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Edmond, Gary --- "Negotiating the Meaning of a 'Scientific' Experiment During a Murder Trial and Some Limits to Legal Deconstruction for the Public Understanding of Law and Science" [1998] SydLawRw 16; (1998) 20 (3) Sydney Law Review 361



[*] St John’s College, University of Cambridge, e-mail: ge203@cam.ac.uk. I would like to thank Jill Hunter, David Mercer, David Miller and a number of anonymous referees for commenting upon a draft of this paper, and David Fraser for discussing a variety of related issues. I would also like to thank those who participated in the seminar series, School of Science and Technology Studies, University of New South Wales, where a version of this paper was first presented. I should also like to express my appreciation for the assistance and support of Penny Pether, John Schuster, Jack Goldring and the University of Wollongong for contributing funding to the research for this paper; and the Australian National Library for access to their manuscript collection.

[1] Hand, L, “Historical and Practical Considerations Regarding Expert Testimony” (1901) 15 Harv LR 40; Huber, P, Galileo’s Revenge: Junk Science in the Courtroom (1991); Ayala, F and Black, B, “Science in the Courts” (1993) 81 Am Scientist 230; Goldberg, S, Culture Clash: Law and Science in America (1994); Black, B, Ayala, F, and Saffran-Brinks, C, “Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge” (1994) 72 Tex LR 715; Note, “Confronting the New Challenge of Scientific Evidence” (1995) 108 Harv LR 1481; Loevinger, L, “Science as Evidence” (1995) 35 Jurimetrics J 153; Bernstein, D, “Junk Science in the United States and the Commonwealth” (1996) 21 Yale J Int’l L 123; Imwinkelried, E, “The Next Step in Conceptualising the Presentation of Expert Evidence as Education: the Case for Didactic Trial Procedures” (1997) 1 Int’l J Evid and Proof 128. Contrast Edmond, G, and Mercer, D, “Trashing ‘Junk’ Science” (1998) Stanford Technology LR (forthcoming).

[2] Jasanoff, S, Science at the Bar: Law, Science and Technology in America (1995) at 20.

[3] Edmond, G, and Mercer, D, “Manifest Destiny: Law and Science in America” (1996) 10 Metascience 40 at 52. This should be contrasted to an earlier, detailed scholarly study where Jasanoff suggested that regulatory agencies were removing the scientific advice from markedly adversarial/political settings in order to strengthen its legitimacy and prevent scientific evidence and the spirals of deconstruction preventing agencies producing authoritative decisions. See Jasanoff, S, The Fifth Branch: Science Advisers as Policymakers (1990) at 229–50.

[4] For a description of a conventional model of science consider Mulkay, M, Science and the Sociology of Knowledge (1979) or Latour, B, Science in Action: How to Follow Scientists and Engineers Through Society (1987).

[5] A note of caution. In undertaking the following task, I believe the perspectives on science (and law) offered by Jasanoff (and a number of STS commentators) are richer and potentially more fruitful means for considering law-science interactions than the vast majority of relevant contemporary legal scholarship. Rather than accept and focus upon reified and polemical categories such as “junk”, “good” and “bad” science (some examples are provided, above n1), they delve into the processes of construction and the negotiations surrounding these very categories in legal and quasi-legal settings. Such an approach paves the way for a more revealing analysis of scientific and technical evidence and its role and status, in and outside of legal settings.

[6] Collins, H, “The Role of the Core-Set in Modern Science: Social Contingency and Methodological Propriety in Science” (1981) 19 History of Science 6.

[7] For an overview see Appendix. Northern Territory of Australia Coroners Court, No 107 of 1980. In the Matter of – An inquest into the death of missing child Azaria Chantel Loren Chamberlain at Ayers Rock on 17 August 1980. Transcript of Proceedings before the Coroner, Mr D J Barritt SM, Alice Springs on Monday, 15 December 1980 (hereinafter Barritt Inquest); Northern Territory of Australia Coroners Court, No 107 of 1980. In the matter of – An inquest into the death of missing child Azaria Chantel Loren Chamberlain at Ayers Rock on 17 August 1980. Transcript of Proceedings before the Coroner, Mr G Galvin CSM, at Alice Springs on Monday, 14 December 1981 (hereinafter Galvin Inquest); In the Supreme Court of the Northern Territory SCC Nos A/s 19–20 of 1982. Between – The Queen and Alice Lynne Chamberlain, Michael Leigh Chamberlain. Transcript of Proceedings before Acting Chief Justice and a Jury of Twelve at Darwin on Monday, 13 September 1982 (hereinafter Trial); Chamberlain v R [1983] FCA 74; (1983) 72 FLR 1; Chamberlain v R [No 2] (1983–[1984] HCA 7; 1984) 153 CLR 521; Morling, T R, Report of the Commissioner: Royal Commission of Inquiry into Chamberlain Convictions (1987) (hereinafter Morling).

