Assessing the Impact of STS in Legal and Regulatory Settings Involving Controversial Science

1. Assessing the Impact of STS in Legal and Regulatory Settings Involving Controversial Science David Mercer Science and Technology Studies University of Wollongong, Australia

2. Overview • ‘Idealizations of Science’ in Law/Regulation a problem. STS most significant source of more accurate images of science: But reception of STS has been problematic. • Sample: Four case studies • (1) Personal experience as a member of a committee which provides advice to Australian science policy makers in relation to health and safety issues associated with Mobile telephones • (2)The ‘impact’ of recent STS citations in US Federal courts

3. Overview • (3)The ‘reception’ by US courts of STS as a field of expertise in litigation involving fingerprint evidence • (4)The ‘uses’ of STS in ‘Creation Science Litigation’ • In the first case study STS perspectives were available but ignored, in the second, cited, then marginalised, in the third, openly resisted and in the fourth appropriated/ re-appropriated • Four themes introduced to help explain these patterns of reception: Recognition/Identity; Articulation and Translation; Match/Mismatch of Knowledge Frameworks; Political Implications

4. (1) Committee on Electromagnetic Energy Public Health Issues The official task of the Australian EME Reference Group (EMERG) is, “[T]o provide community input to the Committee on Electromagnetic Energy Public Health Issues”(CEMEPHI 2003). CEMEPHI has representatives from the Department of Communications, Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), The Australian National Health and Medical Research Council (NHMRC), and Australian Communications Authority (ACA). CEMEPHI co-ordinates, via the NHMRC, scientific research in Australia into radiofrequency and electromagnetic radiation health issues, Australian participation in the World Health Organisation (WHO) Electric and Magnetic Fields (EMF) programs, and a public information program (coordinated by ARPANSA). The EME reference group (EMERG) “[I]ncludes representatives from consumer organizations, the telecommunications industry, the health sector, academic organizations, local government and community groups.” (CEMEPHI 2003).

5. Health ‘Fact Sheets’ • Fact Sheets should only report on ‘substantiated science’ • In Fact Sheet 1: Electromagnetic energy and its effects, two criteria specified for ‘substantiated science’ (a) publication and peer review in the international literature, and (b)independent verification of research results • In other Fact Sheets this standard inconsistently applied. Peer reviewed(but controversial) studies suggesting Rf health questions unreported. Unreviewed pilot studies dismissing Rf health questions, and controversial peer review studies reported.

6. STS Advice • Apply standard consistently to reports: Two options suggested • Report Liberally: note all relevant studies which have been peer reviewed, even if controversial, also include a sample of pilot studies, but explain why some pilot studies have been included when they don’t satisfy ‘substantiated’ criteria • Report Conservatively: note only the very small body of relevant ‘non-controversial’ RF studies making clear that criteria for inclusion is strict. • Advice: Ignored/Not even challenged

7. 2.Citation of STS • Important example: Daubert citations of Science Studies • Popper, Hempel, Ziman,Jasanoff (and others)assist in ‘authorizing’ Daubert check-list for admissible science • ‘Secondary’ legal literature particular attention paid to Daubert’s reference to Popper,re: testing and falsification as a key demarcation criteria between science and non-science

8. Citations: ‘Context’ • Surveys and analyses of citations of Science studies literature in US courts and secondary legal literature. (Edmond and Mercer 1998(b), Edmond and Mercer 2002, Edmond and Mercer 2004) • Link this literature with the context in which it was being used, and interpretation of its effect on broader patterns of litigation • Comparison also made between the legal ‘uses’ of STS and ‘uses’ of non-STS, popular ‘think-tank’ generated commentaries on science, eg Huber.

9. Citations: ‘Displacement’ • When STS literature was being cited it was often for propositions that were widely displaced from the way these concepts were generally understood in science studies • Example 1: Sociologist of Science Sheila Jasanoff’s work has been cited in secondary legal literature for the need for judges to become more conversant with the scientific method, her original study in fact pointed in the opposite direction, for judges to move beyond simple positivist understandings of the nature of science.

10. Citations: ‘Incoherence’ • Example 2: Latour and Woolgar ‘Laboratory Life’ widely acclaimed anthropological study of Salk Institute cited in a Federal court judgment as an authority that photocopying is commonplace amongst scientists !! • Example 3:Uptake of science studies often incoherent/trivial Daubert judgment written as if competing philosophical and sociological models of science are simply compatible and interchangeable. No recognition that Popper, Hempel and Jasanoff offer different images of science

11. Citations: ‘Think Tanks’ Example 3: In terms of the quantity, and in consistency of uptake of images of science,’secondary’ non specialist literature drawn from politically conservative industry backed ‘think tanks’ was far more likely to be cited with some sense of context (re: accordance with stated motivations of proponents)than STS literatures. In particular the polemic of the ‘neo-con’ Manhattan Institute’s Peter Huber.

