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The , 36 J. Legal Educ. 371 (1986)

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 The Central Dogmas of Law and
Science
Steven Goldberg

I. Introduction
The topic law and science is becoming an established feature of the Amer-
ican law school curriculum. Courses are offered,1 textbooks are written, 2 and
law review articles are published.3 Law .and science is a subject that, like
corporations, takes an institution-science-and examines how various
legal doctrines apply to that institution. But what distinctive features of
science justify the attention of law schools and attorneys? Why, for example,
do we have law and science courses, but no courses on law and the screw-
driver industry? Presumably the screwdriver industry is not sufficiently
different from other sectors of the economy to justify specialized treatment. Is
science any different?
To teach law and science is to believe that something distinctive about
science is important to the legal system. Thus a catalogue of what is distinc-
tive becomes a list of the central dogmas of law and science. If such a cata-
logue cannot be created, law and science as such should not be studied.
Science, like the screwdriver industry, should simply be mentioned as an
occasional example in courses such as contracts, torts, and administrative
law.
A list of the central dogmas of law and science is not identical to a list of
the central features of science for other purposes. Science as an institution or

Steven Goldberg is Associate Professor of Law, Georgetown University Law Center. The author
would like to thank Jerome Holmes for his able research assistance.
1. The 1985-86 Directory of Law Teachers lists 69 courses and seminars currently being offered
in law and science. Association of American Law Schools, Directory of Law Teachers
1985-86, at 924 (St. Paul, Minn., 1985).
2. I am a coauthor of one of the most recent. See Judith Areen, Patricia A. King, Steven
Goldberg & Alexander M. Capron, Law, Science, and Medicine (Mineola, N.Y., 1984). See
also Michael H. Shapiro & Roy Spece, Jr., Bioethics and Law (St. Paul, Minn., 1981);
Laurence H. Tribe, Channeling Technology through Law (Chicago, 1973). For an early
contribution in a specialized area, see Edwin B. Stason, Samuel D. Estep & William J.
Pierce, Atoms and the Law (Buffalo, N.Y., 1959). Moreover, there are now books devoted
entirely to single issues in law and science. See, e.g., Ira H. Carmen, Cloning and the
Constitution: An Inquiry into Governmental Policymaking and Genetic Experimentation
(Madison, Wisc., 1985).
3. The 1984-85 Index to Legal Periodicals lists twenty articles under the cross-referenced
headings science and genetic engineering. Steven Rosen, ed., Index to Legal Periodicals,
September 1984-August 1985, at 202, 418 (New York, 1985). Entire symposia have been
devoted to topics in law and science. See, e.g., Overview: Regulating Biotechnology, 3 Yale
L. & Pol. Rev. 309 (1985).
0 1986 by the Association of American Law Schools. Cite as 36 J. Legal Educ. 371 (1986).
 Journalof Legal Education

as an activity may have characteristics that are important to sociologists or

artisits but peripheral to the legal system. The fact, for example, that scient-
ists may often be motivated to find the most beautiful theory has little impact
on legal concerns. 4 Thus if there are central dogmas of law and science, we
would expect to see them overlap but not reproduce other studies of the
scientific endeavor. In particular, although my debt to Robert K. Merton's
seminal work is clear, the features of the scientific endeavor that he identified
in his gociological approach are different from those I identify here. 5
I believe there is a workable list of four features that constitute the central
dogmas of law and science. Taken together, they define those aspects of
science of interest to lawyers. The features, described below, can be summar-
ized under the headings Community, Progress, Empiricism, and Ex-
ternalities.
Before turning to the central dogmas, however, I will try (and inevitably
fail) to define law and science. "Law" as used here focuses on public
ordering of private institutions. Accordingly, financial support for research
as well as the regulation of that research comes under the heading of law.
"Science" as used here refers principally to the pursuit of testable knowledge
about the natural world. I emphasize science rather than technology-the
practical application of scientific knowledge-although, of course, there is
no bright line between the two.
II. The Dogmas