[8] Gilbert, N, and Mulkay, M, Opening Pandora’s Box: A Sociological Analysis of Scientists’ Discourse (1984) at 64. See also Shapin, S, “Pump and Circumstance: Robert Boyle’s Literary Technology” (1984) 14 Social Studies of Science 481 at 484, 508. There appear to be structural similarities between a narrative approach shaped by legal settings and the “social technology” described by Shapin “which laid down the conventions natural philosophers should employ in dealing with each other and considering knowledge-claims” in the context of the seventeenth century Royal Society. Courts, like the Royal Society, are peculiar forms of “public space”.

[9] Goodwin, C, “Professional Vision” (1994) 96 American Anthropologist 606. See also Garfinkel, H, Studies in Ethnomethodology (1967); Sarmas, L, “Storytelling and the Law: A Case Study of Louth v Diprose[1994] MelbULawRw 8; (1994) 19 MULR 701; Abrams, K, “Hearing the Call of Stories” (1991) 79 Calif LR 971; Twining, W, Rethinking Evidence (1990) at 219–261; Dowling, R, “The Morals of the Story: Narrativity and Legal Ethics” (1993) 27 Indiana LR 191; Papke, D (ed), Narrative and the Legal Discourse: A Reader in Storytelling and the Law (1991); Jackson, B, Law, Fact and Narrative Coherence (1988).

[10] Potter, J, Wetherell, M, and Chitty, A, “Quantification Rhetoric: Cancer on Television” (1991) 2 Discourse and Society 333 at 337. See also Law, J, and Williams, R J, “Putting Facts Together: A Study of Scientific Persuasion” (1982) 12 Social Studies of Science 535; Law, J, and Lynch, M, “Lists, Field Guides, and the Descriptive Organisation of Seeing: Birdwatching as an Exemplary Observational Activity” (1988) 11 Human Studies 271 at 291; Woolgar, S, “Discovery: Logic and Sequence in a Scientific Text” in Knorr, K, Krohn R and Whitley, R (eds), The Social Process of Scientific Investigation (1980) 239 at 256–57.

[11] Throughout the course of police inquiries over several years the Chamberlains were interviewed many times. These recorded interviews, in conjunction with several media appearances provided a wealth of material from which the Prosecution could draw to suggest inconsistencies or variations between accounts. See Edmond, G, “Down by Science: Context and Commitment in the Lay Response to Incriminating Scientific Evidence During a Murder Trial” (1998) 7 Public Understanding of Science 83.

[12] Compare Waddell, C, “Reasonableness Versus Rationality in the Construction of Science Policy Decisions: The Case of the Cambridge Experimentation Review Board” (1989) 14 Science, Technol and Human Values 7; Briskman, L, “Rationality, Science and History” in Olby, R, Cantor, G, Christie, J, and Hodge, M (eds), Companion to the History of Modern Science (1990) at 166.

[13] Silverman, D, “Interview Talk: Bringing off a Research Instrument” (1973) 7 Sociology 31 at 44: “... in their accounting activities members concern themselves with displaying what will currently be understood as rational grounds for past actions and as rational explanations of past social scenes; for example, they seek to display their purported ‘sensible’ and ‘reasonable’ character. Furthermore, this sensible character is found in what ‘finally’ is seen to transpire – so that, for all practical purposes, the meaning of the past is found in the present.” See also Butterfield, H, The Whig Interpretation of History (1932) at 9–33; Collingwood, R G, The Idea of History (1946).

[14] Gusfield, J, “The Literary Rhetoric of Science: Comedy and Pathos in Drinking Driver Research” (1976) 41 Am Sociological R 16 at 23–24; Hesse, M, Models and Analogies in Science (1966) at 232. Gusfield and Hesse describe such associations as “metaphors” because as secondary data they extend the meaning of the primary system, here narrative, partly through the use of “conceptual archetypes”. Gusfield suggests that the use of such devices allows the author (here counsel) to produce a morality play.

