Science and Law

In the 1990s, I began to take an interest in the difficulties of litigating scientific issues.  My interest was derived chiefly from concern about the misuses of procedural rules in so-called mass tort cases.  But it led to my appointment to the National Academy of Sciences Panel on Law Science and Technology, a distinguished group meeting semi-annually to discuss issues arising in the interface of science and law.  My contributions to the group discussion derive from my almost complete lack of scientific knowledge and understanding.  I was retired from that role in 2006.  At my last meeting, as a former school board member, I challenged the assumption of the other members of  the panel that political considerations should not be brought to bear on the teaching of biology in high schools.  We discussed a case in which a federal court had enjoined a local board from an effort to balance the teaching of Darwin in the biology class with an utterance to students regarding the very questionable competing theory of intelligent design.  I do not buy the latter theory, but I think it legitimate for a local school board to do what it reasonably can to win parental approval and discourage parents from withdrawing their children to religious academies or home-schooling.  My essay was published in 2008 as  Freedom to Err..

A  work republished in 2007 is Asbestos Lessons.  All the deficiencies of our system of government are aggregated in the asbestos crisis.  Roger Cramton, Jeffrey O'Connell and I worked out a scheme a few years ago for trying to resolve complex scientific issues arising in mass tort litigation.  We were not confident of our scheme, but it seems fair to say that no one has yet come up with a better one.  It is clear to me that many of the grievances against the legal system and its deficiencies in resolving scientific issues could be laid to rest by the adoption of a single-payer health care system similar to that in place in Europe.

My work on the subject is:

Reluctant Experts, 59-4 Law & Contemp. Prob. 101 (1997) (with Traci Jones)

On Law and Science, Duke Law Magazine 30 (Spring 1998)

A Proposal for a Proceeding in the Nature of A Bill of Peace to Determine Scientific Issues Recurring in Civil Litigation (with Cramton and O’Connell) in Mass Torts Working Group of Judicial Conference of the United States, Conference on Mass Torts (1999)

Asbestos and Court Delay in the United States, in The Law’s Delay: Essays on Undue Delay in Civil Litigation, von Rhee ed., Institute for Transnational Legal Research, Maastricht 2004)

      Asbestos Lessons, 25 Review of Litigation 1170 (2007) (to be republished in Personal Injury Claims , A. Sabitha ed., Punjagutta 2008)

Freedom to Err:, 17 William & Mary  Bill of Rights Journal, 1 (2008).