A. Community
There is in modern America a scientific community capable of forming a
consensus on technical scientific issues. There is therefore something that
can usefully be thought of as scientific expertise.
Science as a self-governing republic is a familiar image.6 Scientists, not
governments or voters, decide what is good science and what is bad. In the
United States today entrance into the scientific community depends on
rigorous professional training, while high standing in that community is
evidenced by membership in groups such as the National Academy of
Sciences and the science faculties at major universities. The scientific
community is not equally united on all issues. There are cutting-edge issues'
on which scientists are deeply divided or at least concede that science has not
as yet reached a clear conclusion. In other areas, however, scientists are, if not

4. Aesthetics and science is the subject of Judith Wechsler, On Aesthetics in Science

(Cambridge, Mass., 1978). For regulatory purposes, it rarely matters whether scientists are
seeking aesthetically pleasing theories. As an aside, it is worth noting that lawyers may
sometimes be motivated by that particular goal. See, e.g., Areen, supra note 2, at 19798.
5. According to Merton, "[flour sets of institutional imperatives-universalism, communism,
disinterestedness, organized scepticism-comprise the ethos of modern science." Robert K.
Merton, Social Theory and Social Structure 607 (New York, 1968). Merton's thesis has been
much discussed and criticized. See Michael J. Mulkay, Science and the Sociology of Knowl-
edge 22-26 (London, 1979).
6. See, e.g., Michael Polanyi, Science, Faith, and Society 36-42 (London, 1946).
 Law and Science

unanimous, then nearly so. The scientific community retains its internal
authority by agreeing that if an individual disagrees on too many of these
basic points he or she is expelled from the community. It is barely possible to
be a member in good standing of the American scientific community today if
you disbelieve in evolution or believe in laetrile. It is impossible to be a
7
member if you hold both views.
The existence of a scientific community does not, of course, mean that the
community's central beliefs are true. Those beliefs could be false from the
viewpoint of theologians, poets, or philosophers; indeed, they could be false
even from the viewpoint of scientific communities in other places or at other
times. Nonetheless, the existence of a scientific community at this moment
in history in our society entails certain consequences. In particular, it means
that we must contend with scientific expertise.
Scientific expertise stems from the fact that the technical views of the
scientific community are not only unreviewable by popular vote, they are
inaccessible to most laypeople, absent major efforts at self-education. Scient-
ists' specialized training and technical vocabulary assure that, in many cases,
it is rational for non-scientists to rely on the views of the scientific
community in forming scientific judgments. Of course, it is then just a short
step to relying on the views of the scientific community on certain issues in
public policy disputes, since so many of those disputes involve technical
issues. For example, whether the government should fund research
involving recombinant DNA turns in part on whether such research is scien-
tifically likely to produce certain outcomes-an issue on which the views of
the scientific community are relevant. And now we are in the midst of a
classic set of law and science issues. What is the proper role of scientific
expertise in public policy disputes? How can that expertise be confined to
that role? Are the views of the scientific community emphasized too much or
too little in policy debate today? The law and science literature, quite prop-
erly, works through a variety of permutations on these matters. Some argue
that separating out scientific issues for resolution by the scientific
community is unworkable and gives undue weight to the views of an
unelected elite.8 Others contend that scientific issues can and should be
separated out and that new institutions such as science courts or consensus
conferences are needed for that purpose.9

7. An attack on creationism from the viewpoint of the scientific community is contained in

National Academy of Sciences, Science and Creationism (Washington, D.C., 1984). Some of
the science community's criticism of the alleged effectiveness of laetrile is summarized in
United States v. Rutherford, 442 U.S. 544, 557, n. 15.
8. See, e.g., Joel Yellin, Science, Technology, and Administrative Government: Institutional
Desiqns for Environmental Decisionmakinq, 92 Yale L.J. 1300, 1305-16 (1983); Barry M.
Casper, Is the Proposed Science Court What We Need? 194 Science 29 (1976).
9. See, e.g., Arthur Kantrowitz, Controlling Technology Democratically, 63 Am. Scientist 505
(1975); Milton R. Wessel, Science and Conscience (New York, 1980). For a critique of the
entire "separatism" debate, see Stephen L. Carter, Separatism and Skepticism, 92 Yale L.J.
1334 (1983).
 Journalof Legal Education

