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Published online by Cambridge University Press: 20 January 2017
There has been an increasing interest in making legal decision-making and scholarship scientific or inter-disciplinary, without there being any interrogation of how or why this should be done. This has resulted in polarised views of the importance of science on one hand, and the primacy of democracy on the other. Such polarisation is not helpful primarily because both ‘science’ and ‘democracy’ remain unintelligible to those who do not have access to the particular epistemology that supports their usage. In this article, I seek to reconceptualise the conflict between democracy and science as the association of legal decision-makers and scholars with expert inquiry. I further conceptualise such association as a process that involves normative reductionism of testimonial exchange. Despite a claim to ‘a culture of justification’ in legal systems such as the European Union, the process of normative reductionism is essentially arbitrary. I seek to articulate a framework where this process may be approached in a disciplined manner, concentrating on the role of mediation and moderation of expert knowledge.
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9 Communication from the President to the Commission, Framework for Commission Expert Groups: Horizontal rules and public register SEC (2010) 1360.
10 Guidelines, at 9.
11 Take for instance Winston Churchill's belief that ‘scientists should be on tap, not on top’. This does not take away from the fact he rendered a more favourable ear to some scientists over others; he especially valued Frederick Lindemann because he could ‘translate complicated facts and theories in a way he [Churchill] could understand.’ See Rogers, Michael D., The European Commission and the Collection of Science and Technology Advice, in The Politics of Scientific Advice 116 (Lentsch, Justus and Weingart, Peter eds. 2014)Google Scholar.
12 Guideline 11.
13 Id, Guidelines 3–9.
14 Horizontal Rules, Rule 4(2).
15 Rule 8.
16 Rule 9(3) and Guideline 8.
17 Martin Krygier, Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares? 50 NOMOS 64 (2013).
18 Scrutiny should not be mistaken for intervention; a judge may decide after extensive engagement to intentionally shy away from intervention. The ‘deference’ and ‘scrutiny’ approaches are what theoretically distinguish the Frye and Daubert tests respectively as discussed in Section II.B.
19 Dąbrowska-Kłosińska, Patrycja, Risk, Precaution and Scientific Complexity before the Court of Justice of the European Union , in Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation 192 (Gruszczynski, Lukasz and Werner, Wouter eds. 2014 CrossRefGoogle Scholar.
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24 Id at 4.
25 Van Zeben analyses competence allocation by categorising competence into norm-setting, enforcement and implementation. Josephine Van Zeben, The Allocation of Regulatory Competence in the European Emissions Trading Scheme (2014).
26 Id.
27 For a review, see Lenschow, Andrea, Europeanisation of Public Policy, in European Union: Power and Policy-Making (Richardson, Jeremy ed. 2006), pp. 55–69 Google Scholar
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30 Sheila Jasanoff, Designs on Nature: Science and Democracy in Europe and the United States 93 (2011).
31 For an appraisal, see Sabel, Charles and Zeitlin, Jonathan, Learning from Difference: The new architecture of experimentalist governance in the EU 14 European Law Journal 271 CrossRefGoogle Scholar.
32 Sabel and Zeitlin provide a snapshot of the complexities. Id, at 274 .
33 For the argument that the internal market serves as the signifier of European constitutionalism, see Suryapratim Roy, Justice as Europe's Signifier, in Europe's Justice Deficit?, 79 – 96 (Dimitry Kochenov, Grainne de Burca and Andrew Williams eds. 2015).
34 Barbier de la Serre and Sibony, supra n 22, at 985.
35 Id. at 977.
36 See Jasanoff, supra note 30, at 84–93. The ethical interest in biotechnology policy was influenced by transatlantic influence, in-fighting between different Directorates within the European Commission, the attempt by the Commission to secure political capital vis-a-vis the Member States and the citizens of Europe.
37 An overview can be found on http://ec.europa.eu/epsc/ege_en.htm.
38 “History will one day record definitively the revolutionary character of Daubert v. Merrell Dow Pharmaceuticals, Inc.” David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing scientific evidence in the age of science 46 U.C. DAVIS LAW REVIEW 893, at 929 (2013).
39 509 U.S. 579 (1993).The primary issue in the case was whether birth defects in the petitioner's children could be attributed to the drug Benedectin produced by the respondents.
40 Frye v. United States, 293 F. 1013, D.D. Cir. 1923. The D.C. Appellate Court famously disallowed the use of the polygraph test till there was a ‘general acceptance’ among the ‘relevant scientific community’.
