Judicature: Legal Alchemy --book review

Judicature Genes and Justice
The Growing Impact of the New Genetics on the Courts

November-December 1999 Vol 83(3)

Insecurity with science
book review by Michael B. Getty
Legal Alchemy: The Use and Misuse of Science in the Law, by David L. Faigman. W.H. Freeman and Company Publishers. 1999. 256 pages. $24.95.
David L. Faigman's new book, Legal Alchemy, provides a thought-provoking review of the history of law and science. Beginning with their common roots in religion, Faigman contrasts religion's historical non-acceptance of science with the courts' sometimes total acceptance while failing to insist on validation. He points out that to understand the dichotomy between law and science one must realize that the prestige of the law is derived from adhering to traditions of the past, while the prestige of science turns on how quickly it can advance to the future. Even more pragmatically, he suggests that science assumes behavior is based on biology and experience while the law assumes that humankind has free will. Faigman, a professor at Hastings College of Law, sees the law and science as rival siblings of mother religion.
This book is well written, thoroughly interesting and worthwhile reading for anyone. The author's periodic reference to law, classics, poetry, prose, as well as landmark cases, not only puts the subject in context but adds broad appeal. While the impetus for this work can probably be ascribed to the Supreme Court's Daubert decision (which placed increased responsibility on judges to determine the reliability and value of scientific evidence), upon reflection it is clear that this treatise is both timely and necessary, regardless of Daubert.
Professor Faigman concludes that the Supreme Court, and courts generally, are reluctant to delve too deeply into scientific matters. This insecurity with science, however, has real costs—creating an assortment of doctrinal problems for the law. He posits that justices and judges do somersaults to avoid substantive specific analysis of science issues. His criticism, however, is not limited to the courts.
He suggests:

The courts' use of science has been slowed by the impurity of much of the science they see.

Lawyers suffer from "syndromic lawyer syndrome," which he defines as acceptance of any simplistic explanation for complex human behavior that supports desirable legal outcomes.

Politics often masquerades as science. For example, the rape trauma syndrome and the battered woman syndrome were offered as scientific fact but are really political ploys with little scientific support.

The Court and Congress
The author gives meaningful examples, from the Scopes trial to the O.J. Simpson case, and urges judges never to abdicate their responsibility for determining what is worthwhile testimony. But perhaps his greatest criticism is reserved for the Supreme Court which, in the author's opinion, tends to interpret science data in light of accepted doctrine; he goes on to cite evidence of its disregard, misuse, and misunderstanding of such data. Faigman further points out that "the Court's ignorance of or disdain for science similarly leads to scholarly attempts to educate the justices, which in some measure influence their later decisions." This occurs, Faigman states, when justices misuse empirical research and become the subjects of significant criticism. For example, one of the justices, after being criticized for an earlier opinion, properly questioned the empirical significance of a flawed research study. Unfortunately, he then distanced his methodological critique, about which he was apparently not confident, from his constitutional analysis.
Faigman's treatment of Congress is somewhat more sympathetic. Congress, he opines, tends to set broad objectives and leaves to agency rulemaking the more difficult task of science. He concludes that "Congress often bludgeons bureaucrats and scientists alike, sometimes for good reason. Most of the time, however, it swings wildly but without causing much harm."
Faigman believes that the real instrument of science policy in the United States is the bureaucracy of the executive branch of government. In his view, not funding worthwhile scientific institutions and projects is the Congress' principal failure, and his prime example was its failure to fund the Office of Technical Assessment, the agency responsible for advising it on scientific and technical issues.
Faigman discusses topical science-related issues, from airbags to clean air to the wolf population in Yellowstone National Park. He describes the interaction regarding such issues of the executive branch (including the president and the administrative agencies), the two houses of Congress, and the trial and review courts of this country.
This book is a hybrid: part law school textbook of a most readable type, part personal editorial on how courts and Congress have, for the most part, failed on science and technical issues. He likens lawyers, judges, and policy makers who do not learn enough science to properly handle relevant issues to drug addicts who are satisfied with the status quo. As with treatment of addicts he recommends a 12-step program, the first step of which is to recognize the need for help. This is a book not to be missed by any judge, lawyer, or legislator who wants an informed understanding of the relationship between science and the law and how both can be made to serve society better.

Michael B. Getty, a former judge of the Circuit Court of Cook County, Illinois, is a mediator and arbitrator who chairs the ADR committee of the Einstein Institute for Science, Health and the Courts.

The online presentation of this publication is a special feature of the Human Genome Project Information Web site.