The central role that the existence of a scientific community has played in
the evolution of these law and science controversies is perhaps best illus-
trated by contrast. Consider, for example, an area in which no comparable
community exists: literature. It is impossible to speak of the role of literary
values in American public debate, or of literary expertise informing public
choices, because America today has no coherent literary community. Thus
we have no continuing debate as to whether literary expertise is being
confined to its proper role even for issues, such as the quality of life, to which
literary perspectives would be relevant.
This fundamental difference between the roles of science and literature in
American life has been obscured by the lingering influence of the "two
cultures" idea, popularized about thirty years ago by C. P. Snow.' 0
According to Snow, two ways of thought-scientific and literary-compete
for authority in modern life. Snow argued that scientists and humanists
should each learn more about the other's world view."
From the first, the two cultures idea was articulated in a distinctly British,
as opposed to American, accent. Matthew Arnold first composed "Literature
and Science" as the Rede Lecture at Cambridge in 1882.12 In 1883, when he
delivered this lecture in America, his defense of education in the humanities
was, as Lionel Trilling has pointed out, a warning against what "would
seem to be the natural tendency of an industrial democracy [America] to
devalue the old 'aristocratic' education in favor of studies that are merely
practical."1 3 By 1959, when Snow delivered "The Two Cultures and the
Scientific Revolution" as the Rede Lecture at Cambridge, he did describe
America as well as Great Britain as suffering from a "gulf of mutual incom-
prehension" between scientists and humanists.1 4 But just four years later, in
his essay "Second Look," Snow noted that in America the gulf was nowhere
near as wide as in Great Britain:
In the United States, for example, the divide is nothing like so unbridgeable. There are
pockets of the literary culture, influenced by the similar culture in England, which are as
extreme in resisting communication and in ceasing to communicate: but that isn't gener-
1
ally true over the literary culture as a whole, much less over the entire intellectual society.'

But even to talk about "the literary culture as a whole" in America today is
to take a leap of faith. Whether the cause lies with the mass media, the nature
of American universities, or elsewhere, the American literary intelligentsia is

10. C. P. Snow, The Two Cultures and the Scientific Revolution (New York, 1959). Snow's
book caused considerable discussion and debate. For a representative collection of articles,
see David K. Cornelius and Edwin St. Vincent, Cultures in Conflict: Perspectives on the
Snow-Leavis Controversy (Chicago, 1964). For a more recent contribution to the debate, see
Richard Olson, Science Deified and Science Defied 1-7 (Berkeley, 1982).
11. C. P. Snow, The Two Cultures and the Scientific Revolution 17 (New York, 1959).
12. See Lionel Trilling, Beyond Culture: Essays on Literature and Learning 145-46 (New York,
1965).
13. Id. at 145.
14. Snow, supra note 11, at 4.
15. C. P. Snow, The Two Cultures and A Second Look 69 (New York, 1964).
 Law and Science

