When Scientists Act Like Lawyers: The Problem of Adversary Science Reflection 33 Jurimetrics Journal 1992-1993

33 Jurimetrics J. 363 (1992-1993)
When Scientists Act Like Lawyers: The Problem of Adversary Science

handle is hein.journals/juraba33 and id is 373 raw text is: RE L C INU

WHEN SCIENTISTS ACT LIKE LAWYERS:
THE PROBLEM OF ADVERSARY SCIENCE*
Dan L. Burk**
I. INTRODUCTION
We live in a highly technological society, which naturally means that
disputes among members of society are likely to include many scientific and
technological issues. In fact, scientific issues now permeate every aspect of
the law, from criminal evidence and intellectual property to environmental
disputes. By all accounts, the courts are handling this surge of scientific adjudi-
cation poorly. The mishandling of scientific matters in court has been blamed
for outrageous tort awards, improper criminal convictions, and even the loss
of American competitiveness.'
Such problems of law and science are, of course, not new. For example,
early in this century one of the most able and respected judges in the history
of American jurisprudence, Judge Learned Hand, struggled with the problem
of scientific adjudication in Parke-Davis & Co. v. H.K. Mulford Co.2 In
Parke-Davis, after successfully negotiating a series of difficult scientific and
legal issues, Judge Hand concluded:
*0 1992 by Dan L. Burk. All rights reserved. Portions of this article were presented as an
address at the symposium on Technology and the Courts-How Do They Mix? sponsored by
the American Chemical Society Division of Chemistry and the Law during the ACS National
Meeting, August 24, 1992, in Washington D.C.
**Dan L. Burk is a Teaching Fellow and J.S.M. candidate at Stanford Law School.
1. See, e.g., Stephen D. Sugarman, The Need to Reform Personal Injury Law Leaving
Scientific Disputes to Scientists, 248 SCIENCE 823 (1990) (tort awards); Eric S. Lander, DNA
Fingerprinting on Trial, 339 NATURE 501 (1989) (criminal evidence); Richard J. Mahoney &
Stephen E. Littlejohn, Innovation on Trial: Punitive Damages Versus New Products, 246 SCIENCE
1395 (1989) (competitiveness).
2. 189 F. 95 (S.D.N.Y. 1911).

SPRING 1993

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