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69 B.U. L. Rev. 513 (1989)
A Comment on Toward Incentive-Based Procedure: Three Approaches for Regulating Scientific Evidence by E. Donald Elliott

handle is hein.journals/bulr69 and id is 521 raw text is: COMMENT
A COMMENT ON TOWARD INCENTIVE-BASED
PROCEDURE: THREE APPROACHES FOR REGULATING
SCIENTIFIC EVIDENCE BY E. DONALD ELLIOTT
PETER HUBER*
The theory of the adversary system, George Bernard Shaw caustically
observed, is that if you set two liars to exposing each other, eventually the
truth will come out. The theory of science is rather different. The Good
Lord is subtle, said Albert Einstein, but he is not devious. These two
views capture the essence of the problem that Professor Elliott addresses in
his most insightful and useful paper.
We start with two vastly different cultures. C.P. Snow, I think, had it
wrong: the two cultures of the modern world, forever apart, are not science
and the arts; they are the laws of nature and the laws of man. There is in fact
great affinity between science and the arts. But the scientific method and the
adversary system are polar opposites.
For the scientist, being a good and honest witness is everything. For the
lawyer, the witness is merely a bothersome necessity-an instrument to be
used for other purposes. Scientists depend on the honor system to maintain
the integrity of their mission. Lawyers rely on oaths administered in the
presence of a religious text. Good scientists assume the best from their
colleagues and are surprised, even saddened, when the occasional instance
of fraud is uncovered. Good trial lawyers assume the worst and feel savagely
Wise when they discover (as they always do) that the other side was even
more venal, dishonest, and manipulative than originally expected. No case is
ever finally closed in science-it is far better that things not be settled than
that they be settled wrong. Yet closing the case is all important in law. As a
great Justice once observed, in the law it is sometimes more important that
things be settled than that they be settled right.
Because of these vast cultural differences, most good scientists view the
legal system much as humans view reptiles (or as reptiles no doubt view
humans): with about equal parts horrified fascination and profound disgust.
Few of the best scientists want much to do with the legal system. They won't
say so to your face, but most view trial lawyers as intellectual yahoos.
Doctors and engineers may be more forthcoming; not scientists.
So when we speak of bringing better science into the courtroom, we are
proposing, somehow, to marry two systems that start miles apart. What are
* Peter Huber, Senior Fellow at the Manhattan Institute for Policy Research, is
the author of LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES (1988).

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