fragmented and unable to make a coherent contribution to debate on public

issues.' 6 One key factor may well be the very interchange between science and
literature that Snow called for. Beginning in the 1930s and especially in
recent years, literary intellectuals have read and talked a great deal about the
philosophical issues raised by modern physics.17 Relativity and the probab-
listic nature of quantum physics have given rise to considerable musing
about cause, effect, and reality. Scientists, while of course aware of the philo-
sophical issues, have plowed on with their work, explaining ever more of the
world in terms of their empirical approach. Many literary intellectuals,
however, have been happy to leave the field of reality, saying that literature
and science are both fundamentally fictitious ways of describing the
universe. This attitude has had a substantial impact on education and
consequently on the transmission of literary values. As Gerald Graff has
written, "[s]tudents are quick to perceive that their [literature] teachers no
8
longer hold the naive view that literature can explain anything."'
Whatever the reasons, the absence of a literary community highlights the
importance of the presence of an influential scientific community. Scientific
expertise can be praised or condemned, but it cannot be ignored.
B. Progress
Science is a progressive enterprise in the sense that a modern researcher
stands on the shoulders of his or her predecessors. As a result, within the
scientific community priority is a major source of prestige.' Moving science
forward, whether by filling in a tiny gap or revolutionizing an entire field, is
a goal of every scientist.' 9
The scientific view is sufficiently engrained in American society today that
research goes forward, day in and day out, with surprisingly little public

16. For an argument that America has never had the sort of influential literary elite that marked
old-world culture, see Don Pember, Mass Media in America 39-43 (Chicago, 1974).
17. On the "vogue of indeterminism" that grew up in the 1930s, see Merle E. Curti, The
Growth of American Thought 702-09 (New Brunswick, N.J., 1982).
18. Gerald Graff, Literature against Itself: Literary Ideas in Modern Society, 715 (Chicago,
1979). A related but different explanation of why literary values do not today counterbalance
scientific values is offered by Gertrude Himmelfarb, Marriage and Morals among the Victo-
rians 92 (New York, 1986). Himmelfarb argues that humanists have "chosen to capitulate"
to science, and thus we have seen "the attempt of political philosophy to transform itself
into political science, history into social science, literary criticism into semiotics, and most
recently, theology into semantics." Id.
19. The phrase, "If I have seen farther, it is by standing on the shoulders of giants," is generally
attributed to Newton. The actual origin of the phrase is the subject of an exhaustive,
whimsical book of some 277 pages. See Robert K. Merton, On the Shoulders of Giants: A
Shandean Postscript (New York, 1965).
The importance of priority in the scientific community is discussed in Robert K. Merton,
Priorities in Scientific Discovery: A Chapter in the Sociology of Science, in The Sociology
of Science, eds. Bernard Barber & Walter Hirsch, 447 (New York, 1962).
The most influential analyst ofthe nature of scientific progress has been Thomas S. Kuhn.
See, e.g., Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago, 1962);
Thomas S. Kuhn, Unanswered Questions about Science in Ryan D. Tweney, Michael E.
Doherty & Clifford R. Mynatt, On Scientific Thinking 45-47 (New York, 1981).
 Journal of Legal Education

scrutiny. 20 Indeed, we are so used to the notion that scientific research is and
should be supported by our constitution and laws that we sometimes have
difficulty imagining any other governmental attitude toward science. Yet the
intellectual freedom and access to government support that marks contem-
2
porary American science was hardly the norm in other historical periods '
and is not routine in other countries today. Political constraints remain an
important feature of Soviet science, 22 while in countries such as Great
Britain funding for basic research measured by expenditure per person
remains far below American levels. 23 Clearly the optimistic and progressive
strands in American culture mesh beautifully with scientific norms.
A central implication of this compatibility, in terms of public policy, is
that science has a certain forward momentum. No special political push is
needed each year to obtain support. The burden of proof is precisely the
other way. Thus when legal disputes arise, for example, on issues such as
experimental research on animals, the question is whether that research
should be stopped, not whether it should be started. Accordingly, those
studying law and science debate how and whether research should be
controlled, not how and whether it should be begun. In addition, those in
the law and science field must examine the shift in public attitudes that takes
place when science begets new technology, since with technology regulation
24
and restraint are often the order of the day.
The legal and social importance of science's forward momentum becomes
clearer when science is once again contrasted with art in America. American
artists and literary intellectuals lack not only the scientific community's
consensus on what constitutes great work but also a comparable sense of art
progressing in the way science does. Because art is seen as much more
personal and ideological than science, government support of art is much
more controversial and difficult to obtain. Those concerned with the social
context of American art, including those interested in law and the arts, must
still debate proposals to provide substantial federal funding. 25 Science, with

