¶1

For almost a decade, the concept of "junk science" has been used to characterize, explain, and identify problems in the law-science relationship.1 Use of the term "junk science" has become ubiquitous in discussions involving law and science. Despite widespread belief that the serious problems surrounding law-science interactions are substantially attributable to the existence of junk science, the concept remarkably remains largely unexamined. Yet, many commentators have based their analyses and proposed reforms upon a commitment to a model that posits junk science as distinguishable from, and repugnant to, "good science." The main purpose of this paper is to question the utility, philosophical integrity, and empirical validity of this model.

¶2

Junk science is widely believed to be responsible for a range of problems with considerable social and economic implications, such as the inhibition of industrial, medical, and scientific innovation. It is regularly blamed for precipitating an ongoing legal "crisis" resulting in longer trials, more expensive litigation, and inconsistent, irrational judgments. The appearance of junk science in legal forums is used to suggest that there has been a failure of traditional "gatekeeping processes" (such as Frye2) for the admissibility of expert evidence. Proposals for legal reforms to stem the perceived influx of junk science include more active scrutiny of the norms, methods, and accreditation of those purporting to give scientific evidence; stricter evidentiary admission standards; and tort/insurance law reform. The alleged prevalence of junk science is used as evidence for the failure of the judiciary and the public to comprehend science. In turn, this has led to a perceived need to improve judicial and public scientific literacy.3 Thus, those subscribing to the junk science model believe that the very existence and appeal of "junk science" reflects broader difficulties facing modern science and society.

¶3	In contrast to these bleak images, we contend that the junk science model is a flexible, politically charged framework that should be rejected if a more sophisticated discussion of law-science interactions -- indeed, science, technology, and society generally -- is to be achieved.

 

II. The Political Origins of the Junk Science Model

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¶4

The junk science model is located at the center of much contemporary legal discourse. The model plays a strategic, rhetorical role in the agendas of many who attempt to address the pervasive perception of an ongoing legal crisis. Junk science is a convenient scapegoat for deeper law-science conflicts because it plays on public fears of science and technology being out of control, while providing a rallying point for legal reform.

¶5

The term "junk science" seems to have emerged in the late 1980s and early 1990s. It received its initial impetus and articulation in the polemical works of Peter Huber of the Manhattan Institute, a conservative think-tank supported by various industry and insurance groups.4 Huber has promoted the junk science model through a number of publications, including the popular Galileo's Revenge: Junk Science in the Courtroom.5

¶6

The context in which both Huber and the Manhattan Institute came to exert substantial public influence is the so-called "litigation explosion" of the 1980s.6 Before this, demands for tort reform and comprehensive access to reasonable health insurance had been featured in the popular media and legal discourse.7 The emergence of mass toxic tort litigation in the 1980s, allegedly resulting in enormous pay-outs, subsequently produced loud complaints from industry and insurance groups. Cases involving chemical manufacturers, pharmaceutical companies, and health care workers received the most attention, and industry argued that the profitability and viability of production and manufacturing in the United States were under serious attack.

¶7

Adding to, and indeed fueling, the public discussion of tort reform in the 1980s were a number of supposed insurance "crises." The supply of insurance was purportedly jeopardized because of the faltering tort system.8 Skepticism toward various forms of expertise emerged as a major public concern,9 and the junk science model seems to have emerged as commentators sought a means to explain the "crises."

¶8

To some, the "litigation explosion" -- and its concomitant insurance "crisis" -- represented a breakdown in the traditional, independent, pioneering ethos.10 Not only had traditional American values been eroded, but the legal system itself had encouraged forms of "pathological" litigation. As politicians, lawyers, and industry looked to reform the "faltering" tort system, the junk science model emerged as a powerful, polemical tool. We do not suggest that the crises were entirely fictitious, but rather that they played a rhetorical role in an intensive political debate11 over responsibility for the development and impact of potentially injurious products -- including assessment of resultant harms and the apportionment of compensation.12

 

III. Problems with the Junk Science Model

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¶9

Despite the vagaries surrounding the junk science model, a number of key defining features and assumptions can be identified and examined. We will demonstrate that the model relies on the following: untenable images of efficacy, methods, norms, and motivations as hallmarks of "good science"; inadequate, and sometimes clearly erroneous, views drawn from the history of science; impoverished understandings of the public perception of risk and its influence on the construction of scientific knowledge; and naïve views of the relationship between law and science. Many of these faulty assumptions result from the reluctance of junk science model proponents to draw upon research from the history, philosophy, and sociology of science. These fields specialize in examining the links between science, technology, and society, and provide theories to explain the nature of science and technology.

¶10

In this section, we will discuss the limitations of the junk science model, focusing particular attention on the simplistic, idealized, and frequently erroneous images of science employed by the model's proponents. We will also look at how these rhetorical flourishes help proponents mask their political commitments and agendas.

 

A. "Junk Science" is Vague

¶11

Despite its widespread use, the term "junk science" has neither a clear nor consistently applied meaning. Even its early promoter, Peter Huber, avoided providing a precise definition.13 The flexibility of the term "junk science" is not surprising given the rhetorical work required of it. As our later discussion indicates, it is difficult to imagine a more precise and consistent definition being successfully used to address the diversity of scientific claims which its proponents hope to debunk. A large number of similarly pejorative, inflammatory, and imprecise synonyms for "junk science" are common features of discussions on law and science.14 For some commentators, such labels are used interchangeably, whereas for others there are subtle, although perhaps indefensible, distinctions among them.15

¶12

Sometimes the term "junk science" is employed to describe knowledge claims which are not generally accepted or sufficiently mainstream,16 though even on this point there is disagreement.17 Other commentators associate the term "junk science" with novelty, regardless of the legitimacy or ultimate vindication of the particular knowledge claim.18 Some differentiate novel science that uses legitimate methods from that which reaches illegitimate and dubious conclusions.19 Still other commentators focus upon the purported unreliability or non-experimental nature of "junk science."¶12

Sometimes the term "junk science" is employed to describe knowledge claims which are not generally accepted or sufficiently mainstream,16 though even on this point there is disagreement.17 Other commentators associate the term "junk science" with novelty, regardless of the legitimacy or ultimate vindication of the particular knowledge claim.18 Some differentiate novel science that uses legitimate methods from that which reaches illegitimate and dubious conclusions.19 Still other commentators focus upon the purported unreliability or non-experimental nature of "junk science."20

¶13

Often, these deprecatory forms of "junk science" are contrasted with science "proper" or, more commonly, "good science."21 "Good science" is usually described as dependent upon qualities such as falsifiable hypotheses, replication, verification, peer-review and publication, general acceptance, consensus, communalism, universalism, organized skepticism, neutrality, experiment/empiricism, objectivity, dispassionate observation, naturalistic explanation, and use of the scientific method. A good example of this tendency is provided by Loevinger: "While there are innumerable specialized fields in science today, and while knowledge in one field does not necessarily transfer to another field, there are, nevertheless, general standards applicable to all fields of science that distinguish genuine science from pseudo-science and quack science."22

¶14

Many commentators and courts combine these, and other supposed attributes of "good science," in an attempt to capture the essence of science and demarcate it from non-scientific enterprises.23 Yet, most of these writers fail to appreciate that the images are ideals. Few of these qualities are displayed consistently or mechanically in what they describe as "good," "genuine," or "mainstream" science. We will have more to say on the norms of science, the scientific method, and falsification in our subsequent discussion. But for now, these ideal images of science can be thought of as constituting a grammar and vocabulary which make "junk science" discourse possible.

