Just an appetizer first, then a trip to the abattoir to slaughter a sacred cow before making all-beef frankfurters... or Frank-N-Furters. I'm afraid you'll remember this trip for a very long time, even if we're not having meatloaf for dinner.
After taking a jump to the left, the Grauniad amusingly notes that left- and right-wing labels in politics no longer make sense... which rather presumes that they ever did, doesn't it? "Left" and "right" are about objectives and personal finance; "liberal" and "conservative" are about process, civil rights, and enforced cultural imperatives. There's a lot of overlap and interplay, but they are distinct ways of looking at politics and at the world. The usual "journalistic" view is of the intersection, but treats that intersection as a logical union or congruence. This is a hint that formal logic plays a big part (or will, if I remembered to fix that spare tire) in the rest of our trip to visit Dr. Scott.
Yesterday, Judge Posner — whether one agrees with him or not, one must admit that he's one of the brighter and more-sophisticated-in-nonlegal-matters appellate judges currently on the bench — demonstrated rather definitively that "more sophisticated in nonlegal matters" is nowhere near sophisticated enough. Although the following passage may make your eyes glaze over, it's worth reading it carefully to begin to understand the judicial (and, more generally, legal) blind spots that it delineates.
What is troubling about the case is not its disposition but that both the district judge, and the magistrate judge whose recommendation to grant summary judgment the district judge accepted, believed that Jackson “can present evidence permitting a reasonable inference” that he had experienced a serious medical condition as a consequence of the interruption of his medication. This is mistaken, and (not surprisingly) has no support in the record. But it is not only repeated in the plaintiff’s brief in this court, as one would expect; it is largely ignored by the defendants.
This lapse is worth noting because it is indicative of a widespread, and increasingly troublesome, discomfort among lawyers and judges confronted by a scientific or other technological issue. “As a general matter, lawyers and science don’t mix.” Peter Lee, “Patent Law and the Two Cultures,” 120 Yale L.J. 2, 4 (2010); see also Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2120 (2013) (Scalia, J., concurring in part and concurring in the judgment) (“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 599 (1993) (Rehnquist, C.J., concurring in part and dissenting in part) (“the various briefs filed in this case… deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review — in short, matters far afield from the expertise of judges”); Marconi Wireless Telegraph Co. of America v. United States, 320 U.S. 1, 60–61 (1943) (Frankfurter, J., dissenting in part) (“it is an old observation that the training of Anglo-American judges ill fits them to discharge the duties cast upon them by patent legislation”); Parke-Davis & Co. v. H.K. Mulford Co., 189 F. 95, 115 (S.D.N.Y. 1911) (Hand, J.) (“I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these…. How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance”); Henry J. Friendly, Federal Jurisdiction: A General View 157 (1973) (“I am unable to perceive why we should not insist on the same level of scientific understanding on the patent bench that clients demand of the patent bar, or why lack of such understanding by the judge should be deemed a precious asset”); David L. Faigman, Legal Alchemy: The Use and Misuse of Science in Law xi (1999) (“the average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it”).
The discomfort of the legal profession, including the judiciary, with science and technology is not a new phenomenon. Innumerable are the lawyers who explain that they picked law over a technical field because they have a “math block” — “law students as a group, seem peculiarly averse to math and science.” David L. Faigman, et al., Modern Scientific Evidence: Standards, Statistics, and Research Methods v (2008 student ed.). But it’s increasingly concerning, because of the extraordinary rate of scientific and other technological advances that figure increasingly in litigation.
Jackson v. Pollion, No. 12–2682 (7th Cir. 28 Oct 2013), slip op. at 2–4 (typography as in original) (PDF).
The most-disturbing aspect of this screed — as accurate, if understated, as it is — is that it is still insufficient and out of context, even for the case being considered. The case concerns whether a several-week interruption of hypertension medication for a prisoner rose to the level of "cruel and unusual punishment" necessary to sustain an Eighth Amendment claim against two medical providers in the prison — neither of whom, all seem to agree, had all of the necessary information or authority in the first place. Judge Posner is just a little bit too dismissive of medication interaction, secondary conditions related to hypertension, family history, and so on. Admittedly, these were not in the record; that's really, when you come right down to it, a much more disturbing problem than the doctrinal one revealed in the case.