20. Even conservatives, who are often eager to reduce federal spending, support such spending
for research. See, e.g., Claude E. Barfield, Scientific Policy from Ford to Reagan: Change
and Continuity (Washington, D.C., 1982). I have discussed the generally low level of public
scrutiny of science in Steven Goldberg, Controlling Basic Science: The Case of Nuclear
Fusion, 68 Geo. L.J. 683 (1980).
21. A relevant collection of documents on nineteenth century American science is contained in
Nathan Reingold, ed., Science in Nineteenth Century America (New York, 1964).
22. Raymond Hutchings, Soviet Science, Technology, Design: Interaction and Convergence
241-43 (New York, 1976).
23. Colin Norman, Knowledge and Power: The Global Research and Development Budget 12
(Washington, D.C., 1979).
24. For a description and critique of many current areas in which technology is restricted
because of perceived risks, see Peter Huber, The Old-New Division in Risk Regulation, 69
Va. L. Rev. 1025 (1983); Peter Huber, Safety and the Second Best: The Hazards of Public
Risk Management in the Courts, 85 Col. L. Rev. 277 (1985).
25. On the continuing debate over government support for the arts, see Edward C. Banfield,
The Democratic Muse: Visual Arts and the Public Interest (New York, 1984); Michael
Walzer, The Popular Patron, The New Republic, April 9, 1984, at 190.
 Law and Science

its sense of progress so intimately linked to fundamental American values,

crossed that bridge long ago.
C. Empiricism
For scientists, the moment of truth comes when a hypothesis is tested.
Ideally, a hypothesis can be tested in a controlled experiment so that only
one variable changes. In addition, the test can be replicated by other scient-
ists at other times and places. 26 Now the fact that a hypothesis is verified in
numerous tests does not mean that the hypothesis is true in any absolute,
philosophical sense. It is always possible, for example, that just one more
test would show the hypothesis to be false. But from a scientist's perspective,
the testability-or, more precisely, the falsifiability-of a hypothesis is what
identifies that hypothesis as being of scientific interest. From a scientist's
perspective, therefore, the problem with the statement "God exists" is not
27
that it is false, but rather that it cannot, even in principle, be falsified.
Scientific statements, by contrast, can be falsified, and indeed, often are.
Thus there is a strong link between empiricism and those features of science
previously discussed. It is through empirical testing that science progresses
and that the scientific community reaches a consensus on what constitutes
good work.
Scientific empiricism is important to students of law and science for two
distinct reasons. First, this standard for scientific truth is a high one. Conse-
quently, lawyers are often concerned with public disputes in which scientists
regard the underlying scientific matter as unresolved. And so it is, from their
point of view. But that fact alone is of limited relevance to the public. If the
question is whether to begin an experiment in an area of uncertainty, it is
impossible to avoid a decision-either the experiment begins or it does not.
Accordingly, numerous debates in the law and science field turn on the
28
proper role of scientific input in areas of scientific uncertainty.
The second reason lawyers must attend to the scientist's emphasis on
empiricism is more fundamental. Scientists are relatively indifferent to how
a hypothesis is generated. A hypothesis could come from systematic study,
inspired guessing, or fevered dreams-its scientific importance will depend
on what happens when it is tested. 29 A legal hypothesis, on the other hand,
most notably one set forth in a judicial opinion, can rarely be tested in a
laboratory. Lawyers, who inevitably deal with human disputes and
changing value systems, find the notion of a controlled experiment hardly
realistic. Thus, lawyers, unlike scientists, consider the process by which a

