"Government regulation of major technologies has to take into account a conflicting array of scientific, social and economic considerations and of public and private interests."
The paper “Science, Technology and the Limits of Judicial Competence” was written by Sheila Jasanoff and Dorothy Nelkin and published in 1981 in Science.
It explores the complex relationship between the Judicial wing of the State and litigation involving Science and technology expertise. The core argument set forth by the authors is that judicial competence in litigation relating to science and technology disputes is complicated by the uncertainties involved in determining the consequences and hence, it loses grip of conceptual and policy issues of the case at hand in its focus on the technical aspects.
As the role of science and technology in daily life is becoming increasingly common, so are the issues among scientific experts and among the social, moral and ethical characters in the public.
The environmental and health risks of technology make the requirement of “best scientific information” essential in regulatory science like the National Environmental Policy Act, the Clean Air Act, and the Toxic Substances Control Act. Judiciary is constantly in need of technical advice from scientific experts to make rational and legitimate decisions.
Reforms in the judiciary structure are proposed – where some say that judiciary should have a reductionist role to play, confining itself to the procedural verifications scientific evidence collection. Or even a close partnership between the judiciary and experts is suggested at every step of the litigation. Some even ask for a different body of judiciary well-trained in such expertise to deal with the issues of science and technology.
The large scientific and technological components of an issue are seen as placing an unusual burden on the adjudicating bodies.
Two major classes of litigations relation to science are categorized as:
(i) Ethical issues raised by scientific advances ( particularly biological sciences)
(ii) Technology which poses risks to the society and the perceived deficiencies in the government’s effort to mitigate these risks through regulatory action.
High level of uncertainty involved in the regulation of scientific and technological development compounds the difficulty. Disagreements exist about the magnitude of risk, appropriateness of measuring techniques and the reliability of data.
According to Jasanoff and Nelkin, the reforms to adjudication focus on the issue of technical uncertainty to the extent of exclusing the conceptual and policy issues at stake.
The following case studies exemplify this:
The Del zio case: A woman sued the Columbia University, Presbyterian hospital and the chairman of Columbia’s department of obstetrics for not allowing her to undergo a voluntary in vitro fertilization. The trial focused entirely on the technical aspects of the scientific procedure and weighed the credentials of the experts involved, rather than taking the basic value of the case into account: The woman’s personal desire to undergo in vitro fertilization and the Federal government’s regulations and conditions about the same given to the University.
The authors feel that the Judiciary is better equipped to weigh competing values and interests rather than settle disputes between scientific experts.
Superintendent of Belchertown State School vs. Saikewicz case which deals with the “right to die” of a an incompetent and terminally-ill 67 year old patient of Leukemia, acting through is guardian ad litem, which is weighed against the countervailing interest of the State to preserve human life at all costs, by the judiciary. Though in this case, the judiciary exercised its appropriate function of value judgement of competing interest groups. The authors argue that in most of the “right to die” cases the judiciary gets stuck around the technical definition of death or "brain death", rather than weighing the social and religious value associated with death.
A third case is that of litigations involving patentability of Living Organisms , which again gets derailed to the questions of technical differences between an invention and a living organism based on expert definitions rather than looking at the moral value attached to the commercialization of life-creation.
Taking their argument ahead, the authors point towards the environmental issues which strain the judiciary to a breaking point due to the unique policy context involving various interest groups: Scientific experts, Private Citizens, Special Interest Groups, and more. In such a complex relationship mesh, the trade-offs are difficult to determine and it further complicates decision-making as the boundaries between the agency and the patient blur. The dichotomous two party litigation system of the American judiciary is unable to accommodate such complexity.
As the role of science and technology in daily life is becoming increasingly common, so are the issues among scientific experts and among the social, moral and ethical characters in the public.
The environmental and health risks of technology make the requirement of “best scientific information” essential in regulatory science like the National Environmental Policy Act, the Clean Air Act, and the Toxic Substances Control Act. Judiciary is constantly in need of technical advice from scientific experts to make rational and legitimate decisions.
Reforms in the judiciary structure are proposed – where some say that judiciary should have a reductionist role to play, confining itself to the procedural verifications scientific evidence collection. Or even a close partnership between the judiciary and experts is suggested at every step of the litigation. Some even ask for a different body of judiciary well-trained in such expertise to deal with the issues of science and technology.