 

B. Limits of Efficacy as the Demarcation Between "Real" and "Junk" Science

¶15

One of the distinctions regularly employed to distinguish "real" or "good" science from "junk science" is that the former results in technically efficacious outcomes, whereas the latter does not. This means that while at times "junk science" may display the outward signs of "real" science, ultimately its inferiority will be revealed through its lack of practical utility. Huber parodies "junk science" through a comparison with the cargo cults of Polynesia:

During the war, they saw airplanes land with lots of good materials and they want the same thing to happen now. So they've arranged to make things like runways, to put fires along the sides of the runways, to make a wooden hut for a man to sit in, with two wooden pieces on his head like headphones and bars of bamboo sticking out like antennas - he's the controller - and they wait for the airplanes to land. They're doing everything right. The form is perfect. It looks exactly the way it looked before. But it doesn't work. No airplanes land.

"One finds many similar airports at the edge of the scientific community," Feynman observes, "theories that don't work, and science that isn't science. . . . I call these things cargo cult science, because they follow all the apparent precepts and forms of scientific investigation, but they're missing something essential, because the planes don't land."24

¶16

This rigid dichotomy oversimplifies the relationship between scientific knowledge and technical practices.25 While it is undoubtedly true that many branches of modern science are strongly linked to technically useful bodies of knowledge, it is equally true that many branches of science are not. Numerous examples suggest that, at times, practical knowledge and technologies pre-dated later scientific formulation.26 For example, the development of the steam engine occurred prior to, and in fact stimulated research into, theorization of energy conservation.27 In the area of public health, statistical work by McKeown dates the most significant decline in infectious diseases -- e.g., cholera, small pox, and typhoid -- as occurring prior to the widespread application of sulfur-based drugs and inoculation.28 In addition, the basis for determining scientific and/or useful knowledge changes diachronically. Some current areas are adhered to because of their "methodological" alliance with other sciences -- even while serious questions relating to their efficacy remain unanswered.29 Any simple linkage between science and practice is further undermined when we consider the reworking and simplification of scientific knowledge as it moves from abstract theorizing into standardized forms sufficient to fulfill a technological function.

¶17

Thus, Jerome Ravetz asserts that knowledge which begins life in a pure research paper undergoes a subsequent process of "extension and standardization."30 Particular "facts" are standardized by smoothing away problematic particulars that give rise to obscurities or conceptual difficulties. The resultant "fact" is normally an assertion about classes of things or events that relate to the external world. This standardization of a fact is essential "if the fact is to be useful to those who lack the time, skill or inclination to master the elaborate theoretical context in which its sophisticated version is comprehensible."31 The process has two main features:

[First,] the content of a standardized fact may decay, almost without limit . . . the degree of sophistication and of faithfulness to its original which is necessary for its adequate performance of its function will depend very strongly on its use . . . [Second,] a version of a standardized fact which is good enough for one function can be quite inadequate for another; and since any standardized fact performs a variety of functions, it will naturally appear in a variety of versions.32

¶18

Ravetz's model explains the first phase of transformation of a research finding to suit criteria of scientific usefulness. The process then continues, with increasing divergence, as established facts are radically redesigned to fit the field of practical application. Edwin Layton discusses the process further:

[T]he theory of structures is less abstract than physics, for example, in incorporating idealized versions of manmade devices. But in turn, structural design, which has become scientific in some respects, is much less abstract than structural theory. That is, the designer must take into account a more complex reality. The theorist may assume that the materials are uniform, but the designer must be aware of nonuniformities in his materials and make due allowances for them.33

¶19

This insight suggests a progressive transformation of the meaning of concepts and facts as they pass through different social and technical orientations. In practical terms, for example, they must pass through the mediations of the scientific community where they are manipulated to conform with established knowledge, and undergo subtle modifications to suit particular scientific and technical sub-disciplines.34 Such standardization processes can mean that the scientific knowledge used in a practical application may have quite a different identity -- in theoretical terms -- from its original formulation.

¶20

Finally, another reason to reject simple dichotomies centered on efficacy is that technologists selectively choose from a variety of scientific theories when trying to suit the practical purposes at hand. A good example of this is the continuing popularity of Ptolemaic and Tychonic astronomical models for use in navigation.35 Mulkay asserts that:

[R]eformulation of theories in practical contexts, use of only part of a theory, low accuracy requirements and the complexity of practical situations show that 'infinitely many possible rival theories' can yield results which are identical in practical terms and that it is undoubtedly possible for a false theory or a partly false theory to be practically effective.36

¶21

Overall, those studying the detailed linkages between science and technology indicate that the relationship between knowledge and utility/efficacy is complex. False theories can be practically effective while there can be significant shifts in the meanings of concepts as they move from theoretical to practical contexts. Efficacy, therefore, cannot be used as a simple means of distinguishing "good" from "junk" science.

 

C. Limits of Motivation/Intention as the Demarcation Between "Good" and "Junk" Science

¶22

The huge financial stakes often involved in litigation and regulation are frequently seen as a possible reason why the normal values of scientific work get subverted. This subversion is often portrayed as a characteristic of junk science. Influenced by lawyers, relaxed evidence admission standards, and huge incentives, the claim is that scientists find it hard to resist the temptation to produce junk science.37

¶23

The notion that the motivation of scientists can assist in distinguishing junk science from good science is simplistic when we empirically analyze the behavior of scientists and the culture of science. Unlike the impression conveyed by junk science model proponents, in actuality scientists frequently find themselves in a competitive environment where strong emotional commitment to their views and sensitivity to finance and funding are essential to career progression -- even academic and institutional survival. There are numerous well documented cases of the competitiveness and financial worldliness of scientists.38 In important new areas of science, such as biotechnology, microelectronics, and biomedical research, financial and research considerations have become inseparable.39 Some junk science model proponents would have us believe that factors like financial opportunism are hallmarks of junk science, but in reality such factors provide powerful motors for many fields of contemporary science.

¶24

The attack on the motivations of "junk scientists" is also highly asymmetrical. It largely ignores counter-examples such as where industry-sponsored scientists participate in mass tort litigation.40 In the debate over the health risks of electromagnetic fields (EMF), investigative journalist Paul Brodeur has consistently cited the existence of research undertaken primarily to quell public concern and dampen legal challenges to power authorities. Brodeur writes that during the 1980s there was a "stable" of scientists with questionable intentions aiding the Washington-based legal firm Crowell and Moring by supplying research reports and finely-honed testimony derived to support power authorities.41

 

D. The Problem of "Scientific Norms"

¶25

A prominent feature of the junk science model is the supposed existence of "scientific norms," which represent accepted methods, standards, and practices. While courts and critics might invoke such criteria, scientific norms do not form a code of conduct or attitudinal orientation which can simply be adduced to demarcate the appropriateness of particular scientific practices. There have been a number of attempts to formulate the ideal standards of conduct (norms) and institutional imperatives of science. Robert Merton provided the most famous formulation of these imperatives, categorizing them under the four headings of communalism, universalism, disinterestedness, and organized skepticism.42 Much of the relevant law-science literature is framed in terms similar to Merton's well known formulation.43 Mulkay later formulated them in less specialized terms:

The norms of science are seen as prescribing that scientists should be detached, uncommitted, impersonal, self-critical, and open-minded in their attempts to gather and interpret objective evidence about the natural world. It is assumed that considerable conformity to these norms is maintained; and the institutionalization of these norms is seen as accounting for that rapid accumulation of reliable knowledge which has been the unique achievement of the modern scientific community.44

