Introduction - Recherche en IA spécialisée au MIT

Introduction

Shari Seidman Diamond & Richard O. Lempert

Experts bedeviled the legal system long before sev-

enteenth-century Salem, when the town’s good cit-
izens relied on youthful accusers and witchcraft ex-
perts to identify the devil’s servants in their midst. Comme
in Salem, claims of expertise have often been ques-
tioned and objections raised about the bases of expert
connaissance. Expertise, then and now, did not have to
be based on science; but the importance of science
and the testimony of scientific experts has since me-
dieval times been woven into the fabric of the English
jurisprudence that Americans inherited. In cases as
long ago as 1299 we find examples of courts seeking
help from “scientists.” In that year, physicians and
surgeons in London were called on to advise the court
on the medical value of the flesh of wolves.1 In 1619,
two physicians offered the opinion that a wife could
bear a legitimate child “forty weeks and nine days” af-
ter the death of her husband.2 Throughout this peri-
od, medical authority was called on by the coroners’
courts to determine whether a death was due to sui-
cide or to other causes, a crucial determination be-
cause suicide was a felony that entitled the Crown to
take possession of a deceased’s estate.3 Medical testi-
mony is still the most common form of scientific ex-
pertise presented in court, but expert advice on legal
matters has expanded exponentially, reflecting the
enormous range of scientific knowledge that mod-
ern scholarship has produced.

Although recognizing the need for scientific assis-
tance, judges soon learned that sources claiming sci-
entific expertise did not always agree. Par exemple,

shari seidman diamond, un
Fellow of the American Academy
depuis 2012, is the Howard J. Trien-
ens Professor of Law and Professor
of Psychology at the Northwestern
University Pritzker School of Law,
and Research Professor at the Amer-
ican Bar Foundation.

richard o. lempert, a Fellow
of the American Academy since
1993, is the Eric Stein Distinguished
University Professor of Law and
Sociology, emeritus, at the Univer –
sity of Michigan.

(Complete author biographies appear
at the end of the essay.)

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dans le 1781 trial of Folkes v. Chadd, the issue
was whether the construction of an em-
bankment, as opposed to natural forces,
had caused the deterioration of Wells Har-
bor. The first trial introduced engineering
testimony from a well-credentialed Fellow
of the Royal Society. By the third trial in
1783, prestigious engineering experts tes-
tified on both sides and were subjected to
vigorous cross-examination. The disagree-
ment, in retrospect, was understandable:
more than two hundred years later, science
still cannot provide a definitive answer to
the question posed in that litigation.4 Yet
the legal system then as now needed to re-
solve the dispute between the parties, et
the scientific evidence offered was the best
they had to work with. As the trial system
and the law of evidence developed, courts
and juries have continued to struggle to
make use of the conflicting expert advice
they receive. Judges and juries, lacking the
scientific knowledge of experts, both face
difficult challenges in understanding and
applying expert scientific testimony. Not
surprisingly, they occasionally get the sci-
ence they are supposed to evaluate wrong,
and what the legal system has accepted as
sound science has not always withstood
the test of time.

How well factfinders do in understand-
ing and applying science is a matter of
some controversy, but it is not the only is-
sue that arises at the interface of law and
science. The two fields are in many ways
culturally distinct. Good science often in-
volves the withholding of judgment until
more evidence has accumulated. The law
requires that decisions be reached upon the
conclusion of trials regardless of gaps in the
available evidence. Science seeks empiri-
cal truths regardless of their implications,
and scientists ideally share in a common
truth-seeking mission. Litigants aim at per-
suading a judge or jury to favor their side
regardless of where the truth lies; harsh
questioning and emotional appeals are not

out of bounds if they serve that end, même
when it is scientists being questioned. Of-
ten in modern litigation, the law must be
informed by scientific evidence as commu-
nicated by the views of the scientists who
present it. These are typically experts cho-
sen and paid by parties because, regardless
of the law’s needs, scientists, with rare ex-
ceptions, cannot be forced to contribute
what they know. Science is in principle
always open to revision as additional ev-
idence accumulates. The law can be slow
to change and its treatment of science may
be determined by precedent, even when a
scientific consensus recognizes that the
science that supported the precedent is no
longer regarded as sound.

