Reference Manual on Scientific Evidence Third Edition (2011) / Chapter Skim
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Introduction--Stephen Breyer
Introduction--Stephen Breyer
Pages 1-10
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Introduction stephen breyer Stephen Breyer, L.L.B., is Associate Justice of the Supreme Court of the United States. Portions of this Introduction appear in Stephen Breyer, The Interdependence of Science and Law, 280 Science 537 (1998)
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In determining that disputed material facts existed regarding the motive of the state legislature in redrawing the redistricting plan, we placed great weight on a statistical analysis that offered a plausible alternative interpretation that did not involve an improper racial motive. Assessing the plausibility of this alternative explanation required knowledge of the strength of the statistical correlation between race and partisanship, understanding of the consequences of restricting the analysis to a subset of precincts, and understanding of the relationships among alternative measures of partisan support.
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Recently we were asked to decide whether a state's method of administering a lethal injection to condemned inmates constituted cruel and unusual punishment in violation of the Eighth Amendment.4 And in 1997, we were asked to decide whether the Constitution protects a right to physician-assisted suicide.5 Underlying the legal questions in these cases were medical questions: What effect does a certain combination of drugs, administered in certain doses, have on the human body, and to what extent can medical technology reduce or eliminate the risk of dying in severe pain? The medical questions did not determine the answer to the legal questions, but to do our legal job properly, we needed to develop an informed -- although necessarily approximate -- understanding of the science.
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The upshot is that we must search for law that reflects an understanding of the relevant underlying science, not for law that frees companies to cause serious harm or forces them unnecessarily to abandon the thousands of artificial substances on which modern life depends. The search is not a search for scientific precision.
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The Federal Judicial Center is collaborating with the National Academy of Sciences through the Academy's Committee on Science, Technology, and Law.9 The Committee brings together on a regular basis knowledgeable scientists, engineers, judges, attorneys, and corporate and government officials to explore areas of interaction and improve communication among the science, engineering, and legal communities. The Committee is intended to provide a neutral, nondversariala forum for promoting understanding, encouraging imaginative approaches to problem solving, and discussing issues at the intersection of science and law.
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For example, Judge Richard Stearns of Massachusetts, acting with the consent of the parties in a highly technical genetic engineering patent case,13 appointed a Harvard Medical School professor to serve "as a sounding board for the court to think through the scientific significance of the evidence" and to "assist the court in determining the validity of any scientific evidence, hypothesis or theory on which the experts base their testimony."14 Judge Robert E Jones of Oregon appointed experts from four different fields to help him assess the scientific reliability of expert testimony in silicone gel breast implant litigation.15 Judge Gladys Kessler of the District of Columbia hired a professor of environmental science at the University of California at Berkeley "to answer the Court's technical questions regarding the meaning of terms, phrases, theories and rationales included in or referred to in the briefs and exhibits" of the parties.16 Judge A
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Hooper et al., Assessing Causation in Breast Implant Litigation: The Role of Science Panels, 64 Law & Contemp. Probs.
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and the Science and Technology Section of the American Bar Association, has developed a program to assist federal and state judges, administrative law judges, and arbitrators in identifying independent experts in cases that present technical issues, when the adversarial system is unlikely to yield the information necessary for a reasoned and principled resolution of the disputed issues. The program locates experts through professional and scientific organizations and with the help of a Recruitment and Screening Panel of scientists, engineers, and health care professionals.27 The Private Adjudication Center at Duke University -- which unfortunately no longer exists -- established a registry of independent scientific and technical experts who were willing to provide advice to courts or serve as court-appointed experts.28 Registry services also were available to arbitrators and mediators and to parties and lawyers who together agreed to engage an independent expert at the early stages of a dispute.
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Hooper et al., Neutral Science Panels: Two Examples of Panels of Court-Appointed Experts in the Breast Implants Product Liability Litigation 93–98 (Federal Judicial Center 2001) ; arbara S
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