41 Cole summarises the difference as follows: “Whereas Daubert asks the court itself to render a judgment as to whether the proffered evidence is reliable, Frye directs the court to defer to the judgment of the ‘relevant scientific community.” Simon A. Cole, Out of the Daubert Fire and into the Fryeing Pan: Self validation, meta expertise and the admissibility of Latent Print Evidence in Frye jurisdictions, 9 Minnesota Journal of Law, Science and Technology 453, at 460 (2008).
42 522 U.S. 136, 118 S. Ct. 512 (1997).
43 526 U.S. 137 (1999).
44 Raul, Alan Charles and Zwyer, Julie Damper, Regulatory Daubert: A proposal to enhance judicial review of agency science by incorporating Daubert principles into Administrative Law, 66 Law and Contemporary Problems 7 (2003)Google Scholar. Some commentators have argued that Daubert shifts the policy function to the judiciary, as judge-made ‘rhetorical’ standards are used by administrative agencies to decide on the quality and nature of expert information. Kelly, Claire R., The Dangers of Daubert Creep into the Regulatory Realm 14 JOURNAL OF LAW AND POLICY 165 (2006)Google Scholar.
45 Brewer, Scott, Scientific Expert Testimony and Intellectual Due Process 107 Yale law Journal 1535, at 1547 (1998)Google ScholarPubMed.
46 See Leslie Morsek, Get on Board for the Ride of Your Life-The ups, the downs, the Twists, and the Turns of the Applicability of the Gatekeeper Function to Scientific and Non-Scientific Expert Evidence: Kumho's Expansion of Daubert, 34 Akron Law Review 689 (2000).
47 For an account of the actors and associations that informed the politics of the Frye standard, see Lepore, Jill, On Evidence: Proving Frye as a Matter of Law, Science, and History 124 THE YALE LAW JOURNAL 882 (2015)Google Scholar.
48 Kaye, David H., On Falsification and Falsifiability: The First Daubert Factor and the Philosophy of Science 45 JURIMETRICS 473 (2005)Google Scholar.
49 The plaintiffs who might be the most adversely affected are those who rely on non-corporate non-traditional forms of expertise such as those seeking relief in mass tort and employment discrimination claims. See Heinzerling, Lisa, Doubting Daubert 14 JOURNAL OF LAW AND POLICY 65 (2006)Google Scholar.
50 Edmond, Gary, Supersizing Daubert Science for Litigation and Its Implications for Legal Practice and Scientific Research 52 Villanova Law Review 857 (2007)Google Scholar.
51 As Hackney puts it, ‘It is an unfortunate aspect of Daubert that it is poorly designed to weed out junky claims made by a party with the resources to dress them up in scientific clothes with tests, paid experts, and friendly publications. But if the legal system allows the Daubert standard to be no more than a tool of the party with the greater resources, then it allows litigants to make a mockery of both science and justice.’ Ryan Hackney, Flipping Daubert: Putting climate change defendants in the hot seat 40 Environmental Law 255, at 293 (2010).
52 For a similar line of reasoning, see Cole, Simon A., Where the Rubber Meets the Road: Thinking about expert evidence as expert testimony 52 VILLANOVA LAW REVIEW 803 (2007)Google Scholar. Cole, however, limits his analysis to oral testimony offered before judicial bodies. The idea that the consideration of all textual materials in legal reasoning amounts to an engagement with testimony is found in Karen Petroski, Texts versus Testimony: Rethinking legal uses of non-legal expertise 35 University of Hawaii Law Review 81(2013).
53 Environmental Audit Committee, House of Commons, UK, Personal Carbon Trading: Government Response to the Committee’s Fifth Report of Session 2007-2008, London, May 26, 2008.
54 For a review, see Roy, Suryapratim and Woerdman, Edwin, Enduser Emissions Trading: What, why, how and when in EUROPEAN ENERGY LAW REPORT IX (Wooley, Olivia and Roggenkamp, Martha eds. 2013)Google Scholar.
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56 Shove, Elizabeth, Beyond the ABC: Climate change policy and theories of social change 42 ENVIRONMENT AND PLANNING A 1273, at 1274 (2010)Google Scholar.
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59 Elizabeth Shove, Commentary: On the difference between chalk and cheese 43 Environment and Planning A 262 (2011).
60 Id. at 263.
61 Schlag has parodied the use of exhaustive references as a claim to justification. Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art) 97 Georgetown Law Journal 803 (2009). In one footnote he writes: ‘Excuse me, hello, but could I possibly get some cites here, maybe?’ fn 6, at 804.
