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2 - The Rules of Judicial Engagement with Science: A Three-Fold Challenge
Abstract
Science, which inevitably underlies environmental disputes, poses significant challenges for the scientifically untrained judges who decide such cases. In addition to disrupting ordinary fact-finding and causal inquiry, science can impact the framing of disputes and the standard of review. Judges must therefore adopt various tools to adjust the level of science allowed to enter their deliberations, which may fundamentally impact the legitimacy of their reasoning. While neglecting or replacing scientific authority can erode the convincing nature of judicial reasoning, the same authority, when treated properly, may lend persuasive force to adjudicatory findings, and buttress the legitimacy of judgments. In this work, Katalin Sulyok surveys the environmental case law of seven major jurisdictions and analyzes framing techniques, evidentiary procedures, causal inquiries and standards of review, offering valuable insight into how judges justify their choices between rival scientific claims in a convincing and legitimate manner.
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This article presents a narrative about the building of an effective, legitimate judicial system in the World Trade Organization (WTO) through a period of intense diplomatic and political divisiveness and prevailing perception of impasse and malaise in the Organization. At the centre of the narrative is the Appellate Body of the WTO, a standing body of seven jurists charged with deciding appeals of law. The Appellate Body, as will be elaborated, responded to the political conflict and paralysis at the WTO by distancing itself from the Organization and making a number of crucial jurisprudential moves that led to its transformation into an independent court, which has often decided controversial questions in balanced or deferential ways that display, at best, neutrality to the neo-liberal 'deep integration' trade agenda reflected in the Uruguay Round of multilateral trade negotiations and many of its results, such as the WTO Agreements on Intellectual Property and on Technical Barriers to Trade, for example. In the early years, the Appellate Body's deviation from some of the basic tenets of the trade insiders at the WTO led to an open conflict with the trade policy elite, including the delegates of the Members who sit as diplomatic representatives of the membership in Geneva. The end result, however, was the acceptance of the Appellate Body's authority. The same consensus practice of political and diplomatic decision making at the WTO that made negotiating breakthroughs elusive also made it essentially impossible for the Members to threaten or pressure the Appellate Body effectively since, ultimately, overruling any of its decisions, either through the amendment of a WTO treaty or through an 'authoritative interpretation', could not be done absent a consensus of the Members. © The Author, 2016. Published by Oxford University Press on behalf of EJIL Ltd.
The margin of appreciation, as a doctrine of international law, has a great future behind it. It was once thought to be the panacea that would solve international law’s problems, but has in fact diminished in importance in international law. Contrary to what is often argued, the doctrine of the margin of appreciation originated in early public international law, not in Continental domestic public law. In the course of the twentieth century, international law discarded the doctrine. The preferred standard of review, as the International Court set out in Whaling in the Antarctic, is ‘an objective one’. In the sphere where the margin of appreciation is most famously in operation, the law of European human rights, it is being supplanted by the doctrine of subsidiarity. The margin of appreciation is, in international law, an aberration. It is time we treated it as such. This article was presented as the inaugural CJICL Young Scholars’ Lecture in February 2015, held at the Lauterpacht Centre for International Law, University of Cambridge.
The International Law Commission’s articles on reparations restate the existing law on remedies, but they also innovate in significant ways to reinforce broader community interests in international legality. Given the dearth of precedents on reparations, both aspects can be helpful to tribunals and parties engaged in traditional interstate litigation, but the progressive elements, if they are accepted by states, could have wider application in supporting mechanisms to enhance implementation and observance of international obligations. The combination of codification and progressive development, however, is sometimes an uneasy fit and leaves unanswered several important questions about the theoretical foundation and practical application of the law of reparations. Even the seeming clarity of the articles is deceptive because some of the concepts included in the broadly drafted provisions can be difficult to apply in practice.
New cases dealing with complex matters of conservation and biodiversity continue to push forward the boundaries of international adjudicatory process in the various international adjudicatory bodies now operating, including the International Court of Justice and the World Trade Organisation Appellate Body. Successfully addressing matters such as burden of proof and ‘standard of review’ is pivotal to maintaining the integrity and effectiveness of international adjudication. Advances in such areas should be appropriate for application in all fora and all disputes. While the rules on burden of proof need to undergo further development, contrastingly, pause is needed in relation to ‘standard of review’.
Epistemology is important in the debate about science and technology in the courtroom. The epistemological issues and the arguments about them in the context of scientific and technical evidence are now well developed. Of equal importance, though, is an understanding of norms of persuasion and how those norms may differ across disciplines and groups. Norms of persuasion in the courtroom and in legal briefs differ from norms at a scientific conference and in scientific journals. Here, Kritzer examines the disconnect between science and the courtroom in terms of the differing norms of persuasion found within the scientific community and within the legal community.
Scientific information is relevant to, even decisively important in, a rapidly growing percentage of civil and criminal cases. Most judges and juries however lack the background necessary to make independent judgments about scientific evidence. Thus, they solicit and defer to the opinions of expert scientific witnesses. In this Article, Professor Brewer explores and models the reasoning process that judges and juries use in assessing these witnesses' testimony. Almost inevitably finders of fact and law alike are presented, not with a univocal authoritative voice of scientific truth, but instead with competing scientific expert witnesses who testify to contrary or even contradictory scientific propositions. To resolve such inconsistencies, judges and juries rely on such indicia of expertise as credentials, reputation, and demeanor. Drawing on work in jurisprudence, philosophy of science, and epistemology, as well as on doctrines and leading cases on scientific evidence, the Article shows that in many cases such reliance yields epistemically arbitrary judgments. This outcome violates an emerging norm, a norm Professor Brewer calls "intellectual due process." This norm, the Article shows, is immanent in values to which many legal systems, including those of the United States, are already committed. Moreover it places important epistemic constraints on the reasoning process by which legal decisionmakers apply laws to individual litigants. The Article thus concludes with some brief observations about the kinds of doctrinal and institutional reforms that might better enable a legal system to meet the high aspirations of intellectual due process.
Epidemiologists, biostatisticians, and health physicists frequently serve as expert consultants to lawyers, courts, and administrators. One of the most common errors committed by experts is to equate, without qualification, the attributable fraction estimated from epidemiologic data to the probability of causation requested by courts and administrators. This error has become so pervasive that it has been incorporated into judicial precedents and legislation. This commentary provides a brief overview of the error and the context in which it arises.
US federal department is censoring use of term “climate change”, emails reveal
- Oliver Milman