¶26

While commonly cited, however, the idea of norms has been questioned as a description of actual scientific behavior. Numerous empirical studies of the conduct of scientists have failed to show that adherence to such norms is a necessary feature of doing scientific work. A widely quoted study by Ivan Mitroff found that the ideal norms of scientific conduct were matched by the existence of counter-norms.45 For example, while scientists sometimes stressed the value of emotional neutrality, they also claimed the need for the occasional strong, even unreasonable commitment, to scientific ideas. This attitude was seen to be psychologically significant given the disappointments, frustrations, and intellectually taxing nature of scientific work.46 Further, the ideals of universalism and judging claims on impersonal grounds were matched by scientists considering it perfectly normal to assess knowledge claims on personal criteria such as the experience, education, affiliations, status, reliability, and skills of a particular researcher.47

¶27

It has been argued that such "gate-keeping" processes are a pragmatic response to the vast quantity of modern scientific research output and the pressures of maintaining research momentum in the typically competitive environment of modern scientific research.48 Further examples, identified by Mitroff, of the pragmatic flexibility in the application of the "norms" of science include the balancing of ideals of the open communication of scientific results with the use of secrecy. The latter was often justified by scientists to avoid priority disputes, check results without jeopardizing priority, and avoid criticism of preliminary results which could dampen enthusiasm for further research.49 Mitroff's empirical work suggests that norms and institutional imperatives often associated with science do not constitute a set of rules or consistent way of demarcating "good" from "bad" science. Rather, to quote Mulkay, they can be seen as part of "a repertoire or vocabulary which scientists can use flexibly to categorize professional actions differently in various social contexts."50

 

E. The Problem of "Scientific Method"

¶28

Another common assumption adopted by law-science commentators and courts is that scientists are in possession of a simple, identifiable, universal scientific method which guides activity and can be employed in practical contexts to distinguish "good science" from "junk science."51 Faigman, for example, writes:

Although the scientific method continues to attract its share of detractors and skeptics, the significant advances in science and technology in the twentieth century illustrate the power of that method. . . . A substantial level of sophistication in the scientific method will be necessary if judges are ever going to integrate science successfully into their legal decisions.52

¶29

The notion that there is a simple, identifiable, universal scientific method used in some kind of standard way by scientists to distinguish science from non-science is difficult to support on any kind of empirical basis. One of the factors which illustrates the implausibility of this contention is the sheer diversity of activities which can be placed beneath the umbrella of modern science. Given such diversity, various branches of scientific knowledge rely, to different degrees, upon observational practices, experimental tests, mathematical proofs, and so on. At anything other than the most ideal, unrealistic, and abstract level, empirical studies suggest it is better to talk of scientific methods or heuristics -- plural -- where only particular subsets of these apply to any one scientific specialization. For instance, in some branches of industrial chemistry, test situations can be established where there are strong linkages between theory, practice, and phenomena. In contrast, other areas of science rely upon situations intrinsically difficult to test. These situations, then, may rely on statistical methods, new, sensitive measuring devices, and phenomena not easily modeled in the laboratory. The latter is true in many areas of atmospheric physics, ecology, and epidemiology.53 Thus, even the sorts of concepts often taken as key ingredients of scientific method -- standards of proof, models, acceptable error rates, and observation -- vary substantially from one branch of science to the next.

¶30

But beyond this, there is more than twenty-five years of work in the history, philosophy, and sociology of science54 investigating how the judgments made by scientists are not determined by any kind of over-arching scientific method.55 A significant theme in these studies is the important role played by the socialization of scientists working in a "paradigm" or research tradition. Rather than working according to a universal scientific method, scientists make judgments according to standards of measurement, ways of reporting and evaluating results, ideal problem solutions, and particular types of experimental practices. While some of these practices are specified in ideal terms in textbooks, they are more often the components of craft, or tacit knowledge, over which there is a negotiated consensus for given times and places during settled periods of science. This "consensus" is not fixed and, because it is built on tacit knowledge, does not constitute any kind of simple, reducible algorithm against which "good" or "junk" science can be evaluated. Judgments as to what constitutes "good" versus "junk" science are sometimes made, but they are social judgments open to dispute and negotiation, and are affected by considerations such as the status of relevant scientists, their research backgrounds, and both their narrow career interests and responses to broader social pressures.56

¶31

The flexible and tacit nature of definitions of science within a particular paradigm or research tradition dictates against simple notions of a single, identifiable scientific method. If we further consider the numerous research traditions and paradigms making up the rich diversity of modern "science," each with its own standard of scientific adequacy, the notion that there exists an operationally viable "scientific method" useful across them all, and applicable by nonscientists such as lawyers and judges, looks decidedly fragile.57

¶32

In their references to method, many legal commentators -- including judges -- cite Karl Popper's doctrine of falsification as an important ingredient in understanding scientific method.58 But, falsification has been subjected to a number of criticisms.59 Philosophers criticize falsification because to falsify a theory conclusively we must rely upon observations which are, as Popper noted, fallible and open to revision.60 A further critique emphasizes Popper's extremely naïve view of testing, which fails to account for the uncertainties and complexities of real world test situations. Thus, while it may appear that a theory is being disproved by a negative test result or failed prediction, it is always possible that part of the test situation itself might be the source of problems and not the theory.61

¶33

A number of case studies in the history, philosophy, and sociology of science illustrate that when testing and replication are exposed to close empirical and philosophical scrutiny they are revealed as complex processes relying on tacit judgments and social negotiation.62 The "facts" of a test situation "do not speak for themselves" and require a context and considerable interpretation.63

¶34

An example of this is the contemporary debate surrounding the health and safety of EMF.64 The parties to the dispute are highly scientifically polarized. What is for one side a convincing experimental test enhancing the plausibility of links between EMFs and ill health is, to the other side, an unconvincing experimental error or artifact. One central experiment involves the movement of calcium ions across the cell membrane of brain cells in tissue cultures exposed to weak EMFs. This effect is observed to occur with exposure to field levels putatively too weak to cause heating or other direct energy effect on the cells. Further, the effect appears to be "information related," i.e., responsiveness seems to be dependent on wave form and frequency rather than the strength of field.65 The experiment is important because, if accepted, it challenges the scientific rationale on which most EMF health and safety regulations have been framed -- that the only relevant biological effects of EMF are those linked to direct energy transfer to living things such as electrocution or heating.66

¶35

Supporters of this scientific rationale reject the relevance of the calcium movement studies on numerous grounds. Some argue that the effect defies the laws of physics, and, in the absence of a plausible alternative physical explanation, must be the result of some yet-to-be-identified failure in experimental control (magnite contamination of tissue cultures being one suspect).67 Alternatively, the argument is that the researchers who identified the effect are guilty of self-deception, a plausible charge given the emotionally charged nature of the debate and the subtle measurements involved. Still others have argued that the effect may exist, but it is impossible to extrapolate from the laboratory to the "real" world. They argue that the experiment provides no evidence for the movement of "biologically relevant calcium."68

¶36

On the other side, proponents of the calcium movement experiment argue that the deconstruction of their experimental work is politically motivated. The enormous economic implications of stricter EMF regulation means that critics find it easier to get their work funded and published.69 Proponents also argue that the narrow specialization of biophysics means that many of their critics simply do not have the appropriate training to understand the sophisticated bioelectromagnetic processes involved.70 All these claims and counter claims are also set against debates about the status of various researchers.71

¶37

The EMF debate indicates how unhelpful Popper's abstract theorizing is to living scientific debates. The calcium movement experiment is unable to unilaterally determine the issues at stake. The complex test situation is prone to deconstruction and differing assessments of its significance, due to webs of subsidiary hypotheses and the competing theoretical vantage points of its antagonists. Moreover, a Popperian gloss can be used by either side to give their claims authority. For the proponents of the calcium movement experiment, traditional "energy" viewpoints of EMF have been falsified and a new branch of science opened. For the more dismissive opponents, the hypothesis is not framed in sufficiently clear physical terms (according to their understanding of the laws of physics) to be properly falsifiable, and is therefore unscientific.