[15] For a discussion of hermeneutic “prejudices” consider Gadamer, H, Truth and Method (1989) at 269–77. Lawyers (and others) who are generally responsible for structuring such cases or narratives might be understood as “heterogeneous engineers”, see Law, J, “Technology and Heterogeneous Engineering: The Case of Portuguese Expansion”, in Bijker, W, Hughes, T and Pinch, T (eds), The Social Construction of Technological Systems (1987) at 111.

[16] Gilbert and Mulkay, above n8 at 11.

[17] In undertaking their investigation the State decided not to test a number of artefacts for blood where positive results might have been consistent with the Chamberlains’ innocence. See McBarnet, D, Conviction: Law, the State and the Construction of Justice (1983) at 1–11, 79; McConville, M, Sanders, A, and Leng, R, The Case for the Prosecution (1991); Jones, C, Expert Witnesses: Science, Medicine, and the Practice of Law (1994) at 194–223; Smith, R, and Wynne, B (eds), Expert Evidence: Interpreting Science in the Law (1989).

[18] Mercer, D, Understanding Scientific/Technical Controversy (1996).

[19] Gilbert and Mulkay, above n8 at 112–140.

[20] Ravetz, J, Scientific Knowledge and Its Social Problems (1973) at 202–10; Collins, H, “Certainty and the Public Understanding of Science: Science on Television” (1987) 17 Social Studies of Science 689.

[21] Collins, H, and Pinch, T, Frames of Meaning: The Social Construction of Extraordinary Science (1982); Gilbert and Mulkay, above n8.

[22] Collins, H, Changing Order: Replication and Induction in Scientific Practice (1992); Latour, above n4.

[23] Goodrich, P, Reading the Law: A Critical Introduction to Legal Method and Techniques (1986); Kennedy, D, “Freedom and Constraint in Adjudication: A Critical Phenomenology” (1986) 36 J Leg Educ 518; Norris, C, “Law, Deconstruction, and the Resistance to Theory” (1988) 15 J L and Soc 166; Kelman, M, “Trashing” (1984) 36 Stan LR 293; Peller, G, “The Metaphysics of American Law” (1985) 73 Calif LR 1151; Fraser, D, “Truth and Hierarchy: Will the Circle Be Broken?” (1984) 33 Buffalo LR 729; Heller, T, “Structuralism and Critique” (1984) 36 Stan LR 127; Hermann, D, “Phenomenology, Structuralism, Hermeneutics, and Legal Study: Applications of Contemporary Continental Thought to Legal Phenomena” (1982) 36 U Miami LR 379.

[24] Gilbert and Mulkay, above n8 at 139.

[25] Barnes, B, Bloor, D, and Henry, J, Scientific Knowledge: A Sociological Analysis (1996) at 18– 45.

[26] Collins, H, and Pinch, T, The Golem: What Everyone Should Know About Science (1994) at 147. Whilst it might be contended that the zoo experiment was an example of “junk” science, it provides a useful example of how these very categories are negotiated in legal forums. Those who are critical of its reception in the instant case might reflect upon the difficulties courts face when dealing with more complex and controversial forms of evidence.

[27] For the specialities of the scientists and their alignments see Appendix.

[28] Barritt Inquest, above n7 at 471; see also Trial, above

[29] Barritt Inquest, above n7 at 750. See also Kenneth Brown, Report of Examination of Clothing for Toothmarks 5 (20//11/1980): “The dingo was seen to pick up the clothes with the carcass, suspend it in its teeth, carry it effortlessly for several yards before dropping it on the ground, lick the exposed part of the carcass and eventually drag it to the entrance of the lair. The behaviour of the dingo was recorded on videotape under my [Brown] direction. No further observations were made until morning when a search of the enclosure was made for the remains of the carcass and clothing. The singlet, two small fragments of cotton wool from the napkin, and portions of the viscera were located on the ground in separate locations. ... A diagram showing where the garments and remains of the carcass were found is attached”. Where I have quoted sections from the various transcripts, I have used the following conventions. To indicate a dialogue, I have initially provided the names of the participants and thereafter the same sequence is maintained unless otherwise indicated. The lawyers (or judge or coroner) usually ask the questions which are followed by three close dashes (– – –) and the respondent’s answer. Where more than two speakers interact I have retained all their names throughout. In addition, an appendix is supplied to assist with names, qualifications, roles and allegiances.

[30] Trial, above n7 at 798.

[31] Id at 1974.

[32] Gilbert and Mulkay, above n8.

[33] Brown, above n29 at 5.

