Footnotes

1 1993 Howard A. Denemark

† Assistant Professor of Law, University of Akron School of Law. J.D. 1984, University of Wisconsin School of Law; B.S.B.A. 1981, Washington University in St. Louis. The author wishes to acknowledge his many discussions with David A. Rier and Robert A. Denemark regarding the ideas, examples, and conclusions presented in this article. This article also owes much to the following individuals who read earlier drafts and suggested background reading: Jack Sahl, Wilson R. Huhn, Margery Koosed, J. Dean Carro, Grace M. Tannin, M.D., and Nanette R. Kleinman, D.V.M. I also thank David M. Watson, who provided valuable research assistance.

. See infra notes 13, 16, 50-51, 71, 87-90, and accompanying text.

2. John I. Thornton, Uses and Abuses of Forensic Science, 69 A.B.A. J. 289 (1983).

3. See, e.g., ELIOT FREIDSON, PROFESSIONAL POWERS: A STUDY OF THE INSTITUTIONALI-ZATION OF FORMAL KNOWLEDGE 102 (1986) ("There is little doubt that the role of expert testimony is becoming more and more important in the courts."); FAUST F. ROSSI, EXPERT WITNESSES xiii (1991) ("The use of experts in modern litigation has grown enormously in the last several decades. It shows no sign of abating. The creation of new and complex theories of liability, the growing sophistication of science and technology, and liberalized modern evidence rules have together combined to enhance the renown of the expert witness."); MICHAEL J. SAKS & RICHARD VAN DUIZEND, THE USE OF SCIENTIFIC EVIDENCE IN LITIGATION 3 (1983) ("In litigation, as elsewhere in contemporary society, we have come to advert to scientific and technological information with increasing frequency and even dependence.").

4. 293 F. 1013 (D.C. Cir. 1923).

5. Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2792 (1993) ("In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the dominant standard for determining the admissibility of novel scientific evidence at trial.") (citation omitted).

6. See, e.g., United States v. Williams, 583 F.2d 1194, 1198-1200 (2d Cir. 1978); State v. Hall, 297 N.W.2d 80 (Iowa 1980); State v. Williams, 388 A.2d 500 (Maine 1978).

7. 113 S. Ct. 2786 (1993).

8. Id. at 2791-92. For a discussion of the controversy surrounding the mathematical technique, see Kenneth E. Wachter, Disturbed by Meta-Analysis?, 241 SCIENCE 1407 (1988).

9. Daubert, 113 S. Ct. at 2798-99.

10. Id. at 2796.

11. Id. at 2796-97.

12. See infra notes 13, 50-51, 71, 87-90, and accompanying text.

13. Milton R. Wessel, Adversary Science and the Adversary Scientist: Threats to Responsible Dispute Resolution, 28 JURIMETRICS J. 379, 380 (1988).

14. See infra notes 50-51, 71, 87-90 for citations to authors asserting the heuristic in the legal, public health, and scientific literature. See infra notes 92-93 for citations to courts that have accepted the heuristic and purported to apply it.

15. Id.

16. E.g., Lee Loevinger, Jurimetrics: Science in Law, in SCIENTISTS IN THE LEGAL SYSTEM: TOLERATED MEDDLERS OR ESSENTIAL CONTRIBUTORS? 8 (William A. Thomas ed., 1974) [hereinafter MEDDLERS OR CONTRIBUTORS?]; Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 105-07 (1976); D.H. Kaye, Proof in Law and Science, 32 JURIMETRICS J. 313 (1992); Lee Loevinger, Standards of Proof in Science and Law, 32 JURIMETRICS J. 323 (1992).

17. A recent article made this point convincingly. See Sheila Jasanoff, What Judges Should Know About the Sociology of Science, 32 JURIMETRICS J. 345 (1992).

18. JOHN ZIMAN, RELIABLE KNOWLEDGE: AN EXPLORATION OF THE GROUNDS FOR BELIEF IN SCIENCE 144 (1978). One striking example of how the beliefs of a scientist can differ from the beliefs of science is Dr. William Shockley. Dr. Shockley was a Nobel Prize recipient in physics and a physics professor at Stanford University. He used his position to publicize his view that American Blacks are genetically inferior to the general American population. Geneticists at his own institution found his work on race, "hackneyed pseudoscientific justification for class and race prejudice." Joseph Galloway et al., Dr. Shockley and Mr. Hyde, 107 U.S. NEWS & WORLD REPORT, Aug. 28, 1989, at 16. For a more extensive summary of experts' rejections of Dr. Shockley's racial biology theories, see ALLAN CHASE, THE LEGACY OF MALTHUS 480-82 (1977).

19. The right of confrontation is the core value of the Confrontation Clause of the Sixth Amendment. See Coy v. Iowa, 487 U.S. 1014, 1014-21 (1988). While the right of face-to-face confrontation is not absolute, it is a strong preference in our system of justice. Maryland v. Craig, 497 U.S. 836 (1990).

