Serviceable Truths: Science for Action in Law and Policy

Abstract

As the articles in this symposium issue attest, the relationship between law and science has begun to attract attention as an autonomous field of study, generating its own bodies of expertise and specialized scholarship. It is less obvious how the perspectives arising from within the community of legal practitioners and thinkers relate to a largely separate, but parallel, body of research and understanding from Science and Technology Studies (STS), a cross-disciplinary field that has for several decades been producing its own analyses of the relations between science, technology, and other authoritative institutions in society-including, of course, the law.1 Perhaps predictably, intersections between STS and legal studies have occurred most frequently around questions of evidence, since both fields share an interest in the nature and credibility of facts.2 Another area of topical convergence is intellectual property law, where authors may have dual training in law and STS.3 The shared interests of the two fields, however, bear on more fundamental questions of legal and political theory: questions about the nature of legitimacy and lawfulness in the modern world, where the actions of those in power must be held accountable to epistemic as well as normative standards-in short, to facts as well as to values. How to orchestrate that deeper engagement between STS and legal scholarship is one aim of this Article.4The road there can be charted in different ways. This symposium offers a pragmatic map. One can begin with cross-cutting topics at the intersections of science and law, especially criminal justice, bioethics, and the environment. In each of these areas, one approach is to pose questions aimed at improving the quality of scientific inputs to the legal process. Specifically, what evaluative standards should apply in conflicts over substance? Who should decide when experts disagree? And how should the results of knowledge processes be implemented? Under each of these headings, legal processes could benefit from a fuller grasp of relevant insights from STS, just as STS scholarship would gain depth and relevance by addressing more directly the kinds of issues and questions that seem most challenging from the standpoint of the law. In that sense, the pragmatic map may be as useful a starting point for future STS research as for legal studies.This Article, however, departs from the topic-theme structure of the symposium to offer a more conceptual, indeed critical, perspective on law- science interactions. Here the concerns are not so much with making good decisions and hence with developing practical guidance on how the law should use or rely on scientific evidence and expert advice. Rather, the aim is to put society's needs in the driver's seat and explore how the two institutions could operate more effectively as partners in the central projects of governance in modern democracies: how to exercise power with reason, how to make good decisions in the face of epistemic as well as normative uncertainty, and how to strike an accountable balance between the sometimes conflicting pressures of knowledge and norms. In what follows, I sketch how STS understandings might help advance this kind of socially responsible collaboration between law and science.The central question to ask about science in legal proceedings, I suggest, is not how good it is, but how much deference the scientific community's claims deserve in specific legal contexts. The answers, in turn, can be framed in terms of a cascade of from a relatively high point, where it makes good practical sense for the law to cede epistemic primacy to claims originating in science, to a point of little or no deference, where the law's core concerns for representation, accountability, and justice, as defined by legal norms, should take precedence over science's claims to higher authority. I will identify and discuss four stopping points, or viewing platforms if one wishes for a more tangible metaphor, along that cascade: objectivity, consensus, precaution, and subsidiarity. …

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