or why he would think of his conference presentation as analogous to a courtroom argument, is difficult to discern.
RS's comments are also notable for what they omit. He does not seem curious about what the scientists in the audience can tell him about uncertainty, or qualify the expression of what, on his own terms, is a controversial view. Nor does he express doubt, hesitation, or humility in analyzing a complicated subject outside his area of expertise. If, as it seems, he compensates for his lack of substantive command by putting things in stronger than warranted language, he risks reinforcing a common stereotype among scientists and others about law and lawyers, that in law it is how one argues and not what one argues that counts. Yet RS seems unaware of this risk, or the extent to which his manner of speaking could trigger it. His comments could lead the scientists in the audience to conclude that there is not much to be gained from an extended discussion with him,(164) about the intersection of law and science. However, that does not happen. At the close of the panel presentations, and after an unrelated question to AR about his use of the term "judgment,"(165) a scientist member of the audience asked the following question which led to a discussion that took the remainder of the question and answer period.
Sci:
(01) I am from the staff of a scientific association, and I'd (02) like to discuss one of the things that our members, or (03) some of our members, think about and talk about, and I (04) think are truly somewhat troubled about philosophically, (05) and I'll let any of the panelists address it. And that (06) is the issue of uncertainty in science. RS is (07) absolutely right. Science is a constantly growing (08) process, and the information we have tomorrow, next (09) week, or next decade may make us realize that what we (10) knew yesterday, last week, or ten years ago was wrong. (11) Or, it confirms us even further in our belief that what (12) we thought or said at the time, indeed, we even have (13) stronger evidence for it today. Scientists are very (14) comfortable with this uncertainty. It's one of the (15) things that makes science exciting actually, that (16) there's always a new discovery, or else it would be (17) fairly boring. But it is a problem when we get into (18) a courtroom where a decision can't wait ten years. A (19) decision has to be made now. And we're somewhat puzzled (20) about the philosophy of how you deal with this (21) uncertainty. After all, I think, there seems to be some (22) general agreement about the case that we're discussing (23) today, that these companies and some of these chemicals (24) they used, they disposed of them in an irresponsible (25) way. They got into the water system, they contaminated (26) it. There's less certainty about whether those (27) substances cause leukemia. Indeed, many very (28) distinguished scientists, as I read the book, think it (29) does not cause leukemia [here, RS tries briefly to (30) interrupt, saying "let me give you some comments ...," (31) but the questioner continues on, speaking over him], (32) and in ten years we may find that there was, indeed, (33) something going on in that city, but it's something we (34) haven't dreamed of yet. For example, ten years ago we (35) did not dream that women got breast cancer, not because (36) of something they ate, or bad luck, but because of a (37) gene that they inherited from their mother, or father, (38) they were fated to have that. How do you wrestle with (39) this, and I ... I ... I, this uncertainty. I'd just (40) like you to comment on it.(166)
One of the first things one notices about this statement is that it asks a genuine question. It does not criticize the panelists' views on uncertainty, contest a lawyer's right to speak about uncertainty in science, or try to sneak in an unflattering comparison of law with science, sub silentio,(167) under the guise of asking a question.(168) Some issues remain unclear. For instance, does the speaker want to know how lawyers and judges reach their conclusions when they are in doubt, how they control the emotional dissonance having to make such decisions, how the legal system justifies decisions made on the basis of less than full information, what mechanisms the system has for correcting error once discovered, or all of the above. Nonetheless, one issue is clear: The speaker is curious, not combative. While she is puzzled about the legal community's response to the uncertainty problem, she is not critical of it, at least not publicly, and not yet.(169)
The questioner also understands that law is different from science, that "a [legal] decision can't wait ten years," and that courts must act even when they are not clear about what to do.(170) Because of this, she suggests, ever so slightly, that science may have an easier time accommodating uncertainty than law.(171) Scientists are not tied to external timetables and can wait ten years to announce their results if need be.(172) More importantly, though, scientists are energized by uncertainty. Uncertainty makes new discoveries possible, and new discoveries make science "exciting," prevent it from becoming "boring," and keep it "constantly growing."(173) Scientists are not bothered by uncertainty, they are "comfortable" with it, because it is an essential part of their work.(174) The situation may not be the same in law, but rather than pre-judge, the speaker asks, in effect, "Is this so?"(175) Her inquiry is fair-minded and generous. It is framed in open-ended terms, thereby leaving the panelists free to select and respond to those aspects of the question about which they have most to say.(176) The panelists should be grateful for so friendly a question, and run with it.
