Legal Alchemy: The Use and Misuse of Science in the Law, by David. L. Faigman

Reviewed by Brian Huddleston

With rapid technological progress throughout the twentieth century, law has become more and more entwined with science. Attorneys, judges, and legislators all regularly face legal issues dealing with science. In Legal Alchemy, David L. Faigman demonstrates that understanding the science involved in these issues is often beyond the ability of those faced with the task.

This book, suitable for both the non-specialist without formal training in either law or science as well as attorneys and other legal professionals, is an interesting and quite readable survey of the problems that exist at the intersection of science and law. Faigman, a law professor at the University of California, Hastings College, begins with a history of science in the courtroom. From handwriting "experts" in a notorious turn of the century trial through the silicone breast implant litigation still pending today, he shows how questionable scientific methods and evidence find their way into the courtroom.

The use of science in the legislative and regulatory processes have a greater social impact than any one case, but can be equally problematic. Like judges and attorneys, few member of Congress have a solid background in science. One of the best chapters covers the interplay between Congress, the FDA, and the public over the Saccharin scare in the late seventies. Interestingly enough, the National Institute of Health recently declared there was "no clear association" between saccharin and cancer. But in the late seventies, the FDA was required by law to ban Saccharin based on questionable evidence. The relevant statute did not allow the FDA to consider the possible costs that might outweigh any benefits that would occur from the ban. It was only through a public outcry about the negative impact a ban on Saccharin - then the only available artificial sweetener - would have for diabetics and overweight individuals, that Congress intervened with a compromise that required all products containing saccharin to have a warning label.

The key conflict, which Faigmen returns to repeatedly in the different examples, is that science values progress and change, while law values precedent and stability: the resulting fit between the two is often like the proverbial square peg and round hole. This book is mostly documentary in nature, and the proposed solutions are given short shrift. Yes, giving law students some basic science instruction would be nice, but this would be a hard sell at law schools with very full, very student-driven curricula. And as Faigmen notes, science is already becoming an increasingly common subject of CLE seminars and topics and at judicial retreats and colleges.

The issue of science in the law is only growing in importance. One subject not covered by Faigman is how the quick development of computer and network technology applications outpace the ability of the law to deal with related new legal questions as they arise. This short monograph, while not a practice guide or definitive work, is a good introduction to the policy issues that result when science and the law conjoin. It would make a good addition to any academic law library, and interesting reading for any legal professional concerned with these issues.

© 2001 Brian Huddleston