LGLS 138b: Science on Trial
Fall, 2016
Daniel L. Breen
Office: Brown Hall, 324
Office Hours: MW, 12-4; T-Th, 1-3
781-736-3024
E-mail:
The use of scientific evidence in litigation and public policy abounds. In litigation, scientific evidence plays a role in practically every medical malpractice, toxic tort and product liability case as well as in other civil disputes. It is also an increasingly important part of criminal cases. In the public policy arena, public health officials and other state and federal agencies regularly rely on scientific evidence in determining whether to approve new drugs, whether and how to regulate potential or actual carcinogens, and how to regulate the practice of medicine, among other purposes. In this class, we will explore some of the debates surrounding the use of scientific evidence in litigation and public policy. These include the following issues:
How can decision-makers who are largely unschooled in scientific inquiry and the scientific discipline at issue resolve a question to which scientists themselves have no conclusive answer? If the trier of fact cannot understand the science, what criteria does it use to come to an answer?
What happens when science advances beyond the traditional categories employed by the legal system? Who should bear the risks and costs of uncertainty? What are the costs? Is there, and should there be, a different standard for prospective rule-making and retroactive adjudication? Do different goals dictate different standards?
Do science and law have incommensurately different goals? If so, what are the goals of each? Are their biases in science? Are there biases in the ways that science is evaluated in litigation and public policy decision-making? What role does public perception play in the process of evaluating science? What role do lawyers and experts play?
Finally, at various points in the course we’ll have to face the question of the relationship of science and democracy. How do scientific concepts and procedures limit the scope of popular choice in issues of great concern to millions of people? Or to put it another way, when does Science’s faith in reasoned decision-making come into conflict with the core political principle of majority rule?
Required Texts
Jonathan Harr, A Civil Action
Marcia Angell, Science on Trial
Course Requirements
Mid-Term Exam (20%)
Essays (40%)
Final Exam (30%)
Attendance and Class Participation (10%)
Class Schedule
August 25: Introduction: The Worlds of Science and Law
August 30-Sept. 1: Two Test Cases: Law Makes use of Science
Kitzmiller v. Dover Area School District
Perry v. Schwarzenegger
Sept. 6: Introduction to Epidemiology and Statistics
Sept. 8: The Woburn Case: Epidemiology and Statistics at Work
A Civil Action: 1-290
Sept. 13-15: The Woburn Case: The Limits of Knowledge
A Civil Action: 290-492
Sept. 20-22: Standards for Evaluating Scientific Evidence: The Litigation Framework
Daubert v. Merrell Dow Pharmaceuticals
Sept. 27-29: Standards for Evaluating Scientific Evidence: The Federal Agencies
Industrial Union Dept. v. American Petroleum Institute
Hornbeck Offshore Services v. Salazar
First Essay Due: Sept. 27
Oct. 6: Statistics, Part Two
The Use and Abuse of Bayes’ Theorem
Oct. 11-13: Breast Implants: Regulation, Litigation and the Absence of Epidemiological Evidence
Angell,Science on Trial
Oct. 18: Law and Science on the Cutting Edge: Genetic Privacy
Moore v. Board of Regents
Oct. 20: Law and Science on the Cutting Edge: The Stem Cell Controversy
Oct. 31-Nov. 1: The Patent Context: Ownership of Living Cells and DNA
Diamond v. Chakrabarty
Myriad Genetics
Nov. 3: Daubert on Trial: Polygraph Testing
Nov. 8: Daubert on Trial: Fingerprint Evidence
Nov. 15-17: Introduction to DNA Evidence
Second Essay Due: Nov. 17
Nov. 22: Case Studies: Medical Opinion: Court-Ordered Caesarian Sections, Shaken Baby Syndrome and Other Issues
Nov. 29: Technology, Torts and Criminal Responsibility: The Promise of PET
Dec. 1-6: Science and the Assumptions of Law: Eyewitnesses and Virtual Realities
FINAL EXAM: TBA