¶38

As a philosophy of method, falsificationism glosses over important dynamics involved in the development of scientific knowledge. Many historians and philosophers of science have long noted that every area of scientific knowledge has its own deeply embedded basic sets of assumptions that are not open to falsification. Such baseline "metaphysics" involve implicit theories of causality, standards of proof, laws, models, and so on.72

¶39

While judgments about what counts as science in practice are tacit and flexible, scientists still utilize the term "scientific method" in some contexts. It is used as part of a flexible rhetoric of justification.73 Two important areas where this occurs are in scientific controversies and boundary disputes74 between "fringe" and "orthodox" science.75 In the context of scientific controversies, the normally "taken for granted" social negotiation and resolution of interpretive flexibility become more "visible." Harry Collins has described the virtue of investigating controversies in terms of the metaphor of looking at the construction of ships in bottles:

[I]t is only by examining scientific controversies while they are in progress that the mechanism by which ships (scientific findings) get in to bottles (validity) can be understood. If this process is not seen in operation it may be thought that ships were always in the bottles, and that all scientists did was find them ready assembled, as it were.76

¶40

A number of rhetorical patterns using ideals of the scientific method have been observed operating in scientific controversies. Most important, are the various ways scientists have used "flexible evaluative repertoires;" that is, the use of flexible vocabularies for describing their own work relative to their opponents according to different social contexts and various social interests.77 For example, in evaluation of the rhetoric used by scientists in a controversy in bio-chemistry, Mulkay observed a consistent pattern of a dual conception of what constituted a scientific "fact."

This strategy . . . seems to be related to the dual conception of scientific fact which has appeared in every letter so far. The interpretative conception of "fact" is used in criticizing one's opponent. The interpretative basis of the latter's view is made visible and emphasized as the author formulates the inconsistencies, uncertainties, and mistakes perpetrated by his opponent. It is always possible for the author to find such errors because the opponent's claims are inevitably assessed in relation to the authors' different conception of the facts and their scientific meaning. In contrast, when formulating his own views, each author minimizes the interpretative work apparently involved. As a result, each author's position comes to appear in the text of each separate letter as indistinguishable from the observable realities of the biochemical world.78

¶41

In basic terms, a tendency has been observed for scientists, in the setting of controversy, to deploy rhetoric to suggest how their scientific findings are isomorphic to nature, constituted by the application of "appropriate" scientific practices (the so-called "constitutive forum"). Rival scientific work, on the other hand, can be explained as the by-product of social contingencies (the so-called "contingent forum").79

¶42

The use of scientific method as part of a flexible evaluative repertoire is observed to follow similar patterns in debates between "orthodox" and "fringe" sciences.80 In a study of para-psychology and its relationship to orthodox science, researchers noted that the manner by which para-psychology "scientific claims" were rejected by orthodox science did not follow the pattern of the imposition of some kind of clear demarcation criteria. While para-psychologists placed considerable effort into framing their claims via experimental methods, ideas of proof, and mimicking communication processes and the institutional trappings of orthodox science (e.g. peer review), their claims were still largely rejected by orthodox scientists on a variety of grounds spanning the contingent and constitutive forums.81 For example, some scientists rejected the claims of para-psychologists as uninteresting examples of empty correlations unworthy of further research. In other contexts, empirical work of para-psychologists was rejected on the basis that the theory underlying the work was unconvincing. Finally, even when some results of experimental work were accepted as conforming to existing standards in probability theory, it was argued that such results should be inadmissible on the basis that given the wider validity of probability theory in recognized "scientific contexts" the positive results should be interpreted as representing the by-product of experimental error, fraud, or self-deception.82 Ideas of scientific method, then, used in demarcating orthodox science from fringe, "non-science," are not strongly influenced by mechanical appeals to doctrines of scientific method. Rather, they come into play when the objects of discourse are seen as intuitively implausible and unacceptable -- given the tacit judgments of the relevant fields of science. In some contexts even the "relevant" field of science will also be open to challenge.83

¶43

A final point that mitigates against a universal scientific method is provided by evidence that scientists rarely reflect on scientific method -- in philosophical terms -- in their day-to-day work. Barnes, for instance, notes surveys showing a lack of formal philosophical literacy amongst working scientists,84 and Mulkay and Gilbert note the inconsistent meanings attached to the philosophies of science in those instances when scientists emphasized the importance of scientific method.85 As Yearley ironically notes, classes on Popper and Lakatos and how to apply the scientific method are much more common in economics, sociology, and psychology than they are in chemistry.86

¶44

Overall, the above discussion87 shows that norms and scientific method are better understood as part of the professional rhetoric of science; operating as a vocabulary used to describe, in simplified terms, the ideal workings of science, rather than as rules or explicit guides to demarcate "good" from "bad" science. This rhetoric is most often deployed in contexts where the symbolic authority of science, more generally, is at stake: scientific controversies, educational contexts, legal contexts, and science "popularizations."88 The closer the empirical focus on the actual workings of science, and the more current and uncertain the area of science examined, the more difficult it is to identify simple ideal models of methods and norms.

 

F. Is "Junk Science" a Product of Legal Distortion?

¶45

One of the central themes of the junk science model is that junk science is promoted, encouraged, and perhaps even caused, by the legal distortion of the "normal" processes of science.89 Images of legal distortion rely upon an excessively simplistic image of the law-science relationship that can be criticized on a number of grounds.

 

1. Do Legal Systems Amplify Pre-Existing Scientific Disagreements?

¶46

One explanation for the emergence of junk science is that it is created by legal pressures that also produce artificial scientific disagreements. The suggestion is that without legal-political pressures the scientific community would be able to weed out deviant junk science claims. While proponents of the junk science model acknowledge that science lacks absolute certainty, they usually contend that various mechanisms -- stopping rules, proper method, peer review, and consensus formation90 - enable modern science to avoid the intransigent conflicts that mark the legal arena (a domain "infected" by "junk science" claims).

¶47

While the legal-political contexts involved in mass tort litigation can promote and shape scientific disagreements, proponents go too far in implying that such disagreements are uncommon outside of legal contexts. "Disagreements" in science do not require explanations that rely on theories of intrinsic "epistemological distortion" caused by the entry of social factors into the "epistemologically pristine" domain of science. Rather than exemplify instances of "epistemological distortion" (i.e. junk science), scientific disagreements occur for a variety of reasons. Two examples are "internal" pressures within sub-cultures of scientists from shifts in "research traditions" and "paradigms,"91 and competition between scientists for funding and social authority.92 The latter often occurs within and across various branches of science in response to social demands for authoritative explanations of natural phenomena -- particularly in areas where there is a lack of settled knowledge, or well defined boundaries of relevant expertise.93 From this perspective, scientific disagreement should be analyzed as part of the diversity of processes of science, and not as something to be explained away as epistemologically atypical cases of junk science.

