This article was written in collaboration with Jacob Traverse [1]
Time has proven that there is good science and bad science – often referred to as junk science. In the 1960s and 1970s, the junk science boom began, sponsored primarily by organizations and individuals eager to capitalize on public fears. Bad science doesn’t seek truth; it strives for fame and fortune.
Written law did not appear until between 2100 and 2050 BC. BC; The Codex of Ur-Nammu was created in Ur, a city in Mesopotamia. For the most part these laws and the subsequent and more humane code of Hammurabi were administered by kings and their agents, the ancient “state”. The standards of justice represent truth and justice in today’s legal systems. The law seeks truth by weighing evidence, weighing one party’s evidence relative to another without the intervention of other forces. The party with the more complete and convincing evidence will have more “weight” on the justice scale.
There were good laws and bad laws. Sometimes bad laws are edicts—the Jim Crow laws of the South and Redlining in the North both come to mind. Sometimes they are terrible court decisions – Buck v. Bell, where the SCOTUS ruled that the state can sterilize a person just because they have “mental disabilities,” which, by the way, is a decision that has still not been overturned. Bad law, on the other hand, does not seek the truth; it seeks to oppress and to profit.
But science and law have one thing in common in the search for truth. Science searches for the truth in our physical world. The law searches for the truth in our social world.
“We follow the science.”
– The fictional Dr. Gil Grissom from CSI: Crime Scene Investigations
Science has played an increasingly important and evolving role in criminal law for nearly a century and a half. We’ve gone beyond phrenology and developed fingerprint recognition and now DNA matching, all made possible by science. Science has helped the legal system discover the truth; that prosecutors convict wrongdoers and that defense attorneys exonerate innocents. Sometimes they disagree, but after the Daubert trilogy of cases* codified in Federal Rule of Evidence 702, all dealing with what instrumental role the Atlantic Legal Foundation has played, it’s becoming increasingly rare that junk science and scaremongering in court proceedings .
Science also plays an increasing role in civil litigation. With billions of dollars at stake in large class action lawsuits, the science of risk and safety has become increasingly controversial.
Plaintiffs used scientific evidence in a class action lawsuit against asbestos manufacturers, showing that exposure leads to an increased risk of developing mesothelioma.
“The importance of scientific rigor in deciding such cases goes far beyond the case itself. …we must look for a law that reflects an understanding of the relevant underlying science, and not a law that gives corporations the freedom to do serious harm or unnecessarily forces them to refrain from the thousands of artificial substances that are used by on which modern life depends.”
– Assistant Supreme Court Justice Stephen Breyer
And for more than a century, science has played a crucial role in making law. Science is routinely used in drafting regulations to promote the Clean Air Act. Under this law, the EPA began restricting extremely small airborne particles, PM2.5. Over the past 20 years, these regulations have reduced US PM2.5 emissions by 37 percent. Satellite images show America has the cleanest air outside of Siberia and Antarctica. Sound science produces useful laws.
Some scientists and regulators think the EPA needs to lower PM2.5 levels even further. A very expensive undertaking. Why make this requirement when PM2.5 levels continue to fall, even below the current EPA standard? As a reason, these advocates cite data showing that PM2.5-related illnesses have increased over the past 22 years.
“Cigarette smoking poses a health risk in the United States that is serious enough to require corrective action.”
– The American Cancer Society’s Cancer Prevention Study I
This was the important data on which the 1964 report “Smoking and Health: Report of the Advisory Committee to the Surgeon General” was based. It took another 26 years for lung cancer incidence to peak in the US. Biological effects are often delayed by months, in this case even years. With PM2.5 levels falling but PM2.5-associated disease cases rising, ignoring lag intervals is just one way how flawed “bad” science can affect regulation.
The research EPA uses to validate its more stringent PM2.5 policy is not available to the public to examine the underlying methodology, data, or the results leading to its conclusion. The scientific “method” recognizes that one can never prove anything to be true, only that something is false. So there is a form of skepticism built into science. The opacity of the underlying science is at odds with the scientific method, and this is where regulatory science gets worse and worse. Public health, the focus of EPA, requires evidence-based science. But that assumes we know the evidence. The scientific method is based on the understanding that evidence is what we know now and what we can change as we learn more. So maybe we should call it evidence-based science. A lack of transparency in regulatory science puts President Dwight Eisenhower’s words into perspective:
“The prospect of dominating the country’s scholars through federal employment, project grants, and the power of money is ever-present and must be taken seriously… Yet, while respecting scientific inquiry and discovery as we should, we must respect it as well be aware of the opposite danger, that public order itself could become the prisoner of a scientific and technological elite. … It is the task of statecraft to shape, balance and integrate these and other new and old forces within the principles of our democratic system – always with the aim of achieving the highest goals of our free society.”
It is within the courtrooms and chambers of parliament that science and law come together to shape our world. The legal professionals and experts who oversee our courts and legal system are increasingly acting as gatekeepers, determining what scientific knowledge and particularly what evidence can be used to establish the truth in cases where harm is alleged. The Atlantic Legal Foundation has worked for many years to ensure that evidence and testimony is based on sound science and discourages the use of junk science and the toxic crime industry.
There have been recent examples of judges and jurists taking this role seriously and defending themselves against financial incentive lawsuits based on flawed or intentionally biased scientific evidence. In the case of the popular antacid drug Zantac, which came under scrutiny in 2019 for possible harm from the presence of a known carcinogen, US District Court Judge Robin Rosenberg issued a 341-page “conviction” of flawed science and fabricated evidence of the US District Court plaintiffs and their experts. Judge Rosenberg thoroughly refuted the scientific claims, providing a detailed assessment of how the plaintiffs created or manipulated the methods and evidence to support their claims and did not provide a causal link. This led to the dismissal of the multidistrict litigation based on the US Supreme Court’s standard for experts established in its 1993 decision, which is now being considered in the Daubert Court [2] Trilogy and Federal Rule of Evidence 702, in which the Court recognized the Atlantic Legal Foundation for its helpful amicus briefing on behalf of the Court and ALF’s Amici included Nobel Laureates and other renowned scholars.
“There is not a scientist here outside of this litigation who has come to that conclusion [Zantac] causes cancer, and plaintiffs’ scientists systematically used unreliable methods in this litigation, with a lack of documentation on how experiments were conducted, a lack of justification for analytical leaps, a lack of statistically significant data, and a lack of internally consistent, objective, scientifically based standards for the balanced evaluation of data”,
– US District Judge Robin Rosenberg
So science and law have a lot in common. Science as we know it is just the laws of nature. And the law as we know it from the legislature, the criminal and civil trial and appellate courts, often has deep roots or jurisprudence in science.
[1] Mr. Traverse is President and CEO of the Center for Truth in Science and a member of the Advisory Board of the Atlantic Legal Foundation
[2] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993); General Electric Co. v. Joiner, 522 US 136 (1997); and Kumho Tire Co. v. Carmichael, 536 US 137 (1999)
