Customer Reviews

Judging Science: Scientific Knowledge and the Federal Courts

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This is a very unique book and entirely appropriate for nonlawyers. This is not a "law book" on scientific evidence. The authors merely use Daubert -the case that announced the Supreme Court's current approach to scientific expert testimony- as the vehicle for an extended meditation on the nature of truth. There are very few case citations, and all jargon is thoroughly explained in advance.

Throughout the 20th Century, courts have been confounded by the question of how to regulate the use of science in the courtroom. Our system of law draws a distinction between "questions of fact" and "questions of law"; judges can generally only rule on latter. Questions of fact are up to the jury, and these are the questions to which scientific testimony is usually directed (e.g. "Did the defendant's pollutant cause the plaintiff's cancer?") But juries are generally no more scientifically literate than the populace at large, and the danger that they will be misled is great. Two questions arise: a) How can good science be distinguished from bad? and b) Who makes these quality judgments? The second question is a legal/policy question, but the first is just classic epistemology.

Before Daubert, courts took a hands-off approach, relying on the consensus of the scientific community - effectively on peer review. Daubert revolutionized the federal system by requiring the judge to make preliminary judgments of sound scientific method. But how?

This book examines the epistemological approach suggested by the dicta in Daubert, places that approach in intellectual/historical context, and then moves on to criticize it. All of this is done wonderfully, with lots of sidebars and examples. The authors sift the gems from a huge body of literature on law, epistemology and decision science. Brief, inexpensive, and lucid, this would make an excellent text for a college class in the philosophy of law, epistemology or jurisprudence. And don't be scared away by Peter Huber's polarizing reputation. This book's only political agendas are justice and accuracy.

Although non-lawyers can appreciate this book, it is really of use to lawyers in mass tort cases where scientific evidence is used to prove causality issues.

Foster and Huber use the litigation over the pregnancy drug Bendectin to explain the ways in which science is used and misused to "prove" cases. In the case of Bendectin, there was no conclusive medical evidence proving that the drug caused birth defects. Rather, there was a statistical association between the use of the drug and birth defects. Does this prove that Bendectin causes birth defects?

It might or it might not. The field of epidemiology attempts to answer the question by eliminating other possible explanations for the association. Various techniques of epidemiology include blind (or double-blind) testing, data analysis, and so on.

Foster and Huber demonstrate that the scientific techniques are not entirely conducive with the standards of modern litigation. For example, scientists generally do not speak of "proving" an assertion; rather, they "falsify" it. That is, they attempt to disprove it -- it is usually easier to show that something is not true, since you only need to find one example. When an assertion has withstood repeated attempts to falsify it, it becomes generally accepted.

This has important ramifications for litigation, however. Litigation -- particularly mass torts -- requires a "yes" or "no" answer: in the scientific opinion of the expert witness, does Bendectin cause birth defects? The expert will of course have explained his or her analysis, but in the end, that analysis must be boiled down into a yes or no answer, regardless of the suitability of such an intellectual liposuction.

In summary, this is a fascinating book if you are interested in these sorts of issues. Although the book covers science and scientific inquiry, it does not require a significant amount of scientific knowledge.

I disagree with the previous reviewer's comments that the book is largely of use to the legal professioin. I find the law case serves as a great backdrop to understanding science and judging scientific claims. Many great principles are explained in this book.

Since O.J. Simpson's double homicide trial acquainted everyonewith the concepts of RFLP and PCR testing for DNA, the issue ofscience in courtroom has been on the frontburner. As Foster and Huber demonstrate, however, this issue has had a long and controversial history.

Using the mass tort litigation involving the drug Bendectin, which was used to treat morning sickness but became suspected of causing birth defects, the authors make a key point: the scientific method is not entirely compatible with the legal method.

The scientific process consists of formulating a hypothesis, testing the hypothesis to see if it can be disproven, and repeating the testing process until one becomes convinced that the hypothesis must be true. (Or realizing that it is false, if a test disproves it.)

This means, however, that a scientific witness can be neutralized somewhat through clever (but artful) questioning of the sort, "Isn't it possible that . . . ."

There are no equations in this book, but there is some discussion of statistics, particularly as used in epidemiology. The mathematical concepts are not at all difficult, and well worth thinking about.