Judges under the microscope

LEGAL ALCHEMY: THE USE AND MISUSE OF SCIENCE IN THE LAW David L. Faigman W. H. Freeman 233 pp., $24.95

No one will dispute that math and science skills are in strong demand in this highly technological age. Yet surveys show that school-age children are still deficient in these areas. According to David Faigman, those deficiencies are even more troubling when the poorly informed are people who should know better: America's lawyers and lawmakers.

What troubles Faigman most in "Legal Alchemy" is that legislators, lawyers, and judges don't recognize their lack of scientific knowledge and consequently end up making decisions based on "bad science."

Faigman buttresses this argument with examples of several cases that, to him, demonstrate the Supreme Court's lack of expertise or unwillingness to base legal decisions on sound scientific facts.

For instance, in Brown v. Board of Education, the 1954 case that signaled the beginning of the end of segregation, the Supreme Court cited studies by Dr. Kenneth Clark and others that found segregation caused emotional damage to black schoolchildren.

Faigman contends that this research had questionable validity that did not apparently concern the Court. The Court's reliance on this faulty basis meant that it had to contend with a later case in which experts asserted that integrated education led to decreased performance tests among black students. But in fact, the Court had little trouble reasserting its standard of "inherently unequal" in the face of "new studies" offered in Stell v. Savannah-Chatham County Board of Education.

Faigman's concerns are more convincing in Roe v. Wade. The controversial decision was based on "present medical knowledge" in 1973. Writing for the Court, Justice Blackmun set the parameter of the first trimester as a medically safe period for abortions. Further, the opinion set the point of the fetus's ability to sustain meaningful life outside the womb as the point that the state could oppose a woman's decision to abort.

Grounded on the shifting sands of medical science, this standard only set the foundation for further controversy. Advances in medicine have destroyed the framework for "Roe." Twenty years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court rejected the trimester framework but upheld a woman's right to seek an abortion.

Faigman laments the lack of scientific reasoning in the opinion, but perhaps 20 years after the Roe case, the Court recognized that the expanded right to privacy is enough of a constitutional basis without resorting to a scientific framework.

In another timely example, Faigman castigates the Court for not condemning creationism as a scientific fraud when it had the chance in Edwards v. Aguillard (1987).

Although the Court struck down the Louisiana law that held schools could not teach evolution unless they also taught creationism, it veered away from the question of what is science.

In our adversarial system, jurors find themselves challenged further by the practice of hiring "expert" testimony. How are laymen to choose between the competing versions of scientific fact put forth by each well paid side?

For legislators to be informed in a meaningful way, Faigman calls for the reinstatement of the Office of Technological Assistance, disbanded in 1995. The OTA was charged with preparing in-depth reports for Congress on a wide range of scientific issues. Now, that information comes in the form of expert witnesses who testify from their own biases. Faigman's call to reinstate the OTA seems more than reasonable.

"Legal Alchemy" reflects Faigman's preference for the certainty of facts based on science, as opposed to the political and social climate courts and legislators often take into consideration.

Though his prescription may not be possible, his book is a cogent argument for lawyers, judges, and legislators to become "sophisticated consumers of science" so that they can do their jobs with the expertise required in this increasingly technological world.

*Geraldine A. Lewis is an attorney in Ballard, Calif.

(c) Copyright 1999. The Christian Science Publishing Society