Science and Law

Governments worldwide are not doing enough to prevent the occurrence of low-probability, high-impact events, also known as catastrophic risks. This is the primary message in the book Catastrophe: Risk and Response by Richard Posner, a federal judge and University of Chicago professor. But aside from the horrors of asteroid collisions and bioterrorism, Posner sketches a fascinating critique of our current legal system.

Among the many deficiencies in our catastrophic risk management system, the law stands out as an institution particularly ill-suited towards dealing with issues of science and risk. As the wealth of human scientific and technological knowledge has grown, so too has its complexity. Understanding many scientific topics requires more and more specialization, something anathema to the law in its current structure.  Although some lawyers specialize in scientifically rigorous fields, judges and juries by design do not. This can result in tragically misinformed legal outcomes, such as the 1980 Diamond v. Chakrabarty which established that living organisms can be patented just like new chemicals.

A second problem concerns the culture of the law. With its emphasis on verbal logic, legal professions overwhelmingly attract students who are either bad at, or uninterested in, math and science disciplines. In fact, the absence of math and science in the law is a big factor that attracts many students from humanities disciplines. Science illiteracy is a big problem everywhere, but the law's unique importance in our policy process makes it especially damaging.

A third concern relates to the law's obsession with personal testimony and human cognitive bias. It's best explained here, go to 1:50 in.

Lastly, a more philosophical point. In all areas of science, but especially in quantum physics and biology, the idea of isolating simple cause-effect relationships is breaking down. It turns out that reality is a lot more complex that we thought. Instead of simple, linear, causal relationships we have interacting feedback loops of overlapping conditional and causal networks. Chaos theory and fractal geometry have shown us that randomness is a massively powerful and pervasive force that affects everything. In light of these new truths, the law's singular structure of "one party versus one party; who's to blame" seems almost quaint. Take environmental law, for example. Does this company's pollution make it guilty of contributing to this community's health problems? This type of question is terribly suited for the law's "guilty/innocent" decision structure. Maybe the low socioeconomic status of the community reduced its members' overall health and made them especially vulnerable to the effects of the pollution, and the same pollution had no effect on the richer, healthier, more resilient communities in the area. In this case, assigning blame on the basis of one direct causal relationship is naive in light of other causal factors. 

So how can the law improve its relationship with science? Increasing scientific specialization among lawyers, judges, and juries in the form of a "science court" could go a long way towards improving the quality of scientifically complex legal decisions. Massive investments in science and math education could also help, as well as mandating higher levels of science and math coursework in basic education guidelines. That many of today's students will never take an introductory statistics course in their lifetime is quite a chilling thought indeed.