The fundamental problem with Judge Posner's position in Jackson, and indeed with his screed in general, is the legal system's mistreatment of legal doctrine as data of equal weight with factual material brought in as evidence (under a distinct subset of legal doctrine). On one hand, this makes sense for a very simple reason: The factual material brought in as evidence is almost always retrospective... and almost never laboratory-clean, or even amenable to basic statistical analysis. It is, to put it another way, nonreplicable and uncontrolled, and therefore has earned some measure of distrust. We don't even need to go as far as "cops/accused/victims lie" to accept that; just the relative unreliability of eyewitnesses should be enough! That's why we keep lab notebooks.
The problems with evidence and factual inferences from dirty evidence, however, do not justify treating legal doctrine as being as reliable as — let alone more reliable than — the data that would be gathered by a competent scientist.1 Just look at that two-page passage quoted above: Not one source cited as part of the grounds or warrant2 for Posner's claim is actually qualified, under the classical standards validating an argument from authority, to state the broad claims that are in turn relied upon as grounds or warrant toward Posner's claim. This peculiar reification of authority is epitomized by the logical problems with stare decisis — the legal principle3 that once a case/dispute with fact set x is decided y, all cases/disputes sufficiently similar to x must also be decided y until one of two things happens: A decisionmaker of superior right in the domain of x (a higher court, a legislature for statutory questions, the initiative process where it's available, constitutional amendment) formally decrees that the warrant between x and y is insufficient, or the entire system is altered to discard both y and the warrant leading to it (usually by violent revolution and regime change... but even that may not be sufficient).
That's not how science works. Indeed, it's incompatible with science, for a very simple reason: In science, every "law" or "theorem" or "hypothesis" is subject to constant testing and potential rejection for each and every resemblance to and instance of/alleged to be x, and every failure of explanation must be explained or that warrant between x and y is rejected. What we call "laws" in science have been sufficiently tested that we have never encountered an actual violation (despite assiduous search for such violations) within their self-defined boundary conditions; the laws of thermodynamics present an obvious example. That is, the warrant in science is driven by replicable, incident-specific data — not mere doctrine. Doctrine is helpful in understanding the data, but it must surrender to the data.
Judge Posner's exegesis is almost — perhaps more than almost — rabbinical in its approach. And I don't mean the "good" kind of rabbinical argument, either; I mean the kind that presupposes a limited range of acceptable outcomes and forces all facts and authority to fit, such as justifications offered for throwing stones at cars driven on Shabat by those who don't share the exact theological predispositions of the stone-throwers. In this particular instance, Judge Posner has assumed for himself — or, perhaps, the system forces him to assume for himself — the right, the authority, and the skill to make decisions based upon the scientific meanings of dirty evidence brought from the non-laboratory to a paneled courtroom with no real opportunity to replicate anything. Two out of three isn't good enough, particularly since he rightly disclaims the skill. That may be intellectually honest, but it's a pretty damning indictment of a "system" that has those with no real scientific knowledge or training (let alone laboratory experience) making decisions based upon scientific principles of which their knowledge is limited to what other lawyers let them hear.
- Aside: I'm not going to enter the natural-versus-social science thicket here. A competent social scientist will take, within the bounds of his/her expertise, the same level of care as would a natural scientist when being intellectually honest. There are plenty of failures in both areas.
- Cf., e.g., "Toulmin's Analysis;" see generally Stephen E. Toulmin, The Uses of Argument (1958).
- Although demonstrating this is well beyond the scope of even this overextended blawg entry, this is not a problem unique to common-law jurisdictions. Indeed, once one removes the soto voce "judge-made" from the overarching concept of "precedent," civil law jurisdictions are worse... because almost nobody actually goes looking for exceptions.