20. 5 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 32 (J. Chadbourne ed., 4th ed. 1974). Wigmore asserts:

The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.

Id.

21. See, e.g., Davis v. Alaska, 415 U.S. 308, 315-16 (1974) ("Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested."); People v. Chin, 490 N.E.2d 505 (N.Y. 1986) (acknowledging the importance of cross-examination as a truth-discovering tool); People v. Brock, 695 P.2d 609 (Cal. App. 1985) (reversing a criminal conviction because it was not possible to cross-examine a key prosecution witness adequately); Collora v. Navarro, 574 S.W.2d 65, 70 n.5 (Tex. 1978) (permitting a trial court to base a directed verdict on the uncontradicted testimony of a witness whom the opposing party had an opportunity to cross-examine, but did not do so).

22. Id.

23. See, e.g., FED. R. EVID. 103; CHARLES MCCORMICK, MCCORMICK ON EVIDENCE 74 (John William Strong ed., 4th ed. 1992).

24. E.g., United States v. Brown, 490 F.2d 758 (D.C. Cir. 1973); State v. Randolph, 698 S.W.2d 535, 539 (Mo. App. 1985).

25. See, e.g., Carroll v. Acme-Cleveland Corp., 955 F.2d 1107, 1112 (7th Cir. 1992) ("We review a district court's decision to admit or exclude evidence for a clear abuse of discretion.") (citation omitted); Rent-A-Center v. Canyon Television & Appliance, 944 F.2d 597, 601 (9th Cir. 1991) ("Evidentiary rulings by the district court are reviewed for an abuse of discretion."); Belber v. Lipson, 905 F.2d 549, 551 (1st Cir. 1990) ("We review [rulings on admission of evidence] only for an abuse of discretion.").

26. See, e.g., infra notes 111-119 and accompanying text.

27. Marcia Angell, Editorial Responsibility: Protecting Human Rights by Restricting Publication of Unethical Research, in GEORGE J. ANNAS & MICHAEL A. GRODIN, THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATION 280; Harriet Zuckerman, The Sociology of Science, in HANDBOOK OF SOCIOLOGY 511, 515 (N. Smelser ed., 1988). But see Debbie Indyk & David A. Rier, Grassroots AIDS Knowledge: Implications for the Boundaries of Science and Collective Action, 15 KNOWLEDGE: CREATION, DIFFUSION, UTILIZATION 3, 18 (1993) (suggesting that because knowledge regarding AIDS is being developed in affected communities and outside of traditional research centers, publications that are not peer-reviewed may have the most accurate information); Gina Kolata, Medical Data: Who Should Hear It First, N.Y. TIMES, May 22, 1990, at C1.

28. This observation has been made in the legal literature. Howard A. Denemark, Improving Litigation Against Drug Manufacturers for Failure to Warn Against Possible Side Effects: Keeping Dubious Lawsuits from Driving Good Drugs off the Market, 40 CAS. W. RES. L. REV. 413, 432-33 (1989-90).

29. ZIMAN, supra note 18, at 74-76. But see William J. Broad, Fraud and the Structure of Science, 212 SCIENCE 137 (1981) (suggesting that other researchers play a more limited role in the correction of errors).

30. Zuckerman, supra note 27, at 526-28; see also William J. Broad, 'Cold Fusion' Claimants Review Puzzling Results, N.Y. TIMES, Apr. 3, 1990, at C1. But see WILLIAM J. BROAD & NICHOLAS WADE, BETRAYERS OF THE TRUTH 38-59 (1982) for an analysis of the limits of peer review in policing quality in scientific publications. Some sociologists of science have noted that the emphasis on peer-reviewed publication serves to protect scientists from intellectual competition from those outside the field. See, e.g., Thomas F. Gieryn et al., Professionalization of American Scientists: Public Science in the Creation/Evolution Trials, 50 AM. SOCIOLOGICAL REV. 392 (1985).

31. Wigmore recognized this difference in approach between lawyers and scientists when he noted:

However difficult it may be for the layman, the scientist, or the foreign jurist to appreciate this its wonderful power, [i.e., the ability of cross-examination to elicit truth] there has probably never been a moment's doubt upon this point in the mind of a lawyer of experience.

WIGMORE, supra note 20, at 32. See also James W. Curlin, Law, Science, and Public Policy: A Problem in Communication, in MEDDLERS OR CONTRIBUTORS?, supra note 16, at 35 ("[S]cientists in general show an aversion to the adversary process.").

32. See, e.g., ZIMAN, supra note 18, at 124-26. This assertion is the subject of a great deal of scholarly writing in the sociology of science. The view stated above is not the only view one will find in that field's literature. See, e.g., Steven Epstein, Democratic Science? AIDS Activism and the Contested Construction of Knowledge, SOCIALIST REV., Apr.- June 1991, at 35, 49-51.

In the law and science context this view appeared in the press coverage of the recent case of McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (E.D. Ark. 1982). See Marcel C. La Follette, Creationism in the News: Mass Media Coverage of the Arkansas Trial, in CREATIONISM, SCIENCE, AND THE LAW: THE ARKANSAS CASE 189, 191-98 (Marcel C. La Follette ed., 1983).