[34] The matinee jacket which the Chamberlains had stated was worn by Azaria was not found (until some years later) and not included in the experiment. This orientation suggests the investigation might not have been interested in experiments which might have supported the Chamberlain’s version of events, and implicitly their innocence.

[35] See Collins, H, “The Seven Sexes: A Study in the Sociology of a Phenomenon, or the Replication of Experiments in Physics” (1975) 9 Sociology 205; Collins, above n22 at 29–49.

[36] Collins, H, “Public Experiments and Displays of Virtuosity: The Core-Set Revisited” (1988) 18 Social Studies of Science 689.

[37] Fujimura, J, “Crafting Science: Standardized Packages, Boundary Objects, and ‘Translations’”, in Pickering, A (ed), Science as Practice and Culture (1992) at 168; Latour, above n4.

[38] Interests should not be restricted in a narrow sense but extended to include professional development and personal aspirations of scientists, lawyers and judges. See Bourdieu, P, “The Specificity of the Scientific Field and the Social Conditions of the Progress of Reason” (1975) 14 Soc Sci Inform 19. See also Potter, J, Representing Reality: Discourse, Rhetoric and Social Construction (1996) at 42–67; Woolgar, S, “Interests and Explanation in the Social Study of Science” (1981) 11 Social Studies of Science 365.

[39] Barritt Inquest, above n7 at 624.

[40] Id at 781.

[41] Galvin Inquest, above n7 at 350. (italics added)

[42] Galvin Inquest, above n7 at 367. (italics added)

[43] Ibid.

[44] Wynne, B, “Establishing the rules of laws: constructing expert authority” in Smith, R, and Wynne, B (eds), Expert Evidence: Interpreting Science in the Law (1989) at 37.

[45] Collins, above n22. Collins describes the vulnerability of experiment and replication to infinite spirals of deconstruction as “experimenter’s regress”.

[46] Galvin Inquest, above n7 at 345.

[47] Trial, above n7 at 94.

[48] Wittgenstein, L, Philosophical Investigations (1953, reprinted 1992) at 195–205.

[49] Pinch, T, “‘Testing – One, Two, Three ...Testing!’: Toward a Sociology of Testing” (1993) 18 Science, Technology and Human Values 25 at 31, 38. Pinch also suggests that testing allows testers to “project” a future course of action. This projection lies at the heart of forensic science

[50] Lynch, M, and Woolgar, S, “Introduction: Sociological Orientations to Representation Practice in Science” Lynch, M, and Woolgar, S (eds), Representation in Scientific Practice (1990) at 1, 6. Lynch and Woolgar discuss the “crafting of resemblances” which resembles the “crafting of differences”.

[51] Trial, above n7 at 1134.

[52] Trial, above n7 at 1853

[53] Trial, above n7 at 2999.

[54] “Control” was a concept imported from the lengthy discussions on methods of blood testing and was used as a means of discrediting scientists practising in non-biological domains. The use of controls in textile tests, whether appropriate or inappropriate provides some insight into the pliability of scientific standards and practices at the hands of scientists and lawyers in legal settings.

[55] Barritt Inquest, above n7 at 801: “Rice: Just as in the case of the clothing found at Ayers Rock, the two upper press studs of the experimental garment were undone? --- Brown: Yes.”

[56] Galvin Inquest, above n7 at 345–46; see also Kirkham, Trial, above n7 at 844.

[57] Trial, above n7 at 2980: “He [Brown] told us some interesting evidence about the zoo experiment because we found out from his evidence about that, that a dingo could take out the baby goat from the suit while only undoing the 2 top buttons ...”

[58] Galvin Inquest, above n7 at 396. (Italics added)

[59] Potter, above n38.

[60] Id at 112; Woolgar, S, “Irony in the Social Study of Science” in Knorr Cetina, K, and Mulkay, M (eds), Science Observed: Perspectives on the Social Study of Science (1983) at 239.

