Show notes
The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". The final showcase panel explored "Law, Science, and Public Policy."
"Science" as a concept enjoys the trust of the public. Indeed, some make "I trust the Science" a centerpiece for their appeal to the voting public, and this evidently has had some success.
By contrast, others in the scientific community stress that scientific methods explicitly exclude "trust". The noted physicist Richard Feynman remarked that "science begins with the distrust of experts". Instead, process in science relies on an "ethic" of impersonal objectivity, respect for data, self-questioning, a willingness to stand corrected, and open discourse. Its methods involve constructing models for reality that best fit objective assessments of available data, followed by a search for data that might contradict those models. Scientists are therefore (supposed to be) anti-advocates, willing to concede when their models were wrong; the most successful scientists even enjoy conceding, as it means that knowledge has advanced.
However, scientists, being human, are inherently imperfect practitioners of scientific methods. Historians document many examples where scientists have advocated their own (wrong) ideas over others simply because they were their own, obstructed opposing points of view, and otherwise behaved as 'politically' as in any other field of human endeavor. However, the process and its "ethic" has historically allowed models for reality to improve, and those improvements are known by the technology that has emerged based on them. As one example without science, improvements in civilized transport advanced haltingly over millennia. With science, citizens may now buy tickets to suborbital space flight.
Consequently, public policy decision-makers often rely on science (or at least they say they do) when making laws and regulations in many areas, including economics, criminal law, environmental regulations technology and bioethics.
However, the law is in many ways anti-science. Scientists, practicing their methods, commit to seeking out and weighting more heavily data that oppose their theory; they are (supposed to be) anti-advocates. In contrast, clients hire lawyers expressly to be their advocates.
This creates a natural tension when scientists are called upon to advise public policy. Many who call themselves "scientists" are willing to participate as advocates in public policy. This has been shown clearly in fields like anthropogenic climate change, economic stimulus packages and, most recently, in the management of the COVID-19 pandemic.
How should we as lawyers assure that science is used properly in the public space, to make policy conform to reality, and not for political goals?
The panel will address two areas with this as background:
The FDA, CDC, and public health regulation. The COVID pandemic uncovered many problems in the way medical science is used to manage public health crises. with public policy.
Should scientific presentations be paternalistic? Is it ever justified to withhold, distort, or misrepresent science for fear that the truth will do damage by being misunderstood or misused?
Featuring:
Dr. Steven Benner, Distinguished Fellow, The Westheimer Institute at the Foundation for Applied State Room Molecular Evolution
Prof. I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law, Deputy Dean, and Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, Harvard Law School
Ms. Christina Sandefur, Executive Vice President, Goldwater Institute
Moderator: Hon. Kenneth Lee, U.S. Court of Appeals, Ninth Circuit
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