62 The development of the idea of an epistemic community is attributed to Peter Haas, especially in relation to the politics that inform environmental policy. Haas, Peter M., When Does Power Listen to Truth?: A constructivist approach to the policy process 11 Journal of European Public Policy 569 (2004)CrossRefGoogle Scholar.
63 For an account of the events and associations that served as milestones in the ascendancy of behavioural economics within the history of economic thought, see Floris Heukelom, Behavioral Economics: A History (2014).
64 Gerd Gigerenzer in particular questioned the methods used by Kahneman and Tversky over a series of articles and exchanges. See for instance, Gigerenzer, Gerd, On Narrow Norms and Vague Heuristics: A rebuttal to Kahneman and Tversky 103 PSYCHOLOGICAL REVIEW 592 (1996)CrossRefGoogle Scholar.
65 A detailed methodological interrogation of Kahneman and Tversky’s foundational work, including the strong inference method is found in Lola L. Lopes, The Rhetoric of Irrationality 1 Theory & Psychology 65 (1991).
66 Hence Lopes: ”…the sheer weight of all the wrong answers tends to deform the basic conclusion, bending it away from an evaluatively neutral description of process and toward something more like ‘people use heuristics to judge probabilities and they are wrong’ or even ‘people make mistakes when they judge probabilities because they use heuristics.’” Lopes, supra note 65, at 73. This may indicate why scholars such as Vernon Smith who conduct economic experiments that manipulate the conditions till participants reach rational behaviour are at odds with the methodology employed by Kahneman and Tversky. For an overview of such conflicts, see generally FLORIS HEUKELOM, supra, note 67.
67 Lopes, supra note 65, at 76.
68 Thus, knowledge about human behaviour is integrally linked to the way such knowledge is presented. This line of reasoning – though not directed at psychological experiments – motivates Bruno Latour's work on the sociology of science, including the way economics as a discipline shapes itself.
69 Lopes, supra note 65, p. 73.
70 Owen Jones, Why Behavioral Economics Isn't Better and Why it Could Be, in Research Handbook on Behavioural Law and Economics (J. Teitelbaum & K. Zeiler eds. 2015).
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74 Thaler, Richard H., The Psychology of Choice and the Assumptions of Economics, in Quasi Rational Economics 138 (Thaler, Richard H. ed. 1991)Google Scholar.
75 Id.
76 This endeavour has been usefully characterised as ‘fitting and repairing the rational-choice model.’ Werner Güth, (Non) Behavioral Economics: A programmatic assessment 216 Zeitschrift Für Psychologie 244 (2008).
77 Mirjam-Sent, Esther, Behavioral Economics: How Psychology Made Its (Limited) Way Back Into Economics 36 History of Political Economy 735 (2004)Google Scholar.
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80 It may be noted that social psychologists have made similar arguments regarding the limited explanatory potential of evolutionary biology, and the primary methodological technology it employs–the differential equation. Mazahrin Banaji and Robert Crowder, Experimentation and its Discontents, in Theoretical Aspects of Memory (P.E. Morris and M. Gruenberg eds.1994), at 303 – 305.
81 Martin Kusch, Towards a Political Philosophy of Risk: Experts and publics in deliberative democracy in Risk: Philosophical Perspectives 131 (Tim Lewens ed. 2007).
82 Schlag, Pierre, Nudge, Choice Architecture and Libertarian Paternalism 108 Michigan Law Review 913 (2010)Google Scholar. The cumbersome activity of determining individual instances of whether experts can be trusted can be eased by assessing the trustworthiness of experts. See Elizabeth Fricker, ‘Second-Hand Knowledge’ (2006) Vol. LXXIII Philosophy and Phenomenological Research 592.
83 William Boyd, Douglas Kysar and Jeffrey J. Rachlinski, Law, Environment and the “Nondismal” Social Sciences 8 Annual Review of Law and the Social Sciences 183, at 205 (2012).
84 Id.
85 A Westlaw International combined world journals and articles search reveals that 17 articles in total refer to C.A.J Coady, the most noted testimony scholar, as against 3685 articles that refer to Daniel Kahneman.
86 Brewer, supra note 45.
87 Riberio, Gustavo, No need to Toss a Coin: Conflicting scientific expert testimonies and intellectual due process 12 Law, Probability and Risk 299 (2013)Google Scholar.
88 The chief proponents of this view are scholars who draw on Niklas Luhmann's Systems Theory to highlight the autopoietic nature of law. See Teubner, Gunther, How the law thinks: Toward a constructivist epistemology of law 23 Law & Society Review 727 (1989)CrossRefGoogle Scholar.