The essays in this volume deal with ten-
sions and areas of overlapping interest at
the interface of science and the legal sys-
tem. Many of the essays are written by sci-
entist-lawyer teams. This is no accident; dans
selecting authors we tried wherever pos-
sible to match across disciplines to high-
light and bridge potential gaps in perspec-
tives. In some cases, we selected single au-
thors who themselves are both scientists
and legal scholars. Our goal was to avoid
the silo mentality that too often creates
obstacles to useful discourse between sci-
ence and law.

The essays in this issue are divided into
three sections. The essays in the first sec-
tion examine the science-law interface by
focusing attention on two sets of key play-
ers: the judges who determine what sci-
entific evidence will be considered by the
legal system, and the scientists and engi-
neers with the expertise to provide that as-
sistance. The authors of the first two essays
have closely studied the history, discourse,
and decision-making of U.S. courts when
they are called on to deal with scientific ev-
idence as gatekeepers and decision mak-
ers. The third essay provides a perspective
from the other side of the law-science di-
vide. It presents the first published survey

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Dédale, le Journal de l'Académie américaine des arts & SciencesIntroduction

results from a sample of distinguished sci-
entific and engineering experts who were
asked about their views of the legal system
and about their participation in it (ou non).
The five essays in the second section pro-
vide insights into the interactions between
scientific expertise and the legal system by
focusing on specific fields: neuroscience,
brevets, eyewitness identification, foren-
sic evidence as a whole, and fingerprint ev-
idence in particular. Each of these contri-
butions highlights what science can offer,
but also analyzes the obstacles that arise in
obtaining and evaluating scientific advice
in a legal context.

The authors in the third section tackle the
difficult procedural challenges posed by the
interaction between scientific experts and
legal factfinders. These three essays con-
sider modest and not-so-modest changes
to the traditional conduct of American le-
gal proceedings that might improve both
the presentation and evaluation of scien-
tific evidence.

The issue closes with a look at the con-
tinuing dialogue between members of the
scientific and legal communities.

Now for a closer look.

In the volume’s opening essay, Sheila Jasa-

noff addresses an issue fundamental to any
discussion of science and the law: what de-
termines the reception given ostensibly sci-
entific claims when they enter the legal sys-
tem and are reinterpreted in a legal context?
Jasanoff argues that judicial common sense,
rooted in judges’ cultural understandings,
forms the lens through which scientific
claims are assessed by courts. She makes
a powerful case for her view of how judi-
cial authority and judges’ commonsense
understandings of the import and valid-
ity of scientific claims provide the stan-
dards that effectively determine how sci-
entific evidence is perceived and used by
courts. Her perspective cautions against
analyses that too frequently begin and end

with Daubert v. Merrell Dow Pharmaceuticals,
the Supreme Court case that firmly estab-
lished the judge’s role as gatekeeper when
courts are offered scientific evidence. Elle
uses an extensive analysis of Kumho Tire Co.
v. Carmichael, a case that made it clear that
Daubert extended to engineering and tech-
nical experts to show how the standards for
admitting scientific evidence, which the
Daubert court tried to draw from their un-
derstanding of how scientific truths are es-
tablished, are easily submerged by judges’
commonsense perspectives on what meth-
ods and theories make for sound scientif-
ic or technical conclusions. Her analyses of
later cases highlight limits on the guidance
that Daubert can give, for science may back-
ground some legal questions but be unable
to answer them.

In closing her essay, Jasanoff argues that
one cannot expect judges to think like sci-
entists when evaluating scientific evidence,
but she contends that we can demand of
judges who confront scientific issues more
than unreflective common sense. The chal-
lenge is not to make scientists of judges but
rather to reflect on how judges should go
about thinking about science and to find
ways of encouraging judges to appreciate
what science can tell them and see beyond
their own common sense. Although Jasa-
noff does not say it, the task becomes more
difficult as ideology affects judgments.

