Vioxx, Juries, Science, and Law

Admittedly, the lonely libertarian has not followed the Vioxx story very closely. However, I do know that many in the legal and the scientific community are upset with the recent verdict against Merck, as Professor Bainbridge notes over on his blog.

The question of what to do about these terrible sorts of jury decisions is an interesting one. As any first year law student can tell you, in usual circumstances juries decide questions of fact and judges decide questions of law. Juries don’t decide questions of law because of a need for consistency, and more importantly because they don’t have the knowledge and expertise to answer legal questions.

It’s really an artificial creation, this separating of “law” from “facts.” It’s sort of silly that the legal profession recognizes that lay juries aren’t qualified to make decisions on law, while at the same time believing that lay juries are somehow qualified to make informed decisions on complicated scientific and medical issues.

This isn’t an all out call to scarp the jury system, because I’m not sure what the best solution is. And while Professor Bainbridge’s idea of having a panel to throw out junk science is perhaps a good start, it still leaves the problem of juries deciding questions they’re really not capable of adequately addressing. Seemingly, a jury would be far better equipped to sort out junk science than it would be to examine two competing scientific theories of similar intellectual weight.

Even with Professor Bainbridge’s solution, the essence of the problem remains. And that’s a problem that at this point I’m not sure anyone has a good solution for.