Science-minded judges in short supply, UC law professor finds

By Michael Carroll | Apr 15, 2016

SAN FRANCISCO – You might expect that the person who will eventually fill the Supreme Court seat occupied by Antonin Scalia would have a 21st-century grounding in science and perhaps the ability to separate junk science from quality mainstream research. But the acting chancellor and dean of the University of California Hastings College of the Law isn’t so optimistic.

David Faigman, who has taught law students about the scientific method and has written extensively about how matters of science are intertwined with the law, doesn’t see a science-savvy candidate being chosen for the Supreme Court post. But he does make the case that judges who don’t have a general understanding of the hard and soft sciences will be at a disadvantage in carrying out their duties.

“They’re all good-intentioned, but the pool of folks who have that skill set is terribly small,” Faigman told the Northern California Record.

The acting dean and law professor ticked off a list of cases in which the high court had to rely on scientific research to eventually carry out their constitutional duties. These included the Roe v. Wade decision on abortion, which required judges to look at scientific evidence on the viability of a fetus, as well as affirmative action cases, which required sociological research on the potential value of a diverse classroom.

A key problem in weighing scientific evidence, however, is the great divide between students who study the law and those who pursue scientific careers, Faigman said.

“Most lawyers don’t have a good understanding of science, and most people who are good at science don’t go to law school,” he said.

In turn, the legal profession seems to form its ranks from people who are not mathematically or scientifically inclined, Faigman said.

He indicated that law schools can do better by offering more courses dealing with scientific issues, such as scientific methods and environmental law. But he stressed that law students also need to be better educated about scientific training prior to coming to law school.

In addition, he concludes that judges simply cannot effectively rule on the entire range of science-related matters that come before them.

“It’s impossible for judges to learn all the science they would need – from acoustics to zoology,” Faigman said.

That reasoning led him to argue for peer review of expert scientific opinions presented in court as a solution. Such an independent review of expert opinions brought in by opposing counsels would allow judges to shine the light of mainstream scientific thought on complex testimony about such topics as medicine or forensics. The idea would be for judges to seek independent evaluations of expert testimony by those with mainstream academic credentials in their scientific fields to better find out where the truth lies.

Indeed, Faigman is now putting the concept to real-world tests. He is the chief executive officer and co-founder of JuriLytics, a company that provides attorneys and judges with independent, science-based reviews of expert opinions so that they are better equipped to carry out their missions.

“We give courts insights into what mainstream scientific opinion is in a way that the adversarial system doesn’t permit,” Faigman said, adding that peer review can go a long way toward providing needed scientific sensibilities in the legal arena.

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