A study recently published in Science—one of the top scientific journals—terrifyingly explains that “[g]laciers along the Amundsen Coast of Antarctica are thinning” and suggests that the “full-scale collapse” of the Thwaites glacier “may be inevitable.” I don’t want to delve into a debate about whether our Earth is undergoing climate change, or whether any such climate changed is being caused by human activities. However, I do want to talk about the relevance of science to law, and the fact that science, as well as its partner technology, are moving at an incredibly rapid pace.
Questions about the relevance and meaning of science and technology to law can be found in matters ranging from the use of neuroscience to assess criminal culpability or physical injuries, to the use of epidemiological studies to establish causation in toxic tort cases, to the novel liability risks associated with the use of unmanned vehicles. One of the difficulties of employing scientific and technological knowledge in legal matters is that many judges and lawyers are not trained in the nuances of scientific reasoning or the details of understanding modern technology.
I occasionally teach Law & Science courses to judges, and several judges have expressed to me their difficulties in wrestling with science in their cases. This problem of judges trying to understand science is exacerbated when judges are tasked with determining the reliability of scientific evidence under the Daubert standard, which a majority of jurisdictions now use. Some judges try to better understand the science at issue, but they might do this by independently researching the issue. (Perhaps the judicial independent research that has received the most attention is Judge Posner’s “experiment with a novel approach” that he conducted pursuant to deciding Mitchell v. JCG Industries, Inc., where he had the court’s staff don and doff specialized clothing and equipment to determine how long the process took.) This practice may be suspect under the applicable code of judicial conduct, but some judges engage in it nonetheless.
A commonly cited example of judges struggling with technology can be seen in the somewhat embarrassing exchange among the Supreme Court Justices in Ontario v. Quon. In that case a police officer had sued the city, claiming that the police department’s review of his text messages violated the Fourth Amendment. In oral argument, Chief Justice Roberts inquired: “Maybe—maybe everybody else knows this, but what is the difference between a pager and e-mail?” And Justice Kennedy asked what would happen if someone were to text an individual while he was texting with someone else: Does the individual have “a voice mail saying that your call is very important to us; we’ll get back to you?” At least the judges were doing their best to understand the technology at issue, though, before handing down an important opinion on the matter.
On some science- and technology-related subjects that judges decide, there may be other, possibly more qualified decisionmakers available. On some such questions—especially when the science and technology is intermingled with moral determinations—juries are possible decisionmakers. Now juries have a bad reputation with many lawyers. Yes, I’ve seen jurors fall asleep during trial, and I’m all too familiar with some jurors’ focus on details like what kind of shoes a female lawyer wears to court. But juries can offer something that judges cannot. They are ordinarily more representative of their communities than a single judge could be. They serve as a bulwark between the government and the people. They serve to legitimate the law. Through their process of deliberate democratic decisionmaking they can make excellent determinations. Most relevant to decisions involving science and technology, though, juries—by virtue of including more than a single deliberator—can draw on a wide variety of knowledge and experiences. On a jury of twelve, there may be a mother, father, school teacher, engineer, recent college graduate, veteran, victim of assault, retired person, social worker, devout Catholic, plumber, and truck driver. And of course each juror would bring many more characteristics to the table. As a group, then, this deciding body can draw on a broad range of knowledge and experiences. Additionally, jurors often include decisionmakers who are younger than the judges presiding over the case and may be more on the pulse of cutting-edge science and technology. In a case in which a court faces a question such as whether continuous drone surveillance constitutes a Fourth Amendment search because it violates reasonable expectations of privacy, then, a diverse jury might prove to be a better decisionmaker than a judge.