Linda Greenhouse, closely scrutinizing

how members of the U.S. Supreme Court
have responded to scientific evidence, pro-
vides a detailed study of the ways that law
and medical science have intertwined in
the jurisprudence surrounding abortion,
beginning with Roe v. Wade. Greenhouse
tells us that the case law began with a focus
more on protecting medical doctors in their
exercise of professional judgment from the
threat of prosecution than on the interests
that pregnant women had in choosing to
terminate a pregnancy. As Greenhouse de-

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147 (4) Fall 2018Shari Seidman Diamond & Richard O. Lempert

scribes the case law, an elaborate dance has
been occurring between science and the law,
with each in turn taking steps forward and
back. Which partner is moving forward de-
pends on legal understandings of the def-
erence courts owe legislative fact-finding
and limits on this deference when the facts
do not even arguably stand up to scientif-
ic scrutiny.

In Whole Woman’s Health v. Hellerstedt,
for example, the question was whether
courts should defer to the Texas legisla-
ture’s assertion that protecting the safe-
ty of women getting an abortion requires
that doctors who perform abortions must
have hospital admitting privileges (a re-
quirement that would, in effect, close most
abortion clinics). The U.S. Supreme Court
rejected the legislation, which ignored the
compelling medical evidence that requir-
ing hospital privileges does nothing to pro-
tect women needing more medical atten-
tion than a clinic can provide. But the path
to the Supreme Court’s decision was rocky.
The decision of the District Court that ini-
tially heard the case, finding that the facts
were inconsistent with the legislative
claim, was reversed by the Circuit Court
on appeal on the respectable-in-theory
but unjustified-in-context claim that fed-
eral courts should defer to legislative fact-
finding on the need for health-related reg-
ulation. The Court of Appeals also refused
to stay its decision pending appeal to the
Supreme Court. By the time the Supreme
Court eventually upheld the District Court’s
decision enjoining enforcement of the stat-
ute, dans 2016, about half of Texas’s abortion
providers had permanently closed their
doors. Although science-based evidence
eventually prevailed in this case, an im-
portant lesson from this dance between
law and science is that judges vary in their
openness to what science and technology
can offer, with ideology sometimes moti-
vating a failure to accept even strong scien-
tific evidence.

Nous, Shari Diamond and Richard Lem-

pert, coeditors of this volume, describe
the results of a survey that many Academy
members participated in–our thanks! Con-
ducted with the cooperation of the Ameri-
can Academy of Arts and Sciences, the sur-
vey examines the views of the legal system
held by some of the nation’s most distin-
guished scientists and engineers, y compris
what motivates them to participate or to re-
fuse to participate in lawsuits when asked.
We began the project with some doubt
that the legal system was soliciting assis-
tance from the kinds of scientific and en-
gineering experts whose accomplishments
have led to Academy membership–or that,
peut-être, such experts were being asked but
were unwilling to participate. The results
showed that these concerns were unwar-
ranted. A majority (54 pour cent) of respon-
dents reported having been asked for ad-
vice, and most of those asked had agreed
to participate at least once.

Néanmoins, we found that the experts
reported that lack of time frequently limit-
ed their participation, and that they some-
times turned down requests due to a dis-
crepancy between their area of expertise
and the scientific issues they were asked
à propos, suggesting that greater participation
might be promoted through a more effec-
tive matching system. En outre, respon-
dents endorsed several potential changes
in procedures used by the legal system that
might increase their willingness to partic-
ipate. Some of these potential changes are
discussed in greater depth in the third sec-
tion of this volume. Enfin, we found an
intriguing relation between participation
and belief in the ability of the legal system
to deal well with scientific matters, inclure-
ing some evidence that participation fuels
higher opinions. This is a relationship that
deserves further investigation.

More than any other contribution to this

volume, Jules Lobel and Huda Akil’s essay

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Dédale, le Journal de l'Académie américaine des arts & SciencesIntroduction

on law and neuroscience is positioned on
an active and changing border between law
et les sciences. Courts are increasingly being
asked to consider neuroscience evidence.
À ce jour, neuroscience has had the greatest
impact on legal processes on the criminal
side, where neuroscience evidence can re-
veal deficiencies in an accused’s brain that
suggest the intent behind a criminal action
was in part the result of physiological ab-
normalities. The evidence can even have
constitutional significance, as in Roper
v. Simmons, the case that barred executing
juveniles, influenced in part by evidence re-
garding the neurological development of
youthful brains. Civil litigation too may
be transformed by neuroscience. The civil
justice system has long resisted awarding
damages or other relief based on emotion-
al pain unaccompanied by noticeable phys-
ical harm. Such suits were regarded with
suspicion because of the subjective nature
of claims of emotional harm and the dif-
ficulties of finding objective proof. But to
the extent that neuroscience can provide
imaging evidence that a claimant’s brain
deviates from normal human physiology,
the claim of emotional harm is objective-
ly supported and physical harm is shown
to be present.

