Limits...
Representation and re-presentation in litigation science.

Jasanoff S - Environ. Health Perspect. (2008)

Bottom Line: Judicial screening does not take into account the dynamics of litigation itself, including gaming by the parties and framing by judges, as constitutive factors in the production and representation of knowledge.In sum, the screening approach fails to take account of the wealth of existing scholarship on the production and validation of scientific facts.An unreflective application of that approach thus puts courts at risk of relying upon a "junk science" of the nature of scientific knowledge.

View Article: PubMed Central - PubMed

Affiliation: Harvard University, Cambridge, MA 02138-5801, USA. Sheila_jasanoff@harvard.edu

ABSTRACT
Federal appellate courts have devised several criteria to help judges distinguish between reliable and unreliable scientific evidence. The best known are the U.S. Supreme Court's criteria offered in 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc. This article focuses on another criterion, offered by the Ninth Circuit Court of Appeals, that instructs judges to assign lower credibility to "litigation science" than to science generated before litigation. In this article I argue that the criterion-based approach to judicial screening of scientific evidence is deeply flawed. That approach buys into the faulty premise that there are external criteria, lying outside the legal process, by which judges can distinguish between good and bad science. It erroneously assumes that judges can ascertain the appropriate criteria and objectively apply them to challenged evidence before litigation unfolds, and before methodological disputes are sorted out during that process. Judicial screening does not take into account the dynamics of litigation itself, including gaming by the parties and framing by judges, as constitutive factors in the production and representation of knowledge. What is admitted through judicial screening, in other words, is not precisely what a jury would see anyway. Courts are sites of repeated re-representations of scientific knowledge. In sum, the screening approach fails to take account of the wealth of existing scholarship on the production and validation of scientific facts. An unreflective application of that approach thus puts courts at risk of relying upon a "junk science" of the nature of scientific knowledge.

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The game board of expertise.
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f1-ehp0116-000123: The game board of expertise.

Mentions: These episodes illustrate the importance of the courtroom as a performative space in which strategies for excluding or mobilizing expertise can change the very way juries perceive the evidence. Of course, such performances are by no means restricted to legal settings. In science as well as in law, experts are relied on to reduce ambiguity, to make it appear as if only one story can be told on the basis of the available evidence. For this purpose, in science as in the law, experts must pattern as impartial and objective truth-tellers: in the agonistic fields of science as of law, the persuasiveness of an argument depends on garnering maximum credibility for it, while sowing doubt and uncertainty about any alternative interpretations. This dynamic plays out on what I have called the “game board of expertise” (Jasanoff 1998a). The game is symbolically enacted on a board defined by two axes labeled, respectively, experience and objectivity (Figure 1). The aim is to position one’s own claims of expertise as high as possible on both axes, while seeking to demote the opponent’s claims.


Representation and re-presentation in litigation science.

Jasanoff S - Environ. Health Perspect. (2008)

The game board of expertise.
© Copyright Policy - public-domain
Related In: Results  -  Collection

License
Show All Figures
getmorefigures.php?uid=PMC2199272&req=5

f1-ehp0116-000123: The game board of expertise.
Mentions: These episodes illustrate the importance of the courtroom as a performative space in which strategies for excluding or mobilizing expertise can change the very way juries perceive the evidence. Of course, such performances are by no means restricted to legal settings. In science as well as in law, experts are relied on to reduce ambiguity, to make it appear as if only one story can be told on the basis of the available evidence. For this purpose, in science as in the law, experts must pattern as impartial and objective truth-tellers: in the agonistic fields of science as of law, the persuasiveness of an argument depends on garnering maximum credibility for it, while sowing doubt and uncertainty about any alternative interpretations. This dynamic plays out on what I have called the “game board of expertise” (Jasanoff 1998a). The game is symbolically enacted on a board defined by two axes labeled, respectively, experience and objectivity (Figure 1). The aim is to position one’s own claims of expertise as high as possible on both axes, while seeking to demote the opponent’s claims.

Bottom Line: Judicial screening does not take into account the dynamics of litigation itself, including gaming by the parties and framing by judges, as constitutive factors in the production and representation of knowledge.In sum, the screening approach fails to take account of the wealth of existing scholarship on the production and validation of scientific facts.An unreflective application of that approach thus puts courts at risk of relying upon a "junk science" of the nature of scientific knowledge.

View Article: PubMed Central - PubMed

Affiliation: Harvard University, Cambridge, MA 02138-5801, USA. Sheila_jasanoff@harvard.edu

ABSTRACT
Federal appellate courts have devised several criteria to help judges distinguish between reliable and unreliable scientific evidence. The best known are the U.S. Supreme Court's criteria offered in 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc. This article focuses on another criterion, offered by the Ninth Circuit Court of Appeals, that instructs judges to assign lower credibility to "litigation science" than to science generated before litigation. In this article I argue that the criterion-based approach to judicial screening of scientific evidence is deeply flawed. That approach buys into the faulty premise that there are external criteria, lying outside the legal process, by which judges can distinguish between good and bad science. It erroneously assumes that judges can ascertain the appropriate criteria and objectively apply them to challenged evidence before litigation unfolds, and before methodological disputes are sorted out during that process. Judicial screening does not take into account the dynamics of litigation itself, including gaming by the parties and framing by judges, as constitutive factors in the production and representation of knowledge. What is admitted through judicial screening, in other words, is not precisely what a jury would see anyway. Courts are sites of repeated re-representations of scientific knowledge. In sum, the screening approach fails to take account of the wealth of existing scholarship on the production and validation of scientific facts. An unreflective application of that approach thus puts courts at risk of relying upon a "junk science" of the nature of scientific knowledge.

Show MeSH