Legal Fantasies of Science Free from Economics

David S. Caudill, J.D., Ph.D.
Professor and Arthur M. Goldberg Family Chair in Law
Villanova University

In the discourse concerning how law uses science (in courtroom and policy contexts) and treats scientific evidence (as admissible/reliable, or not), numerous scholars have shown that a judge’s, lawyer’s, or administrator’s image of science–how they conceive of science and what they expect–affects reliability determinations. With respect to economic aspects of, or influences upon, scientific research, Mirowski has identified two dominant perspectives, represented by (i) Mertonian Tories (a reference to Merton’s ideal of science free from financial influences) who celebrate academic, publicly-funded science; and (ii) Economic Whigs (Mirowski’s “neoliberals”) who believe that the commercialization of science exposes it to the superior rigors of market discipline. Mirowski then suggests that neither perspective sufficiently recognizes the structural, indirect, and pervasive effects of the economy on science.

In Science-Mart (2011), Mirowski sets out to produce examples of such structural effects that go beyond scientific fraud and obvious conflicts of interest (since economic factors have conventionally been called upon to explain scientific failures) to show that even what we call “good science” is “mutually constituted” by economic structures. While I endorse Mirowski’s project, and appreciate his examples of “just-in-time” science (where scientists speed up the process between innovation and the consumer) and the degradation of patent quality (caused by the rush to patent), his example of the sound science movement in law (to root out junk science) is troubling–Mirowski here criticizes the production of bought-and-paid-for science by non-profit institutions secretly funded by industry. Here, I believe, Mirowski (in his quest to show the adverse effects of economics on science) inadvertently (i) offers an example of fraud and/or obvious conflict of interest (i.e., not “good science”); (ii) ends up parting ways with the sociologists of science (with whom he claims to be a fellow-traveler) who see economic influences in both publicly-funded and commercialized science; (iii) gives credence to his critics who accuse him of longing for the days of government-funded science; and (iv) buys into the legal fantasies that experts should be free from bias/motivation/interest, that pre-litigation science is unbiased, and that litigation science is flawed.

The better view, in legal contexts, is to reject the notion that money necessarily signals bias, and to recognize that all science is influenced by economic structures, just as it is by language, politics, and institutional frameworks. These indirect, pervasive effects are not as easy to see as fraud, but they may be structural and systemic in their shaping of experiments and research, distribution of resources, and constraints on capacities and opportunities (just like Mirowski said).