Science at the Bar- The Bigger Picture of Scientific Information Used in the Legal World

science at the barThis post is a followup to Matthew’s comment here:

Finally, the notion that judges should decide legal issues surrounding the Forest Service because they are not forestry experts is in interesting one. Fact is, judges aren’t necessarily experts in divorce, murder, theft, DUI’s, bribery, etc either….but they rule on cases involving these issues all the time. What federal judges are experts in is the laws of this nation, and unfortunately, too many times, the Forest Service fails to comply with those laws

It occurs to me that many of you might not be aware of the context around the broader issues of courtroom decisions and other kinds of expertise, including scientific expertise. Within the science and technology studies literature, you may find many folks who have studied scientific issues and how they are handled in the courts. Our world is not separable from that world. Dr. Sheila Jasanoff‘s book
“Science at the Bar:Law Science and Technology in America” is considered by many to be the fundamental work in this area, and well worth a read.

Unfortunately, I couldn’t easily lay my hands on my copy of the book, but I did find a review here in the New England Journal of Medicine.

By Sheila Jasanoff. 285 pp. Cambridge, Mass., Harvard University
Press, 1995. $29.95. ISBN 0-674-79302-1.
To many physicians, science in the courtroom means trouble. Science, it is claimed, deals with objective facts and theories whose validity can be judged only by those with lengthy training in scientific method. Law, in contrast, involves rules and regulations applied by judges and juries almost always lacking competence — and often demonstrating striking incompetence — in evaluating scientific evidence. Putting science at the bar is therefore an invitation to outrageous malpractice awards, to the testimony of charlatans who are taken seriously by juries, to the awarding of irrationally large damages in “toxic tort” cases in the absence of scientific evidence of toxicity, to lay interference in the conduct of medical research, and to a familiar litany of judicial errors.

But Sheila Jasanoff, in this broad-ranging and authoritative survey of the relation between law, science, and technology, presents a far more nuanced and complicated picture. Jasanoff, trained as a lawyer and subsequently the creator of Cornell’s flagship department of science and technology studies, has devoted most of her professional life to studying science in the courtroom. Her conceptual framework draws on the emerging field of science studies. In recent decades, this field has come to redefine science not simply as the discovery of the truths of nature, but also as a complex, problematic, error-prone, controversy-ridden process of “constructing” a view of the natural world that may, with luck, rhetorical skill, and time, eventually come to be accepted as mainstream, or “textbook” science.

Thus redefined, science begins to look much more like law. And the notion that the courts should simply ascertain “the established scientific view” appears, at least in many cases, similar to the search for a chimera. For as Jasanoff shows in her many examples, most of them involving biomedical matters, the courts are almost always called on in areas where empirical research is inconclusive, scientific opinion is divided, decisive epidemiologic studies have not been completed, or legislatures have not been willing to provide a framework to govern the application of — for example — new reproductive
and life-prolonging forms of technology. As she puts it, “courts, like regulatory agencies, conduct the bulk of their scientific inquiries ‘at the frontiers of scientific knowledge’ where claims are uncertain, contested and fluid, rather than against the background of largely settled ‘mainstream’ knowledge.”

Jasanoff concludes with suggestions for a “more reflective” alliance between law and science. She is well aware of the many egregious errors made by the courts. But in the end, she sees the relation of science and law in America as generally positive, as granting the legal system a “limited and highly
contingent ability to interrogate the scientific community,” as encouraging scientific “reflection and self criticism,” and in general, as encouraging the advance of science and ratifying the positive American view of science and technology. For any serious student of science and law in America, this is an original and essential book

Interestingly, in the search for the review, I also ran across this article by Dr. Jasanoff:
“Is science socially constructed—And can it still inform public policy?” Here is the link:


This paper addresses, and seeks to correct, some frequent misunderstandings concerning the claim that science is socially constructed. It describes several features of scientific inquiry that have been usefully illuminated by constructivist studies of science, including the mundane or tacit skills involved in research, the social relationships in scientific laboratories, the causes of scientific controversy, and the interconnection of science and culture. Social construction, the paper argues, should be seen not as an alternative to but an enhancement of scientists’ own professional understanding of how science is done. The richer, more finely textured accounts of scientific practice that the constructivist approach provides are potentially of great relevance to public policy.

which sounds interesting, and relevant to this blog. You can read the first two pages online but it costs $40 to read the whole thing. Published in 1996. Of course, Dr. Jasanoff does not work for a public university, but still..