26. See generally, Ryan D. Tweney, Michael E. Doherty & Clifford R. Mynatt, eds., On Scien-
tific Thinking 55-179 (New York, 1981).
27. Karl R. Popper, Realism and the Aim of Science 174-79 (Totowa, N.J., 1983).
28. A case study of the controversy over the regulation of saccharin in the face of uncertainty
over its health effects is contained in Areen, supra note 2, at 644-72. The existence of
uncertainty, of course, also has a bearing on the issues discussed earlier concerning the
proper role of scientific expertise. See, e.g., Yellin, supra note 8, at 1305-16.
29. Richard A. Wasserstrom, The Judicial Decision: Toward A Theory of Legal Justification
25-26 (Stanford, 1961).
Jml. Leg.Ed. V.36 #3 Sept '86--4
 Journal of Legal Education

hypothesis is reached central, since building public acceptance for social

decisions is a large part of what a legal system in a democracy attempts to
do.30 Thus the stage is set for the clash, familiar in the law and science
literature, between the scientist who cannot understand the role of public
hearings in reaching a sensible decision and the lawyer who cannot under-
stand a discipline in which due process is often a subject of derision.
Whether it is a question of the contrast between peer review and the adver-
sary trial, or between decisions made by an expert elite and those made by a
lay legislature, the scientific emphasis on empiricism shapes the interaction
between law and science. 3' The net result from a scientist's point of view is
that participating in the legal resolution of a public dispute is like wan-
dering through a Kafkaesque maze in which no one cares about the truth.
The adjective "Kafkaesque" is not merely a literary convenience here. Franz
Kafka was in fact an attorney who worked for a large bureaucracy, the
Workmen's Accident Insurance Institute. 32 In writing such works as The
Trial he undoubtedly drew on his feeling for the procedures facing suppli-
cants before the bureaucracy. 33 Indeed, Kafka is said to have remarked in
amazement, "How modest these people are. Instead of storming the institute
and smashing the place to bits, they come and plead. '34 Yet evenKafka could
not have anticipated the complexities of the modern American legal system.
The Trial is a nightmarish account of what it is like to be seized without
being informed of the charge against you, but modem legal procedures make
Kafka's nightmare seem a vision of order by comparison. Today, if you want
to challenge a government decision concerning, for example, the funding of
scientific research, you have to surmount hurdles such as standing, ripeness,
exhaustion of remedies, and commitment to agency discretion before the
court will even think about ruling against you on the merits.35 Yet to the
lawyer every one of these doctrines, and all of them together, serve necessary
functions, since they enable the courts to pick and choose the appropriate

30. See, e.g., David L. Bazelon, Coping *with Technology Through the Legal Process, 62
Cornell L. Rev. 817, 825 (1977).
31. A particularly sharp series of debates in this field took place when lay citizens groups, at the
local and federal level, sought to regulate early efforts at recombinant DNA research. The
ensuing controversy is the subject of much of the material in Symposium, Biotechnology
and the Law: Recombinant DNA and the Control of Scientific Research, 51 So. Cal. L. Rev.
969 (1978).
32. Ernst Pawel, The Nightmare of Reason: A Life of Franz Kafka 183-91 (New York, 1984).
33. Id. at 188-89. Not much more about the relationship of Kafka's work to the law can be said
with certainty-except that it is complex. In particular, the extent to which Kafka's literary
depictions of the legal system provide meaningful insights into fundamental human char-
acteristics has been the subject of recent debate. See Robin West, Authority, Autonomy, and
Choice: The Role of Consent in The Moral and Political Visions of Franz Kafka and
Richard Posner, 99 Harv. L. Rev. 384 (1985); Richard A. Posner, The Ethical Siqnificance of
Free Choice: A Reply to Professor West, 99 Harv. L. Rev. 1431 (1986); Robin West, Submis-
sion, Choice and Ethics: A Rejoinder to Judge Posner, 99 Harv. L. Rev. 1449 (1986).
34. Pawel, supra note 32, at 188.
35. See, e.g., Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969); Apter v. Richardson, 510 F.2d 357
(7th Cir. 1975); Grassetti v. Weinberger, 408 F. Supp. 142 (N.D. Cal. 1976).
 Law and Science

