"Law and Science: Two Cultures or Happy Marriage?"
Dr. Rita R. Colwell
Director
NATIONAL SCIENCE FOUNDATION
Cosmos Club Legal Affairs Committee Luncheon
"Millennium Event"
February 6, 1999
I'm especially pleased that we're meeting here at the
Cosmos Club to explore the intersection of law and
science. We all know that this club was a resolutely
all-male enclave until just ten-and-a-half years ago.
Less than three months after that, I was among the
first group of women invited to storm the gates--so
to speak.
I've been musing some on how this personal experience
connects with our topic today. Our admission to the
club actually mirrored how scientific and legal processes
connect to influence society. Each seeks truth in
its way, but in complementary fashion. Both are absolutely
vital to our economy and to our nation, yet the pace
and complexity of scientific research will present
new and even more frequent challenges to the legal
arena.
I'll submit that society can no longer afford to have
scientists and lawyers eyeing each other warily from
our separate corners. We must make far greater efforts
to learn each other's language, and to speak and listen
in forums of mutual respect. Lunches are a great way
to start.
Roadmap
As a research scientist for almost four decades and
now director of the National Science Foundation for
the past half-a-year, I know that all of us have a
strong stake in tackling the barriers that divide
the worlds of science and law. Today, I would like
to speak first about why this matters to NSF and its
mission. Then I'd like to offer a few thoughts on
our separate yet interdependent worlds of science
and law. After that, I'd like to look at how the encounter
of science and law reverberates in three vital areas
for science and technology investment. These three
areas are biocomplexity, information technology, and
science and math literacy.
What is NSF and why this matters
Let me tell you about why NSF cares about the interplay
between science and law. One of our jobs is to understand
how science meets societal needs. The Foundation,
an independent federal agency, was created in 1950
to promote science and engineering research and education
in the U.S.
We're instigators--in the best sense of the term. The
work we support will spawn scientific challenges that
then emerge in the field of law. We disperse our budget
of nearly $4 billion across all fields of science,
math, and engineering. Other Federal agencies, by
contrast, focus research on a specific mission, such
as defense or energy. We account for nearly a quarter
of Federal outlays for basic research at our nation's
colleges and universities. Competition for NSF support
is intense. We invest in the best ideas from the most
capable researchers, selected through a rigorous process
of merit review. Only one-in-three proposals, on average,
makes the cut.
We're also committed to ensuring that our country has
strong scientific leadership, a workforce that is
literate in science and math, and a public that grasps
basic scientific concepts--which brings me to the
topic at hand.
Law and science: "The Two Cultures"?
Let's move more generally to what scientists and lawyers
have in common (besides our sometimes questionable
images in the public eye!). We can claim common ground
in that both law and science hold the search for truth
as an ideal. However, as Supreme Court Associate Justice
Stephen Breyer has said, "...a court proceeding...is
not simply a search for dispassionate truth. It must
serve other important values as well. The law must
be fair..."
I've heard it said that both law and science sprang
from the ancient profession of the priesthood, whose
dual duty was to explain why the sun rose (science)
and to resolve the disputes that arose between sunset
and sunrise (law).
What are some of our commonalities? We use similar
vocabulary--trial, probability, evidence, precedent--although
the words conjure very different meanings in our respective
realms. Philosophically, the laws of physics or biology
are a world away from the laws of traffic or torts.
The word "law" itself takes on different meanings
in each sphere.
Still, there's something shared in our experiences.
Both law and science demand rigorous technical training.
Each contains specialized sub-fields whose practitioners
cannot understand each other's jargon. Also, scientists
must stand before a jury all their professional lives.
It's called peer review.
If we once did emerge from a common seed, we've surely
diverged into the "two cultures," the term C.P. Snow
applied to the worlds of science and humanities. In
simplistic terms, law looks to history for precedent;
science too builds on the past, but moves forward
toward discovery. Legal structures change slowly while
research lurches forward, creating facts, powerful
technologies, and ethical dilemmas before there are
laws to address them.
