The class I am helping teach this
semester, Biology and Society, invites scholars dealing with relations
between science and society to give several guest lectures. After a well-received
lecture about the implications of history of embryology on embryonic stem cell
research from Jane Maienschein on Tuesday, today we had Gary Marchant from the
Sandra Day O’Connor College of Law talking about the intersection between law
and science. Designed as an undergraduate lecture, Marchant’s talk gave a
general survey of the legal issues that need scientific contributions to
resolve. What struck me most, however, was his description about the grave
challenge in bringing scientific facts to the consideration of legal
procedures.
In theory, the hiatus between
scientific disciplines and legal arenas should not be too big. As Marchant
pointed out, both science and law “are rational, evidence-based approaches for
making decisions.” In addition, from Aristotle to the Enlightenment, the meanings
of natural law and civil law shared a co-evolution from being taken as given by
God to a mundane status that was seen as more flexible and malleable. In
reality, however, to integrate scientific knowledge to the practice of law can
be problematic. As Marchant summarized, “law is normative, jurisdictional, and
hierarchical, while science is empirical, universal, and somewhat democratic.” One
example about this divide is that although established scientific paradigm can
create inertia sometimes, legal ex ante
regulations write such hegemony into the very rule of the game. The consequence
of the intrinsic inertia of legal regulation can be appalling. The Delaney
clause (1958) banned the food additives that were reported to cause cancer
based on an outdated scientific literature in the 1950s. This decision was only
repealed in 1996, many years after the vintage science being debunked (Marchant 2005).
Even on the surface, the atmosphere
of splendid court dramas diverges significantly from that of careful laboratory
ruminations. Having gone through law school that inculcated a huge set of
argumentative skills, its students only learn to appreciate and absorb those
aspects of evidence that can be readily transformed into well-recognized
preponderance. Marchant recounted his own experience of an 11-month law case about
chemical additives: whenever the real chemists started to testify, most of the
lawyers began to snooze. The “technologically illiterate judges,” on the other
hand, often claim they make judicial decisions primarily based on each expert’s
“demeanor and tone.”
Provided the huge gap between law
and technology, Maienschein’s and Marchant’s pursuits in educating current
federal judges and the next generation of lawyers with scientific knowledge and
understanding are invaluable. However, I wonder whether there is any space to
objectify the legal procedure itself as well. For example, certain mathematical
models that assign different evidence with different weights may be
incorporated into the process of evaluating preponderance, so that the
decisions of judges have a machine calculation-based output as their
references. Can complex algorithms save some flaws of blatant rhetoric? This
may be a naïve thought, and I welcome opinions regarding how bridges between
science and law can be constructed in helpful ways.
Marchant half-jokingly ended his
lecture with a cartoon depicting a party of lawyers quaffing wine with
self-congratulatory postures. The caption reads: “The best thing about the
information age is, we lawyers are still in charge.”
Whoever rules, let's talk.
Marchant, Gary E.
“Law, Science, & Technology,” in Encyclopedia
of Science, Technology, and Ethics, Carl Mitcham ed., Macmillan Reference 2005,
1707-1715
