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Legal Commentary

: Prawfs

Sytematic Reviews and the Scientization of Law

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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So far I have looked at how to incorporate systematic reviews into our current legal framework, whether through court-apppointed Rule 706 experts or through special masters or technical advisors assisting judges in their Daubert or Frye decisions. In both cases, however, partisan experts remain. Rule 706 experts, for example, testify along side--not in place of--partisan experts; and special masters or technical advisors never testify at all, instead only helping to determine which partisan experts are allowed to testify. Can we go further, however? Is it even reasonable to ask whether we can abolish the partisan expert altogether and rely solely on the systematic review?

My focus in my next few posts is positive, not normative. My previous posts have laid out my argument for why I think it would be a good idea to get rid of the party expert. Here I want to ask whether it is even possible to adjust our adversarial procedures in such a way. Perhaps not surprisingly, I think the answer is yes.

There are two sources of my optimism. The first is inspired by a statement made by Mirjan Damaska, that the scientization of the law is the greatest challenge the law has faced since the Middle Ages. And the second comes from a recent history of the special master by Amalia Kessler. In this post I'll look at the point raised by Damaska, and in my next that raised by Kessler.

Damaska puts its bluntly (on page 151 of Evidence Law Adrift):

Let there be no mistake. As science continues to change the social world, great transformations of factual inquiry lie ahead for all justice systems. These transformations could turn out to be as momentous as those that occurred in the twilight of the Middle Ages, when magical forms of proof retreated before the prototypes of our present evidentiary technology.

Exactly so. Legal practices, and our definition of what constitutes proof, respond to fundamental changes in epistemology. Consider the Medieval forms of proof (here I draw on the work of Ellen Sward and Stephan Landsman): the ordeal, the oath, or the battle, to name a few. In the ordeal, the party bearing the burden of proof had to undertake some sort of physical challenge, such as dipping his hand in boiling water. If he emerged unscathed, he met his burden. Similarly, in the oath the party with the burden had to recite precisely a complicated oath to meet his burden. And in battle, the two sides or their proxies met in armed combat, with the victor in battle the victor in law.

All three approaches were united by a common epistemology: God would reveal the party who deserved to prevail. The Renaissance and the Enlightenment, however, replaced such faith in God with a faith in reason, in people's ability to think through a problem and reach the correct answer. Legal procedures changed--profoundly changed--accordingly.

The past few decades have witnessed a revolution of similar proportions. As I mentioned before, modern statistics is barely a century old. The idea that science is primarily about measurement and experimentation, as opposed to more logical (like mathematics) or classificationist (like zoology) endeavors, is a 19th century development. And our ability to meaningfully undertake such measurement did not arise until the mid- to late-20th century. Moreover, it is only within the past thirty years, with the rise of the actuarial turn, that we have begun to fully appreciate the limits on our ability to reason and the steps we must take to address these limitations. These three changes--a focus on measurement, a growing ability to measure, and a newfound appreciation of the limits of reason--add up to a Scientific Revolution of their own.

When confronted with significant epistemic shifts, the law adapts. Perhaps slowly, perhaps imperfectly, but it adapts. The changes over the past several decades are not small adjustments but a profound change in our understanding of what constitutes scientific knowledge, in our ability to produce the necessary information, and in our sense of how to compile that information into usable knowledge. It is hard to believe that the law will not adapt once more.

Full post as published by Prawfs on June 03, 2009 (boomark / email).