Our approaches are truly different. The judicial process
uses an adversarial structure, while science--though
often adversarial in process--is in its entirety a
great international conversation moving towards consensus.
We regard each other's territory with skepticism.
Scientists are uneasy in the legal arena, finding
the rules for evidence selective. They also shrink
at hashing out their scientific differences in the
courtroom, preferring their own, safer, venues such
as meetings and journals.
The discomfort goes both ways. One lawyer at the Federal
Judicial Center--which provides technical assistance
to judges--tells a story about a federal judge. The
judge, while still a student, dropped out of a pre-med
curriculum because he couldn't hack organic chemistry.
A brilliant legal career then led to a federal judgeship.
Ironically, at that point, he came face to face again
with molecular biology, this time in the guise of
DNA evidence. You can run but you can't hide.
These sorts of collisions will only increase. Science
and technology scholar Sheila Jasanoff writes the
following in her book, Science at the Bar:
"Science and scientists are drawn into the courtroom
not merely as adjuncts to legal fact-finding,
but because human technological ingenuity continually
gives birth to new and unruly forms of life..."
Three Key Areas
I now want to move to three specific areas that embody
some of this "unruly life" emerging from scientific
inquiry. These topics will pose even greater challenges
to our law and science alliance in the 21st
century. How firmly we engage these areas will have
great significance for society.
Biocomplexity
My own discipline of biology is essentially bursting
forth with new knowledge in genetics and in the environmental
sciences. Here is a major new frontier for the law-cutting-to-the-quick
on such questions as ownership of a gene, or even
the very nature of life itself. If the variety of
questions burgeons now, it will swamp us in short
order on ethical and legal fronts. Let me survey just
a few of these issues today.
The first area is what I call "biocomplexity," a new
term in our lexicon. This concept already presents
myriad challenges to our present law. Taking the perspective
of biocomplexity, it is not enough to chronicle the
enormous diversity of the earth's ecosystems. We need
to reach beyond, to discover the complex chemical,
biological, and social interactions in our planet's
systems. Ultimately, we aim to draw forth the very
principles of sustainability.
Biocomplexity requires working across the many scientific
disciplines. As I've been developing this new approach
to understanding our world, I've begun to get a sense
that it is an idea whose time has come. For instance,
there's Shirley Tilghman, who directs Princeton University's
new center that links the physical and biological
sciences--one of many such institutions springing
up at leading U.S. universities. She was recently
quoted in the journal Nature as saying, "Biology
has thrived in the past 50 years by taking things
apart and identifying their components." She and many
of us think it's time to study how things come together.
One intriguing way to do this is encapsulated in another
"bio" word--that's "bioregionalism." This is the idea
that the earth is composed of bioregions--an area
defined by biophysical and cultural similarities,
such as a watershed. The Chesapeake Bay watershed
is a fine example close to home--embracing several
states and countless legal jurisdictions. A storm
gutter in Arlington is labeled "Chesapeake Bay drainage"--we
hope this will give pause to a car owner who might
otherwise dump used motor oil down the drain.
In essence, we overlay national, state, and local boundaries
on natural landscapes and ecosystems that science
tells us are organized quite differently in very basic
ways. Our law must evolve to grasp this complexity--so
that law based on the principles of sustainability
might guide a developer, a politician, or a homeowner.
Let me cite two more illustrations. Tracing the complexity
of life systems may actually yield insights, products,
medical or economic uses of value for our species
and our environment. How can we protect these treasures?
An example is a controversy concerning rights of ownership
to a dinosaur fossil. This is described by Joseph
Sax, a law scholar at University of California-Berkeley.
He writes, "the potential scientific importance of
the object [the fossil], its significance for research
that could add to the total of human understanding,
is of no legal significance." By and large, law does
not place value on these unknown benefits from basic
research.
