Science, Technology, and the Law

Peter Huber, Susan Raymond, Rodney W. Nichols, Kenneth Dam, Kenneth R. Foster, George Ehrlich, Debra Miller, Alan Charles Raul, Ronald Bailey, Alex Kozinski
Content Type
Working Paper
New York Academy of Sciences
As science and technology push the edges of understanding, innovation makes the once unimaginable merely quotidian. The flow—the torrent—of change inevitably meets the stock of laws and regulations that structure society. And, often, the legal system and the judiciary must cope with the resulting swirls, eddies, and, at times, whirlpools of ethical controversy and economic and societal choice.
Economics, Government, International Law, Science and Technology
Political Geography
United States, New York, America
Privacy and Electronic Communication Kenneth Dam provides an insightful window into one of the most delicate balancing acts of the information age, resolving the conflicts among electronic communications, privacy, law enforcement, and economic competitiveness. The debate over encryption epitomizes the policy dilemma. How can the right to privacy of communications be reconciled with the need to protect public and national security in ways that will not, additionally, destroy America's global competitiveness in information technology? Dam takes the reader through the odyssey of the U.S. “Clipper Chip” proposal, and examines implications of a centrally mandated and managed cryptography policy for legal rights and for U.S. exports. From the experience, Dam concludes that the crisis of encryption is no chimera. The legitimate interests of law enforcement, individuals, and business do conflict. Dam then notes that this reality prompted the U.S. Congress to mandate the National Research Council to recommend a way out of the policy maze. That report, issued in 1996, reached several conclusions. First, computer and telecommunications security is still undervalued in American society; yet, no one in government is responsible for a government-wide view. Second, the business of law enforcement is to reduce the crime rate, and so the proposed “key escrow” systems for encryption should be tested. Finally, the most important foundation of national security in the future is the strength of the U.S. economy. Hence, export control on software should be liberalized to ensure that the U.S. software industry remains globally strong. But, Dam adds, U.S. domestic actions on issues of electronic security are inadequate. Furthermore, international solutions are critical, because inter-operable communications systems must work internationally if the promise of globalization is to be realized in economic terms. Junk Science and the Legal Process In 1789, George Washington wrote, “The administration of justice is the firmest pillar of government.” But how can this firm pillar flex enough to accommodate the constant gales of knowledge generated by science, the uncertainties inherent in scientific inquiry, and the episodic rushes of shallow claims misleadingly wrapped in the cloak of scientific terminology. In October 1997, the Academy co-sponsored with the Manhattan Institute a symposium on “junk science” to examine how the U.S. system of justice could improve its ability to bring true scientific judgments into the litigation process where matters of product safety and public health reached trial courts. The papers by Huber, Foster, Ehrlich, Miller, Raul, Bailey, and Kozioski examine specific conflicts. Litigation grounded in highly scientific matters has become increasingly frequent in U.S. courts, and often traditional legal procedures are poorly crafted to cope with the complexity. The March 1993 report of the Carnegie Commission on Science, Technology and Government entitled Science and Technology in Judicial Decision Making: Creating Opportunities and Meeting Challenges includes a deep examination of the innovations needed in the court system to adapt to rapidly changing science and technology. Helene Kaplan, of Skadden, Arps, Slate, Meagher Flom, chaired the Task Force on Judicial and Regulatory Decision Making, and discussed the Task Force's findings with the Academy's Science and Technology Policy Forum in April 1993. In its 1997 symposium with the Manhattan Institute, a key focus of attention was the U.S. court system of “expert witnesses” specified by the Federal Rules of Procedure. Peter Huber of the Manhattan Institute begins the series of essays with an overview of the landmark 1993 Supreme Court ruling in Daubert v. Merrell Dow Pharmaceuticals which focused on accusations, and contradictory expert testimony that the anti-nausea drug Bendectin caused birth defects when used by pregnant women. Huber reviews the ways in which “expert” testimony makes its way into U.S. courts, including the standards for finding a witness “expert” and the rules that govern expert testimony. He then reviews the Daubert decision and its implications for ensuring that only the best of science is given the unique privilege of providing expert testimony under the law. Kenneth Foster of the University of Pennsylvania reiterates that the reliability of scientific claims must be judged before public decisions are made, and that, when the venue is the court room, the gatekeeper for the evidence necessary to make such distinctions is the judge. Nevertheless, Foster reminds us that bringing reliable scientific knowledge to bear on legal disputes will always be difficult. Science must consider probabilities, not certainties, while the law must judge each case on clear merits. Science requires a long-term view; litigation takes place in the short-term. Science thrives by questioning facts and testing knowledge over time; the law seeks solutions