RS was the first panelist to respond.
RS:
(66) Let me try to give you two quick ones. I can tell you (67) that I think the problems with uncertainty are based on (68) two kinds of misconceptions. One, BB alluded to very (69) correctly [in his panel presentation], when he said (70) lawyers, when they do legal scientific research, like to (71) look up legal cases, like the law determined that (72) Bendectin didn't cause this, or asbestos cause that, and (73) so the law has this kind of pretending certainty. So (74) for instance, the best example for those of you who (75) aren't practicing is, in every state there is a (76) formulation that goes something like "to a reasonable (77) degree of medical certainty, do you think ..." And (78) every doctor that I've ever known says, "aaaahh ... (79) they didn't teach me that in medical school, what does (80) that mean?" And most lawyers will tell you that the (81) answer is, "well ... just think like a doctor and, say (82) if you were making a decision as a doctor, don't put on (83) any other hat, what's your best opinion, what's your (84) best guess as a doctor, what would you do?" Because as I (85) indicated in my talk, the doctors many times don't make (86) purely decisions based on science. So one problem is (87) that the lawyers have problems with this idea of (88) certainty, they want to think that there's a higher (89) degree of certainty. Now the other problem is that the (90) scientists ... I want to take issue with what you [the (91) questioner] said. I don't think scientists ... (92) they're split about uncertainty. Now let me tell you (93) how they're split. Scientists, when the doors close, (94) all recognize the uncertainty that you recognize. But (95) publicly, they like to take the position that there is a (96) higher degree of certainty [BB, another lawyer panelist, (97) interrupts here to add, "and especially in the (98) courtroom, which is another way this information gets (99) distorted when it gets into court"]. Doctors like to (100) pretend that everything they do is scientific. They (101) like to pretend that they understand statistics when (102) most doctors don't have a clue about statistics, and (103) what the various concepts mean. So the problem is that (104) the scientists are kind of split as to how they feel (105) about certainty. Now that further reproduces itself in (106) the philosophy of science where there's sort of a big (107) split. When you look at the philosophy of science (108) there's two sorts of major trends, the majority (109) twentieth century trend which says that science is (110) somewhat subjective, you know, and not reproducible. (111) That's right. You frown [directed at the audience (112) questioner], because Karl Popper, in the philosophy (113) field, the philosophers think that Karl Popper and the (114) reproducibility theory is kind of a joke. The problem is (115) that the idea appeals very much to scientists because it (116) makes it sound like what they do is certain, and they (117) cling to Karl Popper's notion that science is this kind (118) of absolute certainty, and you can prove it. Whereas (119) the philosophers don't. So if you go into the (120) philosophy of science department in any school you will (121) say, the people who believe in uncertainty would be (122) people who are primarily philosophers, and the people (123) who believe more in certainty will be primarily (124) scientists, and my view is that it's not because (125) scientists really produce certainty, but because it's a (126) more flattering view of what science is, and it's more (127) appealing to them.(177)
There is enough in RS's response to provoke almost everyone, but perhaps the best place to begin is with what the response does not do. For all that he says, and it is considerable, RS never answers the audience member's question. Rather than describe how judges and lawyers decide what to do when they are uncertain, explain how legal decisions based on incomplete or inaccurate information could still be legitimate, or respond to some other such interpretation of the speaker's question, RS uses the occasion of the question to elaborate on his earlier description of the misconception of certainty problem in science.(178) Either he is preoccupied with the belief that scientists pretend to know more than they do, or he thinks that the speaker somehow has defended this practice in her question.
