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August 10, 2017

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Patrick S. O'Donnell

I've yet to carefully read the paper (hope to anon), but finding "disinterested scientific experts" (say, in the minimal sense of immune from commercial or predominantly personal 'professional' interests) is no easy (although not impossible) task these days, given the nature of contemporary scientific praxis. Skimming through the notes/references, I did not see any mention of Susan Haack's work (perhaps I missed it), which I believe is eminently relevant to this topic. In particular, see her Evidence Matters: Science, Proof, and Truth in the Law (CUP, 2014). As Haack points out,

1. In the scientific fields or specialties germane to toxic court cases, the research that bears on issues of causation "is likely to have been conducted by a drug company or a chemical manufacturer ... quite often, with an eye to protecting itself against litigation--exactly the kind of scientific work whose commercial interests severely strain the informal scientific mechanism that encourage honesty and discourage the withholding of evidence."
2. "The cases that come to trial will normally be those where the evidence is ... far incomplete and ambiguous," a situation in tension with the legal aspiration to "resolve disputes promptly," and thus scientific expertise as such will not dissolve or transcend this tension.
3. "Because of its case-specificity, the law often demands answers of a kind that science is not well-equipped to supply." She cites the example of Joiner v. General Electric Co. 864 F. Supp. 1310 (N.D. Ga. 1994) ['I-IV']
4. "The legal system constitutes virtually the entire market for certain fields of forensic science (or quasi-science), and for certain psychiatric specialties."
5. "Legal rules can make it impossible to bring potentially useful scientific information to light." Perhaps here Dillon's proposal may be capable of altering the epistemic dynamics.
6. "The legal penchant for rules, 'indicia,' etc. sometimes transmits scientific subtleties into formulaic legal shibboleths." This appears to be a fairly obdurate yet not necessarily insoluble problem.
7. "Because of its concern for precedent, and the value it places on finality, the legal system has a tendency to inertia, and sometimes lags behind science." Here again Dillon's suggestions may make some difference.

James Dillon

Patrick,

Thank you for your comment. The issues you raise are important ones; I do briefly attempt to address them in Part IV(B)(3)(iii) of the paper, a discussion that I doubt you'll find fully satisfactory (nor do I) as I have space there to only briefly acknowledge these broad issues about which much more can be said. I don't cite Haack in that section (I do have one passing reference to her work at footnote 44, and will take a look at the article you cite as it does sound quite relevant), but Mnookin and Jasanoff have made similar observations. I would say two things: 1) the evidentiary regime under FRE 702/Daubert does assume a sort of naïve positivism that those who study the philosophy or sociology of scientific knowledge will recognize as incomplete (I think of this as a reification of propositional knowledge that scientists themselves would understand to be necessarily provisional; the "formulaic legal shibboleths" to which Haack refers), and for the most part, for purposes of this paper, I'm working within that paradigm rather than attempting to subvert it simply because *even if* we accept the law's naïve positivism, existing institutional structures still are not very good at incorporating that body of propositional knowledge into the legal decision making process; and 2) I do think that, insofar as my solution calls for bringing substantive scientific experts directly into the legal decision-making process, it will have the effect of mitigating some of the law's naiveté about the nature of scientific knowledge; that isn't a complete solution because, as you point out, individual experts have their own personal and professional biases, but I would call it an improvement on current practice.

I hope in the foreseeable future to turn more directly to the problem of the mismatch between scientific conceptions of knowledge and the demands, in terms of certainty, finality, and the speed at which knowledge can be generated, that the law places on scientific expertise; that's an entry on my current research agenda though I expect it to be 2-3 papers down the line, as I'm still trying to think through problem myself. I suspect that it will prove to be one that can only ever be mitigated rather than fully resolved, and that the path to mitigation lies in changing the rules of civil procedure to accommodate the provisionality of scientific consensus-building while nevertheless respecting the law's need for finality and reasonably prompt resolution of legal disputes.

James

Patrick S. O'Donnell

Thanks for your thoughtful reply James. (The Haack material was from a chapter in the book, perhaps its first incarnation was as an article, I don't know.) I do look forward to reading your paper with the care it deserves as well as anything else you write on law and science. And I'm grateful to Brian for letting us know of your work.

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