Much of the Lobel-Akil essay is devoted
to a close look at cases arguing that long-
term solitary confinement is unconstitu-
tionally cruel and unusual. Although law-
yers opposing extended solitary confine-
ment have few if any scientifically rigorous
studies of people to draw on, considerable
animal research and a body of neurosci-
ence theory supports the claim that peo-
ple’s brains undergo seriously harmful
and likely permanent changes when they
are denied social contact and environmen-
tal stimulation over long periods of time.
To the extent this new research moves the
dial on the practice and legality of long-
term solitary confinement, it will also tell
us something about the law. Most people,

judges included, do not need neuroscience
to convince them of the horror of isolating
people in small confined spaces with almost
no social contact for years on end. Yet the
law may need scientific evidence in support
of what almost everyone knows before it
will discard the fiction that solitary confine-
ment differs simply in degree, plutôt que
in kind, from the normal deprivations that
anyone imprisoned suffers. This may be one
area in which scientific evidence can resolve
differences between conflicting common-
sense beliefs.

Rebecca Eisenberg and Robert Cook-

Deegan write about an area in which science
and the law are intertwined to the point
where they cannot be untangled: the U.S. pat-
ent system. The authors focus their atten-
tion on the Bayh-Dole Act, which changed
prior law by not only allowing but also en-
couraging organizations that develop pat-
entable inventions through research fund-
ed by federal agencies to acquire proprietary
rights to these inventions. The goal was to
promote the commercialization of the fruits
of federally funded science. Universities
were the most visible intended beneficia-
ries, and the image of universities as entities
working for the common good by advanc-
ing and sharing knowledge created halo ef-
fects without which Bayh-Dole might never
have become law. The benefits of Bayh-Dole
étaient, cependant, later extended from non-
profits and small businesses to large cor-
porations by a low visibility amendment.

Eisenberg and Cook-Deegan document
the effects of Bayh-Dole by focusing on
how universities responded to their new
rights in light of the income streams these
rights enabled. In many cases, it appears,
monetary concerns dwarfed whatever per-
ceived commitment to the common good
universities benefited from when the case
was made for Bayh-Dole and in their lat-
er patent-related legislative lobbying. In a
number of instances, universities claimed

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147 (4) Fall 2018Shari Seidman Diamond & Richard O. Lempert

patent rights to stifle or extract profits from
commercial activities that seemingly would
have occurred without a university’s pat-
entable contributions. En effet, some uni-
versities have gone further, on occasion
selling their rights to patent trolls who
make their money by threatening to dis-
rupt or prevent commercialization. Sen-
ators Bayh and Dole would, one suspects,
not be pleased by some university actions
their law has enabled.

Eyewitness testimony, the subject of

Judge Jed Rakoff and Elizabeth Loftus’s
essay, is the single most common factor
contributing to wrongful convictions for
serious crimes. Rakoff and Loftus briefly
discuss why eyewitness testimony is such
powerful evidence before reviewing what
we know about the causes of mistaken eye-
witness identifications. They then explore
efforts that have been made to increase
eyewitness accuracy and to help factfind-
ers assess the strengths and weaknesses of
eyewitness testimony in trials. Their essay
not only reports ways in which the social
sciences have been used to identify weak-
nesses in eyewitness testimony and ways
to ameliorate them, but also documents
ways in which this knowledge has led to
procedural reforms designed to increase
the accuracy of eyewitness testimony and
the ability of jurors to evaluate it.

