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Legal Alchemy: The Use and Misuse of Science and the Law Introduction The present paper provides analysis of the book Legal Alchemy: The Use & Misuse of Science in the Law written by David Faigman. The authors text is a fast-paced and entertaining introduction to critical thinking, covering interpreting texts, supporting arguments, and an engaging guide to the scientific and non-scientific information on which the law-making in our world is often stipulated and premised. The paper explores David Faigman's review of the history of law and science and answers the question how it relates to the legal environment of business. Legal Alchemy: The Use and Misuse of Science in the Law In his Legal Alchemy David Faigman, a professor at Hastings College of Law, provides a thoughtful outlook on how the United States legal system incorporates scientific knowledge when it comes to decision making.
When the book was published, it immediately attracted attention of both scientific and legal communities, because it managed to show masterly how the science can be used and misused in a wide range of settings, for example in: The Courtroom (when the author discusses the O. J. Simpson trial to the Dow Corning silicone breast implant lawsuit and to such landmark cases like Roe v. Wade); The Legislature (David Faigman brings light onto the issues when the Congress uses scientific information in order to facilitate enacting legislation about cloning, clean air, and science projects controlled by the U. S. government, such as the superconducting super collider, the space station, and many others); Government Agencies (the author explores these settings, as he dwells on those who utilize science in order to determine policy on a wide range of topics, beginning with regulating sport utility vehicles and ending with re introduction of the gray wolves to Yellowstone National Park; When David Faigman examines these issues, he tries to evoke the feeling that all these judges, members of U.
S. Congress and juries quite often have no slightest understanding on the subject of science behind their decisions. As this occurs, the author offers solutions and suggestions on how legal professions and science can implement the process of communication between each others, and, therefore, begin working together more efficiently. Legal Alchemy: The Use and Misuse of Science in the Law is written in an interesting way, as this is, probably, the first book where the author provides a thought-provoking outline of the history of law and science, and interconnects it with the legal environment of business. From the very beginning the author focuses readers attention on the fact that law and science have common roots in religion. The author reminds the reader the historical fact that religion didnt accept the science and then compares it with the fact that the court often accepts the science, but, surprisingly is unable to insist on validation.
David Faigman inspires the thought that in order to accept and realize the dichotomy between the science and the law people have to understand that the prestige of the law is often roots in adhering to the historical traditions of the past. At the same time, in contrast to the law, the prestige of the science bases on how quickly the science can advance to the future. The author also claims that the science is based on the premise that the behavior depends on experience and biology, while the law assumes the existence of the free will that belongs to the humankind. In such a way, the author of the book understands science and the law as rival siblings of the mother religion. In Legal Alchemy: The Use and Misuse of Science in the Law David Faigman presents a number of interesting law- and science-related examples, beginning with the Scopes trial and the O.
J. Simpson case. The author tries to convince the judges that they should never abdicate their legal responsibility to determined what the worthwhile testimony is. His greatest criticism is directed towards the Supreme Court.
Indeed, approximately two hundred years ago the state of the world allowed operating easily between the realms of the law and the science. However, nowadays the situation has changed drastically and, as the author makes it extremely clear, the amateur scientists avoid public stage, and the administrators, the judges and the lawmakers often feel lack of scientific literacy in relation to science. The Supreme Court, as the author considers, is no exception to the rule, as it also lacks the scientific literacy. David Faigman insists that many of far reaching and famous decisions by the Supreme Court rested upon the scientific propositions that failed to hold up under even cursory review. For example, as the author claims, in the case Brown v Board of Education, the Supreme Court justified desegregation of the U. S.
public schools as it cited a number of social science studies that rested on assumption that the segregation of the minority children "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. " (Faigman, 1999) As this took place, the use of science was a relatively easy way to achieve what is understood as a correct result, in contrast to the appeal to the legal precedents and the constitutional principles containing no evident answer to the racial dilemma that remains still as insoluble as ever. However, as it is claimed by the author, the science between Brown had no reasonable grounds, and when in subsequent years there was finally an evidence that integration has impact on children, the Supreme Court asserted that this cannot be taken into consideration, as the subject at the issue was that the segregation was inherently unequal, irrespectively of what the research could show about the impact on children that were segregated. Another legal case, discussed by the author in his Legal Alchemy: The Use and Misuse of Science in the Law is Roe a Wade, where the decision of the Supreme Court had lead to controversy with regards to the medical facts on which the key premises of the Justice Harry Blackmuns opinion has rested upon. The basis for the consideration of the Supreme Court was the division of pregnancy into three trimesters, and the court declared that the states have no right to interfere with a right of a woman to choose abortion during the first trimester of her pregnancy, as during the first trimester the risks to the health of the mother (in case she chooses abortion) are considerably less than the risks, which are associated with the carrying woman's pregnancy to term. Additionally, the second premise was that the state was eligible to impose restrictions on womans abortion made during the last trimester of her pregnancy when the fetus became viable outside the womans womb. However, this traditionally accepted trimester system became outdated, because the medical science soon made changes in the date of viability of the fetus, and made late abortions safer.
