Tuesday, December 05, 2006

Science Law/Science Policy

From today's New York Times: When Questions of Science Come to the Courtroom, Truth Has Many Faces.

It's a somewhat interesting piece, but a stupid title. After all, potentially, aren't there multiple facets of the truth in every case that goes to court? That is why cases end up in court in the first place. Judges and juries may make decisions but who really knows the truth?

The piece skirts the problems of reconciling science and the law, but misses the point. It's not just that science and law use different standards of proof and require different modes of thinking- While science is a never-ending process of intellectual inquiry, the law requires us to make decisions. Take global warming for instance. While scientific inquiry into global warming can continue for years down the road, a lawsuit will necessitate that some decision be made. Perhaps 10 years ago there wasn't enough evidence for global warming- maybe there's enough today. But how to decide? "Scientific consensus" is a nice little phrase, but it has no precise legal or scientific meaning.

As Justice Kennedy asked during oral arguments on the Mass. v. EPA case, how is the court supposed to rule on issues surrounding global warming without deciding whether or not man-made global warming exists in the first place?

As much as I hate to say it, the democratic process actually provides a much more efficient mechanism for dealing with controversial scientific questions. Let the people decide, not judges and lawyers- sort of a scientific autocracy the people are all we have to make these decisions. And for those who say we might make the wrong decisions about science, my response would be, "well, we make wrong decisions about everything else, so might not science too?"

From the standpoint of Constitutional law I have a simple solution. When decisions are based on science (whether by Congress or an administrative agency), use a typical rational basis review to judge the decision. In other words, as long as there is some science and research out there supporting a decision, it shouldn't be the job of the courts to question that decision.

Unlike the global warming case before the Supreme Court, the tort cases mentioned in the piece are much more difficult, because when it comes to tort liability you have complicated scientific issues melded with notions of risk before a jury who must make a decision one way or the other. I won't get into that here because I have no good answers- nor do I think anyone has any good answers. At least some of us, however, can distinguish between the relatively straight forward issues of science policy and the more complex issues of tort liability.


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