RS begins by criticizing lawyers for having a "kind of pretending certainty," when making legal claims about scientific matters, but never says what he means by that interesting, though far from self-evident, phrase.(179) Do lawyers engage in conscious pretense, or are they fooled themselves? Do they have legitimate reasons to pretend, or is pretending a self-aggrandizing move? Is everyone in the legal system in on the pretense, or just judges (or lawyers)? In what forum is the pretense most commonly expressed, judicial decisions, conversations with clients, witness testimony, arguments to courts, bar association speeches, all of the above, or what? RS's principal example of "pretending certainty," taken from the law of evidence, is the "reasonable degree of medical (scientific) certainty" standard which governs the presentation of expert testimony to courts.(180) It is not clear, however, how this standard supports a claim about legal pretense.(181) The "degree of certainty" expression is admittedly borderline oxymoronic. There are not degrees of certainty; something is either certain or uncertain. On the other hand, there are degrees of probability, which is what law and RS no doubt have in mind.(182) It is also a little vague with respect to the issue of whose understanding of reasonableness controls. Yet a vague, oxymoronic expression, by itself, is not evidence of pretense, principally because it does not communicate any single clear meaning, pretended or otherwise. RS's attempts to clarify the expression through a series of paraphrases, "think like a doctor," give "your best opinion," or "your best guess," say "what would you do," not only do not resolve the vagueness problem, they add to it.(183)
In the second and more extensive part of his comments, RS leaves law behind and takes on scientists. Here, he is not just confusing, he is combative. As before, RS seems set on making a pre-planned point rather than responding to what was asked. His main point is that scientists are dishonest with respect to the issue of uncertainty. In private, "when the doors close," scientists admit that their work is filled with uncertainty, but when they go public, so to speak, all doubt is gone.(184) Then, they are as authoritarian and as dogmatic as anyone.(185) RS describes this point as taking issue with the speaker, but it is hard to see how. The speaker asked a question about uncertainty in law, and to the extent that she said anything about uncertainty in science, it was only to say that uncertainty is what makes science exciting. RS may hear her question as a defense of scientific deception, but if so, it is hard to see how that is a result of anything she said. RS seems primed to argue more than to respond, and the questioner appears simply to be in the wrong place at the wrong time. She has become RS's proxy for his beliefs about scientists.
RS's argument against scientists consists of a gratuitous slam that "doctors don't have a clue about statistics;"(186) a personal libel that "philosophers think Karl Popper ... is a kind joke;"(187) some amateur psychologizing that scientists believe in the certainty of science "because it's a more flattering view of what science is;"(188) and a breathless oversimplification of twentieth century philosophy of science as "science is somewhat subjective, you know, not reproducible."(189) It is not surprising that the questioner is somewhat dismayed. It is reasonable to feel at least a little upset when called narcissistic, duplicitous, and the unwitting captive of a philosophically bankrupt view.(190) She also might wonder why RS is trying so hard to re-direct her attention from law to science, why he chooses to challenge her question rather than engage it, why he resorts to gratuitous ridicule and ad hominem attack, why he summarizes a complicated body of scholarship in terms so oversimplified as to be impossible to confront, and why he filibusters by taking four minutes to respond to what had the potential to be the beginning of an extended conversation about the role of uncertainty in law. These patterns will appear time and time again, in one form or another, in most of the excerpts reproduced in this discussion.
BB was the next to respond to the speaker's question. He spoke immediately after RS had finished and before the questioner from the audience was given a chance to respond.
BB:
(01) Scientists, by and large, have not been very reflective (02) about what makes their work scientific, what it is (03) that constitutes scientific validity. Most scientists (04) get into some, I don't want to say narrow specialty, but (05) they get into their field and they sort of develop a (06) sense of what goes on in that field, and they'll (07) look at something and they'll say, "Well, that's valid (08) because that's what we normally do." And then they'll (09) look at something and say it isn't because it's not (10) what we normally do. And they don't really give much (11) thought to the philosophical basis, the logical basis, (12) for what makes something valid or not. So scientists (13) in some ways are the worst people to consult about the (14) philosophy of science. While agreeing with what RS says (15) about there being some intrinsic uncertainty, I think (16) the important point to bear in mind is that philosophers (17) of science, and scientists who have been reflective (18) about this, will tell you that there are some things (19) more certain than others. You know, we don't expect to (20) wake up tomorrow and find that the world is flat. Are (21) we absolutely certain that the earth is a globe, a sort (22) of a pear-shaped globe? Well, yeah, we're pretty darn (23) certain about that. Are we pretty certain that the (24) earth revolves around the sun and not vice versa, as (25) people used to think? Yeah, we're pretty darn certain (26) about that. Are we absolutely certain? No, because (27) nothing in science is absolutely certain. But there are (28) certainly degrees of certainty, and what we ought to (29) require of scientific evidence is that it be certain (30) enough for the legal policy purposes at issue in a case.(191)
BB also fails to answer the speaker's question about the role of uncertainty in law, and in his own way, continues RS's assault on science. He makes three points: (1)because scientists are not very reflective about what they do "[they] are the worst people to consult" about "scientific validity"; (2)there are degrees of certainty in science, with some scientific conclusions being more certain than others; and (3)the legal system does not demand proof of absolute certainty from scientific evidence, just proof that is "certain enough."(192) Each of these points could cause the scientists in the audience to doubt BB's responsiveness, his willingness or perhaps ability to confront the difficult question about uncertainty in law and his understanding of science.
