"Which Scientist Do You Believe?" is a key to each. Recently,2 over thirty conferees representing diverse disciplines3 and experience met to consider processes for addressing that underlying question in widely varying legal and social contexts.
A symposium on the "Science Court,"4 was the immediate antecedent of the conference. Papers published there identify but do not resolve issues such as the extent to which facts and values can, or need, be separated.5 Thus, prospects for a live forum where they could be aired was discussed even before publication. Once Arthur Kantrowitz obtained Hertz Foundation support, this became feasible.
Still, disputes that harbor technical issues do not necessarily turn on scientific credibility. For example, if fear of electromagnetic radiation reduces residential property values near power lines, its scientific rationality should be irrelevant in actions to recover for landowners' economic losses.9 Likewise, people who wish to teach creationism in public schools usually admit religious goals, and scientific credibility becomes irrelevant under the First Amendment.10
In most controversies, someone must decide which technical questions, if any, need answers. This was underscored by Dalton Paxman who discussed tensions between Members of Congress who seek to require, e.g., technical analysis to support environmental regulation and those who wish to preserve legislation that skirts technical issues.11 It was also emphasized by Kristin Shrader-Frechette, who urged that those affected by decisions should be, in the name of procedural fairness, entitled to a say in framing issues.12
Available resources must also be juggled with the need for technical accuracy. In much the same vein, Sidney Shapiro discussed how additional process, such as using advisory committees, may cause undue regulatory delay.13 He argued for agency latitude.
Yet another basic issue underlying technical accuracy is the degree of confidence with which facts must be established.14 In most civil and regulatory actions, a party who wishes to disturb the status quo usually needs to establish critical facts only by a preponderance of evidence. In contrast, before criminal sanctions can be imposed, prosecutors must establish needed facts beyond a reasonable doubt. However, before facts can be placed on the scale, they must be admitted into evidence.
A recent U.S. Supreme Court case was the focus of Huber's talk.18 It is likely to influence the admissibility of scientific evidence more than any case in 70 years. Yet, as Huber noted, its impact is so far unclear -- particularly because advocates for and against stringent standards of admissibility both claim victory. Huber also said that many mischaracterize the case as involving the right to jury trials. Others, however, expressed concern that raising the standards for admissibility could amount to raising the burden of proof in civil trials.
Scherr focused on the admissibility of DNA evidence. This, too, was timely insofar as it had been debated in the widely-reported Simpson trial. He said that DNA evidence was first used in the 80's and was called a "genetic fingerprint." After being quickly admitted in several southern cases, it encountered difficulty in the North where more money is available for indigent defense. A New Hampshire case19 in which Scherr served as both trial and appellate counsel is entering its fourth year and has cost both sides over $100,000 for experts alone. Scherr al so discussed a recent National Academy of Sciences controversy about DNA evidence that seems to confirm Kantrowitz's opening warning.20
Such issues have counterparts in legislative and regulatory settings. Paxman recounted Congressional initiatives for "good" science.21 Also, Jeffrey Lubbers, gave considerable attention to a recommendation for improved regulatory science22 from the National Performance Review overseen by Vice President Gore.23
This recalled a much earlier conference. Entitled, "Arbitration of Patent and Other Technological Disputes,"27 it had been scheduled for soon after the Science Court Colloquium28 and was also intended to explore a comparatively novel process.29 After the Colloquium, hoping that he would inspire other law/science process innovation, I asked Kantrowitz to speak. He agreed,30 and twenty years later, the topics seemed even more related. This sparked specific consideration of alternative dispute resolution (ADR).
