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 The Delaney clause (1958) banned the food additives that were reported to cause cancer based on an outdated scientific literature in the 1950s. This decision was only repealed in 1996, many years after the vintage science being debunked (Marchant 2005).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