A key distinction made by the authors
is the difference between system variables
and estimator (or witness) variables. Le
former has to do with the way eyewitness
identifications are elicited: how lineups are
constructed, Par exemple. Problems of this
sort are relatively tractable, and in many
states, scientific findings have led to prom-
ising procedural change. Problems posed by
the latter–that is, by weaknesses inherent
in human observation and memory–pose
far more difficult challenges. The best we
may be able to do, Rakoff and Loftus sug-
gest, is to educate judges and jurors on fac-

tors that, if present, make eyewitness iden-
tifications problematic so that they can do
a better job of weighing an identification’s
probative value.

Jennifer Mnookin succeeds in presenting,

in remarkably brief compass, an informa-
tive account of the state of forensic science
aujourd'hui. After effectively acquainting read-
ers with the forensic identification scienc-
es, she highlights issues that are now domi-
nating discussions both within the forensic
science community and among the leading
critics of forensic science procedures, pro-
tocols, and modes of testifying. Mnookin
herself has been an important and respect-
ed participant in these discussions, surtout-
cially as they relate to friction ridge (fin-
gerprint) identifications, and one can see
why. Her positions are not dogmatic, nor
are they entirely critical; rather they both
recognize deficiencies in forensic science
technologies and ways of testifying, et
acknowledge efforts being made, y compris
efforts by forensic science practitioners, à
improve the quality and characterizations
of the forensic science evidence they offer.
She supports her claim that one may
see the current state of the forensic iden-
tification sciences as a glass half empty or
half full by reference to a pair of contrast-
ing bite mark identification cases that arose
in the states of Connecticut and Pennsyl-
vania within months of each other. In the
Connecticut case–a review of a 1991 mur-
der conviction in which bite mark evidence
played a major role–the defense, the prose-
cution, and the scientist who presented the
original bite mark evidence agreed that the
bite mark identification was worthless, avec
the expert even calling his earlier testimo-
ny “junk science.” Combined with corrobo-
rating dna evidence, the judge vacated the
murder conviction and reopened the case.
In the Pennsylvania case, the trial judge re-
fused to even hold a full hearing to deter-
mine if the bite mark evidence offered by

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Dédale, le Journal de l'Académie américaine des arts & SciencesIntroduction

the prosecution was sufficiently reliable to
be admitted, citing precedent that allowed
it. The two cases may be distinguished, mais
the weaknesses of bite mark evidence are
so well known that if it is regarded as suffi-
ciently reliable to be admitted, judicial bar-
riers against other frequently offered foren-
sic science evidence would seem unlikely,
no matter how frail the evidence’s scientific
underpinnings. Mnookin believes, howev-
er, that further reform is possible, and iden-
tifies collaboration between research scien-
tists and stakeholders in the legal system
as the best hope for transformative change.

Because uncertainty attaches to all foren-

sic science claims, effectively communicat-
ing levels of certainty to factfinders is cru-
cial to accurate fact-finding. Joseph Kadane
and Jonathan Koehler present results from
an experiment that tests whether the words
that fingerprint examiners use to express
their conclusions affect the weight that lay-
persons give reports of possible matches.
They find that the two most scientifical-
ly defensible ways of reporting on finger-
print comparisons, neither of which claims
that two fingerprints indisputably match,
have the effect of moderating judgments,
when compared to other ways that exam-
iners might express opinions that two fin-
gerprints match. If an examiner is willing to
say that she thinks two fingerprints match,
respondents are not sensitive to differences
in the language used to fortify that opinion.
This study is important early research,
an original study using a brief written tran-
script and nondeliberating mock jurors,
but it is a first step. Research in other ar-
eas where social science findings have af-
fected legal procedures, such as the eyewit-
ness reforms discussed in the Rakoff-Lof-
tus essay, began with similar small steps,
followed by more elaborate studies in the
laboratory and in the field. Kadane and
Koehler’s findings are intriguing enough
that they should stimulate research to con-

firm what they have found, helping both
scientists and the legal system to hone in
on ways that protocols for communication
can improve practice.

Nancy Gertner and Joseph Sanders be-

gin their essay by suggesting that two prin-
cipal goals of judicial trials, accuracy and
fairness, are not consistent. Accuracy ref-
erences an objective standard, while fair-
ness lies in the eyes of the beholder. Gert-
ner and Sanders cite research suggesting
que, consistent with the American model
of adversary litigation, people see decisions
that affect them as fairer when they have
had an opportunity to provide information
to the decision maker and to have their sto-
ries heard. Accuracy, on the other hand, est
thought by some as likely to increase when
an expert judge closely controls proceed-
ings and witnesses are not identified with
parties. When scientific matters are at is-
sue, not only does party control lead to the
biased selection of experts who may not be
representative of the best available expert
opinion, but serving as a party witness can
color expert evaluations and the way ex-
perts report their findings, even when they
think they are being objective.