BB's first point, a criticism of scientists as expert witnesses, has two parts. The first says that most scientists are not self-conscious about how they do science, that they do not think about the "logical" or "philosophical basis" of science, as BB puts it.(193) This is a fairly feisty way to put what, in fact, may not be a very telling point, even if true. In one sense, all professionals are not routinely self-conscious about the philosophical basis of their work.(194) On the contrary, such self-consciousness may even be a necessary condition for good performance, even for lawyers. Take, for example, the lawyer-panelists' comments in the excerpts reproduced here. If these remarks are representative, and there is no reason to believe they are not, lawyers turn out to be not very good people to consult about the role of uncertainty in law.(195) For example, while RS, BB, and AR may be fine lawyers overall, among the best nationally in their fields, throughout this discussion they never explain how law makes its peace with uncertainty in the legal decision process. They discuss uncertainty generally, and its role in science, but they never do the same for uncertainty in law, even after being asked. It is not likely that they lack interest in the topic or are unwilling to discuss it. They committed to such a discussion implicitly when they agreed to participate in the conference and professed their interest in the topic many times over during the course of the proceedings. Like the scientists they criticize, however, these lawyer-panelists may be so socialized into their professional practice that it is difficult, if not impossible, for them to step outside of that practice and describe it in terms that someone not so immersed can understand. The problem may not be with scientists or lawyers per se, but with the way professionals are trained to think about and operate in a professional role. If BB does not see the problem in these more general terms, there is some question about whether he can help analyze and resolve it.
BB's second point is his logical leap from the idea that scientists are not self-conscious about their work, to the conclusion that they are "the worst" people to consult on issues of scientific validity.(196) Scientists form opinions on the validity of work, he asserts, based on whether the work looks like "what [scientists] normally do."(197) Nevertheless, he continues, they cannot give any more than a "take my word for it" kind of reason when asked to explain why the conclusions they reach are credible.(198) This leaves courts with the unsatisfying choice of either delegating scientific fact-finding to scientists, or rejecting testimony which may be true. Like many of the panelist responses during the question and answer session, there is a grain of truth in what BB says. Unfortunately, the problem of getting scientists to explain conclusions in sufficient detail may have as much to do with the way scientists are questioned about validity judgments as it does with the way they make those judgments in the first instance.
Scientists are not a special case when it comes to explaining expert judgment. Most experts are not self-conscious about the way in which they work, largely because thinking about how one performs complicated work while simultaneously performing it, slows work to a crawl and often makes it less productive. A homely but easily understood example will illustrate this idea. A golf swing is made up of many individual pieces, requiring the sequenced coordination of different parts of the body.(199) Yet, for a swing to be successful it must be understood as a single, simple movement. The individual parts are practiced separately as the swing is learned, but gradually they blend into one connected, cohesive movement as the swing is put together and made automatic over time. Once the swing is mastered, a golfer is no longer conscious of its individual parts each time he or she swings a club. This does not mean that a golfer cannot explain the swing if questioned about it. Yet, it does mean that unless a questioner knows something about how a golf swing is constructed, and is able to go more than half-way in drawing the golfer out, the golfer's description will likely be too cryptic for some listeners to understand and will strike others as gibberish. It should not be surprising, then, that the same thing would be true about the more complicated phenomenon of scientists explaining science. Getting experts to understand and explain the tacit knowledge on which their judgments are based is a difficult task, for which no simple solution exists. It does seem clear, though, that asking someone who is not an expert to explain the judgment process does not move us closer to a solution. Who but someone who has actually done science could know fully what is involved in the process when it is done well?(200) Suggesting that scientists are not good people to ask about science, without more, strikes most scientists as a strange thing to say.
