5/6/09 - Different disciplines have different conventions – generally agreed-upon practices that facilitate interaction – and the differences between conventions used by legal experts and scientists can cause problems. Both disciplines rely on the production and evaluation of evidence, but their widely divergent conventions in using and discussing it can present challenges, particularly when scientists act as witnesses. Conventions in Science and the Law, the latest issue of the Duke University School of Law’s journal Law and Contemporary Problems, features several articles that discuss problems and solutions related to these disparate conventions.

The articles published in this issue were originally presented at the fourth Coronado Conference, which was organized by the Project on Scientific Knowledge and Public Policy (SKAPP) to explore the issues surrounding the use of conventions in the legal and scientific arenas. In their foreword, SKAPP Director David Michaels and Duke law professor and Law and Contemporary Problems editor Neil Vidmar explain that a convention “is rule of discourse or behavior that is generally understood without further explanation or justification, making it efficient but also a source of confusion when the conventions of one group are used in another group’s venue.” For example, among scientists it is customary to discuss the many sides of an issue, but a scientist on the witness stand will be expected to present only one view. Authors featured in this issue apply different perspectives to the question of conventions, including:

• In “Irreconcilable Differences? The Troubled Marriage of Science and the Law,” University of Miami professor of law and professor of philosophy Susan Haack takes a historical perspective to demonstrate the deep tensions between the goals and values of the scientific enterprise and the culture of the law.

• In “The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom,” William Mitchell College of Law professor Herbert M. Kritzer emphasizes that the courtroom is a setting not for truth, to which scientists are committed, but for persuasion.

• In “Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure,” Gary Edmond describes the attempt in several Australian jurisdictions to reduce some of the deleterious effects that the adversarial system can have on expert testimony through the use of the “concurrent evidence” procedure, colloquially known as “hot tubbing.”

“Science has long been a source of contention in the courtroom,” explains Michaels. “By identifying some of the specific points of tension in the relationship between the disciplines of law and science, we hope to advance discussions about how scientists and legal experts can work together productively.”

The full text of these articles is available for free on SKAPP’s DefendingScience.org website. Journal issues containing articles from all four Coronado Conferences are all available online:

• Scientific Evidence and Public Policy (Coronado Conference I) - articles published in a special supplement to the American Journal of Public Health (July 2005)
• Sequestered Science: The Consequences of Undisclosed Knowledge (Coronado Conference II) - articles published in Law & Contemporary Problems (Summer 2006)
• Truth and Advocacy: The Quality and Nature of Litigation and Regulatory Science (Coronado Conference II) - articles published in Environmental Health Perspectives (January 2008)
• Conventions in Science and Law (Coronado Conference IV) - articles published in Law and Contemporary Problems (Winter 2009)