The Fundamental Differences Between Science and Law

For at least twenty years, there has been a significant debate about the difficulty of incorporating science into legal decisionmaking ¹ and, more recently, that difficulty has become part of the very heated debate over the impact of tort litigation generally, and product liability litigation in particular, on our economy and society. So-called “Mass Tort Cases,” such as the Bendectin cases and, most recently, the Silicone breast implant cases, have been highly publicized and politicized examples of the difficulties of integrating science into judicial decisionmaking. ² My perhaps overly ambitious goal for this chapter is to try to reveal something of what lies at the core of the difficulty and that which I believe accounts for so much of the current frustration over the role of science in the courtroom. The title “The Fundamental Differences Between Law and Science” is intended to convey that this chapter is not about solutions to these issues, but rather an attempt to describe more fully the nature of the problem. The first section of the chapter will describe the three basic differences between the world of science and the world of law: science is digital, replicable/general, and objective/universal; law is analogical, unpredictable/particular, and normative/contingent. Part II provides examples of scientific and legal reasoning, as illustrations that underscore and clarify the fundamental differences discussed here. The conclusion provides a brief discussion of the Silicone breast implant litigation as a short case study in which the fundamental differences between law and science are manifested. The conclusion reached in Part III is that, in a great many toxic torts cases, the 42fundamental differences between science and law require a distortion of the concept of the legal causation, which is traditionally individual and particular, and is an essential element of our sense of justice or fairness.