The large scientific and technological components of an issue are seen as placing an unusual burden on the adjudicating bodies.
Two major classes of litigations relation to science are categorized as:
(i) Ethical issues raised by scientific advances ( particularly biological sciences)
(ii) Technology which poses risks to the society and the perceived deficiencies in the government’s effort to mitigate these risks through regulatory action.
High level of uncertainty involved in the regulation of scientific and technological development compounds the difficulty. Disagreements exist about the magnitude of risk, appropriateness of measuring techniques and the reliability of data.
According to Jasanoff and Nelkin, the reforms to adjudication focus on the issue of technical uncertainty to the extent of exclusing the conceptual and policy issues at stake.
The following case studies exemplify this:
The Del zio case: A woman sued the Columbia University, Presbyterian hospital and the chairman of Columbia’s department of obstetrics for not allowing her to undergo a voluntary in vitro fertilization. The trial focused entirely on the technical aspects of the scientific procedure and weighed the credentials of the experts involved, rather than taking the basic value of the case into account: The woman’s personal desire to undergo in vitro fertilization and the Federal government’s regulations and conditions about the same given to the University.
The authors feel that the Judiciary is better equipped to weigh competing values and interests rather than settle disputes between scientific experts.
Superintendent of Belchertown State School vs. Saikewicz case which deals with the “right to die” of a an incompetent and terminally-ill 67 year old patient of Leukemia, acting through is guardian ad litem, which is weighed against the countervailing interest of the State to preserve human life at all costs, by the judiciary. Though in this case, the judiciary exercised its appropriate function of value judgement of competing interest groups. The authors argue that in most of the “right to die” cases the judiciary gets stuck around the technical definition of death or "brain death", rather than weighing the social and religious value associated with death.
A third case is that of litigations involving patentability of Living Organisms , which again gets derailed to the questions of technical differences between an invention and a living organism based on expert definitions rather than looking at the moral value attached to the commercialization of life-creation.
Taking their argument ahead, the authors point towards the environmental issues which strain the judiciary to a breaking point due to the unique policy context involving various interest groups: Scientific experts, Private Citizens, Special Interest Groups, and more. In such a complex relationship mesh, the trade-offs are difficult to determine and it further complicates decision-making as the boundaries between the agency and the patient blur. The dichotomous two party litigation system of the American judiciary is unable to accommodate such complexity.
An example is that of the agitations against Nuclear Plants and the trespassing of the activists in the premises of the same to hold protests. The activists see trespassing as a lesser evil of the two and hence justify an over-dramatization of the greater evil of Nuclear Plants through their trespassing.
The Honicker vs. Hendrie case which argued for a closing down of all Nuclear plants immediately, also created new problems for the judiciary as it overstepped the distinction between policy-making and adjudication.
Also, the risks posed to the environment and human health are evidence-determined require frontier knowledge of the concerned discipline. The judiciary lacks the knowledge and science too has incomplete evidence to offer, hence further complicating matters.
An example is that of neighbourhood members of the airport in California who demanded a compensation for the harm that the noise pollution caused them.
The proposed reforms have called for closer working of the Judiciary and Science when making value-judgements or for the establishment of a separate institution possessing such expertise to deal exclusively with science and technology related disputes.
Yet, the authors argue that a closer working of the two institutions of science and law will fail to take into account the Fragile Values as long as they are focussed on the technical information enhancement of the litigation. Rather, Judiciary being the strongest institution of these fragile values must not allow a hegemony of the scientific expertise to overshadow the basic social, moral and ethical conceptualizations in such litigations as exemplified in the previous cases.
What do you think? Though this article is written in the context of the Federal Courts, it has an analogy in the Indian scene too. The Bhopal Gas Tragedy is one the many cases in account, where compensation given to the victims is devoid of the social considerations. Another example is that of the Unilever Thermometer Factory in Kodaikanal causing serious consequences for the workers and local population. (One can also look at the case of Jadugoda uranium mines in Jharkhand and the damages caused to the local population's health).
Or, the current agitation among the Indian public against the propitiation of Nuclear power plants in Kundankulam and Jaitapur.
Please do comment and post relevant contemporary examples.
Thanks.
(Sorry for the unbearable length of the post, but since the paper will not be presented in class, I thought a detailed summary would be helpful)
