Project Description

Science, Litigation & the Public Accountability of Vertically Integrated Expertise

• widely publicised cases of miscarriages of justice resulting from courts accepting dubious forensic and psychiatric evidence (Freckelton 1994);
  
• claims that many mass toxic tort cases have relied on 'junk science' generated for the purposes of litigation (Huber 1991);
  
• a number of 'landmark' legal decisions which have reviewed the ways courts should assess scientific and expert evidence (for the reviews see Edmond 2000; and Edmond & Mercer 2003).

The most important of these landmark decisions was the 1993 U.S. Supreme Court decision in the case of Daubert. The court provided a non-exhaustive check-list for judges to consider when deciding whether evidence can be submitted to court as scientific. Daubert also invited judges to be active gatekeepers, restricting the entry of expert evidence that did not meet the criteria it provided (Edmond & Mercer 1997a; 2003). Whilst Daubert does not directly apply to legal jurisdictions outside of the U.S. the case has still inspired considerable debate across other common law jurisdictions (Odgers & Richardson 1995; Roberts 1996). Daubert has been linked to demands for tougher judicial screening of expert evidence and perceptions that the intersection of law and science is a social problem in need of serious reform (Foster & Huber 1997; Bernstein 2001; Dixon & Gill 2001).

Most of the post-Daubert literature has proceeded from the assumption that the epistemological boundaries between science and law can be clearly demarcated. Within this framework scholarly debate has focussed on two key problems:

• The legal distortion of science: claims that certain legal and regulatory pressures have led experts to re-shape their knowledge in illegitimate ways for legal or regulatory consumption (Huber 1991; Angell 1996).
  
• The legal ignorance of science: claims that courts are scientifically ignorant an therefore frequently come up with the wrong answers because they believe the wrong experts.

Suggestion for reform flowing from this debate have emphasised changing the law (a call for stricter admissibility requirements); procedural reform (the creation of expert panels); disciplining experts (setting up codes of practice and courses in professional ethics); and improving judicial performance (a call for judicial education) (Miller et.al. 1994; Dobbin et.al. 1999; Weil 2001).

Another body of literature influenced by the Sociology of Scientific Knowledge 
(SSK), where my own publications have been influential, has approached these issues differently (for overviews see Edmond 2000; Mercer 2002b). SSK approaches have interpreted the boundary between science and law as a category open to interpretation. Within such approaches there has been a greater concern with exploring how the particulars of any given scientific controversy and legal setting, and the surrounding social context, influence what comes to count as legitimate scientific and legal knowledge (Jasanoff 1995; Lynch & Jasanoff 1998). One important these emerging from this literature has been the call to interpret the mutual shaping of law and science as routine and not something that can be explained away by a sociology/psychology of error or deviance. Smith & Wynne (1989) for example, argue that the court-room is the ultimate professional arena for many experts in the forensic sciences. I would suggest that this would also apply to many experts working in areas such as epidemiology and toxicology and environmental and accident assessment. Similarly, as Stephen Hilgartner (2000) argues, one of the crucial activities of experts and bureaucrats in government advisory bodies is to stage-manage tensions deriving from their brief to blend scientific and policy concerns whilst maintaining the rhetorical boundaries which supposedly separate them.

Here then is the social, cultural and scholarly debate into which my research will intervene. It will take the SSK literature in a new direction by exploring important trends in the process of the mutual construction of law and science that has flowed from the Daubert case.

The main outcome of the project will be to map and critically analyse the emergent tendency for expertise in legal and regulatory settings in Anglophone common law contexts to become what could be described as vertically integrated.

I have appropriated the metaphor of vertically integrated expertise from economics literature where it explains measures taken by corporations to control everything from the extraction of raw materials to point-of-sale marketing (Galbraith 1969). In the science-law context it sharpens the analysis of a number of recent controversial areas of science-law interactions where the same experts are increasingly intervening in 'upstream' and 'downstream' layers of the scientific/legal process: from laboratory-to-courtroom-to-judgement or regulatory decision (Latour 1987; Gieryn 1998). In such an environment experts begin to function like 'heterogeneous engineers' to borrow a concept sometimes used in the social history of technology (Law 1987). This term refers to the way important figures in the history of technology such as Edison and Ford successfully developed large scale technological systems by intervening in multiple layers of the innovation process from invention to marketing.

Vertical integration is also enhanced by the serial nature of toxic torts and scientific controversies. Toxic torts, for example, often involve case congregations that develop cyclically over time, providing considerable room for participants to modify and develop strategies to match their knowledge with the demands of various settings (Sanders 1992; Edmond & Mercer 1997b; 2000). In such settings 'folk' models of scientific methods or 'method discourses' tend to emerge, tailored to suit particular settings, and construct artificially stable epistemic backdrops for framing controversial scientific claims (Mercer 2002). Longer standing controversies also encourage the emergence of exemplary models or 'standardized packages' which impose boundaries around the ways scientific concepts can be interpreted/challenged (Fujimura 1992). Examples of standardised packages include the use of models such as the Bradford Hill criteria or Daubert criteria to help assess the veracity of epidemiological knowledge in courtroom situations.

This project will also attempt to explain the increasing frequency of the management of scientific controversies in the courts by vertically integrated expertise. Three promising issues for detailed investigation have been identified:

• That the vertical integration of expertise protects against risks of the deconstruction or legal criticism of expert claims. Experts who are adept at understanding/manipulating legal and regulatory needs, as well as scientific and technical principles and policies, can help bridge gaps between various levels of production and consumption of scientific knowledge claims. In a post-Daubert era of enhanced judicial sensitivity to the form in which scientific and expert claims are presented to courts, vertical integration of expertise enhances the translation of concepts from specialised to more generalist contexts. It helps in the appropriate packaging of expert claims for legal and regulatory consumption (Rier 1999; Shinn & Whitley 1985).
  