¶48

Following this framework, we should also avoid "explaining away," as an a priori epistemological problem, the presence of scientific disagreement in legal contexts. In some instances, a legal setting may be drawing on pre-existing scientific disagreement, yet, in others there may be special features of the legal setting itself which are contributing to the disagreement in question. Scientific disagreements in legal settings should be empirically investigated with consideration of the particulars of the scientific knowledge claims in question, the specific features of the legal setting in question, and the specific way science and law have been brought together. This does not mean that it is impossible to make generalizations about science, law, and their relationship, but that such generalizations should not be built on the basis of a priori epistemological categories such as junk science.

 

2. Deconstruction Rather Than Distortion

¶49

Proceeding from the contextual view of the law-science relationship outlined above, writers such as Wynne,94 Jasanoff,95 and Yearley96 provide a more nuanced image of law-science interactions than the simplistic junk science model. Rather than emphasizing legal distortion, such writers focus on the "legal deconstruction" of science. The slippage between ideal images of science and the messy realities of scientific practice provides a particularly fertile source for the legal "deconstruction" of science - especially in adversarial settings. In such contexts, the work of scientists and their knowledge claims can be measured against standards of conduct and proof provided by ideal images of scientific norms and method. By juxtaposing these idealized images against revelations of the more craft-based nature of scientific work, as well as the socially contingent status of scientific knowledge claims, an interpretative space is created for the deconstruction of scientific authority: "Scientists are constantly at risk of being hoist by their own positivist petard."97

¶50

A widely quoted example of these processes can be found in the work of Oteri, Weinberg, and Pinales,98 on the cross-examination of chemists in drug cases, outlining the specific way an expert's authority can be thrown into doubt. They note that the lawyer may: challenge whether or not the qualifications of the chemist neatly match the practical issue at stake;99 highlight the variations between the methods used in various drug tests;100 or introduce evidence whether the chemist relied on hearsay from other researchers rather than personally testing the specific substance at hand.101 Furthermore, some tests may be performed which have a strong empirical background, but an absence of deeper theoretical basis for the underlying processes involved. Such tests may be widely accepted by convention, even though they rely on numerous taken-for-granted assumptions. Additional considerations might be that the tests are not the most accurate, but rather have been chosen because they are cheaper, quicker, or easier to perform.

¶51

Scientific experts pitted against one another in a legally mediated environment, where scientific knowledge claims are frequently exposed to intense skepticism, are hardly in a position to acknowledge the more informal processes involved in the construction of scientific knowledge. Ironically, maintaining their authority in such settings is one of the very things that leaves their scientific work open to deconstruction. Wynne develops these themes to critique the various ways artificial images of rationality foreclose a better understanding of the law-science relationship. He posits that one of the reasons the more craft and tacit-based knowledges of science are not openly acknowledged in legal contexts is that the legal system boosts its own social authority by nurturing a self-image of legal practice similar to the ideal image of science.102 The ideal self-images of legal thought and practice emphasize the possibility that the legal system can transcend political and personal biases to ensure the optimal rational outcomes in conflict resolution, given the constraints of formal law, via the objective discovery of facts and impersonal application of rules.103 This image has notable similarities to that of defining science according to its possession of behavioral "norms" and the application of the scientific method. Recognition that legal forms of knowledge and assessment, like science, rely on various tacit and contingent judgments could weaken legal claims for social authority. It is, in a sense, structurally difficult for each body of practice/discourse to acknowledge the more localized features relevant to the framing and negotiation of both scientific and legal knowledge.

¶52

In sociological terms much of this tension in the law-science relationship involves the process described by Gieryn as "boundary work" -- the processes involved when subcultures attempt to establish claims about the scope, extent, and application of their expertise and preferred professional image to outsiders.104 It is not surprising that in contexts where law and science are brought together there is little recognition of the contingent nature of the application of rules, or the divergence between images of rationality and the actual processes involved in the construction of knowledge.

¶53

Such unremitting skepticism is not the only way in which the legal context provides a restrictive framework for scientists. In addition, scientists are often called upon to answer problems that do not neatly mesh with any pre-defined body of scientific expertise, work with unfamiliar time constraints, and accept that their knowledge claims will be "reconstituted" into legally tractable terms.105

¶54

On this latter point it is worth noting that scientists have not always been willing to accept the re-working of their knowledge into legally tractable terms. For example, many scientists were unwilling to participate in, or accept the authority of, "science courts." Originally proposed in 1976 by a White House Task Force, these courts were designed to work through three phases of problem solving: first, identify significant questions of science and technology associated with the issue in question, leaving ethical/political questions for later consideration; second, establish an adversary proceeding, presided over by scientist-judges, where scientific experts would testify under the cross-examination of science advocates; and third, adjudicate the scientific facts pertaining to a disputed technical question.106

¶55

A leading proponent of science courts, Alan Mazur, attempted to set up a science court/adversary proceeding in the wake of the New York Public Service Powerline Inquiry.107 Mazur contacted two leading proponents of linkages between health problems and EMF, Marino and Becker, and a number of experts backing the power utilities. He asked the various proponents to put forward their key claims as clearly as possible, receiving early assent from Marino and Becker. Acting as referee, Mazur recommended ways that Becker and Marino could modify their claims to free them from ambiguous, unfalsifiable assertions and "value judgments." While this was eventually done to Mazur's satisfaction, the experts for the power utilities ultimately scuttled the project by refusing to co-operate with him - arguing that any response on their part gave their opponents' claims false credibility.108

¶56

Yet, some authors disagree with the idea that the legal deconstruction of scientific knowledge is detrimental. Sheila Jasanoff, for instance, highlights the important role litigation plays in improving the technologies involved in DNA typing.109 She argues that the prevalence of litigation in areas involving risk and new technologies provides an important source for civic education and public participation in the development of science and technology.110 The important role of the legal deconstruction of scientific and technical claims will be discussed in more detail later in our section on junk science and the public perception of risk.111

¶57

The notion that law-science tensions arise simply from the proclivity of legal contexts to provide epistemologically "impure" forums ripe for the emergence of "junk science," fails to capture the intricacies involved. The junk science model diverts attention from the real tensions presented by the differences among instrumental objectives, sub-cultural values, cognitive processes, and decision-making settings of various branches of science and the law. Rather than encourage detailed empirical policy development to improve the production of scientific and legal knowledges, the junk science model merely encourages "witch-hunting."

 

3. Law-Science Hybrids

¶58

Another problem with the junk science model's claim that legal-political contexts distort112 science is that it glosses over the significant number of areas where science and law have been brought together in "hybrid" forms.113 Such hybrids often experience difficulty locating and legitimating their knowledge claims in terms of the traditional professional rhetorics of law and science. Examples of hybrids include: forensic science, patent law, environmental regulation, and insanity laws. With increasing demands on governments to formulate authoritative public policy, certain branches of science and law have evolved together in close relationships.114 Smith and Wynne describe this trend as follows: "At the same time as science's role in legal processes expands, legal procedural models also begin to enter science. . . because science's own rather informal procedural mechanisms are found inadequate for reaching authoritative truths in contentious policy issues."115

¶59

This integration of science and law often operates more deeply than merely the specific settings of given legal proceedings. In fact the very constitution of some types of scientific knowledge can be shown to be shaped by the demands of legal/quasi-legal settings.116 Smith and Wynne note that this integration appears at its most obvious when we consider fields of knowledge such as forensic pathology:

[I]t is not only the court room interaction that socially shapes knowledges: the institutional integration of a particular expert profession into the legal process already achieves this. Indeed, for forensic science and pathology, the legal process itself has created their particular type of professional interaction and expert knowledge. The social integration of forensic expertise with the law is such that forensic experts have learnt to reconcile themselves to the regular adversarial skepticism of legal processes, while maintaining the normal consensual discourses of scientific expertise. Whereas other disciplines may manage this by defining the court-room[sic] interaction as "unscientific," this is not so easily available to forensic experts, because the courtroom is their ultimate professional arena.117

