Another "Two Cultures" Divide: Science and the Law

By Chris Mooney | May 15, 2009 12:35 pm

It has recently come to my attention that the Duke University School of Law’s journal Law and Contemporary Problems has a new issue out containing several articles about the very different norms and conventions that inform the scientific and legal mindsets, and how these disparate alignments can cause very serious problems in contemporary society. To read some of this work, see here.

In Unscientific America, we don’t focus in on the legal sphere as a particularly influential sector of society that has problems with science–but we certainly could have. Luckily, the work has now been done for us.

Still, I’ll just make a few brief comments. It seems to me that there is a strong and non-coincidental overlap between the legal strategy of defending a client by poking any and all holes in the position of a courtroom opponent, and the agnotological techniques that are regularly mobilized to undermine scientific conclusions on evolution, climate change, vaccination, and much else. The goal in both cases is to sow “reasonable doubt”–nevermind the fact that you can sow doubt about pretty much anything. When a scientific consensus position gets skillfully lawyered and cross-examined, it inevitably sounds far less convincing than it actually is, at least to untrained ears.

It is also no coincidence that top anti-evolutionists, like Phillip Johnson, and top anti-global warming advocates, like Chris Horner, are lawyers, not scientists.

But at the same time, we must concede that the courtroom has also proved, at times, an arena in which science triumphs unequivocally. Here I’m thinking in particular of the evolution cases, and above all Dover. So there are at least some aspects of the legal process that, done right, can be quite advantageous to scientific conclusions, rather than corrosive to them.

There is vastly more that could be said here…but for that, check out the articles in Law and Contemporary Problems.

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Comments (6)

  1. Catharine Zivkovic

    It is a happy day indeed when scientific knowledge is respected and a little justice comes our way. Unfortunately, I don’t believe that ‘science triumphs unequivocally’ and offer the OJ case as an example. Not to mention the harm that our (un)sophisticated legal process has caused scientific inquiry in the past (such as putting stem cell research on hold). I look forward to reading your book and hope that you address the fact that scientific literacy is *essential* not only for a democracy but also for justice in the courtroom. The average citizen needs to understand that “doubt,” at least in the scientific world, does not equal deal breaker.

  2. Remember that a court is a much more friendly environment for truth seeking than a two minute TV news slot. People are on oath and can be cross examined very precisely. Unsubstantiated statements can be shown to be false and the teams can take as long as they like to help educate the jury about key issues. It is where lawyerly tactics come out of the court and in to the op-ed that the problems appear….

  3. abb3w

    The difference is that Law relies on Stare Decisis, while Science is always (hypothetically) willing to reconsider the entire edifice from Evidence and Mathematics up… even the basis for what is called “reasonable”.

    Fortunately, the law has some respect for Science, due to the shared respect for evidence. Not to mention the respect because (as XKCD notes) Science Works….

  4. Jon

    Interesting “two cultures” discussion for a little while with this guy George Scialabba (relevant part starts at about 24-25 minutes):

    http://www.radioopensource.org/george-scialabba-the-untethered-untenured-mind/

  5. More than a little puzzled here. My wife is a lawyer and I’m a scientist, so we’re a pretty good lab test in that respect for looking at the conflict, if any, between those two cultures. But the reality, as we’ve gotten to know each others’ fields’ preferences and behaviors is that law is much closer to science than many subcultures are. In that vein, the articles Chris links to are regarding science and law, and scientists and lawyers, in the confines of the courtroom, not in the larger world. In the courtroom, you’re dealing with a highly selected subset of scientists, in a highly particular set of legal situations. Because law and science necessarily have different requirements and cultures, when a scientist is on the turf of a lawyer, things can get difficult due to miscommunication and different standards and assumptions.

    In the larger realm, however, lawyers are almost invisible as attackers on science. For climate, you name Horner, who I’ve only marginally heard of. Someone I’ve heard far, far more from is the journalist Bjorn Lomborg. A look at Brad Johnson’s listing of what he thought Marc Morano’s (himself a journalist) list of folks to recycle and echo climate denial shows more journalists and ‘newspapers’, but no lawyers that I can tell. (And I do know much of the list.) More important than lawyers, has been the journalists turning a lawyerly model — adversarial argumentation — in to the reporting linchpin as ‘he said, she said’ journalism.

    To continue raining on the parade, I have to say that science, as such, did not win in Dover. The win was for the legal process and the constitution. I’m extremely happy the constitution survived another round. It also happens that something scientists wanted to see came out of it. But that actually had almost zero bearing on the decision. The Dover board wanted to do something unconstitutional. Teaching things that are not science is not unconstitutional, no matter how much scientists might want to see more science taught. Teaching religion, per se is also not unconstitutional. Committing the blinding inanity of the Dover school board, lying start to finish, … that got to unconstitutional. My wife and I had many a conversation about the case, and what the legal issues were as opposed to what I was concerned about as a scientist. One product of those discussions is, I know how evolution, and climate, and all other sciences that young earth creationists object to could be eliminated from every public school in the country without touching the constitution. The courts could not do a thing about it. Nor, given the jobs they’re tasked to, and the limits we have placed on them (for good reasons), should they.

  6. I’ll let you know in three years if I’ve suddenly turned into an anti-evolutionist as the result of piling a JD on my PhD. Somehow I doubt it. 😉

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About Chris Mooney

Chris is a science and political journalist and commentator and the author of three books, including the New York Times bestselling The Republican War on Science--dubbed "a landmark in contemporary political reporting" by Salon.com and a "well-researched, closely argued and amply referenced indictment of the right wing's assault on science and scientists" by Scientific American--Storm World, and Unscientific America: How Scientific Illiteracy Threatens Our Future, co-authored by Sheril Kirshenbaum. They also write "The Intersection" blog together for Discover blogs.For a longer bio and contact information, see here.

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