BB's third point, that there are degrees of certainty in science, that nothing is "absolutely certain,"(201) is no doubt correct if one defines certainty to mean some probability of being true. A probability of anything can be strong or weak. While this is different from the meaning given the term "certain" in ordinary language--usually "inevitable," "not to be doubted," "fixed," or "definite,"(202)--it is not different enough to be worth quibbling about.(203) BB's use of flat world and geocentric orbit examples may be another matter.(204) The simplemindedness of these examples may be a little insulting given the sophistication of the audience and may cause some of his listeners to wonder how deep his knowledge of science truly runs. BB sounds a little like a non-lawyer trying to demonstrate a command of First Amendment doctrine by saying that there is no constitutional right to shout fire in a crowded theater.(205) The point is true enough if properly understood, but someone truly knowledgeable in First Amendment doctrines would likely not use such a hackneyed illustration. These problems notwithstanding, this is the least controversial of BB's three points.
BB's attempt to clarify the reasonable degree of certainty standard for scientific testimony is another matter. The reasonable certainty standard, as we have seen,(206) is frustrating to scientists and doctors. It is not something they study in graduate or medical school, and as an ordinary language expression, it is difficult to parse. BB attempts to solve these problems by paraphrasing the standard, presumably to put it in clearer language. Evidence is reasonably certain, he says, when it is "certain enough for the legal policy purposes at issue in a case."(207) However, this paraphrase does not seem to improve much upon the original articulation of the standard, and it may make it worse. For example, how much evidence is enough? What are legal policy purposes? When is something certain enough? These questions may have precise answers to BB (and other lawyers who work in the field), because he has read dozens of cases (or more) applying the standard, and has seen what quantities and kinds of evidence courts accept as adequate. He can describe a spectrum of expert scientific testimony and say where on that spectrum any present testimony would fit. Yet, this paraphrase, and others like it, is insider shorthand, and like all such shorthand, it is unintelligible to those who are not insiders no matter how expert or sophisticated they otherwise might be. To say that testimony must be certain enough is another way of saying "certain" according to the judgment of an expert lawyer working in the field, but that is just what scientists are not.
While only half as long as RS's comments, and expressed in more temperate language, BB's remarks have many of the same qualities. Like RS, he fails to answer the speaker's question, criticizes science rather than explains law, discusses science in overdrawn and slightly caricatured terms, and speaks with confidence and assurance where tentativeness and qualification would have been more appropriate.(208) He looks more like a person preaching to the choir than someone carrying on a conversation with critics. He gives no indication that he understands the truly different perspective of his scientist questioner, and makes no effort to enter into her world.
When BB finished, AR responded, speaking over RS who had begun to make additional comments, again before the questioner from the audience was given a chance to speak.
AR:
(01) I'd like to add one more thing on this question. First (02) of all, first, the person who asked the question is in a (03) position where getting the answer right, I think, is (04) really important because you [to the person who asked (05) the question] work in this area. You've got a project (06) that's involved in this subject, and I am concerned that (07) the question that you asked, I think, reflects a (08) misunderstanding of the intersection between law and (09) science in the courtroom, and it's I think really (10) important, particularly for the project you're (11) working on [At this point another member of the (12) audience, who was also a scientist and a participant on (13) the next panel, rose to ask a question. He began by (14) saying "If I may ...," but AR continued to speak over (15) him.], and let me say what I think that is. In the (16) courtroom the goal is to find out what happened in a (17) particular event. The role of the scientist is to come (18) and offer an opinion. The role of the jury or the judge (19) is not to decide i[f] the scientist, on a scientific (20) basis, [is] right or wrong. That would require us to do (21) something that only scientists could do. Their job is (22) to decide whether or not the scientist's expression of (23) that opinion is credible or not credible. If it's (24) credible, they accept it. If it's not credible, they (25) don't. Now the scientist who comes to the courtroom (26) comes with the varying degrees of certainty that BB (27) talked about. Is the world flat or is the world round? (28) There's a lot more certainty to that than the question, (29) does trichlorethylene cause leukemia? But in my (30) judgment, both of those reach 51%, both of those are at (31) that level, and I've got an expert here in the room who (32) can testify to that. And that expert is going to go up (33) against another expert who's going to say, "Yes, I think (34) it's certain