[61] The terms contest, attack, differentiate, distinguish, undermine, and capture some element(s) of deconstruction. But deconstruction stands for something more in the sociological literature. It implies some reflexive or sociological awareness which is not an obvious feature of the apparent deconstruction in legal settings. For a discussion of reflexivity see Bloor, D, Knowledge and Social Imagery (1991) at 3–23; Woolgar, S (ed), Knowledge and Reflexivity: New Frontiers in the Sociology of Knowledge (1988); Woolgar, S, Science: The Very Idea (1988); Ashmore, M, The Reflexive Thesis: Wrighting Sociology of Scientific Knowledge (1989); Collins, above n22 at 16. Deconstruction, or more precisely the extent of deconstruction, is partly in the eye of the beholder. The participants, especially the repeat participants such as lawyers (although this may be a function of their instrumental role), judges and some scientists offer almost no evidence of gaining constructivist insights to scientific knowledge except at the particular level, and there is rarely any evidence that this perspective might be applied equally to both sides (symmetry) or to science more broadly. Indeed some of the attacks on scientific evidence are predicated on a positivist model of science and the existence of norms and methods which might be characteristics of such a conventional approach. Such perspectives are often oblivious to, or dismissive of, constructivist approaches. See Fuchs S, and Ward, S, “What is Deconstruction, and Where and When Does it Take Place? Making Facts in Science, Building Cases in Law” (1994) 59 Am Sociol R 481; Edmond, G, and Mercer, D, “Keeping ‘Junk’ History, Philosophy and Sociology of Science out of the Courtroom: Problems with the Reception of Daubert v Merrell Dow Pharmaceuticals, Inc.” [1997] UNSWLawJl 13; (1997) 20 UNSW LJ 48.

[62] Above n44 at 32, 35–36, 49.

[63] Smith, R, “The Trials of Forensic Science” (1988) 4 Science as Culture 71 at 80, 92–93.

[64] Yearley, S, “Bog Standards: Science and Conservation at a Public Inquiry” (1989) 19 Social Studies of Science 421 at 432. Interestingly Yearley frames his discussion (422) as one on the public understanding of science, describing the performance of scientific witnesses as: “an opportunity for the analysis of a ‘naturally occurring’ exercise in the public understanding of science.” He does caution his reader that: “the legal context should not be taken as a representative instance of public understanding”. Yearley, S, “Nature’s Advocates: putting science to work in environmental organisations” Irwin, A, and Wynne, B (eds), Misunderstanding Science: The Public Reconstruction of Science and Technology (1996) 172 at 185–86.

[65] Above n26 at 147–48.

[66] Jasanoff, above n2 at 12–14; Jasanoff, S, “The Problem of Rationality in American health and safety regulation” in Smith, R, and Wynne, B (eds), Expert Evidence: Interpreting Science in the Law (1989) at 151, 153, 156, 165–167, 182; Jasanoff, S, “Contested Boundaries in Policy- Relevant Science” (1987) 17 Social Studies of Science 195 at 197, 204, 205, 225; Jasanoff, S, “Beyond Epistemology: Relativism and Engagement in the Politics of Science” (1996) 26 Social Studies of Science 393 at 394, 399, 400; Jasanoff, above n3 at 20, 53.

[67] Jasanoff, S, “What Judges Should Know About the Sociology of Science” (1992) 32 Jurimetrics Journal 345 at 348; Jasanoff, S, “What Judges Should Know About the Sociology of Science” (1993) 77 Judicature 77 at 78. See also Wynne, above n44 at 34.

[68] Edmond and Mercer, above n3 at 52; Jasanoff, above n2 at 210–226.

[69] Bennett, L and Feldman, M, Reconstructing Reality in the Courtroom (1981); Wagenaar, W, van Koppen, P, and Crombag, H, Anchored Narratives: The Psychology of Criminal Evidence (1993).

[70] For an examination of changes in evidence across time in mass tort actions consider Edmond, G, and Mercer, D, “The Secret Life of (Mass) Torts: The Bendectin Litigation and the Construction of Law-Science Knowledges” [1997] UNSWLawJl 47; (1997) 20 UNSW LJ 666; Sanders, J, “The Bendectin Litigation: A Case Study in the Life Cycles of Mass Torts” (1992) 43 Hast LJ 301.

[71] Twining, W, Rethinking Evidence (1990); Allen, R, “The Nature of Juridical Proof” (1991) 13 Cardozo LR 373.

[72] Tibbets, P, “Representation and the Realist-Constructivist Controversy” in Lynch, M, and Woolgar, S (eds), Representation in Scientific Practice (1990) 69 at 77. The notion of complex interactive networks drawn from the study of technology might prove useful here. Consider Law, J (ed), Power, Action and Belief: A new sociology of knowledge? (1986); Bijker et al, above n15.

[73] Particular dispositions to the meta-narratives (or cases) would seem to filter the interpretation and understanding of “evidence”. This is not to suggest that some central pieces of “evidence” are unable to influence the credibility of entire meta-narratives. “Evidence” and “narrative” are mutually constituting.