However characterized, the "Science Court" and many other ways of resolving technical disputes31 are literally forms of ADR. A HREF="balmer.htm">Norman Balmer defined the basic forms usually contemplated by the term -- negotiation, mediation and arbitration.32 Citing their enormous flexibility, he noted the capacity of ADR to help firms resolve disputes and get on with their businesses. Regarding intellectual property generally, he mentioned that the outcome of disputes can indirectly affect the public and that legislation was needed to ensure that patent disputes could be arbitrated.33
As Kantrowitz's proposal has "withered on the vine,"34 traditional ADR has become increasingly popular.35 For example, Lubbers noted that recent legislation promotes ADR in agencies, themselves a "fourth branch of government" encompassing incredibly diverse and flexible procedures.36 Yet, binding arbitration has little potential: It is one thing to have private neutrals adjudicate patent disputes and quite another to have them ultimately resolve purely public controversies.37
In contrast, the potential for mediator-facilitated negotiation has hardly been tapped. For example, Rena Steinzor recounted its novel use to resolve key issues underlying Superfund reauthorization.38 Major social and economic impacts of that legislation on widely disparate stakeholders made agreement unlikely, but Steinzor described how a skilled mediator was able to secure consensus on most important issues. She suggested that exclusion of public authorities was helpful, if not critical, to candid negotiations. She also related how shared discontent with the federal government had a unifying effect.39
Scherr also said that rules concerning neutral experts would permit most trial judges to convene mini-science-courts to resolve admissibility issues. However, he speculated that few would have funds -- assuming, e.g., that their skepticism could be overcome.41
Itzak Jacoby spoke perhaps most strongly in support of a "Science Court." He cited flaws in judicial processes for resolving ever-more expensive and otherwise difficult decisions about the clinical utility and compensability of new medical technologies. Yet, he found such flaws fully matched by shortcomings in scientific and professional fora. He explained how attempts to approximate the "Science Court" at the National Institutes of Health have fallen short42 and urged tests of a process more faithful to its original tenets.
For years, I have wondered why people have not experimented more with science-court-type procedures or why patent attorneys who complain about the technical ignorance of judges and juries do not use arbitration. The answers now seem closely related.
As Balmer urges, willingness and ability to settle are critical. On what do those turn? Cost and delay are very important,46 but other factors may control. Consider, e.g. advantages that parties forego, visa-vis less well-heeled opponents, when they agree on submitting to procedures less expensive than litigation. Consider, too, the incentive for those with weak cases to insist on inexpert decisions.
Where Machiavellian motives can play a role, something more than a threat of litigation is needed to encourage ADR.47 Even when such motives seem unlikely, additional encouragement is needed.48 For example, unfamiliarity with a process strongly interferes with its adoption. Attorneys without ADR experience have been found less inclined to use it.49 Moreover, their inclinations strongly, and negatively, correlate with the amount in dispute.50
We should therefore not be surprised that, lacking much if any stake, no conferee objected to Mazur's candidate for a "Science Court" proceeding. Nor need we impugn the motives of those who strongly resisted initially proposed experiments. That procedure was novel for lawyers, policy makers and scientists alike,51 and many saw the stakes as very high. No doubt, this has colored the debate ever since.
On reflection, if I were now designing a forum for resolving disputes for which the "Science Court" was proposed, I would choose something more clearly akin to arbitration. Technically- and legally trained advocates would define and refine procedures. They would also carefully frame factual issues to minimize, if not avoid, giving scientists inappropriate matters to decide and last, but certainly not least, would themselves select panel members. An administrative entity would be helpful but not critical.52 Proceedings would be public and findings, if warranted, could be subject to regulatory or court review.53 As stressed by Balmer, flexibility is the hallmark of ADR: Modifications can satisfy varying needs. The biggest problem, as always in public disputes, is: Who represents "the public"54
Yet, the bottom line, as I see it, is that those who advance novel processes must start with small stakes.55 Once bugs are worked out and shibboleths put to rest,56 the stakes can be raised.
"Let's say that you establish that with DNA evidence there's a 1-in-40,000 chance that it was someone other than the defendant. Well, how does that square with the idea of reasonable doubt? If you put a number on reasonable doubt... you'll totally change the legal system."18 Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993).
17 See also, Alvin S. Weinstein et al., Product Liability: A Study of the Interaction of Law and Technology 10-13 (1977) (Final Report to the National Science Foundation). At 13, the authors say "The... expert has been described as a resource not a tool, as a co-equal partner with counsel, not as a filler of an evidentiary gap...."
"(NAS) Committees usually strive for consensus. Congress, the federal agencies, and private groups pay for NAS reports so they can get recommendations, spoken with one voice. So when you see a new NAS report that not only has dissenting opinions, but even offers "majority" and "minority" recommendations, you know that loud debates ranged behind closed doors."21 Infra at 174.
"[I]f patent validity or infringement is questionable, why take a chance with an arbitration expert who will know exactly how weak the patent is and how dubious infringement is? It makes sense to take one's chances with a judge inexperienced in the technical and legal aspects involved."48 E.g, court-annexed mediation and arbitration, or the kinds of initiatives discussed infra by Lubbers.