that the world is round and not flat, but I (35) don't think that it's 51% likely, and they're going to (36) point to various scientific evidence to support it. The (37) only criteria that the law lays down for those (38) scientists is that when they make their judgment, and (39) that's what it is, a judgment, that they do it using a (40) scientific methodology. You can't say "I had a dream (41) that trichlorethylene causes leukemia, and that's the (42) basis for my opinion." You can't say "I think the world (43) is round because I had a dream." You have to have some (44) scientific evidence. You have to marshal it in a (45) scientific way. You have to use the scientific (46) methodology. But in the last analysis it's judgment. (47) All the court is doing is providing a forum for (48) scientifically reliable and methodologically sound (49) judgments to be expressed. That's it. They let the (50) decision-maker decide. And if you're frustrated because (51) sometimes the jury may conclude that the credible (52) scientist is the one whose position is actually wrong, (53) ask yourself this question: "How many auto accident (54) cases are decided on the basis of whether or not the (55) light was red or green, and an eyewitness says it was (56) red, and it was actually green?" It happens all the (57) time. It's inherent in the nature of the process. (58) People view something and they see it wrong. We (59) shouldn't be more upset because a scientist may be wrong (60) in testifying to it and a jury believes him. Scientists (61) have been testifying in courts and they've been wrong a (62) lot.(209)
AR responds differently from the first two panelists. He does not criticize science directly, challenge the accuracy of the questioner's preconceptions, or question Sci's capacity for self-reflection, at least not explicitly. Instead, he tries to answer the audience member's question about uncertainty in law by explaining how legal decision making is different from doing science. In the end, however, AR he does not appear to be any more helpful than his more overtly adversarial colleagues. His remarks are confusing on key points and perhaps a little condescending. They signal that he might not be completely trustworthy, deprecate the importance of the uncertainty issue itself, and in the end may also beg the question.
AR begins by stating that it is important that the questioner "get the answer right," since she is working on a "project that's involved in this subject."(210) This is a confusing thing to say. He may be speaking indirectly to RS and BB, suggesting that they have not gotten the answer right and that he, AR, will correct what they have said. If so, RS and BB might legitimately take offense at this. Alternatively, he may be speaking directly to the questioner, saying that it is important that she get the answer right, but why he would think she needed to be reminded of this is not at all clear. For example, when would one not try to get the answer right? The questioner may also have thought it a little ironic that a lawyer would lecture a scientist on the importance of accuracy, given the subject of the discussion, and see AR's response as just another, albeit more sophisticated, example of how lawyers attack when they are confronted.
AR next characterizes the speaker's question as based on a "misunderstanding," though he does not identify what the speaker has misunderstood.(211) The questioner asked only that the panelists discuss the role of uncertainty in law, without expressing or even suggesting a view about how law should accommodate uncertainty. To correct the speaker's alleged misunderstanding, however, AR explains the nature of the courtroom process. The overall goal "in the courtroom," he says, is to "find out what happened in a particular event."(212) Scientists offer "opinions" toward that end, judges and juries decide whether the scientists' opinions are "credible," and courts "accept" the opinions when they are "credible."(213) Yet, this description could raise more questions in the audience member's mind than it answers.
For example, why does the legal system submit the analysis of experts to non-experts for review and evaluation? This confuses many scientists because to them it does not make much sense. How could a person judge the accuracy of something he or she did not understand? Scientists try to find out what happened as much as judges, yet they do not authorize someone who knows nothing about science to approve or reject their conclusions. If scientific inquiry is scientific inquiry, whoever does it, why does law use such an unscientific method? Second, how does a court determine when a scientist's opinion is credible? Is it whenever the opinion is sincerely held? If so, why would a court care about sincerity? What does sincerity have to do with accuracy? Or is it whenever the opinion is worthy of being believed? If so, how does a court tell when an opinion is worth believing without first determining if it is correct, something AR claims only scientists can do.(214) Finally, what does it mean to say that a court accepts a scientist's opinion as credible? Does the court conduct an independent investigation by engaging in science itself so to speak, before passing judgment on the opinion, or does it simply ratify the opinion, delegating the fact-finding task to the scientist in the process?(215) To the extent that there is a misunderstanding present, it seems to be more AR's than the questioner's.
