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7 - Science and Law in Conflict

Published online by Cambridge University Press:  05 May 2016

Carl F. Cranor
Affiliation:
University of California, Riverside
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Summary

The Supreme Court's Daubert trilogy gave judges a more difficult task than it might have imagined. Inter alia, while seeking to increase the chances that legal decisions would more closely follow the relevant science after a jury verdict, some justices were aware that judges might struggle with the Daubert guidance and perhaps with the science. Given the complexity, subtlety, and sometimes inscrutability of some scientific evidence, understandably, but regrettably this has indeed occurred with regard to scientific studies and reasoning. These difficulties increase the more complex and subtle the evidence becomes.

Generic tensions between the law and science also hamper easy pursuit of this goal. Moreover, judges disagree about how scientific evidence should be reviewed, given its complexity. Finally, the chances that admissibility decisions will result in mistaken judgments are even greater because of some of the pragmatic problems reviewed in the previous chapter. Even when judges review quite good evidence, there are numerous opportunities for errors. When there are myriad pragmatic barriers to obtaining good evidence about the toxicity of substances and less than optimal evidence is available, the potential for stresses and strains increases. Failures to attend successfully to these issues pose threats to litigants to the bar and to the legitimacy of the law. The current chapter focuses on some of these issues; the next chapter considers a major appellate case – Milward v. Acuity Products – that suggests major correctives to them.

Notable tensions between science and the law can affect how well they can function together. Different standards of proof central to each, different time frames within which each operates, different concerns about the distribution of mistakes, and different approaches to uncertainty, simplicity, and complexity create contexts in which judges can err. Such tensions on top of the pragmatic barriers already considered increase courts’ burdens.

Moreover, when we assess courts’ reasons for their admissibility decisions in light of how scientists typically address similar evidence, we see judges struggling with their reviews of testimony and its support. Some courts have had difficulty in reviewing and understanding scientific studies and reasoning, or they have adopted quite different standards for assessing scientific evidence than scientists themselves would. In either case, this can undermine the aim of winnowing scientific testimony to be more consistent with existing the science pertinent to the cases and affect the just resolution of legal issues.

Type
Chapter
Information
Toxic Torts
Science, Law, and the Possibility of Justice
, pp. 203 - 271
Publisher: Cambridge University Press
Print publication year: 2016

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