[74] Gieryn, T, “Boundary-Work and the Demarcation of Science from Non-Science: Strains and Interests in Professional Ideologies of Scientists” (1983) 48 American Sociological Review 781; Gieryn, T, “Boundaries of Science” in Jasanoff, S, Markle, G, Petersen J, and Pinch, T (eds), Handbook of Science and Technology Studies (1995) at 393.

[75] Jasanoff, S, “Judicial Construction of New Scientific Evidence” in Durbin (ed), Critical Perspectives on Nonacademic Science and Engineering (1991) at 215; Solomon, S, and Hackett, E J, “Setting Boundaries between Science and Law: Lessons from Daubert v Merrell Dow Pharmaceuticals Inc” (1996) 21 Science, Technology and Human Values 131.

[76] Collins, H, and Pinch, T, “The Construction of the Paranormal: Nothing Unscientific is Happening” in Wallis, R (ed), On the Margins of Science: The Social Construction of Rejected Knowledge (1979) at 237; Pinch, T, and Collins, H, “Private Science and Public Knowledge: The Committee for the Scientific Investigation of the Claims of the Paranormal and its Use of the Literature” (1984) 14 Social Studies of Science 521.

[77] Mulkay, M, and Gilbert, N, “Accounting for Error: How Scientists Construct Their Social World When they Account for Correct and Incorrect Belief” (1982) 16 Sociology 165.

[78] Gieryn, above n74; Gilbert, N, and Mulkay, M, “Warranting Scientific Belief” (1982) 12 Social Studies of Science 383; Gilbert and Mulkay, above n8 at 55–89; Mulkay, M, Potter, J, and Yearley, S, “Why an Analysis of Scientific Discourse is Needed” in Knorr Cetina, K, and Mulkay, M (eds), Science Observed: Perspectives on the Social Study of Science (1983) at 171, 183–93; Collins and Pinch, above n76; Collins, H, and Pinch, T, Frames of Meaning: The Social Construction of Extraordinary Science (1982).

[79] Gieryn, above n74 at 792.

[80] Ibid.

[81] Wynne, above n44 at 26.

[82] A similar consideration has developed in a some mass tort litigation surrounding the appropriateness, sufficiency and admissibility of non-epidemiological scientific evidence. See Edmond and Mercer, above n61.

[83] Barritt Inquest, above n7 at 735. (italics added)

[84] Galvin Inquest, above n7 at 345.

[85] Durant, J, Evans, G, and Thomas, G, “Public Understanding of Science in Britain: the role of medicine in the popular representation of science” (1992) 1 Public Understanding of Science 161.

[86] Galvin Inquest, above n7 at 367–68, see also at 362.

[87] Pinch, T, “The Sun-Set: The Presentation of Certainty in Scientific Life” (1981) 11 Social Studies of Science 131, 135; Pinch, T, Confronting Nature: The Sociology of Solar Neutrino Detection (1986). Pinch raises similar concerns in a discussion of solar neutrino science.

[88] Gieryn, above n74 at 792.

[89] Yearley, above n64 at 428; Barnes, B, and Edge, D (eds), Science in Context: Readings in the Sociology of Science (1982) at 233–34.

[90] Aronson, M, and Hunter, J, Litigation: Evidence and Procedure 1118–1123 (1998, 6th edn); Edmond, above n19.

[91] Barritt Inquest, above n7 at 814–16.

[92] Mulkay, M, “Interpretation and the Use of Rules: The Case of the Norms of Science” in Gieryn, T (ed), Science and Social Structure: A Festschrift for Robert K. Merton (1980) 111; Mitroff, I, The Subjective Side of Science (1974); Jones, above n17 at 270; Jasanoff, above n2 at 5, 131; Wynne, above n87 at 30; Yearley, above n64 at 435, 437; Pinch, above n87 at 151.

[93] Barritt Inquest, above n7 at 814–16.

[94] Id at 957.

[95] For some examples see Oteri, J S, Weinberg, M G, and Pinales, M S, “Cross-examination of Chemists in Drug Cases” in Barnes, B, and Edge, D (eds), Science in Context: Readings in the Sociology of Science (1982) at 250.

[96] Gusfield, above n14; See also Woolgar, above n10.

[97] This is a common feature of scientific and technical controversy, especially in public settings, see Dear, P, “Totius in verba: Rhetoric and Authority in the Early Royal Society” (1985) 76 ISIS 145, 148–49, 161.

