By David L. Faigman
This uneven book's main point is that lawyers must learn science.
W. H. Freeman (1999)
Reviewed by: Judge Anthony J. Mohr
Over 100 years ago, handwriting experts relied on methods that were totally unscientific. According to Hastings Law School's David Faigman, they "all knew what results would confirm the hypotheses they were testing. Experimenter bias, usually avoided at all costs in empirical research, was palpable." Experts would dismiss differences between the exemplar and the questioned document as '"adapted for disguise.'" Faigman opens Legal Alchemy: The Use and Misuse of Science in the Law with this thought provoking observation: today's handwriting analysts rely on almost the same authorities as their nineteenth century predecessors.
The book's thesis is simple enough to be exasperating: while "the key to an institution's effective use of science is that it be fully informed," the three branches of our government are not. Lawyers fill many or all positions in the judicial, legislative, and executive branches, and "many students who have spent much of their educational life avoiding math and science become lawyers." Indeed, the average attorney "is not merely ignorant of science, he or she has an affirmative aversion to it...A bell curve makes...eyes glaze over...[and] calculating a standard deviation renders law students unconscious."
Faigman argues that the constitutional duties of legislators, administrators, and judges cannot now be undertaken without understanding science, and he maintains that if courts were better at science, they would have required document examiners to improve their techniques. Examiners constitute an insular sect of experts who have no training in the scientific method, but "so long as...the courts keep buying the old model there is no need to come up with anything new." To top all this off, he virtually accuses Congress, the executive branch, and at least two U.S. Supreme Court justices (William J. Brennan Jr. and Lewis F. Powell) of dereliction of their duties under the Constitution.
In Craig v. Boren, 429 U.S. 190 (1976), for example, Justice Brennan struck down an Oklahoma law for having an insufficient empirical basis yet admitted that he did not understand the statistics on which it was based. After writing the majority opinion in a death penalty case, McCleskey v. Kemp, 481 U.S. 279 (1987), Justice Powell admitted to his biographer, "My understanding of statistical analysis...ranges from limited to zero." McCleskey ;relied in part on a statistical study which, presumably, Powell had to read and comprehend. In another case—Ballew v. Georgia, 435 U.S. 223 (1978)—Powell criticized the "heavy reliance on numerology derived from statistical studies" that he found in Justice Blackmun's opinion. For that, Faigman nominates Powell for the "award for disrepute." Powell's likening of...statistics to numerology is like mistaking astronomy for astrology."
The author does not spare the lower courts. Offering another controversial example, he claims that flaws exist in the model defining battered women's syndrome that are "so plain that a bright college junior majoring in psychology should be able to identify most of them. It is not the twentieth century physics of Albert Einstein that judges are having difficulty with; it is the sixteenth-century inductive reasoning of Francis Bacon that they don't seem to understand."
When Faigman settles down a bit, he acknowledges the judiciary's significant strides in handling scientific evidence. "Judges typically write opinions explaining their decisions, which are then published and pored over by legions of lawyers, scholars, students, and other judges." He notes that the Supreme Court recently issued three important decisions on scientific evidence. The cases are Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); General Electric Company v. Joiner, 118 S. Ct. 512 (1997); and Kumho Tire Company Ltd. v. Carmichael, 526 U.S. (1999). But he cannot resist observing that in the 204 years preceding l993 (the year of Daubert), the Supreme Court decided not one scientific evidence case. But at least judges, Faigman asserts, usually want to learn about the science in the cases they hear.
On the other hand, "Legislators want to put on a show." He castigates the decision by Congress to abolish the Office of Technology Assessment, which he compares to "a person...blinding himself." Without the OTA Congress is reduced to relying on agency experts and "lobbyist-expert-flunkies" for scientific information. Even if they are not "flunkies," the scientists who make presentations to Congress are often at the margin of their fields because they are willing, on behalf of whatever it is they are advocating, to express certainty in their conclusions. Often, those advocating a position seek experts whose ability to persuade is more proven than their scientific accomplishments. This may create the impression that scientists are more polarized over an issue than they are.
Faigman asserts that while legislators obtain most of their information through oral testimony, "as anyone who has ever testified before a legislative committee can attest...members constantly enter and exit hearings." Judges, at least, would be disciplined if they wandered off the bench in the middle of testimony. Legal Alchemy describes a host of incidents in which Congress misused science, including the decision to kill the supercollider project and the rush to judgment about Dolly, the cloned sheep.
The author is more charitable about the executive branch, specifically the bureaucracy. "While agencies are hardly temples of sophisticated empiricism, they far outperform the dens of empirical iniquity sometimes found in the judiciary and that pervade the [C]ongress."
The arguments advanced in Legal Alchemy are uneven. Faigman tries to explain why law and science clash by arguing that law and science both branched away from religion. He then launches into an attempt to describe a common ground for the three, but his explanation in this area is hard to absorb. At other points in this argument, however, his logic hits its mark. He writes, "Science and law approach the world in profoundly different ways....Science explores what is; the law dictates what ought to be....Science welcomes innovation, creativity and challenges to the status quo; the law cherishes the status quo. Science assumes behavior is largely determined by biology and experience; the law typically assumes man has free will"
In law, decisions must occur within a finite period of time, periods typically too short for original and independent scientific work to be conducted. Science works in larger time frames, with major research programs spreading from years into decades. The result is miscommunication between two generally well-meaning communities of professionals. Sometimes the different roles that morality plays in the fields of science and law lead to telling contrasts. Faigman gives the example of a couple who conceived a baby for the purpose of obtaining a bone marrow donor for their other child. Another couple did something similar, then put the baby up for adoption. "If it is acceptable," asks the author, "to have a child to work the field...;is it wrong to have a child to save another child's life?"
The author sees nothing wrong with galloping technology. It is not Dolly the cloned sheep we should fear but rather "our own ignorance." In his accusations, especially against Congress for slowing down research, Faigman overlooks the historical fact that societies get the technology they want or need. For example, in several nations there are already laws—written by lawyers—on the books about genetics and the application of fertility science. Faigman recommends some solutions for the problems he describes. First, the science panels that are advising federal agencies should be given clearer guidelines. There should be little doubt about what kinds of decisions the panels can make, and the panels should be asked for their scientific judgment and their regulatory recommendations. Second, the OTA should be reestablished or a comparable research institution created. Third, Faigman facetiously suggests something akin to a 12-step program for lawyers. They are to begin by acknowledging that they are innumerate. Then lawyers must admit that science will help them fulfill their professional obligations, that science is fascinating, that they have the ability to learn science, and so on. Actually, the profession has no choice after Daubert and its progeny. In his Daubert concurrence, Justice William Rehnquist warned that trial judges will have to become "amateur scientists."
Faigman's only solution to the moral dilemmas posed by scientific advances is to echo Rehnquist and say that lawyers and scientists need to understand each other better. The goal is laudable, but Legal Alchemy offers limited insight on how to achieve it.
Anthony J. Mohr is a Los Angeles Superior Court judge in Van Nuys.