Sociotechnical Arguments in Scientific Discourse: Expert Depositions in Tobacco Litigation

I. INTRODUCTION The analysis of the argumentation and rhetoric of scientists during the [Hybritech Inc. v. Monoclonal Antibodies, Inc.] patent trial is more than a discussion of literary devices .... The problems raised during the proceedings and the solutions proposed by expert witnesses were grounded in a seamless web of philosophical, economic, and social distinctions .... [E]xpert witnesses used tools that do not differ, in principle, from tools by philosophers, economists, and sociologists when constructing representations of society.1 Nearly fifteen years ago, three Canadian scholars published a unique study of scientific expertise in a United States courtroom.2 Drawing upon recent work in the sociology of science, the authors demonstrated that one might expect 'technical' arguments to play a central role in patent litigation proceedings, 'social,' 'historical,' 'economic,' or 'philosophical' arguments are coextensive with and constitutive of the 'technical.'3 That is, the interaction between legal and scientific categories should not be viewed as a clash between 'hard scientific facts' and legal conventions or representations, but as a back and forth movement between different kinds of representation.4 More specifically, we should not simply assume that scientists operate within a naturalistic framework that is sometimes translated into an obviously social context-the courtroom, doctrinal categories, or legal discourse. Rather, the discourse of scientists, whether in a laboratory or in a deposition, alternatively includes both naturalistic and social frameworks of explanation. Social, economic, historical, and philosophical arguments, in addition to technical arguments, are often mobilized for rhetorical advantages in scientific disputeseven those disputes that are internal to science and have nothing to do with litigation. This challenges the presumption that law is clearly distinguishable from science insofar as the former is a social and rhetorical enterprise, while the latter is grounded in natural phenomena, not in culture or language. Judging from the number of citations in legal literature to the Cambrosio article, it appears to have had very little impact in law and science studies. A search of the Westlaw legal periodicals database turned up only one reference to the article as an important example of disclosing the hybrid nature of law and science. The citation is followed by a sympathetic observation: Such hybrids often experience difficulty locating and legitimating their knowledge claims in terms of the traditional professional rhetorics of law and science.5 Moreover, in a recent article criticizing the failure of U.S. courts to engage with or even accommodate the history, philosophy, and sociology of science, the authors note that the work of the lead author of the Canadian study, Alberto Cambrosio, is absent from federal-court opinions regarding scientific admissibility.6 Of course, scholarship in the history, philosophy, and sociology of science can easily be conceived as a critique of naive or popular notions of scientific progress, objectivity, or rationality.7 It is perhaps understandable that law-a clearly rhetorical, contested, and interpretive enterprise that seeks stability from science-would idealize science rather than welcome a destabilizing catalogue of its limitations. Representations of science in terms of its historical context, its theoretical commitments to temporary paradigms, or its social supports such as institutions, funding, linguistic conventions, and consensus-building techniques do not seem to provide strong support for our reliance on scientific expertise. Notably, the Cambrosio study was published in Social Problems, not a traditional law review but an interdisciplinary journal. Thus, it is no surprise that the Cambrosio study of scientific expertise in law did not revolutionize the post-Daubert world of evidentiary standards for admissibility of scientific testimony. …

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