In Law, Do Facts Matter?
One way scientific knowledge is introduced in litigation is during the appeal of a trial. In this situation, scientific facts are introduced through an amicus brief authored by a third party, such as a professional organization, trade association, or academic institution. The reliance on amicus briefs by judges has been the subject of recent criticism.
In her article “The Trouble with Amicus Facts,” Professor Allison Orr Larsen examines the use of facts presented by authors of amicus briefs in Supreme Court litigation. Scientific claims are included in amicus briefs, Professor Larsen finds, without any supporting citation. If there is a citation, it may be to a study done in light of litigation by the author of the briefs in question. Worst of all, some citations are to sources that are little more than websites, not to studies published in the primary scientific literature. These scientific claims can range from statements about lack of environmental harm to conclusions that nonprofit organizations fund terrorism.
When introduced as evidence in a trial, the presiding judge has discretion to not admit scientific conclusions if not derived from accepted methodology. Furthermore, scientific facts that are introduced at trial are subject to the adversarial process, resulting in what is called a "battle of the experts." The problem that Professor Larsen points out, though, is at the level of appeals which is outside the adversarial process of a trial. Amicus briefs are submitted by third parties, and their use is solely at the judge’s discretion.
One relevant example of the misuse of “amicus facts” is the 2013 Supreme Court decision, Association of Medical Pathologists v. Myriad. This case invalidated a patent on isolated DNA sequences. The Court made a distinction between genomic DNA (gDNA) and complimentary (cDNA). The Court concluded that the former was never patentable while the latter could be. This distinction can be traced to an amicus brief submitted by the Solicitor General, the government’s attorney. Close readers of the brief and the final opinion question the Court’s distinction in its basis in science. To add to the confusion, Justice Scalia authored a separate opinion, refusing to accept the Court’s scientific statements, but nonetheless agreeing with the result because the experts concluded that there was a difference.
Justice Scalia’s honesty illustrates the problem Larsen identifies: Who is in the best position to police inaccuracies in briefs? Peer review is not feasible because of time constraints in the judicial process. Corrections could be made at oral argument before the judges, placing the burden on already overburdened litigants to identify and rectify misleading statements in briefs.
The only real check in the current system is to trust judges to exercise their discretion wisely. Such trust, as the examples here show, would be misplaced. A big challenge for scientists and organizations like AAAS is to learn how to educate judges about science. Otherwise, the judicial branch is left to make law and policy as if facts do not matter. Future posts during my time as a Judicial Fellow will address possible solutions to the problem of bad science and the courts.
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