89 Schauer, Frederick, The Generality of Law 107 West Virginia Law Review 217, at 219 (2004)Google Scholar.
90 Id.
91 Id. at 233. ‘In law, it thus seems, generality has a disproportionate presence, but particularity has only a proportionate presence.’
92 Balkin, Jack, The Proliferation of Legal Truth 26 Harvard Journal of Law and Public Policy 5 (2003)Google Scholar.
93 Id.
94 See Nicola Mößner, The Concept of Testimony, in Epistemology: Contexts, Values, Disagreement 209 (Christoph Jager and Winfired Loffler eds. 2011).
95 Giulia Mennillo and Suryapratim Roy, Ratings and Regulation: An irreversible marriage? Harvard Weatherhead Centre for International Affairs Working Paper 004/2014.
96 Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing 20 (2007).
97 Id. at 3.
98 See Susan Haack, Credulity and Circumspection, Proceedings of the American Catholic Philosophical Association, 2015.
99 Jennifer Lackey, ‘Testimonial Knowledge’ in Routledge Companion to Epistemology, 316 (Sven Bernecker and Duncan Pritchard eds. 2010).
100 Integral to this question is determining the scope of what constitutes testimony, as against a mere utterance. The law of evidence clearly has a preference for the performative view of testimony; the distinction between hearsay and direct evidence found in evidence law ‘lacks any agreed-upon vocabulary for discussing or regulating the use of expert documentation.’ Karen Petroski, supra note 52, at 83.
101 Queensland Conservation Council Inc. v Xstrata Coal Queensland Pty Ltd & Others [2007] QCA 338. The Queensland Court of Appeals found a Tribunal in breach of natural justice as it relied on its own materials regarding climate science that were not submitted in evidence.
102 Case C-405/07 P Kingdom of the Netherlands v. Commission of the European Communities [2008] ECR I-08301. The CJEU found a procedural impropriety on the part of the Commission in assessing scientific evidence, as it did not take into consideration data provided by the Netherlands.
103 Cass R. Sunstein, From Technocrat to Democrat, Harvard Public Law Working Paper No. 14-10(2014).
104 Pieters, Rik and Baumgartner, Hans, Who Talks to Whom? Intraand Interdisciplinary Communication of Economics Journals 40 Journal of Economic Literature 483 (2002)CrossRefGoogle Scholar.
105 Brewer, supra note 45, at 1672; Riberio, supra note 87, at 341.
106 Lackey, supra note 99, 316.
107 Id. at 324.
108 Brewer, supra note 45, at 1539.
109 Id.
110 Id.
111 Id. at 1679.
112 Brewer, however, is not unaware of the conceptual difficulties surrounding a ‘two-hat solution’. He queries: ‘What kind of training should the experts – or expertly trained judges – get?’ And he hints at the possibility of intra-disciplinary conflicts: “Will scientific discipline become so specialised that it ceases to make sense to talk about general epistemic competence even within a discipline?” Id, at 1679.
113 Roy, supra note 71.
114 Habermas, for instance, argues that in democratic decisionmaking epistemic authority requires communication between stakeholders, where ‘private experiences’ pass on to the ‘public practices’ of a collective. Jürgen Habermas, Truth and Justification 134 (2003). For a review of the engagement of others theorists, see Teubner, supra note 88.
115 See Susan Haack, supra note 98.
116 Green, Citing Michael D. in Daubert v. Merrell Dow Pharmaceuticals, pp. 585–586 Google Scholar.
117 The Joint Research Centre of the European Commission has expressed an interest in STS; see: https://ec.europa.eu/jrc/en/research-topic/science-and-technology-studies. However, in specific or general regulations as well as in case law, there appears to be very little actual influence of STS and related inquiries.
118 For an account of how testimonial studies could inform responsibility for climate change action despite climate scepticism, see Lorraine Code, ‘Doubt and Denial: Epistemic Responsibility Meets Climate Change Scepticism’ (2013) Onati Socio-Legal Series 3.5.
119 549 U.S. 497 (2007).
120 Id, p. 533.
121 See Suryapratim Roy and Edwin Woerdman, Situating Urgenda versus the Netherlands within Comparative Climate Change Litigation, Journal of Energy and Natural Resources Law (2016). .
122 See Cass Sunstein, Laws of Fear: beyond the Precautionary Principle (2006); Dan Kahan, Paul Slovic, Donald Braman and John Gastil, ‘Fear of Democracy: A cultural evaluation of Sunstein on risk’ (2006) 119 Harvard Law Review 1071; Cass Sunstein, ‘Misfearing: A reply’ (2006) 119 Harvard Law Review 1110.