¶60

The development of hybrids reinforces our earlier contention that understanding law-science interactions requires a more finely nuanced empirical concern for the intricate ways science and law are brought together. It is far too easy to claim that hybrids are inadequate on the basis of exposing their genesis in social, economic, or technical needs, and comparing this to artificial, ideal images of science as an activity totally insulated from social contexts. The difficulties in distinguishing "good" from "junk" science, on the basis of the contexts in which the knowledge is developed, has been highlighted by the problems encountered in Bendectin birth defect litigation118 following Daubert v. Merrell Dow Pharmaceuticals, Inc.119 On remand from the Supreme Court, the Ninth Circuit asserted that forms of science created for litigation are inferior to other forms of scientific inquiry:

One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally out of research they have conducted independent of litigation, or whether they have developed their opinions expressly for purposes of testifying. . . in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist's normal workplace is the lab or the field, not the courtroom or the lawyer's office.120

¶61

Yet, such a distinction may be practically unworkable due to the large number of institutionalized law-science hybrids. For instance, the court listed exceptions to its own rule -- such as areas of forensic science -- without any clear explanation as to why these forms of litigation-generated knowledge should be exempted.121 We anticipate that the list of exemptions will grow (without attendant explanation), and is likely to be a source of political contention.

 

G. "Support" For the Junk Science Model From the History of Science

¶62

Junk science model proponents often draw upon the history of science to support their various contentions. Yet, much of this is self-serving and reflects little knowledge of history or science.122 Peter Huber's work is perhaps the best example of this, as he draws support for many of his ideas about junk science from the history of science.123 However, in the examples Huber provides there is little evidence of understanding the context in which the scientists in question operated. Historical episodes function as vehicles to carry forward his polemical message, leaving him clearly guilty of an inaccurate, "whiggish" history of science.124 Chesebro describes this problem well when he notes that:

[I]t may merely be a reflection that at the time these claims were made, even the best of scientists were not certain what could or could not cause cancer. In ridiculing yesterday's court for having permitted yesterday's scientists to testify about a theory that today's scientists regard as false, Huber proves himself to be the classic Monday-morning quarterback, heaping scorn on yesterday's scientists (and lawyers and judges) for not knowing then what everyone knows now.125

¶63

A more detailed knowledge of the history of science reveals that it is common for scientists to have strong commitments to their views during the early phases of new research. Evaluated in the context of their own time and plce, the theories of Mendel, Kepler, Darwin, Newton, Galileo, and Copernicus relied upon leaps of faith and observations at the threshold of theoretical plausibility, together with the deliberate omission of counter arguments. But any of these efforts would qualify as "pathological science" in Huber's schema.

¶64

Given the title of Huber's book, it is certainly worth rescuing Galileo from his whig historical abuse in the junk science debate.126 Galileo is used consistently throughout the law-science literature, and in particular by Huber and his main critic Chesebro, as an exemplar of the good scientist with radical new views who is suppressed by political authority. Of course, the title of Huber's book -- Galileo's Revenge -- alludes to the excessive leniency of modern courts toward the admission of novel scientific evidence for fear of suppressing a current-day Galileo.

¶65

But, there is a veritable Galileo industry in the history and philosophy of science which has investigated the complexities and intricacies of his conflict with the Church. The bulk of modern scholarship, however, portrays Galileo as a devout Catholic, ambitious natural philosopher, and cavalier political provocateur. Far from a simple showdown between knowledge and authority, it is now apparent that Galileo embroiled himself in theological debates clearly beyond the normally accepted concerns of a natural philosopher.127 Indeed, Galileo ignored the strongest scientific objections to his claims128 and relied on observations and experiments at the threshold of detectability,129 obtained through instruments, such as the telescope, which were new and poorly understood. Further, Galileo went beyond the academic conventions of his time (and ours) by avoiding the audience of his scientific peers in favor of "going directly to the public" and publishing in vernacular Italian rather than academic Latin.130 Galileo's activities clearly satisfy some of Huber's main criteria for junk science:

[They] rely heavily on testimonials and anecdotes as evidence that their remedy is safe and effective . . . . [They] don the mantle of science while at the same time traducing the reputable scientists of their day. . . . [They] cite examples of physicians and scientists of the past who were forced to fight the rigid dogma of their day. . . . [T]hey do not use regular channels of communication, such as journals, for reporting scientific information, but rely instead on the mass media and word of mouth.131

. . .

The ultimate test of a scientist's competence is her ability to publish in peer-reviewed journals. The ultimate test of her scientific integrity is her readiness to publish and be damned. That is the one real lesson judges should have learned from Galileo.132

¶66

The use of heroic figures from the history of science is not limited to Galileo. In a similar manner, Huber employs Newton's embrace of alchemy as an example of a tendency among many great scientists to, sooner or later, embark on some foolish frolic. Huber fails to acknowledge the substantial historical discourse on Newton which posits that alchemy was not entirely an aberration in Newton's scientific work, but was in many ways constitutive of it.133 It is also worth noting that one of Newton's central ideas -- universal gravitation -- was subject to considerable criticism in its own time for introducing occult forces into the nascent mechanical philosophy which was trying to liberate itself from such forces. Using history of science in the selective manner that Huber does, Newton's famous statement "hypothesis non fingo"134 and his reluctance to specify the exact causes, in mechanical terms, to many of the processes he observed,135 conforms with the image of evasiveness indicative of junk science.136

¶67

Huber's whig history is not exclusive to the remote past, but also extends to his understanding of relatively recent history. It is not surprising to discover that he embarks upon some extremely selective accounts of the recent history of a variety of harmful substances. Huber uses the history of asbestos to argue that interventions by the legal system have failed to contribute to science and regulation:

Lawyers are good at finding scientists who just happen to be at the cutting edge of things, and society benefits accordingly. Or so the lawyers maintain. History records otherwise. The pathbreaking scientific work on asbestos was conducted in the early 1960s, and was accepted soon thereafter in mainstream scientific publications and symposia. But the lawsuit that launched asbestos litigation was not filed until October 1969, and four more years would pass before appeals were resolved.137

¶68

Such an account obscures the more complex history involved. In particular, it fails to acknowledge the complex interactions between scientific identification of a hazard, regulation, and litigation. In fact, scientific concerns over asbestos can be traced back to the turn of the century. In the 1920s, United States insurance companies refused to sell life insurance policies to asbestos workers. In 1933, the British government introduced legislation to reduce occupational exposure to asbestos dust, and asbestosis was made a compensable disease. Even though the British safety standards were published in the American Journal of Industrial Hygiene, the U.S. asbestos industry opposed attempts to introduce similar regulation into the United States.

¶69

In the 1930s, Dr. Anthony Lanza of the Metropolitan Life Insurance Company undertook research suggesting that 53% of randomly assessed asbestos workers in the U.S. suffered from asbestosis. This material was delivered to Johns-Manville, the largest asbestos producer in the United States, where the text of the report was altered to minimize suggestion of the level of risk. This marked a long history -- up to the 1970s -- of the United States' asbestos industry commissioning and suppressing scientific research into asbestos. It was partly through the investigative work of lawyer Carl Asch that the longstanding industry suppression of asbestosis risk was disclosed.138

¶70

It is beyond the scope of our paper to provide a more detailed account of the history of asbestos regulation, but even this brief historical sketch shows the limitations of Huber's polemical approach. Asbestos, and its ultimate regulation, reveals a matrix of science, politics, and litigation. To separate these factors and convey the impression that the history of asbestos is best understood by some single act of scientific achievement isolated from law and politics is highly inaccurate. Huber's omission of the broader social context in which the scientific research was embedded is self-serving; a more detailed history would reveal the need for industry to be pursued through the legal system to accept scientific research that should influence its practices. The history of asbestos reveals the lack of regulatory use of scientific research when it is not linked to litigation or political decision-making. Huber's emphasis on isolated scientific achievement is used to reinforce his mythological image of the existence of science possessing political authority, divorced from any linkages to broader political and social contexts.

