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Before they heard Microsoft v. United States last month, the judges of the U.S. Court of Appeals for the D.C. Circuit recognized that they might not be as well-informed in the intricacies of computer technology as they were going to want to be. So Chief Judge Harry Edwards proposed that an outside expert be brought in to shed a little light. As you may recall, no light was shed, but plenty of heat radiated back from the parties. Microsoft and the government said that while they didn’t object in principle, they had concerns. Chief Judge Edwards recognized trouble when he saw it and withdrew his proposal. But if my memory of judicial computer skills is correct, they could have used the help. When I sat on the D.C. Circuit (I left in 1994), some of the judges didn’t know how to use a computer at all. (I used mine as a word processor and for the occasional e-mail, but let my law clerks do the computer research.) With the possible exception of Chief Judge Edwards, I doubt that any of the judges today consider themselves technology experts –certainly not at the level of sophistication that might be called for in the Microsoft case. And yet the truth is that they’re probably more adept than most federal judges when it comes to computers. The Microsoft case is a prime example of what happens when technology lies at the heart of litigation. William Ruckelshaus, first administrator of the Environmental Protection Agency, described the meeting of science and law as a “shotgun wedding.” The description is apt — the relationship is uncomfortable for everyone involved. The D.C. Circuit adjudicates more than its share of disputes involving complex technology because it’s the main venue for reviewing decisions of the federal agencies. The health, safety, and environmental regulations produced by those agencies are full of scientific jargon. And the statutes against which such rules must be measured have terminology that most members of Congress couldn’t explain on a bet — even though they voted for those laws. The problems of definition and interpretation are compounded, of course, by the ways of the legislative process: Ambiguity, inconsistency, and uncertainty are unavoidable, or at least not avoided, features of our laws. So what should judges do? Most made an early choice in favor of the humanities and the social sciences over the hard sciences. Occasionally I found a law clerk who was an engineer or a physicist or even a physician. But most of the time a judge’s staff resembles the judge when it comes to scientific training. In the easy days not that long ago, cases before the federal courts did not address so many hard scientific issues. The Federal Circuit (and its predecessor Court of Customs and Patent Appeals) handled the technological disputes that arose over patents. Once every few years the Supreme Court would take a patent case, usually to resolve some broader legal question. But generally, science and law were able to coexist without too much pain. Easy is gone. Courts were already moving into shaky territory, even before the telecommunications revolution with its gigabytes, RAM, modems, and satellite dishes. As the new technology began to touch all of human behavior, patents weren’t the only science that came before the courts. I remember one case before the D.C. Circuit that involved genetically engineered fruit. Scientists at the University of California were trying to lower the temperature at which fruit froze. The university said that it had already exhausted the usefulness of laboratory experiments and needed to test its theories in the real world. So the Department of Agriculture had approved the use of federal money to conduct experiments with fruits in the field. Environmentalists sought court review of the Department of Agriculture’s decision, pointing to the unknown risks of such experiments. I sat on a D.C. Circuit panel that punted the matter back to the agencies since we had no idea what the risks were. Our rationale was that they could consult experts and try to reach a conclusion as to where such experiments might lead. Judging by the ongoing controversies over genetically altered foods, the conclusions are not yet conclusive. Even the question of what constitutes appropriate scientific evidence for the legal system is in some state of disarray. Daubert v. Merrell Dow Pharmaceuticals Inc. (1993), which supposedly set the threshold for what kinds of evidence are deemed scientific enough to be offered in court, is undergoing change in almost every case that raises it. While that’s unsettling to the bench and the bar, it’s not unexpected given the dramatic changes in the boundaries of scientific knowledge and theory. The number of elements on the periodic table was presumed fixed when I took high school chemistry (and already larger than I could memorize), but many new ones have been discovered since. BEST GUESSING? The geometric rate of change makes it hard to apply any of the old concepts when law deals with science. Rogers Morton, secretary of interior in the early 1970s and a man who supported environmental causes, once urged, “When in doubt, don’t do it.” As proof of that adage, he referred to the decision by the chairman of U.S. Steel, Judge Elbert Gary, to use Lake Michigan as a waste disposal site for the mills that U.S. Steel was building around Chicago a century ago. No one then knew what the consequences of such dumping would be, any more than anyone knew the consequences of adding lead to gasoline or asbestos to building materials. But courts are ill-equipped to perform preventive strikes against health and safety dangers of the Old Economy or the New. The common law concepts of nuisance and negligence don’t stretch to cover inchoate risks. Even more important, courts lack the wide access to expertise that is available to legislatures. Lawmakers can hold hearings, invite experts to lunch, attend lectures, and otherwise ask for advice without anyone objecting. Then, if the science has moved along, they can pass rules for courts to interpret and apply. Judges have no such freedom — even at seminars where experts abound can be the subject of criticism when the seminars are sponsored, directly or indirectly, by parties having a stake in the litigation. The truth is that courts have not coped well with the problems of new technology. In some cases they’ve acted precipitously; in others they’ve let Rome burn. In part the problems stem from the law’s inadequate conceptual framework. In part they stem from the fact that courts must be reactive in both the problems they address and the places where they seek solutions. The partners to Ruckelshaus’ shotgun wedding are still having trouble adjusting to the relationship. They need to learn some better ways of working out their differences.

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