Reconstructing Science Through Law

Abstract

It has been said that law is an empty vessel, relying on other disciplines to fill it with substantive knowledge. Law is a system for ordering, regulating, and mediating human affairs: "[l]aw is a profession of process." Law looks to other disciplines for the knowledge and data upon which legal doctrine is shaped. Increasingly, law looks to science to fill its vessel. Scientific research is brought to bear on legal questions through experts' trial testimony and in appellate briefs. The United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals and the Federal Judicial Center's Reference Manual on Scientific Evidence, which now sits on the bench of every federal judge in the United States, will further accelerate the use of scientific evidence in court cases. However, legal tribunals are not passive recipients of the science brought before them. That the law deconstructs and reconstructs scientific evidence in a manner consistent with legal arguments and desired end results, is not surprising. (We all are legal realists now.) The question arises, however, as to how the law's recursive deconstructions/reconstructions of science shape scientific discourse. This essay turns our empty vessel metaphor on its head, demonstrating how law can inform science, particularly social science relevant to legal and public policy.

Keywords: law and science, law, science, common sense psychology, folk psychology