Having laid out the potential tension be-
tween accuracy and fairness and the re-
search pointing to it, Gertner and Sand-
ers explore suggested reforms aimed at
enabling more accurate evaluations of sci-
entific evidence within the general confines
of the American adversary system. These
include readjusting the order of testimony
so that opposing experts testify in tempo-
ral proximity to each other; adopting the
Australian procedure of “hot tubbing,” in
which experts appear together before the
factfinder to present and discuss their dif-
fering views; and making changes in jury
procedure likely to increase the ability of
jurors to understand expert testimony and
better judge where the weight of the scien-
tific evidence lies. The authors explore not

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147 (4) Fall 2018Shari Seidman Diamond & Richard O. Lempert

just the potential benefits from such chang-
es but also potential downsides and difficul-
ties of implementation. Implicit in the Gert-
ner-Sanders essay is a message more explic-
itly stated in other contributions: while we
can be confident that some reforms, main-
ly relating to jury management, are likely to
improve the evaluation of expert testimo-
ny, we need more research that targets oth-
er reforms, particularly those relating to ex-
pert selection, information sharing, et le
presentation of expert testimony.

Daniel Rubinfeld and Joe Cecil discuss

the core challenge that scientific evidence
often poses for judges and juries: namely,
difficulties in understanding which side
to believe when the parties’ experts pre-
sent conflicting scientific testimony and
the triers, unschooled in the science, have
in their prior knowledge little basis for
preferring one side’s analysis to the oth-
er’s. The authors review three methods
the law has developed to help courts bet-
ter evaluate science: court appointed ex-
perts, court appointed advisors, and spe-
cial masters. Court appointed experts, like
the parties’ experts, evaluate the relevant
evidence and may testify in court, sujet
to cross-examination. Their apparent neu-
trality is thought to make their views par-
ticularly influential if they testify, which in
turn means that their findings may stimu-
late settlements rather than be a precursor
to testimony. Court appointed experts may
also contribute without rendering opinions
par, Par exemple, getting the parties to agree
on a common data set or on the methods to
be used in their analyses. Court appointed
science advisors serve a function much like
a judge’s law clerks, except they assist the
judge in evaluating the scientific evidence
in the case while the ordinary law clerk as-
sists by assembling relevant legal materials
and aiding in opinion writing. Special mas-
ters fill a judge-like role. They can hear evi-
dence, sort through material, help with dis-

covery, and issue recommended findings
for a judge to consider. Where a case turns
on scientific evidence, they can be chosen
for their expertise in the relevant science.
None of these procedures is in common
utiliser, and although they are attractive op-
tion, they also have, as Rubinfeld and Ce-
cil point out, potential shortcomings. These
include the extra costs they impose on par-
ties and the possibility that they may have
undue influence on final results, particular-
ly if the science is not settled. Experts may
be unbiased in their relationship to the par-
liens, but they may favor or deplore particu-
lar scientific methods or schools of thought.

Valerie Hans and Michael Saks begin their

essay by noting the fundamental paradox
that motivates several of the essays: “those
with the power and duty to evaluate ex-
pert testimony possess less knowledge of
the specialized subject matter at issue than
that possessed by the experts whose testi-
mony they are evaluating.” Moreover, “Ex-
pert evidence must be prescreened for non-
expert jurors by nonexpert judges.” If this
is not trouble enough for the legal system,
Hans and Saks point to general shortcom-
ings of human reasoning, including the de-
gree to which rationality may be subvert-
ed by biases relating to how information
is acquired and the use of heuristics. Encore
the Hans and Saks essay is more optimis-
tic than pessimistic about the capacity of
judges and juries to deal with expert sci-
entific evidence. They point to the impor-
tance of factfinder neutrality in evaluating
conflicting expert claims and to the ways in
which the organization of trials and collec-
tive decision-making work to foster care-
ful processing of information.

