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2009 Stan. Tech. L. Rev. 1 (2009)

handle is hein.journals/stantlr2009 and id is 1 raw text is: Robin Feldman: Historic Perspectives on Law & Science Historic Perspectives on Law & Science ROBIN FELDMAN CITE AS: 2009 STAN. TECH. L. REv. 1 Law has had a long and troubled relationship with science. The misuse of science within the legal realm, as well as our failed attempts to make law more scientific, are well documented.' The cause of these problems, however, is less clear. I would like to suggest that the unsatisfying relationship of law and science can be attributed, at least in part, to law's inadequate understanding of what constitutes science and law's inflated view of the potential benefits of science for law. It is our failure to understand what science knows about its own enterprise, as well as our fervent hope that law could be something other than it is, that leads us astray. In highly simplified form, what we think of as science today began its history deeply entwined with philosophy and theology. During the Scientific Revolution, science separated from other types of intellectual endeavor, although the lines of demarcation were never solid. In the mid-twentieth century, philosophers challenged the notion that science could be so neatly discrete, although they were unable to settle on a coherent definition. An uneasy truce developed in which science is, at best, defined as a cluster of concepts, albeit ones that do not work individually or even as a whole. For my purposes, the important point is the following: those things that make science what it is are a far cry from law's vision of science. Such distortions in law's understanding of the nature of science magnify the problems created when law tries to import structures from science to solve its problems. Some would argue that problems at the intersection of law and science flow from the changing nature of science. Law is too slow to adapt to the changing information available through the advancements of science, particularly for issues that are dependent on the Supreme Court revisiting * 0 2009, Robin Feldman, Professor of Law, Director, Law & Bloscience Project, U.C. Hastings College of the Law. I am grateful to Vik Amar, Margreth Barrett, Richard Epstein, David Faigman, Robert Gordon, David Jung, Sonia Katyal, Donald Kennedy, Greg KlIme, Evan Lee, Mark Lemley, David Levine, Roger Park, Reuel Schiller, Bill Simon, Chris Slobogin and Lois Weithorn. I also wish to thank participants in the Annual Intellectual Property Scholars' Conference, the Chicago Intellectual Property Colloquium, and the Stanford Program in Law, Science & Technology for their comments. An expanded version of this piece is included in a chapter of my forthcoming book, THE ROLE OF SCIENCE IN LAW (Oxford University Press 2009). 1 See, e.g., ROBIN FELDMAN, THE ROLE OF SCIENCE IN LAW (forthcoming Oxford University Press 2009); DAVID FAIGMAN, LABORATORY OF JUSTICE: THE SUPREME COURT'S 200-YEAR STRUGGLE TO INTEGRATE SCIENCE AND THE LAW (2004); DAVID FAIGMAN, LEGAL ALCHEMY: THE USE AND ABUSE OF SCIENCE IN THE LAW (1999); Ronald Dworkin, Sol a/Sciences and Consttutional Right-the Consequences of Ucertan y, 6 J.L. & EDUC. 3 (1977); Steven Goldberg, The Reluctat Embrace La and Scence in Amerca, 75 GEO. L.J. 1341 (1987); Dean Hashimoto, Scence as Mthology in ConstitutionalLan), 76 OR. L. REV. 111 (1991); Oliver Wendell Holmes, Lan) in Scence and Scence in Lan), 12 HARV. L. REV. 443 (1899); Richard Lempert, 'etieen Cup and Lp: Social Science Influences on Lan) and Polig, 10 LAW & POL'Y 167 (1988); Karl N. Llewellyn, The Theocy of Legal 'Sacence, 20 N.C. L. REV. 1 (1942); Howard T. Markey, Jursprudence or juriscence?, 25 WM. & MARY L. REV. 525 (1984); Roscoe Pound, Lani and the Scence of Lan) in Recent Theories, 43 YALE L.J. 525 (1934); J. Alexander Tanford, The Limits of a Scientific Jurisprudence: The Supreme Court and Psychology, 66 IND. L.J. 137 (1990-1991); Charles R. Tremper, Sanginity and Disillusionment Where Lan) Meets Social Scence, 11 LAW & HUM. BEHAV. 267 (1987);Jotn Veilleux, Note, The SacenifcModelin Lan), 75 GEO. L.J. 1967 (1987). Copyright C 2009 Stanford Technology Law Review. A/I Rzghts Reserved.

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