4 thoughts on “Science at the Bar- The Bigger Picture of Scientific Information Used in the Legal World”

  1. Please read the book and the paper and tell us what she says about NEPA cases, which have been the usual topic here.

    NEPA cases are in a class by themselves because they are “records” cases, concerned with procedure, In NEPA cases, evidence is almost always (i.e. except in very unusual circumstances ) limited to what is in the planning record. Battles of the experts are very uncommon in these cases, and the issues are most commonly over whether – based on the record – potential significant impacts were adequately disclosed and whether responsibly raised issues were fully and fairly discussed. That is, the question for the court is generally whether “a hard look” at potential significant impacts was taken by the agency.

    • I sould add that Forest Service NEPA cases follow from an administrative appeal, and for cases involving an EA or EIS also from comments. The content of those set the boundary of what can be raised in litigation. So the agency has every opportunity to make sure it has made the necessary disclosures and that it has adequately discussioned the science and the issues raised that are in the record. And the courts also defer to the agency’s “expertise” (unless, as sometimes determined, the agency’s conduct in the process has given good cause for the court not to do so).

  2. Larry, I’ll wait for others to weigh in, but here are some preliminary thoughts.

    1. My experience is that folks spend time debating “science” with regard to the many projects we discuss here.

    2. Perhaps that’s because plaintiffs usually say “your NEPA sucks, and you are not following NFMA and ESA” so that cases are not strictly “NEPA cases”. I think you could take any frequently discussed case here and find a “science” element.

    3. Probably most of us remember this one that was ultimately overturned in the 9th Circuit but still…here’s a link to a summary of the appeal decision… but there was a good bit of work involved prior to the final appeal ruling..

    The Ecology Center court acknowledged that “[a]n agency’s choice of methodology is entitled to deference.”[19] However, it also stated that “there are circumstances under which an agency’s choice of methodology, and any decision predicated on that methodology, are arbitrary and capricious.”[20] Specifically, relying on the Ninth Circuit’s Lands Council I decision, the court stated that “in order to comply with NFMA, the Forest Service must demonstrate the reliability of its scientific methodology.”[21] By failing to “test its theory” that “treating old-growth forest is beneficial to dependent species” with any “on the ground analysis,” the Ecology Center court determined that the Forest Service’s conclusion was “predicated on an unverified hypothesis,” and therefore arbitrary and capricious.[22] Like a pharmaceutical company seeking “to market a drug to the general population without first conducting a clinical trial to verify that the drug is safe and effective,” the court observed, the Forest Service asked the court “to grant it the license to continue treating old-growth forests while excusing it from ever having to verify that such treatment is not harmful.”[23]

    a link to that summary. If the Court was confused about how it should weigh in on science, to the extent that the Appeals Court noticed and overturned them, it’s no wonder that we non-lawyers get confused also about their role.

    4. Of course, the new planning rule has the “best available scientific information” requirement which could open up a new area of dispute (that’s all we need ;)).

  3. Great post, Sharon, especially given the relevancy to the Best-Available-Science debate.

    Another great resource along these lines is a book by Deborah Stone called, “Policy Paradox: The Art of Political Decision Making” (W.W. Norton 1997). Seems relevant to this discussion because one of her chapters talks about numbers and the question of “whose numbers?” Other chapters talk about matters of equity and efficiency, which both have “science” issues that often arise. One of her main points is that there are often two competing approaches to problems: (1) markets of known, fixed preferences or (2) communities in which dialogue and debate occurs and preferences can evolve. She’s a great writer and her ideas are thought-provoking to say the least.

    Given how difficult it is to find even excerpts of Jasanoff’s book, another option is to look at the National Research Council’s committee on Science, Technology, and Law.

    Here’s a link to an initial report (36 p. booklet):

    Here’s one to a lengthy book they produced on scientific evidence:

    Here’s a link to the committee page:



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