Academic journal article Law and Contemporary Problems

The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom

Academic journal article Law and Contemporary Problems

The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom

Article excerpt

To claim that Charles Darwin was a "rhetorician" may seem to confuse the provinces of rhetoric and science. Their juxtaposition, however, is not only warranted; it is also inescapable. Even scientific discourse must be persuasive to rescue insight from indifference, misunderstanding, contempt, or rejection. (1)



The Daubert trilogy (2) and the calls for reform that preceded it (3) have echoed through the legal and scientific communities since the early 1990s. Much has been made of the limited views of the scientific enterprise reflected in the Supreme Court's decisions. (4) Critics argue that the Court accepted a standardized view of science that serves the interests of the business community and key elements of organized science, but fails to reflect the diversity of science in actual practice. (5)

Epistemology is important in the debate about science and technology in the courtroom. The epistemological issues and the arguments about them in the context of scientific and technical evidence are now well developed. (6) Of equal importance, though, is an understanding of norms of persuasion and how those norms may differ across disciplines and groups. Norms of persuasion in the courtroom and in legal briefs differ from norms at a scientific conference and in scientific journals. This article examines the disconnect between science and the courtroom in terms of the differing norms of persuasion found within the scientific community and within the legal community.

The importance of persuasion is suggested by the idea of the "rhetoric of inquiry." (7) The central premise of the rhetoric of inquiry is that "[s]cholarship uses argument and argument uses rhetoric. The 'rhetoric' is not mere ornament or manipulation or trickery. It is rhetoric in the ancient sense of persuasive discourse. In matters from mathematical proof to literary criticism, scholars write rhetorically." (8) Scholarship here can be broadly defined to include science. The epigraph at the beginning of this paper referenced Darwin. Its author goes on to elaborate,

   To claim that Darwin was a rhetorician, therefore, is not to
   dismiss his science, but to draw attention to his accommodation of
   his message to the professional and lay audiences whose support was
   necessary for its acceptance. Commonly overlooked in studies of
   Darwin is that he persuaded his peers and the wider community by
   using plain English words and plain English thoughts. (9)

Darwin employed colloquial language and sought to appeal to the reader's common sense. (10) Darwin is by no means unusual. One need only think of the straightforward image of the double helix used by James Watson and Francis Crick to describe the DNA molecule over fifty years ago. (11)

Persuasion can operate within a community or across communities. Economics literature provides a good example. Donald, now Deidre, McCloskey has written extensively about the rhetoric of economics. (12) Within the community of modern-day economists, the languages of mathematics and statistics are the primary vehicles of persuasion. However, one of the most famous examples of a rhetorical device used to persuade a broad audience is from economics: Adam Smith's notion of the "invisible hand" of the market described in his The Wealth of Nations. (13) Despite sophisticated mathematical models and thousands of statistical studies of market forces, the imagery of the invisible hand remains the best way to capture quickly one of the central theoretical points of market economics.

Scientific and technical evidence in the U.S. courtroom bring together three communities: the community of legal professionals comprised of lawyers and judges, the community of scientific and technical experts, and the community of lay citizens embodied in the jury empanelled to decide a particular case. Although we like to think of the courtroom as a setting where we seek truth and justice, in reality the courtroom is fundamentally a world where the art of persuasion is paramount. …

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