International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2013 Issue

Global Judicial Dialogue


Judges and Scientists:  An International Discussion Needed

Judge Susan A. EhrlichBy Judge Susan A. Ehrlich, Arizona Court of Appeals (ret.); J.D., LL.M. (biotechnology & genomics)

Law and science are linked in a quote from the 18th-century German philosopher Immanuel Kant:


Two things fill my mind with ever-new and increasing wonder and awe the more     often and persistently I reflect upon them: the starry heaven above me and the moral law within me. I see them before me and unite them immediately with the consciousness of my existence.

Critique of Practical Reason (1788).  

Indeed, Kant sought to express how both the laws of morality and the laws of nature are founded in human reason.  He distinguished between them, but he also insisted that the two must be compatible and therefore bridged because each is the product of our knowledge and experiences.  Critique of Judgment (1790). 

Judges are among those bridge-builders.  Many legal issues confronting the courts entail a consideration of the significant and swift scientific developments that implicate private and governmental responsibilities.  Not infrequently, our mutual economic prosperity, health, safety and security rely on the resolution of disputes brought to judicial venues that depend on credible scientific information.  The wise resolution of those disputes matters not only to the litigants but also to the public that relies on a trustworthy application of legal principles. 

To push the bridge analogy a bit further, judges not only build the bridges, they also control access to the bridges.  In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court used the word “gatekeepers” in charging trial judges with the responsibility of determining what scientific, technical and other such specialized testimony is valid and helpful to the trier-of-fact, and, therefore, admissible as such.  See also Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); General Electric Co. v. Joiner, 522 U.S. 136 (1997).  The Court in Daubert, Kumho Tire and Joiner set forth a non-exclusive list for a trial judge to use to assess the reliability of the proposed expert testimony, among which factors are:

  • whether the expert’s theory or technique has been tested or whether it is no more than a subjective approach that cannot be evaluated for its reliability;
  • whether the theory or technique has been subject to peer review and publication;
  • whether the theory or technique has been generally accepted by the expert’s scientific or technical community;
  • whether the subject-matter of the testimony comes from research conducted independently of the litigation or from research conducted for the purpose of the litigation; and
  • whether the field of claimed expertise is one known to reach reliable results. 

The Court emphasized that the “focus, of course, must be solely on principles and methodology, not on the conclusions they generate.”  Thus, when an expert claims to be utilizing an appropriate theory or technique but nonetheless reaches a conclusion that other experts in the same theory or technique would not reach, it may be concluded that the expert did not properly apply the theory or technique. 

The judicial role is not one of being a scientific arbiter.  Nonetheless, the resolution of a legal dispute may necessitate the resolution of scientific uncertainties by a non-scientist judge as well as lay jurors in some cases and tribunals.  The case then is presented in an adversarial setting that itself shapes the presentation of the science, a context made the more problematic because the very languages of law and science can be at odds given the natures of their disparate means of and reasons for inquiry.  As Justice Harry Blackmun wrote in Daubert, “there are important differences between the quest for the truth in the courtroom and the quest for truth in the laboratory.”

To be fair, the judgment must reflect such sound science as exists at that time and in the context of the particular litigation.  Scientific certainty will not be found, of course, because the very nature of science is that it is subject to continuing and dynamic validation and exploration.  In contrast, a legal dispute must be resolved expeditiously and with as much certainty as is practicable and just.  A judgment cannot be


reconsidered and reconstructed as scientific understanding evolves; it must have finality for the litigants and as precedent.  A common comparison is between science as a motion picture and a case as a movie’s still frame. 

How, then, can a judge’s duty of gatekeeper be met?  This is not a question unique to United States judges, albeit phrased above in the context of United States jurisprudence.  Rather, how can any judge of any tribunal acquire sufficient scientific or other technical expertise with which to make the decisions outlined above, whether the judge be an administrative or trial judge in the first instance or an appellate judge in the due course of reviewing the administrative or trial judge’s rulings?     

It is a given that a judge commonly will have only limited assistance to review proffered scientific evidence, evidence that likely will not only be expressed in unfamiliar language but also be complex, extensive and challenged.  Such assistance can be augmented by several means:

  • the pleadings and briefs of the litigants;
  • amicus curiae pleadings and briefs;
  • a pre-trial conference conducted by the judge to narrow the disputed scientific or technical issues;
  • a pre-trial hearing conducted by the judge for the examination of the litigants’ experts for the purpose of exploring and focusing the scientific or technical issues; and/or
  • the court’s appointment of a scientific or special master

The identification and selection of a special master requires particular care.  The individual must be an independent and neutral expert in the science or technology at issue, preferably a person agreed upon by the litigants.  As such, there must be a means by which any conflict of interest is exposed.  Also, the individual must have both the requisite expertise and an understanding of the respective roles of the special master and of the judge.  In this regard, the employment of a special master cannot be permitted by the judge either to intrude upon or become a substitute for the judicial role or to unduly interfere with the litigants’ presentation of their case.  Accordingly, while the special master may be authorized to hold contested proceedings for the purpose of preparing the master’s recommendations or report to the court, the litigants must have an opportunity to be heard and object before the judge independently acts upon the special master’s recommendations. 

There are greater questions than the conduct of a single legal proceeding, however.  The paramount question is whether the adversarial tribunal is the appropriate means by which to resolve a legal matter that largely depends upon the resolution of scientific or technical disputes. 

The conventional legal process asks non-scientists to resolve issues about which experts legitimately and often heatedly disagree.  It favors conflict and highlights disagreement, giving disproportionate emphasis to differences that may be of petty or no significance rather than seeking consensus that may be more telling of the scientific or technical understanding of the subject at that moment in time.  Such differences acquire greater emphasis the more cutting-edge the science.  Additionally, even when scientific or technical knowledge may be considered as accepted and presented in a seemingly objective manner, the perception of that evidence is subjective, depending upon the recipient’s knowledge, experience and biases, noting again the intricacies of the differing linguistics of science and law. 

In the judicial venues of the United States, other countries and international tribunals are cases that require increasing scientific and legal sophistication to decide: cases involving, for example, synthetic biological and chemical engineering, nanotechnology and genetically modified and engineered foodstuffs.  There are the attendant issues of intellectual property and trade, both national and international.  What is the most effective means by which to resolve these matters?  Indeed, what do we value in a legal system?  How do we achieve justice in one case and preserve consistency across many cases, especially when the issues cross national borders?  How do we cross the etymological divide between law and science? How are science-based disputes resolved by courts in the United States and the countries of the European Union as well as in other scientifically and technologically advanced countries and by international fora?  It is time for candid and thoughtful international discussions of the presentation of science in legal venues, colloquia of judges and scientists held by such a sponsor as the International Judicial Academy.   

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© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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