[98] Barritt Inquest, above n7 at 778. See especially Galvin Inquest, above at 345–46, 349.

[99] Campbell, B, “Uncertainty as Symbolic Action in Disputes Among Experts” (1985) 15 Social Studies of Science 429.

[100] Mulkay, above n4 at 63–73. Compare Merton, R, The Sociology of Science: Theoretical and Empirical Investigations (1973).

[101] Edmond and Mercer, above n61.

[102] Barritt Inquest, above n7 at 690. (italics added)

[103] Barritt Inquest, above n7 at 907.

[104] Trial, above n7 at 2980.

[105] Trial, above n7 at 3144/3145. (italics added)

[106] Starr, S, “Simplification in Scientific Work: An example from neuroscience research” (1983) 13 Social Studies of Science 205; Shinn, T and Whitley, R (eds), Expository Science: Forms and Functions of Popularisation (1985); Hilgartner, S, “The dominant view of popularisation: Conceptual problems, political uses” (1990) 20 Social Studies of Science 519.

[107] Barritt Inquest, above n7 at 958. See Galvin Inquest, above 347–348. Consider also, Trial, above n7 at 3166: “If you’ve got to go on confirming each test, you’d go round in a circle ...”

[108] Morling, above n7 at 210. (italics added)

[109] Latour, B, and Woolgar, S, Laboratory Life: The Social Construction of Scientific Facts (1986).

[110] Jasanoff, above n2 at 215.

[111] Ibid.

[112] Ibid. (italics added)

[113] Ibid.

[114] Id at 216.

[115] Id at 211.

[116] Michael, M, “Lay Discourses of Science: Science-in-General, Science-in-Particular, and self” (1992) 17 Science, Technology and Human Values 313; See also Collins, above n20 at 693; Yearley, above n64 at 436.

[117] Jasanoff, above n2 at 53. See also Wynne, above n44 at 33: “The formal legal process can be described as institutional pure mistrust.”

[118] Edmond, G, “Beyond Good and Evil: Idealised Images of Science in the Law” (1997) 9 Judicial Officer’s Bulletin 59.

[119] Compare Wynne, B, “Knowledges in Context” (1991) 19 Science, Technology and Human Values 110; Irwin, A, Citizen Science: A Study of People, Expertise and Sustainable Development (1995).

[120] The notion of deconstruction used to promote an image of civic education, if used prescriptively, would discount some of the developments in recent public understanding of science (PUS) literature. See the journal Public Understanding of Science. One of the central re-emerging themes is that the public are “not imprisoned by the experts’ control of the technical dimension.” Indeed, part of that awareness might well be that the process of deconstruction occurring in the courtroom is institutional and motivated. Wynne, B, “Public uptake of science: a case for institutional reflexivity” (1993) 2 Public Understanding of Science 321 at 333.

[121] Jasanoff, above n2 at 215.

[122] Huber, above n1; Bernstein, above Explosion: What Happened When America Unleashed the Lawsuit (1991); Foster, K, and Huber, P, Judging Science: Scientific Knowledge and the Federal Courts (1997). Compare Edmond and Mercer, above n1.

[123] Huber, above n1; Odgers, S J, and Richardson, J T, “Keeping Bad Science Out of the Courtroom — Changes in American and Australian Expert Evidence Law” [1995] UNSWLawJl 6; (1995) 18 UNSW LJ 108 at 129; Giannelli, P, “Daubert: Interpreting the Federal Rules of Evidence” (1994) 15 Cardozo LR 1999 at 2021 (1994); Faigman, D, Porter, E, and Saks, M, “Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence” (1994) 15 Cardozo LR 1799 at 1811; Hutchinson, C, and Ashby, D, “Daubert v Merrell Dow Pharmaceuticals, Inc: Redefining the Bases for Admissibility of Expert Scientific Testimony” (1994) 15 Cardozo LR 1875 at 1886; Loevinger, above n1 at 173, 174, 179, 189; Chesebro, K, “Galileo’s Retort: Peter Huber’s Junk Scholarship” (1993) 42 Am U LR 1637.

[124] Gilbert and Mulkay, above n8; Examples drawn from the Bendectin litigation include: Lasagna, L, and Shulman, S, “Bendectin and the Language of Causation” in Foster, K, Bernstein, D, and Huber, P (eds), Phantom Risk: Scientific Inference and the Law (1993); Sanders, J, “From Science to Evidence: The Testimony on Causation in the Bendectin Cases” (1993) 46 Stan LR 1; Sanders, J, “Scientific Validity, Admissibility, and Mass Torts After Daubert” (1994) 78 Minnesota LR 1387; Green, M D, “Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation” (1992) 86 Northwestern ULR 643.