by confronting immediate controversies and insisting on legal standards of proof for each allegation. In many ways, both science and the law are silent on how their profound differences in perspective should be resolved. Debra Miller addresses the case of olestra, the “fat free fat” around which “junk science” controversy still swirls. Miller examines how, despite lack of scientific evidence that olestra is harmful in any way and despite repeated approvals of the product by the Food and Drug Administration, advocacy-driven claims continue to fuel public anxiety. Miller notes that the continued artificial controversy over olestra is not merely a media exercise in advocacy versus science. Obesity is a major American health problem, and high dietary fat intake contributes highly to obesity. The longer dietary solutions are held hostage to junk science, the higher the public health price. In reviewing allegations surrounding the use of silicone breast implants, George Ehrlich of the University of Pennsylvania also notes the degree to which a lack of evidence of human harm from use of a product like silicone had little if any effect on the popular media, and hence on popular opinion. In the silicone case, although great efforts were involved over long periods of time, the courts ultimately applied standards on the admissibility of only objective science, and, as a result, nearly all cases have been found in favor of the defendant. Alan Charles Raul, an attorney with Sidley Austin, addresses further complexity, and heightened danger, of junk science as it affects regulatory decision-making by government agencies. Such decisions lie in the realm of “administrative law,” an area in which neither juries nor the Federal Rules of Civil Procedure apply. In order for a private plaintiff to prevail against the government on a regulatory matter, Raul points out, the court must be convinced not simply that the agency was wrong, but that its decision was arbitrary and capricious. That permissive tradition gives great leeway to public agencies, and underscores the danger of policy influenced by junk science. The opportunity for recourse in the face of such policy is narrow indeed. The problem, of course, is that public regulation in such areas as public health is often needed long before science has reached a consensus on risks and probabilities. Regulation often cannot wait for science. Raul suggests that deeper judicial review of government regulatory decision-making would encourage agencies to rely on only the best science available and to keep the public decision-making machinery in pace with changing scientific evidence. Responding to a concern expressed by virtually all other authors, Ronald Bailey of New River Media directly assesses the role of the media in providing a platform for the dissemination of junk science. Bailey points out that most journalists are not scientifically literate; they are assigned a wide variety of stories and work under the pressure of deadlines. The tendency is to use a simple template—“good versus evil, he said/she said”—for structuring stories. This results in often simplistic and misleading coverage of complex scientific debates. But fault also rests with public agencies. The press does not tend to second-guess the science of regulators, especially when a public health alarm bell rings. When a public agency's scientific assessments are less than stellar, so will be the initial media accounts. Bailey finds a deeper price in the media-science-litigation triangle, however. Scientists who publicly proffer data to contradict scare stories are then themselves under subpoena by plaintiff lawyers and become part of the legal process. The time and expense involved make scientists less willing to counter junk science in media interviews, and hence reinforce what Bailey sees as the one-sidedness of media coverage. Offering a dissenting view regarding the health of the legal system relative to scientific opinion, Judge Alex Kozinski, United States Circuit Judge in the Ninth Circuit, points out that science itself gives rise to many of the apparent conflicts between the legal system, scientific evidence, and expert testimony. The process by which science confers status to its own profession is outside of the reach of the law. There is no continuing certification process or competency testing in science that enables courts to judge expertise objectively. Furthermore, science itself is often unsure of underlying truths; it is grounded in probabilities, not certainty, the point also cogently emphasized by Huber and Foster. Hence, courts must have the scope to listen to the range of scientific opinion, to leave open the possibility, if you will, that the next expert witness will be Galileo. The current trend to permit expert testimony only about scientific consensus rules out that option. It is the narrowness of that scenario that Judge Kozinski finds truly troubling. In 1996, the New York Academy of Sciences published volume 775 of its Annals series, The Flight From Science and Reason, addressing many of the complexities of the current divergence between popular opinion, intellectual critiques of the process and role of science itself, and the research community's longstanding traditions. These issues deeply concern the Academy. The future will not become suddenly scientifically simpler; science-based disputes within the public will not miraculously cease to occur. Building bridges between the evolutionary findings of science, their embodiment in complex technologies, and the rules of the road of nation states will continue to pose a compelling challenge for the engineers of a solid contract between science and a democratic society.