Another case in point is microbial diversity. Microbes
have been around for three-and-a-half billion years
and they're everywhere. But, of all life forms, we
know least about them. We of course cannot even see
them with our naked eye. We don't know the role they
play in the planet's systems, how they affect our
man-made infrastructure, and their economic significance.
Yet, look at the furor over saving the spotted owl
or other threatened species. How can we conceive of
laws to conserve something like microbial diversity
that we cannot see and have hardly begun to enumerate?
If a legal framework does not attribute societal value
to the complexity of our planet's systems, this richness
will be lost to scientific inquiry. Biological complexity
should be considered a societal asset of broad value--like
clean water or breathable air, protected for all.
There are many other challenges in biology. One is
the issue of patenting a living thing. In the 1980s,
a scientist at General Electric patented the first
genetically engineered bacteria. This oil-eating bug
had potential for cleaning up a polluted site. A thicket
of issues spring up here, such as: Should we indeed
patent life? How do we measure the amount of change
necessary to produce a new organism--and requiring
a new patent? The Monsanto case--featured on the front
page of the Washington Post this week-plays
out many of the dilemmas.
Emerging infectious diseases are another case in point.
A highly virulent strain of E. coli was first detected
in the United States. It may have evolved in response
to the overuse of antibiotics in the cattle industry.
The strain was also found in Asia and Europe. Such
leaps stress our scientific and legal structures beyond
their limits to cope. Yet, we also know that these
globe-hopping infections will only increase.
In surveying these areas of concern, I must touch upon
the challenges posed by genomics. Already they are
upon us. The tools of my profession, microbiology,
have brought us to the edge of being able to transform
our offspring, to clone, to discern the genetic makeup
of a human being. We already see difficulties in places
like Iceland. Many generations of its population are
meticulously documented, but there's a move afoot
to sequester valuable knowledge of human genetic makeup.
It's still an open question as to how the law will
grapple with this brave new world. We do know that
law must contribute by balancing scientific worth
with other societal values.
Information technology
Let me now turn to another area whose progress is outstripping
our legal and ethical safeguards. This is information
technology--whose nurturing is absolutely key to strengthening
the links between the scientific disciplines and hence
to scientific progress. We know that every research
field has been enhanced and influenced by information
tools.
Vice President Gore just announced a new federal initiative
on information technology, and we at NSF are now taking
up our leadership role in this venture. We consider
it a national imperative to be at the cutting edge
of the computing and communications frontier.
NSF is actually working at both ends of the information
technology spectrum. As the federal agency that was
the architect of the Internet for civilian use, we
are now supporting the development of the Next Generation
Internet with much faster, more powerful computers
and networks.
Just as the Internet has transformed the way scientists
work, it presents us with new dilemmas at the border
of science and law. One such conundrum is the ownership
of on-line databases. Science thrives on open access
to data. Since information technology has magnified
this access many-fold, new questions arise. One is:
Should the publisher of a database have a monopoly
on access to it? What if the data was generated with
public funds? Must the public, in essence, pay twice?
We're concerned right now about a proposed federal
rule that calls for all research results and data
to be made public through the Freedom of Information
Act. This could be a slippery slope, if it forces
scientists to go public with data before studies are
complete or thoroughly reviewed. By way of context,
it's hard to imagine how such a case could have arisen
before the Internet gave us the means to share huge
masses of data with such immediacy.
We're just beginning to grapple with these and other
dilemmas brought by the Internet and related technologies.
Indeed, we can look back into history for parallels.
In late medieval times, the development of printing
technology presented equally bewildering choices to
societies. Authorities attempted to restrict this
technology--another echo of today.
While our modern information tools have tremendous
potential to bring us closer, they also raise the
specter of privacy violation. NSF funds a project
by the American Association for the Advancement of
Science that will set guidelines for anonymous communications
on the Internet.