¶71

Huber's whiggish use of the history of science is representative of much of the law-science literature.139 The history of science is used in these settings as a vehicle to pursue whatever argument is currently favored. A surprising anti-intellectualism is revealed in this tendency, as many of the more detailed histories of scientists such as Newton and Galileo -- and even contemporary scientific debates and developments -- are widely available. At its worst, this anti-intellectual tendency is displayed in the by-passing of scholarly histories of science for encyclopedias and other fora designed for non academic purposes.140

 

H. "Support" For the Junk Science Model From the Naïve View of the Public Perception of Risk

¶72

Another subtext attributable to the junk science model is that the hysteria or, as Huber describes it, "the paranoia plebiscite," of irrational fears regarding the risk posed by new technologies and drugs has been an important contributor to, and is itself stimulated by, junk science. Much toxic tort litigation is portrayed as relying upon very weak science and irrational public perceptions of risk:141 "But even so interpreted, federal antidiscrimination law covers a narrow range of acts directed against specific individuals. Countless other opportunities for junk-fear litigation against hospitals and hospices, factories, products, and power plants, remain at hand."142

¶73

Commentators frequently make comparisons between, on the one hand, fringe "junk risks," their accompanying "junk science," and opportunistic legal supporters, and, on the other hand, the "real" risk of living in modern society -- which they see as obviously demonstrable and scientifically proven. "Real" risks such as smoking and sexual lifestyle choices are portrayed as those that should generate concern. In disparaging popular risk perceptions as irrational, these commentators engage in a common form of discourse in the literature on risk research mainly promoted by those who are supporters of industry self-monitoring and weak regulation.

¶74

The down-playing of popular perceptions of risk has nevertheless been open to considerable criticism. Writers such as Perrow, Nelkin, and Wynne have pointed out that it is simplistic to describe public perceptions of risk as irrational.143 They argue that such perceptions play an important role in the democratic political process. Thus, it is important to transcend a technocratic approach when evaluating the rationality of public risk perceptions. Important factors to consider include: the trustworthiness of the institutions involved in imposing and assessing risks; the amount of control over the risk, for instance, whether the risk is voluntarily assumed or imposed; the alternatives to the technology which is perceived to be imposing a risk; the distribution of attendant risks and benefits across society; and the reversibility of the risk, under the ambit of concerns about ecologically sustainable development and environmental ethics.144

¶75

Much of the risk discourse artificially simplifies risk to a question of supposedly "factual" assessments of harm that can be isolated from any kind of social context or influence. Many low level and uncertain risks featured in toxic tort litigation have been bolstered by concerns about loss of public control over various areas of science and technology. As messy as such litigation may appear to technocrats, it plays an important role in educating and facilitating public participation in the future technological direction of society. Writers such as Jasanoff have noted the significance of such forms of litigation in developing a more publicly sensitive regulatory culture. The history of regulation suggests that public concerns stimulating litigation and regulation of toxic wastes and new technologies have not been such an obvious "bogey" to stimulating technological development. In fact, there is a growing body of technological innovation studies which suggest the need for stricter environmental safeguards that can act as an important stimulus to technological change and be a source of competitive advantage for innovative firms.145

 

I. Reluctance of Junk Science Model Proponents to Engage with the History, Philosophy, and Sociology of Science

¶76

Discussion of junk science is often facilitated by setting up a strict and oversimplified model which implies that any acknowledgment of the continuities between scientific knowledge and the need to consider the social context in which those claims are generated is equivalent to "morally suspect" philosophical nihilism. Contributions from the history, philosophy, and social studies of science are regularly rejected as irrelevant:146 "Many a philosopher is so intrigued by the shag that she will deny the existence of the carpet entirely. There is simply no meaningful line to be drawn between pseudo-science and science, she will assure you, or at least nothing that can be rigorously demarcated and defined."147

¶77

Huber desires to disentangle matters of scientific "truth" from the modern philosopher's blessing. Nevertheless, in many places in his text his analysis relies on the very historians and philosophers of science he wishes to exclude. For instance, there are footnotes to Jerome Ravetz for the ability of social pressures to allow serious science to be replaced by a so-called "confidence game," and a quote from Thomas Kuhn for propositions relating to the central nature of scientific work - namely that "a scientific "fact" is the collective judgment of a scientific community. "Good science" is defined not by credentials but by consensus.148 We have already discussed widespread support for philosopher Karl Popper's scientific method doctrine of falsificationism. Proponents of the junk science model typically employ this asymmetrical style of argument. They are willing to enroll philosophers and historians of science when it suits their cause, but reject them when they do not.

¶78

Consider also the comments of Ayala, Black, and Saffran-Brinks: "We make no claim to philosophical rigor, or to resolving the positivist versus relativist and other debates about the nature of science. Instead, our discussion aims to present a picture of science in accordance with the way most scientists actually practice their profession."149 In such a Manichean model we either have simplistic positivism or total naïve relativism. These commentators appear to be blissfully unaware of the variety of approaches to science and policy that flow from a more sophisticated awareness that scientific knowledge does not need to be defined as having some simple correspondence with "truth."150 It is also worth noting that many of the calls for the clean decisive positivist ideal of scientific "truth" would only encompass those scientific "truths" which proponents of the junk science model find politically and philosophically "acceptable."

 

IV. Conclusion

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¶79

We have outlined some of the problems associated with use of the ill-defined junk science model. While the model and its proponents have not gone without criticism, much of the attack has failed to transcend many of the assumptions and presuppositions underlying the model. Some critics have identified the selective political use of the concept "junk science" and the tenuous nature of arguments blaming "junk science" for a "crisis" in the legal system, but very few have challenged the concept of "junk science" itself in a detailed, well documented textual manner.

 

A. Junk Science Model Critics

¶80

A number of scholars have commented on the politically loaded nature of the junk science model and the tendency for it to be deployed in polemical and inconsistent ways in political contexts. There have been three dominant, often intersecting, approaches to the criticism of the model -- and especially of Huber's gloss. First, it has frequently been pointed out that the actual areas of science categorized as "junk" are highly politically motivated and that the selection of examples displays a lack of scholarly rigor and empirical veracity. Yet, this style of criticism implicitly accepts that there is indeed some kind of simple overarching demarcation between "good" and "junk" science. It is merely the choice of particular areas of science that is challenged.151 A second critique is that the magnitude of the problem of junk science has been exaggerated. In this approach, the legal system is seen as not being in the state of crisis that junk science model proponents often describe.152 Again, it is not the junk science model itself which is questioned, but rather its prevalence and socio-legal significance. The third critique is that junk science model proponents have oversimplified the division between "junk" and "good" science. This approach shares similar concerns to those explored in this paper. Nevertheless, they lack an attempt to articulate in depth why such an approach is too simplistic. Thus, while we generally agree with this perspective, we have provided a more detailed examination and explanation of why such categories are inadequate. Other critics tend only to make passing reference, rather than engage in more thorough or sustained appraisals. 153