12. (3)STS Expertise and Fingerprints • One of the by-products of post-Daubert US courts becoming more pre-occupied with gate-keeping and assessing the quality/methodology of scientific and expert evidence has been for a variety of challenges to be made to fingerprint evidence • STS scholar Simon Cole has written a well received history of fingerprinting, exposing its practices as far less exacting and open to interpretation than traditionally believed • Cole has recently sought to appear as an expert witness. His evidence has regularly been excluded from being heard in pre-trial hearings

13. Classifying Expertise • Issues raised in these pre-trial hearings re: whether or not Cole’s testimony on the history of fingerprinting and the reliability of its practices can be classed as expert opinion. Judges have rejected Cole’s evidence based on difficulties in being able to define what sort of expertise Cole’s STS knowledge constitutes.

14. STS and ‘Creation Science’: Ruse’s Ruse • Philosopher of Science, Michael Ruse in Mclean, provides check-list for what should count as science tailored to reject creation science, emphasis on Falsification • Accepted and used effectively by court, ‘eg’ Overton • In Philosophy literature Ruse’s definition of science challenged, eg Quinn, Lauden • Issues raised about whether or not ‘just’ cause, ie. defending science justifies inadequate ‘public’ representations of philosophy of science

15. Fuller’s Folly: Kitzmiller • Fuller’s idiosyncratic agenda to challenge what he believes is the closed-mindedness of established Biological research, acts as expert witness in defence of ID(ARGHH?). Some ‘sound’ historical observation re: the role of design metaphors assisting in the process of scientific discovery. • Fullers arguments abstract/complex, politically naïve, and hard to reconcile with issues re: immediate case at hand. • Court accepts and cites some of his witness statements re: extreme difficulty of actually untangling ID from religion against ID…ignores the rest.

16. Junk History of Science ? • Kitzmiller Judgment promotes ‘folk’ history and philosophy of science eg. concept of ‘methodological naturalism’ as key definition of science and history of science re: the separation of science and religion and presents image of scientific revolution that is unsupported by scholarly literature. (For ‘Rusean’ reasons unlikely to be criticised)

17. Fitting STS into the Legal/Policy Frame ? • In the four case studies above, STS perspectives either experience difficulties in being taken up, exerting an influence in the way preferred by ‘STS experts’, or ‘debased STS’ ‘ taken up’ • Four overlapping themes can be used to construct a framework to help explain these patterns

18. Discussion (1)Recognition/Identity: ambiguity re: the identity and status of STS scholarship (2) Articulation and Translation: difficulty in framing STS advice in ways that are tractable for decision making

19. Discussion (3) Match/Mismatch of Knowledge Frameworks: Does the epistemological frame implied by the STS advice fit in with or challenge the epistemological frame adopted by the institution receiving the advice? (4) Political Implications: Do the implications of STS advice conform with or challenge political orientations of dominant stakeholders?

20. Conclusion • Increase dialogue between STS and Law/Regulation • Generate more ‘consensus’ STS positions re: policy contexts (something difficult in a vibrant academic field) Might be easier to convey images of what science is not and what law/regulation needs to avoid • Subtle changes in broader social ‘understanding’ of science, which STS contributes to • Technocratic perspectives tend to generate their own contradictions, STS can help fill these gaps.

21. References • David Mercer, ‘Seen but not heard: Can STS shape policy in controversial areas of science’ 2005 Yearbook of the Institute of Advanced Studies on Science and Technology Graz: Austria (eds), Arno Bamme et.al eds , Profil: Munich, 20 • Gary Edmond & David Mercer, ‘Anti-Social Epistemologies, Social Studies of Science 36/6(December 2006) 843–85 • ‘Daubert and the exclusionary ethos: The Convergence of Corporate and Judicial Attitudes towards the Admissibility of Expert Evidence in Tort Litigation’ (2004) 26 Law and Policy, 231-257. • Gary Edmond and David Mercer ‘Experts and expertise in legal and regulatory settings’ in G. Edmond (ed), ‘Expertise in Regulation and Law’, Ashgate Press U.K. (2004) 1-31. • Gary Edmond and David Mercer ’The invisible branch: The authority of science studies in expert evidence jurisprudence’ in G. Edmond (ed), ‘Expertise in Regulation and Law’, Ashgate Press U.K. (2004) 196-240. • Gary Edmond & David Mercer, ‘Conjectures and Exhumations: Citations of history, philosophy and sociology of science in US federal courts’ (2002) 14 Law & Literature, 309-366.