When boffins meet ambulance chasers

Science at the Bar
February 28, 1997

The dust cover gives the impression that this book could have wide appeal: "Jasanoff argues that the courts do not simply depend on scientific findings for guidance; rather, they actually influence the production of science and technology at many different levels. Research is conducted and interpreted to answer legal questions. Experts are selected to be credible on the witness stand. Products are redesigned to reduce the risk of lawsuits."

Yet this is a specialist book, and its style is heavy going. To get the most out of it one needs to be an expert in law and have a good general knowledge of science, or vice versa.

I read each chapter thinking "surely she has said this before", only to find it was not so. Two factors contributed to this. First, the sentences are too long. A large proportion are between 30 and 50 words. There is too much to digest in a single read. For example: "Science is constructed in the courtroom in accordance with tightly circumscribed rhetorical and procedural rules, under unavoidable economical and sociological constraints, and to serve widely divergent normative agendas." One finds oneself wrestling with such sentences much as might a dog trying to get the meat off an intricately shaped bone. There is plenty of meat but you have to work for it.

Second, there is the typesetting style. All lines are equally spaced and new paragraphs begin only two letters in from the margin. If the end of a previous paragraph occurs at the end of a line, the impression is that there is no paragraph at all. As there are no illustrations, the text appears formidable. Reading it can become as much a task as an enlightenment.

If the book has an overall message it is that the whole subject of science in law is a "grey" area, and is likely ever to remain so. The very wide spread of modern science and technology contains enough controversial subjects to fill the courts of the world. Such topics as carcinogens, animal rights, pollution, Aids, genetic engineering, experiments on humans and the effects of high-voltage power lines suffice to illustrate that disputes in these areas are not going to be limited to science and law. Morals, religion and, not least, interpretation are clearly going to play a large part and these will be so intertwined with the latest scientific finding and changes in the law as to be inseparable.

In a world where there are extreme views on all subjects there will always be dispute, no matter how authoritative the state of science at the time, which is why lawyers, like undertakers, are always assured of employment.

One important aspect that the author misses is that science, and more especially engineering, flourish as the result of human concepts rather than facts. No wonder the legal profession is puzzled. The author herself says: "Yet these 'technically illiterate' fact finders" - the judges, juries and lawyers - "who understand neither the substance nor the methods of science, are increasingly called upon to discriminate among sophisticated technical arguments."

As an example of the problem which this book takes so long to identify, a case in which I acted as expert witness produced an argument from a distinguished engineer that if an electric fire had been switched on at 9am and switched off at 9pm it had been fed with a "pulse" of alternating current. So how long is a pulse? In the same way how do you define "pollution" or "danger" or "adequate maintenance"?

In a subject so wholeheartedly devoted to controversy - where opinion must play a large part and where, particularly in the medical field, emotions are to the fore - this book is itself remarkably devoid of opinion.

The author stands back from what has gone on in the courts and reports it without prejudice. Thus there is no comment on such facts as: "Parents, convinced by testing technology that children have a 'right' to be born free of certain congenital defects, are prepared to sue their physicians for failing to warn them in time of the risks of such a birth" (so that they could have had an abortion). This despite all the concurrent activity of the anti-abortionists.

But one must bear in mind that this is an American book by an American author and is very largely concerned with United States law. It is often said that in America "the lawyers chase the ambulances" and it is not surprising that so much of the text is occupied with cases about health, birth and death. Thus a case is quoted of a woman lawyer who had acted against an obstetrician and then became pregnant. She found no local obstetrician would care for her and had to drive 80 miles to have her baby delivered.

The final chapter begins with a question: "Is the relationship between science, technology, and the law an essential alliance or a reluctant embrace, a collaboration or an unhappy marriage?" - and then proceeds not to answer it. After all, it was as meaningless a question as: When did you stop beating your wife? The final two sentences are of the same style as most of the book: "Studies of risk and regulation in similar western societies, for example, have helped identify very different conceptions of what constitutes nationality and adequate democratic participation in the resolution of technical controversies. In a time of accelerating social and technological uncertainty, such comparative and cross-disciplinary analyses promise to expand the repertoire of credible public responses to changing knowledge and to re-engage science and the law in mutually beneficial projects of reflection and self-criticism."

Scholarly the book most certainly is, and not intended as light reading. The final 46 pages contain over 600 references numbered in the text proper. All but some 50 of these are plain references, offering no immediate additional knowledge to the reader, but the 50 would have been much better included as footnotes on the appropriate pages, thus relieving the reader of the tedium of repeatedly referring to the back of the book in the hope of adding to the discourse, with only a one in 12 chance of success.

Eric Laithwaite is emeritus professor of heavy electrical engineering, Imperial College, London.

Science at the Bar: Law, Science and Technology in America

Author - Sheila Jasanoff
ISBN - 0 674 79302 1
Publisher - Harvard University Press
Price - £18.95
Pages - 285

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