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124 This position has been labelled as a form of ‘philosophical anarchism.’ Some scholars have taken issue with the need for justification, claiming that if law is supported by collective decision- making, then there is no need to seek another justification. See Hershovitz, Scott, Legitimacy, Democracy and Razian Authority 9 Legal Theory 201 (2003)CrossRefGoogle Scholar.
125 Joseph Raz, Authority, Law, and Morality, in Ethics in the Public Domain 214 (1994).
126 Bruno Latour, Reassembling the Social: An Introduction to Actor-Network Theory 39 (2005).
127 ‘All in all, Latour's examination of the history of science shows some signs of implicit inclination towards such context-transcending explanations as limiting cases of other explanatory strategies.’ Jouni-Matti Kuukkanen, ‘Demystification of Early Latour’, in Foundations of the Formal Sciences VII (K. Francois, B. Lowe, T. Muller and B. Van Kerkhove eds. 2009
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131 In relation to legal analysis, I use the term ‘modify’ in a different manner than that understood in statistical analysis, where moderation effects are studied in relation to strengthening or changing the direction of the relationship between the other variables. As Miller, Judd and Yzerbyt explain, “Mediational analyses attempt to identify the intermediary process that leads from the manipulated independent variable to the outcome or dependent variable. The issue of moderation focuses on factors that influence the strength and/or direction of the relation between the treatment variable and the dependent variable. Moderational analyses attempt to identify individual difference or contextual variables that strengthen and/or change the direction of the relationship between the treatment variable and the independent variable.” Muller, Dominique, Judd, Charles M. and Yzerbyt, Vincent Y., When Moderation is Mediated and Mediation is Moderated 89:6 Journal of Personality and Social Psychology 852, at 852 – 853 (2005)CrossRefGoogle ScholarPubMed.
132 Standardised testing of the significance of mediation usually heavily relies on the work of Michael Sobel. See Sobel, Michael E., Asymptotic Confidence Intervals for Indirect Effects in Structural Equation Models 13 Sociological Methodology 290 (1982)CrossRefGoogle Scholar.
133 A synthesis of his work can be found in Andrew F. Hayes Introduction to Mediation, Moderation, and Conditional Process Analysis: A Regression-Based Approach (2013).
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137 Antje Brock, ‘The Environment in the Capabilities Approach: Why and how its constitutive role for capabilities matters’, paper presented at the 2014 Human Development and Capability Association Conference, Athens, August 2014.
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140 Statistically, Latour's view may be considered equivalent to a complete mediating effect where the correlation between independent and dependent variables are eliminated when the mediator is controlled for. See Ali al Nima et. al., Anxiety, Affect, Selfesteem and Stress: Mediation and Moderation Effects on Depression 8 PLoS ONE e73265, at 2 (2013).
141 Roy, supra note 33.
142 See for instance See James Huffman, Global Warming goes to Court, available at: http://www.hoover.org/research/global-warming-goes-court.
143 Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and Environment), ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag, C/09/456689 / HA ZA 13-1396 (Urgenda).
144 The official announcement is available at: https://www.rijksoverheid.nl/documenten/kamerstukken/2015/09/01/kabinetsreactie-vonnis-urgenda-staat-d-d-24-juni-jl.
145 For a review of the arguments, see Roy and Woerdman, supra note 121.
146 For a debate on whether some rights are absolute in the European legal order, see Tsakyrakis, Stavros, Proportionality – An assault on human rights? 7 International Journal of Constitutional Law 1 (2009)CrossRefGoogle Scholar; Khosla, Madhav, Proportionality an Assault on Human Rights?: A Reply 8 International Journal of Constitutional Law 298 (2010)CrossRefGoogle Scholar; Tsakyrakis, Stavros, ‘Proportionality an Assault on Human Rights?: A Rejoinder to Madhav Khosla’ 8 International Journal of Constitutional Law 307 (2010)CrossRefGoogle Scholar.
147 Stichting Urgenda v. Government of the Netherlands, para 4.49.
148 “Barroso Defends EU's Climate Strategy”, Ends Europe Daily, Issue 2399, Oct. 2, 2007, available at: http://www.endseuropedaily.com/articles/index.cfm (last visited May 28, 2015).
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151 Case T-16/04 Arcelor v. European Parliament and Council of the European Union [2010] ECR II-211, para 175.
152 Case T-16/04, para 168.