[125] Huber, above n1 at 3: “Junk science is impelled through our courts by a mix of opportunity and incentive. “Let-it-all-in” legal theory creates the opportunity. The incentive is money: the prospect that the Midas-like touch of a credulous jury will now and again transform scientific dust into gold. Ironically, the law’s tolerance for pseudoscientific speculation has been rationalized in the name of science itself. The open-minded traditions of science demand that every claim be taken seriously, or at least that’s what many judges have reasoned.”

[126] Huber, above n1 at 2–3: “Junk science is the mirror image of real science, with much of the same form but none of the same substance. There is the astronomer, on one hand, and the astrologist, on the other. The chemist is paired with the alchemist, the pharmacologist with the homoeopathist. ... Further out on the surgical fringe are outright charlatans, well documented in the credulous pulp press, who claim to operate with rusty knives but no anaesthesia, who prey on cancer patients so desperate they will believe a palmed chicken liver is really a human tumor.”

[127] Ibid; Faigman, D, “Mapping the Labyrinth of Scientific Evidence” (1995) 46 Hastings LJ 555.

[128] Consider Daubert v Merrell Dow Pharmaceuticals, Inc, [1995] USCA9 8; 43 F.3d 1311 (9th Cir 1995).

[129] Weinberg, A M, “Science and Trans-Science” (1972) 10 Minerva 209 at 216.

[130] Wagner, W E, “Trans-Science in Torts” (1986) 96 Yale LJ 428 at 448-49; Wagner, W E, “The Science Charade in Toxic Risk Regulation” (1995) 95 Columbia LR 1613 at 1617, 1718-19.

[131] See also Jasanoff, above n66 at 200-09.

[132] Michael, above n116.

[133] Edmond and Mercer, above n3; Edmond, G and Mercer, D, “Representing the Sociology of Scientific Knowledge and Law” (1998) 19 Science Communication at 307–27.

[134] Bloor, above n61 at 3–23; Collins, above n22 at 25–26; Mulkay, above n4 at 27–62; Knorr Cetina and Mulkay, above n60.

[135] Wynne, above n44 at 47; See also Yearley, above n64 at 427.

[136] Edmond and Mercer, above n3; Wynne, B, “Public Understanding of Science” in Jasanoff, S, Markle, G, Petersen J, and Pinch, T (eds), Handbook of Science and Technology Studies (1995); Wynne, B, “Misunderstood Understandings: Social Identities and Public Uptake of Science” in Irwin, A, and Wynne, B (eds), Misunderstanding Science: The Public Reconstruction of Science and Technology (1996) at 19; Irwin, A, Dale, A, and Smith, D, “Science and Hell’s Kitchen: The Local Understanding of Hazard Issues” in Irwin, A, and Wynne, B (eds), Misunderstanding Science: The Public Reconstruction of Science and Technology (1996) at 47.

[137] Pharmaceutical producing corporations are often able to frame their regulatory testing and reporting in ways that anticipate and respond to potential future litigation. The practice of designing or developing studies in anticipation of litigation is a means of advantageous framing designed to limit criticism and assist acceptance of “evidence”. See Abraham, J, “Scientific Standards and Institutional Interests: Carcinogenic Risk Assessment of Benoxaprofen in the UK and US” (1993) 23 Social Studies of Science 387; Abraham, J, “Distributing the Benefit of the Doubt: Scientists, Regulators, and Drug Safety” (1994) 19 Science, Technology and Human Values 493.

[138] Edmond and Mercer, above n1.

[139] Wynne, B, Rationality and Ritual: The Windscale Inquiry and Nuclear Decisions in Britain (1982) at 120–37. Tibbets makes the point, that no sharp distinction can be drawn between the context of discovery and the context of justification. Whilst this is made in reference to science it could extend to the use and adaptation of scientific knowledge in legal adjudication. Tibbets, above n72 at 76.

[140] Wynne, above n44 at 37. Unlike Jasanoff who suggests reconstruction is public and educative – if not participatory – Wynne describes ultimate judicial reconstruction as largely a private affair achieved through infusing the “intellectual debris” from the trial with such considerations as social values, legal principles and evidence.

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