¶81

While most commentators have challenged the existence of a dichotomy between "good" and "junk" science without drawing from the literature in the history, philosophy, and social studies of science, a notable exception is Sheila Jasanoff. In her recent work, Science at the Bar, Jasanoff suggests that:

To correct the perceived deficiencies of scientific assessment in toxic tort cases, courts have been enjoined to take their cues from "mainstream science". . . . I have argued that "mainstream" scientific positions (if they exist at all) are constructed in part through the very flow of litigation. Knowledge that the tort system may eventually be willing to live by emerges from the dialogic interaction of law and science, often in conflicts about the safety of technology. The case of "clinical ecology," frequently cited as an example of "junk science" by the advocates of "mainstream science," shows this process at work. It suggests that the adjudicatory process is not structurally incapable of taking into account differences between so-called mainstream and peripheral views in science, but that (as within science itself) it takes time and active work by professional bodies to develop consensual knowledge around new areas of dispute.154

¶82

Jasanoff's critique is more sophisticated than those of other critics in that it acknowledges the social processes involved in the construction of law-science knowledge, and the difficulty in using simplistic philosophical demarcation criteria between science and non-science.155 However, Jasanoff does not pursue these criticisms by engaging in detailed analysis or deconstruction of the junk science discourse.156

 

B. Trashing "Junk Science"

¶83

Drawing from an extensive body of law/science literature, we have developed and critiqued the junk science model. We have shown how it relies on an image of science based on naïve notions of the unique efficacy of science, motivations of scientists, scientific norms, and scientific method. The argument that junk science is the product of the legal distortion of "normal" scientific practices was challenged, and it was argued that this claim failed to acknowledge: 1) scientific disagreements outside of legal contexts are prevalent; 2) tensions between law and science are better thought of as problems of deconstruction rather than distortion; and 3) such approaches fail to acknowledge the growth and importance of new areas where law and science are indissolubly integrated as hybrids. We also explained how the junk science model gains "support" from both inadequate histories of science and a sociologically naïve view of the public perception of risk. Our final strand of criticism examined the way proponents of the junk science model simultaneously embrace and reject the work of modern philosophers and historians of science, evidently based on how well it serves their purposes at any given juncture.

¶84

The rejection of a simple dichotomy between "good" and "bad" science facilitates discussion in a number of areas otherwise precluded. For instance, questions relating to the efficacy of various sciences, their objectives, and the ethics of their practitioners can be examined in more specific local terms, freed from the need to anchor them to over-arching, unworkable, mythological images of science. Discarding the junk science model also reduces the tendency for scientific disagreements in legal contexts to generate emotionally charged deprecatory accusations between, and among, scientists and legal practitioners. "Junk science" dialogues are unlikely to encourage constructive informal learning processes between the various participants involved in difficult areas of law-science interactions. Such areas include those where there are scientific uncertainties and disagreement, and sociological uncertainties relating to the setting of the boundaries for appropriate professional expertise in the case of law-science hybrids.

¶85

"Junk science" discourse tends to favor a technocratic image of politics which contains numerous problems. Technocratic political solutions tend to favor the reduction of political decisions to technical problems. Such reductionism is simplistic in the case of law-science interactions. Given the rich diversity of activities constituting modern science and the contexts in which modern science and law are brought together, the act of distilling simple apolitical scientific solutions out of complex debates is implausible. It represents an attempt to impose certainty and closure in dynamic areas of modern society where disagreements about science carry with them different images of the direction of future society, political choices about risk, and debates about the trustworthiness and form of decision-making institutions. Avoiding technocratic "solutions" provides opportunities for policies to be developed diachronically, responsive to changes in political directions which reflect change in the scientific-technical knowledges involved. This places less pressure on the development of synoptic approaches to decision-making, which are likely to be inappropriate in contexts of uncertainty and change.157 In short, the junk science model tends to convert what should be more visible political debates into narrow, inadequately framed, pseudo-epistemological debates.

¶86

At its worst, the junk science model represents a defeatist pessimism toward the democratic process, and a turning away from the complex realities of modern political society - especially at the intersection of science, technology, politics, and law. In what could be described as epistemological nostalgia, it harks back to the myth of a golden age when science was science and law was law.

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Copyright © 1998 Stanford Technology Law Review. All Rights Reserved.

 

ENDNOTES

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† B.A. (Honors) (Medal), LL.B. (Hons), St. Johns College, University of Cambridge.

‡ B.A. (Honors), Ph.D., Lecturer, School of Science and Technology Studies, University of Wollongong.

* Authors listed alphabetically. We would like to thank David Fraser and Colin Phegan, Faculty of Law, University of Sydney, for comments on earlier drafts; David Miller and Evelleen Richards, School of Science and Technology Studies, University of New South Wales; Jill Hunter, Faculty of Law, University of New South Wales; and John Schuster and members of the Programme in the History, Philosophy and Politics of Science, University of Wollongong, for thoughtful discussion and comments on various sections. We would also like to thank three anonymous referees for their suggestions and comments.

1 See generally David E. Bernstein, Junk Science in the United States and the Commonwealth, 21 YALE J. INT'L L. 123, 124-25 (1996) (summarizing the history of the junk science concept); David E. Bernstein, The Admissibility of Scientific Evidence After Daubert v. Merrell Dow Pharmaceuticals, Inc., 15 CARDOZO L. REV. 2139 (1994); Sophia I. Gatowski et al., The Diffusion of Scientific Evidence: A Comparative Analysis of Admissibility Standards in Australia, Canada, England, and the United States, and Their Impact on Social and Behavioral Sciences, 4 EXP. EVID. 86 (1996); Stephen J. Odgers & James T. Richardson, Keeping Bad Science Out of the Courtroom -- Changes in American and Australian Expert Evidence Law, 18 U. NEW S. WALES L.J. 108, 129 (1995).

2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

3 See, e.g., Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda-Building, 52 LAW & CONTEMP. PROBS. 269 (1989); Gary Edmond & David Mercer, Scientific Literacy and the Jury: Reconsidering Jury "Competence," 6 PUB. UNDERSTANDING OF SCI. 329 (1997); Ian Freckelton, Expert Evidence and the Role of the Jury, 12 AUSTL. BAR REV. 73 (1994); Neil Vidmar, Are Juries Competent to Decide Liability in Tort Cases Involving Scientific/Medical Issues? Some Data from Medical Malpractice, 43 EMORY L.J. 885 (1994).

4 See Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. U.L. REV. 1637, 1705-23 (1993) (detailing Huber's emergence in the late 1980s and early 1990s); see also Dan Quayle, Civil Justice Reform, 41 AM. U.L. REV. 559, 565 (1992) (quoting Huber to argue that junk science is tarnishing the legal process).

5 PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991) [hereinafter GALILEO'S REVENGE]; see also PHANTOM RISK: SCIENTIFIC INFERENCE AND THE LAW (Kenneth R. Foster et al. eds., 1993); Foster, Bernstein & Huber, Science and the Toxic Tort, 261 SCIENCE 1509 (1993); Peter W. Huber, Fact Versus Quack, FORBES, July 4, 1994, at 132; Peter W. Huber, Junk Science in the Courtroom, 26 VAL. U. L. REV. 723 (1992); Peter W. Huber, Medical Experts and the Ghost of Galileo, 54 LAW & CONTEMP. PROBS. 119 (1991).

6 See GALILEO'S REVENGE, supra note 5, at 181-82, for Huber's description of the litigation explosion. For a history of the alleged phenomenon, see WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT (1991).

7 See Eliot Martin Blake, Rumors of Crisis: Consi