Science and the Law

By Kennedy, Donald; Merrill, Richard A. | Issues in Science and Technology, Summer 2000 | Go to article overview

Science and the Law


Kennedy, Donald, Merrill, Richard A., Issues in Science and Technology


The interaction is increasing, and the two disciplines must learn to work together for the good of society.

A dozen years ago, the Carnegie Corporation of New York, under the leadership of David Hamburg, established a commission to explore the broad terrain bounded by the title, "Science, Technology, and Government." The Carnegie Commission's formation reflected two important but neglected realities: First, decisionmakers in all three branches of government increasingly rely on, and to decide wisely must understand, the disciplines and products of science. Second, actions by executive officials, by Congress, and by the courts profoundly affect not only the resources and the opportunities of the scientific community but also the conduct of its affairs. The numerous reports subsequently issued under the auspices of the commission documented the interdependence of science and legal rules and institutions, and offered recommendations for a more productive collaboration between them.

Events over the past decade have confirmed the perception and foresight of the Carnegie Commission architects by dramatizing the connections, and sometimes the tensions, between science and law. The Supreme Court in three noteworthy cases has addressed the criteria for admission of scientific and other technical evidence in civil litigation, and on two occasions essentially adopted the views advanced by organizations representing the scientific community as amici curiae. More recently, Congress has enacted a controversial law, the so-called Shelby Amendment, which was designed to permit public access to research data generated by scientists who receive federal funding. In the debates that attended the Office of Management and Budget's effort to implement the Shelby Amendment through notice-and-comment rulemaking, strong differences arose between scientists who resented any intrusion of the sort and others who argued that the economic and policy impacts of "regulatory science" justified broad public access to the underlying research.

Thus, in different contexts each of the three branches has confronted claims that advances in information technology threaten individual rights of privacy. Debate over the appropriate boundaries of legal protection for scientific discoveries swirls around the human genome project and the commercial exploitation of genetic technologies. And concern about the adequacy of legal safeguards for participants in medical and social science research permeates congressional oversight hearings.

The members of the Carnegie Commission correctly foresaw that the linkages between science and law were not episodic but continuous and that their interdependence was not static but proliferating. Sharing these beliefs, several years ago the National Academy of Sciences, National Academy of Engineering, and Institute of Medicine began to think about a structure that would permit representatives of these important dominions to debate, study, and perhaps occasionally resolve issues of joint concern but differing interest. These internal deliberations were encouraged and substantially aided by the wise and enthusiastic counsel of Justice Stephen Breyer, the Court's most visible advocate for collaboration between the disciplines, whose influential views are set forth in the article that follows this one.

In 1999, the National Academies established the Panel on Science, Technology, and Law. We have the privilege of cochairing the panel, which consists of roughly two dozen members, including leaders in scientific and engineering research and research management, and representatives from the practicing bar, the legal academy, and the courts. Our task is to monitor and explore the growing number of areas in which the processes of legal decisionmaking utilize or impinge on the work of scientists and engineers.

This is potentially a vast territory, and the panel inevitably must proceed selectively. …

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