AR then describes the task of credibility assessment in more detail. Experts testify for and against particular scientific conclusions, he says, based on judgments they make about relevant evidence, and such testimony is credible to the extent it is based on reliable scientific methodology.(216) AR is not explicit about what makes a methodology scientifically reliable, but he does offer some indirect hints. For example, science must be based on real data. A scientist cannot say "I had a dream ... and that's the basis for my opinion."(217) While no one would dispute this, the risk in this illustration is that it encourages scientists to think that courts treat all scientific testimony as credible as long as it is based on some sort of data and that the only thing a scientist cannot do in court is make up evidence. This reinforces the widespread concern among scientists that courts do not distinguish between good and bad science, that all they do is distinguish between blatantly incompetent hacks and the rest of the pack. On this view, legal decision-making about science is seen as a kind of a black box process in which all but the most blatant errors go unnoticed and uncorrected.
AR also explains the process of assessing credibility in terms of the burden of persuasion. While there are degrees of certainty, he says, repeating BB's flat world example, a 51% chance of something being true is enough for a court to conclude that testimony is credible.(218) Presumably, this is intended to describe the minimally acceptable case under a preponderance of the evidence standard, but if the questioner (and scientists in the audience generally), does not already understand this standard, which seems to be the case, AR's statement raises additional concerns. For example, how does the legal system determine whether the probability of something being true can be measured to within one or two percentage points? Why is a fifty-one percent chance of something being true strong enough? Does AR mean to suggest that the evidence for the world being round is as convincing as the evidence for trichlorethylene causing leukemia, or that he might be able to convince a court of that conclusion, or what's worse, would try?(219) If yes, is anything else he says believable? If no, does he unwittingly demonstrate how lawyers argue almost automatically for debatable, self-interested propositions by equating them with basic truths? Finally, is AR saying that he could get an expert to testify that there was not a 51% chance of the world being round?(220) If so, is this insulting? Does it reinforce the widely held stereotype that lawyers do not respect scientists or scientific findings, because they believe scientists will testify to anything as long as they are paid well enough?
These are questions about how the legal system, through lawyers, investigates scientific facts and ascertains scientific truths. Such questions ask for justification or explanation, not more elaborate description, of how the legal system works. Unfortunately, AR offers only the latter. In the end, he takes the legal world view as a given, and conducts his part of the conversation as if the questioner and everyone else in the audience accepted the intellectual premises underlying that view. He needs to explain why credibility is enough of a standard for accepting scientific testimony as true and not merely describe how the credibility of particular statements is established. The questioner is a scientist, not a lawyer. She comes to the topic from a different perspective, accustomed to using different methodologies, pursuing different intellectual goals, and holding herself to different analytical standards. She does not begin committed to the legal world view, and this is one of the strengths she brings to the conversation. To tacitly demand that she carry on the conversation as if she were a lawyer, accepting what lawyers accept, is to destroy the very possibility of inter-disciplinary learning.
AR's last point is a kind of "everyone does it" justification for not being concerned about the risk of error in legal fact-finding. Non-scientist witnesses routinely make factual mistakes in testifying, getting the color of the traffic lights wrong and making other similar mistakes.(221) AR asserts that "[i]t happens all the time."(222) Cases are regularly decided on the basis of such errors and nothing can be done about it. Error is "inherent in the nature of the process.... We shouldn't be more upset because a scientist may be wrong ...,"(223) and he adds, "[s]cientists ... have been wrong a lot."(224) To take the last point first, it is not clear how AR knows that scientists have been wrong a lot. Determining whether science is right or wrong, by AR's own admission, is not something judges and juries can do. They simply decide whether testimony is credible, whether it is arrived at through the use of reliable scientific methods.(225) If only scientists can tell whether science is right or wrong,(226) and AR is not a scientist, one wonders how he is able to come to this conclusion.
Conceding that scientists have been "wrong a lot," it is still not clear how the existence of error in non-scientific testimony justifies or excuses error by scientists. With eyewitness accounts, there is often no way to tell whether testimony is accurate. The eyewitness may have been the only one present, there may be no physical evi