• That various conservative political lobby groups and government organisations have promoted the trend towards vertically integrated expertise (Stauber & Rampton 1995; Beder 1997). particular organisations such as the US think-tanks The Atlantic Legal Foundation and The Manhattan Institute have promoted the general perception that there was/is a legal crisis involving law and science. They have recruited high profile scientists to sign amicus curiae briefs (public interest briefs which judges are free to consider or ignore) that have been submitted to courts with the aim of articulating the way specific scientific claims and legal standards interlock. They have also promoted trenchant critics of the way the legal system interacts with the law such as Peter Huber. Huber was one of the originators and promoters of the term 'junk science' (For critical reviews see Edmond & Mercer 1998; 2003).
  This project will investigate the dimensions of the not-so-subtle and largely self-interested relationship between these lobby groups, celebrated 'public scientists' (Gregory & Miller 1998), teams of 'serial' experts, politically conservative intellectuals, and large corporations that stand to benefit from tort reform. The project will also investigate the way alternative opposing lobbies and government organisations have also mobilised and started to enrol experts to help produce their own 'vertically integrated' law/science packages.
  
• That judicial and regulatory fatigue and pressures of judicial gate-keeping are predisposing judges and regulators to encourage the development of vertically integrated expertise. Increasing pressures on judges and regulators to be pro-active in gate/keeping/screening scientific and expert knowledge lead them to prioritise 'mainstream' scientific and technical claims that are packaged in the appropriate form and carry the imprimatur of scientific associations, professional  panels and other 'public' signifiers of authority (Jasanoff 2002).

The project will analyse a variety of case studies of recent scientific controversies that have involved litigation.

Cases will be located in their broader socio-legal contexts. I will track the influence of devices such as 'amicus curiae' (friend of the court) briefs submitted by 'think-tanks' such as the 'Atlantic legal Foundation'; the role played by key repeat expert witnesses; professional scientific organisations; shifts in admissibility requirements for scientific evidence; and implicit models of science favoured by courts. I will also interview a sample of lawyers, plaintiffs, defendants and experts involved in these proceedings. Cases will be targeted because they have attracted public attention and wider commentary; featured the involvement of 'think-tanks' and/or serial expert witnesses; and dovetail with broader ongoing scientific controversies.

Cases will be evaluated in depth in the context of existing literature on toxic torts, judicial surveys, and a comprehensive review of trends in litigation involving scientific evidence using resources such as 'Westlaw", <daubertontheweb.com> and other relevant websites. A review of the current state of the key scientific controversies covered by the project eg. EMF/RF, asbestos, and ionising radiation will also be provided. The Vertical Integration of Expertise project will extend the existing literature and deepen our understanding of these cases through a detailed investigation of vertical integration practices focussed particularly on the three explanatory hypotheses noted above.

The project will also contribute to current debates in science studies concerning the categorisation of different types of expertise and determination of the most politically appropriate roles for experts, the public, and scholarly intervention (Collins & Evans 2002; Jasanoff 2003; Wynne 2003). Much of this debate has unfortunately been conducted using fairly static categories of expertise (Rip 2003). Investigating the actual 'emergence' and 'performance' of new forms of expertise in law science settings should provide a source for a less artificial and more dynamic appraisal of the ways expertise is formed and functions. The processes of learning that are encouraged by the vertical integration of expertise and the hybridisation and blending of technical and legal knowledge also raise significant questions about the public accountability and legitimacy of such expertise. For instance, the effectiveness of vertically integrated expertise would appear to be linked in part to its ability to 'mutate' as as to be able to better 'articulate' with complex 'real world' situations. But this fluidity defies traditional more abstract notions of expertise as specialisation. The price of such flexibility can be difficulties in maintaining legitimacy for such knowledge - it can be seen to lack independence and universality, and appear to be 'purpose built'. The work of such experts may also be difficult to reconcile with traditional views of the 'norms' of scientific research especially surrounding issues of conflicts of interest and scholarly independence (Turner 2001; Mirowski & Sent 2002). lastly, the ways protagonists in legal disputes deal with questions of the public accountability and legitimacy of vertically integrated expertise will be one of the key themes the project will investigate. Exploring these themes also invites reflection on my role as an analyst. Questions about the extent to which non-expert views can be incorporated into decision-making involving science and technology or whether or not the STS analysts should adopt an activist or more politically detached position will be considered (Whitehouse, et.al. 2002).

This project will provide a timely re-think of the scope of current studies of law and science through a comprehensive review and analysis of an emerging shift in the culture of expert knowledge in the post-Daubert era. It will map important political trends in the way Anglophone common law legal systems are being shaped by corporate, government, and business pressures flowing from what I see as mistaken and self-interested perceptions that problems of law/science interactions are primarily the result of the legal distortion of science. The project is innovative in its new conceptual apparatus which will deliver a much more accurate appraisal of the role of scientific and technical experts in courts and regulatory settings than most policy literature which has been limited by its reluctance to investigate the mutual shaping of law and expertise. Providing a more accurate accurate appraisal  of emerging new forms of expertise in such settings is a significant pre-condition to forming better policies and regulatory approaches to ensure public accountability of expertise and legal decision-making involving science and technology.

References

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