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Dr. Colwell's Remarks


"Law and Science: Two Cultures or Happy Marriage?"

Dr. Rita R. Colwell
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.


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 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.


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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