Today judges across the country confront a terrifying new threat. They recognize that “deep anxieties and considerable hysteria ” afflict a small community in Florida and a large one in New York. The fears are undoubtedly real, but most judges refuse to be swayed by “theoretical risk,” ‘Future theoretical harm,” “pure speculation,” or ‘irrational and unsupported belief. ” Almost without exception, judges brush aside popular fears and stake everything on real science. They empathize with those who are frightened but find themselves “duty bound to objectively evaluate the issue...and not be influenced by unsubstantiated fears of catastrophe.’
“Little in science can be proved with complete certainty,” a California judge concedes, but decisions cannot turn on some tiny, unerasable shadow of doubt. Judges rely instead on the “overwhelming weight of scientific evidence,” the “clear weight of the expert medical evidence and opinion,” “reasonable medical knowledge,” and the consensus views of expert agencies and public-health authorities.
What could possibly elicit so much good sense in so many different quarters? Certainly not “chemical AIDS,” the junk science alternative to the dread disease. The claims of clinical ecology-which alleges that a host of maladies, including suppression of the immune system, are caused by low-level exposure to industrial chemicals-have met with credulity and multimillion-dollar judgments in court. (See “Quack Attack,” October.) No, at issue is AIDS itself, the new leprosy.
More specifically, the issue is whether AIDS can be transmitted by casual contact. The argument is always the same: Since we don’t know absolutely for sure, shouldn’t we err on the side of safety? It is the same argument that has been raised in connection with tuberculosis, electronic cruise controls, morning sickness drugs, contraceptives, vaccines, and industrial (chemicals: Better to banish the small risk than to hazard the large harm.
But in answering this tired and superficial argument in the context of AIDS, courageous judges call the science straight. They side with doctors against a New York landlord who does not want. them to treat AIDS patients on his premises, with AIDS children who want to attend schools in New York City and Florida, and with young Ryan Thomas, who begs leave to attend kindergarten in California. Predictably, the California school district does manage to dig up a Dr. Steven Armentrout, who opines--correctly, no doubt-that there is a tiny possibility that AIDS could be transmitted through as-yet-undiscovered vectors. But five experts, backed up by prestigious medical journals, present strong evidence that AIDS is not transmitted by casual contact, and that is enough.
And now a strange thing begins to happen: As one judge after another affirms the solid science and rejects the paranoid speculation, the courts help to educate the public and allay some of its most acute but least well-grounded fears. By refusing to take the junk science of AIDS seriously, wise judges help put a stop to it.
Why have courts been willing to rein in destructive legal speculation on genuine AIDS, when they are so reluctant to do the same when it comes to “chemical AIDS” or the other bogeys of junk science. One reason, no doubt, is that a young Ryan Thomas, with his heart set in Kindergarten is a more more visible and sympathetic victim of junk science than a faceless, deep pocket chemical company. But giving in to scientific nonsense entails costs in either case. A rational court system can and should vindicate good science not just when the stakes are specially high and poignant but as an everyday matter for every kind of litigant.
But what is good science? How can we identify it? The trial lawyer and his acolytes will never tire of telling stories about how high priests of science have been proven badly wrong by "cranks" and "mavericks" in times past, Galileo, the patron saint of all heretics, figures often in such stories. Let's not ostracize the "mini Galileo," pleads a plaintiff's lawyer; the legal system must be "capable of advancing." Honor the expert "at the edge of the bell curve," advises the chemical-AIDs maven Alan Levin, "as was Galileo and as are other people at the frontiers of medicine or science."
No doubt about it: The views of the establishment are sometimes wrong, in science and medicine as in law. It’s equally true that the isolated scientist, the iconoclast, the maverick, crank, or congenital rebel has sometimes been proved right. When the great Hungarian clinician Ignaz Philipp Semmelweis discovered the antiseptic properties of chlorinated lime in 1850, his findings were met with deep skepticism from many in the medical establishment.
But science has changed profoundly since the days of Galileo and Semmelweis. This is most particularly true of medical science. Until the late 17th century, as the historian James Burke recounts, a medical career “flourished or foundered according to the relationship the doctor managed to strike up at the bedside.” The doctor would emphasize his “heroic and secret” insights into disease and its cure. Each individual’s illness was thought to be a unique condition. Each doctor “would claim that all other doctors were quacks and their remedies ill-advised or dangerous.” Doctors believed that every disease could exhibit every symptom. Therapies were correspondingly quirky.
In 1800, the French surgeon Xavier Bichat demonstrated that disease is a specific phenomenon peculiar to certain lesions or tissues. Doctors began to recognize that disease itself presents a specific and concrete target that transcends individual patients. As medicine raised its sights from the idiosyncratic and particular to the regular and general, it converged with statistics, a new branch of mathematics that was evolving during the same period. The center of medical learning shifted to the hospital, where patients could be studied in still larger numbers.
When cholera struck Europe in 1829, the focus shifted from the hospital to the city. William Farr, appointed controller of the General Register Office, set out to conquer cholera with a radically new medical instrument: the biometer. The biometer was pencil and paper-a life-table that insurance company actuaries had been using for years. Farr systematically analyzed who was dying and where. The most important things he discovered were negative. Wealth didn’t protect you from cholera. Nor did occupation or residential proximity to the sea. What mattered was how high above the Thames you lived. Farr concluded that cholera was caused by the river’s awesome stench.
He was wrong, but only in this single, last step of the analysis. It was left to another English physician, John Snow, to make the right connection in 1853. The key was ,not dirty air but dirty water; the London sewers emptied into the Thames, so the farther down-sewer you lived, the more likely you were to drink foul water. A few years later Parliament passed legislation to rebuild the sewers, and cholera disappeared from the city forever.
The story of cholera is the story of how medicine was transformed from black art into science, from a pseudoscience of the individual into a science of groups. The difference between the clinician who cures and the clinician who quacks is the difference between the intellectual hermit and the member in good standing of a community of scientists. For the one, medicine is shaped by an endless series of peculiar and individual cases; for the other, by broad perspective and consensus conclusions. One espouses fictions as changeable as the individual patient and doctor; the other, truths that apply to many people, not just to one. The rise of modern medical science, with its astonishing capacity to diagnose and cure, can be traced to the decline of individual eccentricity on both sides of the stethoscope.
Modern science is the study of facts that are regular, of things that recur in patterns. A courtroom trial is quintessentially singular. Science depends on placing facts in an orderly context, but a trial frames facts in isolation. Good science transcends the here and now, the individual and idiosyncratic, the single laboratory, the single nation, the single planet, even the single galaxy, but a trial typically examines a singular datum and demands that scientific truths be rediscovered anew every time. Scientific facts emerge from many isolated observations, as data are accumulated, vetted for error, tested for significance, correlated, regressed, and reanalyzed, but trials are conducted retail. Good science is open, collegial, and cumulative, but the courtroom setting is discrete, insular, and closed-a one-shot decision.