Law is more art than science. Yet the law adds to and subtracts from its knowledge base, like science, and relies on scientific findings for guidance.
So observes Faigman (Law/Univ. of California, Hastings; Legal Alchemy, not reviewed), noting that the layers of science that run through American case law produce sometimes puzzling results: “The Constitution . . . is a strange admixture of abiding fundamental values and archaic and obsolete natural philosophy,” and “the Supreme Court adheres to constitutional doctrine sometimes in the face of overwhelming evidence to the contrary.” Even so, Faigman adds, the flexibility of the Constitution allows for endless new layerings. Thus, even as vestiges of the anthropology that defended slaveholding in the Dred Scott case—and that made Thomas Jefferson wonder whether he were right in the matter of “all men are created equal”—continue to float about in the depths of the law, contemporary jurists draw on the latest sociological findings of the role of race in, say, educational attainment to argue playing field–leveling programs pro and con. Thus, too, Justice Stevens was recently moved to remark that “if a constitutional rule is premised on empirical facts, then the rule should change when the facts, or our knowledge of the facts, change,” concurring with Justice O’Connor’s hopeful determination that while today using race to balance student-body composition is necessary, “twenty-five years from now, the use of racial preferences will no longer be necessary to further the interests approved today.” (Notes Faigman, “It will be the social scientists of 2028 who will tell us whether Justice O’Connor’s prediction has come true.”) The law’s admission of and reliance on science—especially statistics, that most empirical of disciplines—is sometimes a source of conflict. An even greater conflict, Faigman argues, is the failure of the Court to develop a “set or systematic criteria by which to measure constitutional facts”: that is, to develop a science of its own.
A diffusive, but always interesting, exploration of science in the law.