Science, Common Sense & Judicial Power in U.S. Courts

From the abstract for Sheila Jasanoff, Science, Common Sense & Judicial Power in U.S. Courts, Daedalus 147(4), 15-27 (2018):

In this essay, I focus not on the reliability of expertise, but on the judge’s role in articulating and reinforcing prevailing cultural attitudes toward science. This topic has received relatively little attention from legal practitioners and scholarly commentators. Yet judicial thinking is of paramount importance in three ways. First, judges consider and ratify how scientific and legal authority should work vis-à-vis each other, for instance by determining whether an issue does or does not demand expert testimony. Second, judges play the part of epistemological gatekeepers. The judge’s eye determines which expert claims are entitled to consideration in the courtroom, or not, thereby privileging certain ways of knowing above others. Third, and perhaps least visibly, judges exercise ontological power by deciding how to classify and categorize things for purposes of legal decision-making.

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