I spend a fair amount of time reading popular journals and lately, I keep running across Harvard’s Edmund O. Wilson promoting his new book, which is about something he calls “consilience.” If I understand Dr. Wilson correctly, what he means by consilience is that common ground of understanding that joins several academic disciplines.
Dr. Wilson is a great cheerleader for consilience and he thinks that as we contend with increasingly complex problems, we will need to train our minds to think across disciplines.
Meanwhile, these same popular journals report that another member of the Harvard crowd, Supreme Court Justice Stephen Breyer, is calling for just the opposite. Instead of taking a look at the bigger picture, he thinks we need to break things down into smaller pictures.
In an address before the annual meeting of the American Association for the Advancement of Science, Justice Breyer suggested perhaps it is time to appoint an independent panel of experts to advise judges on science.
Like Dr. Wilson, Justice Breyer sees today’s issues as increasingly complex. Too often, he said, judges and juries are not qualified to decide which group of scientific experts better represents the truth.
Now I’ll be the first to admit the joining of science and law is bound to be an unhappy marriage. While truth and precision are sought by both, scientists are always trying to disprove currently accepted hypotheses while lawyers rely on past precedents to shape today’s justice.
Justice Breyer’s idea, being a legal one, has precedents of its own. A judge in a civil case involving breast implants asked four neutral experts to sit beside him throughout the trial, another judge asked a scientific panel to review scientific literature and prepare a report to be used as evidence.
My problem is this – I cannot define terms like “neutral expert” and “sound science.” Neither can Stephen Breyer. There’s a joke among scientists that for every PhD, there’s and equal and opposite PhD. You can legally define a scientific expert as “neutral” if she or he has no legal or financial interest in the outcome of a given case, but scientists are people, subject to ego inflation and professional jealousy, just like judges and Internet commentators. In fact, I cannot imagine anyone less open-minded than an expert. They’ve made up their mind and there’s nothing you can say to change it.
But then, I have a prejudice against experts. I think if you want to win your court case, you should go in and make your argument in language a judge or jury can understand.
I have yet to see a scientific issue that is beyond the grasp of the average high school graduate. Too often I have attended communities in which an incinerator or toxic waste dump was undemocratically crammed down the throats of citizens whose protests were marginalized because they were not experts. Now Justice Breyer wants to make our courts as undemocratic as our regulatory agencies.
In 1993, Stephen Breyer wrote a book about risk assessment, in which he called for a small, centralized administrative group to conduct assessments of risk, the same idea he is pushing today. Justice Breyer’s ideas constitute bad science and bad law. There’s consilience for you.
Stephen Breyer should study the work of another American lawyer who dabbled in science. He said, “I know of no safe depository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”
Bad Science, Bad Law
I spend a fair amount of time reading popular journals and lately, I keep running across Harvard’s Edmund O. Wilson promoting his new book, which is about something he calls “consilience.” If I understand Dr. Wilson correctly, what he means by consilience is that common ground of understanding that joins several academic disciplines.
Dr. Wilson is a great cheerleader for consilience and he thinks that as we contend with increasingly complex problems, we will need to train our minds to think across disciplines.
Meanwhile, these same popular journals report that another member of the Harvard crowd, Supreme Court Justice Stephen Breyer, is calling for just the opposite. Instead of taking a look at the bigger picture, he thinks we need to break things down into smaller pictures.
In an address before the annual meeting of the American Association for the Advancement of Science, Justice Breyer suggested perhaps it is time to appoint an independent panel of experts to advise judges on science.
Like Dr. Wilson, Justice Breyer sees today’s issues as increasingly complex. Too often, he said, judges and juries are not qualified to decide which group of scientific experts better represents the truth.
Now I’ll be the first to admit the joining of science and law is bound to be an unhappy marriage. While truth and precision are sought by both, scientists are always trying to disprove currently accepted hypotheses while lawyers rely on past precedents to shape today’s justice.
Justice Breyer’s idea, being a legal one, has precedents of its own. A judge in a civil case involving breast implants asked four neutral experts to sit beside him throughout the trial, another judge asked a scientific panel to review scientific literature and prepare a report to be used as evidence.
My problem is this – I cannot define terms like “neutral expert” and “sound science.” Neither can Stephen Breyer. There’s a joke among scientists that for every PhD, there’s and equal and opposite PhD. You can legally define a scientific expert as “neutral” if she or he has no legal or financial interest in the outcome of a given case, but scientists are people, subject to ego inflation and professional jealousy, just like judges and Internet commentators. In fact, I cannot imagine anyone less open-minded than an expert. They’ve made up their mind and there’s nothing you can say to change it.
But then, I have a prejudice against experts. I think if you want to win your court case, you should go in and make your argument in language a judge or jury can understand.
I have yet to see a scientific issue that is beyond the grasp of the average high school graduate. Too often I have attended communities in which an incinerator or toxic waste dump was undemocratically crammed down the throats of citizens whose protests were marginalized because they were not experts. Now Justice Breyer wants to make our courts as undemocratic as our regulatory agencies.
In 1993, Stephen Breyer wrote a book about risk assessment, in which he called for a small, centralized administrative group to conduct assessments of risk, the same idea he is pushing today. Justice Breyer’s ideas constitute bad science and bad law. There’s consilience for you.
Stephen Breyer should study the work of another American lawyer who dabbled in science. He said, “I know of no safe depository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.”
His name was Thomas Jefferson.
(c) Mark Floegel, 1998