At the same time, the Supreme Court accepted no changes to its proceedings for more than twenty years and adhered to the old traditional system when it touched the states decision on abortions and the women. Even when the trimester system was abandoned in the Casey decision, the Supreme Court insisted on the assumption that the viability of the fetus outside the woman's womb is the trigger for when the interest of the state to protect the fetus is eligible to trump the interests of the woman during her pregnancy, and even failed to provide any substantial and reasonable explanation concerning why the state has a stronger interest in protecting a fetus that is not yet even viable. The author then explores another case, namely, the Supreme Court's 1983 decision in Barefoot v Estelle. This case can serve a perfect illustration of what is called a conflict between the science and the law, where the science contradicts to what the Court considers to be the only correct and righteous, the Court easily omits the science. In this case Barefoot, a murderer, who was sentenced to death, tried to avoid his execution. During the sentencing hearing, one of the psychiatrists, who were present in the Court, the person who had never met the murderer, testified that if the murderer will not be executed, he, with no doubt, will commit a murder again.
This doctor's claim was opposed by the American Psychiatric Association. According to the American Psychiatric Association, there were numerous scientific studies that proved that psychiatric predictions of the long term dangerousness of the felonies were wrong and approximately 2 - 3 times less reliable than a flip of a coin. However, the Supreme Court preferred to neglect the Apa's claim and considered that as far as the potential long term dangerousness of the person, who was accused of committing murders, is a substantial criterion to impose death penalty, and as far as the lay jurors have right to make the determination concerning the legal case, the adversarial process of cross-examination will be eligible to decide on what is good or bad in psychiatric testimony. As the author of the book places an emphasis on all these cases, when the law was in conflict with the science, whether David Faigman was discussing the way other branches of the government use science, the Fish and Wildlife Service's efforts to put gray wolves into Yellowstone National Park, or the bone-headed abolition of its Office of Technology Assessment by the U. S. Congress, the author pursues the aim to show the reader how scientific data may be mishandled, abused, or even ignored in the interest of the law and the governance.
David Faigman considers that the Supreme Court is likely to interpret scientific data in the light of accepted doctrine, and often misinterprets and misuses this data. The author also claims that the Court's ignorance of or disdain for science similarly leads to scholarly attempts to educate the justices, which in some measure influence their later decisions, and this ignorance takes place when the judges misinterpret empirical research and then become the subjects of deserved criticism. The authors attitude towards the U. S. Congress is less strict and is more empathic.
In his book David Faigman says that the Congress simply sets too broad goals and doesnt bother with the science, leaving it to the agency. He tells that "Congress often bludgeons bureaucrats and scientists alike, sometimes for good reason. Most of the time, however, it swings wildly but without causing much harm. " In his Legal Alchemy: The Use and Misuse of Science in the Law David Faigman inspires the belief that the real instrument of the science policy in America is the bureaucracy that rules in the executive branch of government. He also considers that the Congress mistake is the lack of desire to spend money on worthwhile scientific institutions and projects of the national importance, and the prime mistake is the failure to fund the Office of Technical Assessment (the agency, responsible for advising the Congress on technical and scientific issues). Conclusion In conclusion it may be said that the author of Legal Alchemy: The Use and Misuse of Science in the Law managed to provide an accurate and nicely written description of the possible difficulties the lawmakers may face when they judge science.
The book provides an understanding on how the lawmakers can turn science of very poor quality or with no value into scientific gold, and scientific gold into legal rubbish, correspondingly. The book will be of great interest for a wide circle of readers and can be recommended for any person interested in the use of science in the law and for those who want to discover how the mixture of law and science relate to the legal environment of business. Legal Alchemy: The Use and Misuse of Science in the Law presents the reader a thoughtful discussion related to the most interesting and important legal cases involving scientific evidence, and provides a review on how the existing scientific developments are treated in policy and law. Moreover, the book is a treasury collection of the authors well-reasoned and sound judgments of numerous issues dealing with the legal and scientific policy. The text is thoroughly interesting, professionally written and, obviously, worthwhile reading for anyone despite of their background the scientist, lawyer, or those interested in hot social topics. The fact that David Faigman often refers his narration to classics, law, prose, poetry, and landmark cases adds broad appeal to his book.
Although the primary driving motive that forced the author to write this book can be related to the Court's Daubert decision, it is still clear that David Faigman's treatise is important, necessary, and timely. A professor at Hastings College of Law places an emphasis on fact that the courts in general and the Supreme Court in particular, are unable to adhere too deeply to the scientific matters. However, this so-called insecurity with the science leads to creation of a number of doctrinal problems for the law. Taking into consideration this fact, the author of the book claims that judges and justices do somersaults in order to avoid the specific analysis of important science issues. Yet, it should be noted that David Faigman's criticism is not limited to the courts, as he considers that the use of science by the courts has been significantly slowed down because of the impurity of science the courts see. The author also claims that the lawyers suffer from so-called syndromic lawyer syndrome or, in the other words, the acceptance by the lawyers of any simplistic explanation for behavior in humans (also for complex behavior) supporting desirable legal outcomes.
David Faigman also suggests that the politics often pretends under the mask of science (in order to illustrate this assumption, the author of the book explains that the rape trauma syndrome as well as the battered woman syndrome were treated as scientific fact, but in reality these syndromes were political ploys with little or no scientific support). In this book, the author manager to present the law and the science at a professional level, as his understanding of statistics, law and science is more than adequate to the task. Although David Faigman fails to explain statistics he uses in the Chapter III at a statisticians level, his explanation of methodology is quite thorough and correct, because it allows the average reader to discover the amazing world of forensic science, and provides an unbiased look at what happens when the science and the law collide. References Faigman, D. L. (1999). Legal Alchemy: The Use and Misuse of Science in the Law.
W. H. Freeman and Company Publishers.
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