level and nature of review for each matter.3 6 Thus the scientist's devotion to
progress based on empirical research must contend at every turn with the
lawyer's devotion to process.
D. Externalities
Ordinary market transactions fail to capture all that is good and bad in
science. The usual term for effects that go beyond the two principals in a
37
market transaction is externalities.
Saying that science generates externalities is like saying that a shark eats.
First, the product of scientific research is often of great value to society
generally. Indeed, science is often described as a classic public good in that
the addition of one more consumer of scientific knowledge does not increase
the cost of producing that knowledge.3 8 Thus those in law and science work
on issues concerning how best to subsidize scientific research in order to
balance the individual's incentive to do it with the advantage of allowing the
public to use its results. Issues concerning the protection of intellectual
property through patent and copyright law are particularly important in
this area.3 9
At the same time, scientific research generates negative externalities when
it poses a danger to the public. Using plutonium in your basement is not a
matter of indifference to your neighbors, and thus law and science involves
studying appropriate restrictions on scientific research consistent with free
40
speech and academic freedom.
Science also generates public effects even more fundamental than those
concerning health and safety. We have to stretch the usual use of the word
"externalities" to capture the idea, but any discussion of law and science
cannot overlook the effect science has on the very meaning of the human
endeavor. Scientific discoveries in areas ranging from evolution to genetic
engineering to artificial intelligence challenge accepted notions of human
4
uniqueness and thus traditional ideas of individual freedom and rights. '

36. Of course, attorneys and legal scholars will at times disagree on whether the doctrines are
being properly invoked. See, e.g., Bernard Schwartz, Administrative Law 527-31 (Boston,
1984).
37. Charles K. Rowley & Alan T. Peacock, Welfare Economics 31 (New York, 1975).
38. Gordon Tullock, Private Wants, Public Means 224-25 (New York, 1970).
39. Perhaps the liveliest area of debate in this field at present is the protection of computer
software. See, e.g., Roy N. Freed, Legal Interests Related to Software Programs, 25 Jurimet-
rics J. 347 (1985).
40. See, e.g., Richard Delgado & David R. Millen, God, Galieo and Government: Toward a
Constitutional Protection for Scientific Inquiry, 53 Wash. L. Rev. 349, 390-92 (1978); James
R. Ferguson, Scientific Inquiry and the First Amendment, 64 Cornell L. Rev. 639, 655
(1979); Robert O'Neil, Scientific Research and the First Amendment: An Academic Privi-
lege, 16 U.C. Davis L. Rev. 837 (1983); Stephen L. Carter, The Bellman, the Snark, and the
Biohazard Debate, 3 Yale Law & Policy Review 358 (1985).
41. See, e.g., Laurence H. Tribe, Technology Assessment and the FopyAh Discontinuity: The
Limits of Instrumental Rationality, 46 So. Cal. L. Rev. 617, 648-50 (1973); Bruce Mazlish,
The Fourth Discontinuity, Technology and Culture 1 (1967).
 Journal of Legal Education

The impact of these matters ranges from the role of religion in our society 42
to the proper model for the criminal law. 43 In other words, those studying
law and science are forced by the extraordinary power of science to study its
effects in society far beyond the researcher and the researcher's immediate
client.
M. Conclusion
Science is a distinctive institution worthy of distinctive treatment by
lawyers. Certain characteristics of the scientific endeavor-community,
progress, empiricism, and externalities-are of particular importance to
lawyers. These characteristics have shaped and will continue to shape the
emerging discipline of law and science.

42. See, e.g., Steven Goldberg, The Constitutional Status of American Science, 1979 U. 111. L. F.
1,7-11.
43. Developments in psychiatric theory, for example, have long played a role in the evolution of
the insanity defense. See, e.g., United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).