Perhaps most striking in the Hans and
Saks essay is the number of studies they
can reference that provide an empirical
basis for procedures and reforms that are
likely to enhance the capacity of jurors and
judges to understand and rationally eval-

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Dédale, le Journal de l'Académie américaine des arts & SciencesIntroduction

uate the claims experts make. Also strik-
ing is how few of the studies have been
replicated to create a robust body of re-
recherche, allowing an observer to say with
confidence, “this will work” rather than
“this appears promising.” Their conclu-
sion, thus, is hard to dispute: “We must
collect data and run experiments; c'est,
we should take a scientific approach to de-
ciding on those reforms that will best en-
able judges and juries to cope with mod-
ern scientific evidence.”

In their closing essay, David Baltimore,

Judge David S. Tatel, and Anne-Marie
Mazza highlight the challenges posed by
the distinct cultures of science and the law
and discuss one of the most important re-
cent developments in efforts to bridge
gaps between these cultures: the creation
of new, broadly representative institutions
that bring members of both cultures to-
gether to work cooperatively on issues that
are raised at their intersection. Baltimore
and Judge Tatel currently cochair one of
the most important manifestations of this
effort: the Committee on Science, Technologie-
nology, and Law (cstl), a new standing
committee that serves under the auspic-
es of the National Academies of Sciences,
Engineering, and Medicine. In their essay,
Baltimore, Tatel, and Mazza describe the
concerns that inspired the creation of the

cstl and the legal backdrop that helped
stoke these concerns. They then highlight
some of the cstl’s accomplishments, dans-
cluding its influence on rule-making and
public policy and the establishment, et-
der its auspices, of a committee that took
a hard look at the scientific foundations
of the different forensic sciences, an effort
yielding a critical report that sparked an
ongoing national conversation about the
forensic sciences, affecting both the legal
and scientific communities. Other efforts
have been similarly well received. Ensemble
with ongoing research, bringing experts of
this sort together has an important role to
play in improving the quality of the science
offered to courts and the ability of courts
to intelligently evaluate that science.

As editors of this volume, we are delight-

ed by the range of new and thoughtful in-
sights about the relationship between sci-
ence and the legal system represented by
the essays in this collection. The authors do
not provide solutions to all of the challeng-
es presented by the interface between sci-
ence and the legal system. The gaps, push-
backs, and procedural obstacles will con-
tinue to require attention, borrowing from
Mnookin’s characterization, to fill the sci-
ence-law glass. They do, cependant, provide
reasons for optimism about future collab-
oration between science and law.

author biographies

shari seidman diamond, a Fellow of the American Academy since 2012, is the How-
ard J. Trienens Professor of Law and Professor of Psychology at the Northwestern Univer-
sity Pritzker School of Law, and Research Professor at the American Bar Foundation. Elle est
the author of the Reference Guide on Survey Research in the Reference Manual on Scientific Evidence
(3rd ed., 2011) and The Multiple Dimensions of Trial by Jury: Studies of Jury Behavior (2016, in Span-
ish) and editor of Trademark and Deceptive Advertising Surveys: Loi, Science, et conception (with Jerre
B. Swann, 2012).
richard o. lempert, a Fellow of the American Academy since 1993, is the Eric Stein Dis-
tinguished University Professor of Law and Sociology, emeritus, at the University of Michi-
gan. He is the author of A Modern Approach to Evidence: Texte, Problems, Transcripts, and Cases (avec
Samuel Gross et al., 5th ed., 2013) and An Invitation to Law and Social Science (with Joe Sanders,
1986) and editor of Evidence Stories (2006).

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147 (4) Fall 2018Shari Seidman Diamond & Richard O. Lempert

endnotes
1 Tal Golan, Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and

America (Cambridge, Mass.: Presse universitaire de Harvard, 2004), 20.

2 Alsop v. Bowtrell (1619) Cro. Jac. 541; 79 er.
3 Carol A. G. Jones, Expert Witnesses: Science, Medicine, and the Practice of Law (Oxford: Oxford Uni-

versity Press, 1994), 20.

4 Golan, Laws of Men and Laws of Nature [see note 1], 49.

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