When Robots Rule:
Remember when robots were the stuff of science fiction? AI didn’t reach the forefront of sci-fi until Neuromancer was published 40 years ago. Now, AI permeates the press, the internet, the classroom – and medical decision-making. We also have technological advances with ethical/social justice implications: Allocation of electronic wombs? Genetic editing? Progeny- selection by prenatal genetic scores? Animal-organ transplants to humans? Embryonic experimentation? Neural chips implanted in synthetic organisms? How do we make decisions involving these matters? And who gets to make them?
Given the distrust of both science and law these days, some advocate that special “science courts” staffed by the laity should address policy questions. A corollary of this concept involves creating science courts to decide legal disputes.
Science courts are claimed to foster public trust:
“This distance between the American public and scientists has been growing. Trust in scientists to act in the public’s best interest dropped ….” Real Clear Science
The “Citizens Court” was first raised in the 1960s as an antidote to mistrust in science. However, the advocacy or “citizen science” raises to an art form the Dunning Kruger effect, described by my friend and colleague, Dr. Chuck Dinerstein:
“the Dunning-Kruger effect – [occurs] when limited knowledge or competence is coupled with overestimating those qualities. A new study looks across a range of scientific ideas looking for those who are often wrong but never in doubt.”
Suppose scientists can’t generate confidence in their decisions. Do we truly believe a court of lay people – without credentials, training, expertise, or education (perhaps with different beliefs and agendas) will accomplish that end?
Should Boards of Science Decide Novel Issues?
Even if we could engender more trust in science (and scientists), letting scientists decide the issues (legal or policy) would also be fraught. Scientists disagree, and leaving determinations to scientists or expert doctors is not without its problems. Dr. Joe Cecil, then of the Federal Judicial Center, documented a case where the judge invited three court-appointed experts from three different fields to opine – only to return with three different answers.
Not unlike politicians or lawyers, scientists have egos, often out-sized, trampling those with competing views or novel discoveries. Rene Laennec, who developed the stethoscope, was ridiculed for his controversial notions dying in poverty. Discord sometimes rises to the level of vicious dispute, exemplified by the rivalry and name-calling by two scientists who created the field of immunology: Ilya Metchnikoff (who championed the white blood cell theory) and his nemesis, Paul Ehrlich, the father of cell-mediated immunity. [(Both eventually won the Nobel Award – jointly).. In science, unlike law, two sides can be right. Moreover, science has time on its hands; the finish line has no end, while law and policy questions demand time-sensitive answers.
To assess policy and legal questions, the jousting incident to scientific advance is ill-suited; scientists' role in societal conduct must be to educate and perhaps to foresee (although that role is often better accomplished by the fiction writer).
But if scientists aren’t the answer, what about the law courts?
From a time-sensitive and objective perspective, lawyers and judges eclipse scientists as arbiters:
“The objectives of legal and scientific inquiry differ as science … searches being] more comprehensive and not time sensitive. But the law’s ‘objective is to resolve conflicts; its coverage is limited and time-sensitive’. In this way, science describes, explains, and predicts while the law ‘is concerned with regulating human affairs in accordance with values and objectives’”.
Judge Lee, McNickle v. Huntsman, et al. (Australia’s Zantac class action)
Yet, lawyers have long recognized the infirmities they face when assessing science. Various avenues have been suggested to address these, as Judge Lee notes:
“Steps [should] be taken to equip courts with research staffs comparable to those employed by administrative agencies in order to provide judges with specialised investigations, information, and advice.”
- Roscoe Pound, former Dean Harvard Law School [1]
Traditionally, courts have used various mechanisms to assist in complicated cases:
- court-appointed experts,
- special magistrates (e.g., Kenneth Feinberg in the World Trade Center mediation or Shira Scheindlin, special master in the Agent Orange cases
- Special courts, such as the Federal Circuit Court of Appeals, are dedicated to hearing patent appeals, where patent law judges, mostly without scientific training, often have law clerks with PhDs in relevant sciences.
Should Science Courts Decide Legal Matters?
The losing side of every conflict is dissatisfied. When science-related questions are involved, the losing side often advocates for a specially designated judiciary to make decisions. Practicing attorneys recognize that judges are people with prejudices and political views. Experienced trial lawyers would rather have decisions made via the collective intelligence of six or twelve impartial jurors who are not fearful of science as long as some distinct arbiter first vets the evidence to ensure it passes minimal scientific soundness.
Hence the Daubert reliability criteria or an alternative means of setting minimal scientific standards for juries, the Frye standard. which relies on the “consensus of scientific acceptance” to govern admissibility). However, by no means are these paradigms universally championed, and law professors have sounded in with alternative or refined approaches:
“Having placed its lay decision-makers in impossible positions, the Daubert regime dooms itself to suboptimal decisions. And while critics are quick to blame the decision-makers, the fault lies not with them, but with the underlying structure.”
Professor Ed Cheng, Vanderbilt University School of Law.
“Judges are relatively more capable than jurors at the outset of their judicial careers by virtue of their training and practice experience (and they are in positions to become ever more capable); and in any event, they are more independent than party-affiliated expert witnesses, especially when it comes to evaluating consensus.”
Professor David S. Caudill, Villanova University School of Law
But the Citizen Jury is Not the Answer:
Not only would we be vesting in a scientifically untutored (i.e., illiterate) group complex questions often involving a multiplicity of scientific fields, each with its nomenclature, methods of proof, and means of analysis, but the rules of engagement, including what information they are to consider must also be determined, including how do we choose the citizens jury in the first place. Then, we must consider whether:
Is all purported “evidence” to be considered? Does the qualifications of the advocate/ author -matter? Who determines which qualifications suffice? How? Would all scientific articles be given equal weight? What about journals that allow pay-for-publishing? How would conflicts of interest by authors be assessed?? Would social/ethical/religious ramifications be considered? Whose? Who presents their case first? Which side gets the last word?
The protocols and evidentiary rules for engagement for these lay courts are never considered in the anodyne suggestion for its use. Yet, these procedural rules are well-thought-out in the legal context. Citizen “science courts” are too simplistic a solution.
Regarding whether judges or juries are more appropriate decision-makers, I suggest the best system is the current one: Both – with one caveat. Our present system allows two entities, the judge and jury, three passes at evaluating the evidence: judges preliminarily, juries as a follow-up, and judges with a (rare) final say. Even where judges get it wrong, as did Judge Medinilla in the Delaware Zantac cases, juries have demonstrated the capacity to sift through evidence dumped on them by a lax judge and make independent and hard decisions, called the “CSI effect” in the trade. [2]
The caveat is that the lawyers must be able to make the evidence accessible to both a jury and a judge, translating complex concepts into simple rubrics, i.e., to educate. This is something lawyers are not trained to do. And this is where more work is required. A key question remains: how can a small group of people be entrusted to decide social/policy issues that impact many people? Citizens’ referenda might be a better idea, where a “mock” trial of the science-social problems is aired by public broadcasts or Zoom, and a large populace sounds in with an advisory opinion after a judge makes the initial cut on Daubert-approved evidence. The advice can then be routed by politicians who incorporate political/economic considerations.
When Robots Rule (Reprise)
Of course, in the world of the future, there’s another option: Let ChatGPT be the judge
[1] Pound, a scientist holding a doctorate in Botany, illustrates a rare self-awareness
[2] In the Zantac cases, two juries have found in favor of the manufacturer even after being shown sub-optimal science.