Yet another trend of the Information Age calls out
for the insights of ethics and law. We face a widening
gap between the information rich and the information
bereft. Will we merely stand by and watch as some
are prepared to live fully in the 21st
Century and others are not? In my view, we simply
cannot allow that bottom layer of the pyramid to languish
without access.
An NSF social scientist named Rachelle Hollander, head
of NSF's Ethics and Values Studies for the past 25
years, gives us perspective.
She says, "Information technology has the ability to
transform the social as well as the physical landscape,
perhaps even beyond what the automobile has done.
We need to understand those implications at least
as much as the more technical parameters. We need
to know how this technology can affect what it is
to be a person, a community, a society."
These dilemmas are already entering the legal arena.
We might think of them on the very fundamental level
of human rights.
Science education and literacy
This trend of thought leads us to a third area whose
time has come--indeed, I would argue, that is long
overdue for major attention. Over the past few years,
the world of science has been engaged in a dialogue
about how we can boost scientific education and public
literacy. I would venture that what began as a murmur
about this multi-faceted challenge has now reached
the level of a dull roar.
Once again, the legal and the scientific intersect.
If the S&T revolution bypasses much of our populace,
they are left without vital tools to make critical
decisions in this increasingly complex world. They
embrace pseudo-science; they become less-than-enfranchised
citizens. They may become poorly informed voters,
jurors, and citizens.
In a survey we did in 1997, less than a quarter of
American adults could define the term "DNA." Eighty-seven
percent could not define the Internet. Less than half
knew how long it takes for the earth to circle the
sun.
We as scientists, lawyers and citizens must consider
how to turn this around. As scientists, we can cast
a cold eye on how we communicate with the public about
our work.
Two weeks ago (Sunday, January 24, 1999), the Los
Angeles Times ran a major critique of how scientific
results are hyped to the public. The authors said
this: "The corrosive effect of too many scientific
announcements that are half-baked, ill-supported,
or premature undercuts efforts to keep laws and public
policies up with the cutting edge of science, disrupting
the effort to assess controversial developments such
as cloning."
The article went on to cite a number of examples. In
one case from last year, a Massachusetts biotechnology
company announced that it had combined the cells from
human embryos and animals for the first time. This
fanned congressional debate about the use of human
embryos for studies. At the same time, no one has
yet confirmed those results or published them in a
scientific journal.
In the courts too, science could also bring specialized
knowledge to bear in a more worthwhile manner than
now. Science--with its open-endedness, its reliance
on probabilities, its introverted dialects--has often
foundered on the rocks of the adversarial legal system.
Still, we see some signposts for improvement. Many
of us have followed the silicone breast implant litigation--specifically
the decision by federal Judge Sam Pointer to name
his own panel of experts as an antidote to the "hired
guns" of experts who square off on either side. The
panel, as it happens, did not find a link between
implants and a number of illnesses.
This June the AAAS begins a demonstration project to
help federal judges find expert witnesses to appoint.
We need more endeavors of this sort that link our
two cultures. NSF itself supports studies on such
topics as how an expert witness can convey the concept
of probability--the very fabric of scientific methodology--without
distortion.
All of this circles back to the importance of public
literacy in making good decisions.
I've been ranging widely over a good bit of ground
here, and as I conclude, I want to thank you for the
chance to explore these issues together. I would actually
like to sum up now with a question and then take some
time for your questions.
I borrow my question from Sheila Jasonoff, the scholar
I quoted earlier. In her book, Science at the Bar,
she asks: "Is the relationship between science, technology,
and the law an essential alliance or a reluctant embrace;
a collaboration or an unhappy marriage?"
Maybe we can all view sessions like this one today
as a healthy dose of marriage counseling--for we're
surely in it together. While law helps create the
social stability and safeguards the freedom necessary
to do science, scientific progress then nudges the
limits of law and provokes it to change.
We need many more such chances to explore this lasting
engagement. Thank you.
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