33. See HAROLD KLAWANS, TRIALS OF AN EXPERT WITNESS: TALES OF CLINICAL NEUROLOGY AND THE LAW, 122-23 (1991) (Medical or scientific information that has not been peer reviewed is considered extremely unauthoritative; Dr. Klawans compared unreviewed articles to Batman comic books as authoritative medical sources.). Courts have adopted this view. See Perry v. United States, 755 F.2d 888, 892 (llth Cir. 1985); Richardson v. Richardson-Merrell, Inc., 649 F. Supp. 799, 802 (D.D.C. 1986) ("[T]he totality of the published scientific literature . . . collectively represents the sum of all that can be said to be scientifically "known" of the matter at present."), aff'd, 857 F.2d 823 (D.C. Cir. 1988). There may be limits to the authority of the literature in AIDS research, however, where the affected community does not trust researchers, and has the education, interest, and resources to conduct its own research. See Indyk & Rier, supra note 27.

34. ZIMAN, supra note 18, at 33-41.

35. ZIMAN, supra note 18, at 40, 130-32.

36. ZIMAN, supra note 18, at 39-41, 130-33.

37. See Paul Atkinson, The Reproduction of the Professional Community, in THE SOCIOLOGY OF THE PROFESSIONS 224-241 (Robert Dingwall & Philip Lewis eds., 1983).

38. FED. R. EVID. 602. But see FED. R. EVID. 703.

39. FED. R. EVID. 602 advisory committee's note.

40. See FED. R. EVID. 602, 801(d)(2).

41. ZIMAN, supra note 18, at 131.

42. Id.

43. Loevinger, supra note 16, at 331-33 (1992) (noting that science prefers statistical evidence over anecdotal reports, while courts prefer anecdotal evidence).

44. Loevinger, supra note 16, at 331-33 (1992).

45. See supra notes 34-36.

46. Id.

47. See, e.g., Hugh Gibbons, The Relationship Between Law and Science, 22 IDEA 43, 47 (1981) and the sources cited therein.

48. James W. Curlin, Fostering Understanding Between Science and Law, 59 A.B.A. J. 157 (1973). Similarly, one scarcely imagines scientists or other members of the legal laity poring over advance sheets and the latest law reviews.

49. Inaccurate reporting of the motivations of science may be common. See Gieryn et al., supra note 30, at 392-93.

50. Howard T. Markey, Needed: A Judicial Welcome for Technology-Star Wars or Stare Decisis, 79 F.R.D. 209, 209-211 (1978) (emphasis supplied). Judge Markey was the Chief Judge of the U.S. Court of Customs and Patent Appeals. His article has been quite influential. See infra notes 87, 92 and accompanying text for a discussion of courts that have explicitly adopted Judge Markey's analysis. See also infra notes 51, 87-90 and accompanying text for similar assertions by other authors. But see Hugh Gibbons, The Relationship Between Law and Science, Part II, 22 IDEA 159 (1981) (presenting a lone dissenting voice in the legal literature, stating that science and technology are inherently laden with value choices while law is merely a transmission system to control behavior according to values derived from some source external to law).

Outside of the legal literature, a different view of science predominates. See, e.g., NICHOLAS RESCHER, SCIENTIFIC EXPLANATION 131 (1970) ("[S]cience does not have a single, monolithic aim, but a multiplicity of purposes, some basic and theoretical (explanation, prediction, and retrodiction), and others consequent and practical (control).").

51. See, e.g., David Berg, Cross-Examination, in THE LITIGATION MANUAL 518 (1989) ("Truth is [not for lawyers, but] for engineers, who reduce their problems to mathematical certainty . . . . ").

52. See Markey, supra note 50; Berg, supra note 51.

53. See IAN MITROFF, THE SUBJECTIVE SIDE OF SCIENCE 8 (1974), (citing ROBERT K. MERTON, SOCIAL THEORY AND SOCIAL STRUCTURE, 16 (1968)).

54. See JACOB BRONOWSKI, THE COMMON SENSE OF SCIENCE 124-30, 138-50 (1978).

55. MITROFF, supra note 53, at 83.

56. A common joke among scientists illustrates this point. A researcher trained a frog to jump at the sound of a bell. The researcher measured the distance the frog would jump, then removed the frog's legs and rang the bell again. The frog did not move, thus "proving" the scientist's hypothesis that removing a frog's legs deafens the animal. The observed facts in the joke support the hypothesis in the punchline as well as more reasonable hypotheses.

57. MICHAEL RUSE, BUT IS IT SCIENCE? 71-78 (1988).

58. Id.

59. Id.

60. An example of this type of analysis would lead one to conclude that giraffes have long necks because their forbearers stretched to reach leaves, and so passed on the trait of longer necks. See infra note 63 for a Darwinian analysis of giraffes' long necks. The example of giraffes is often mentioned when discussing the hereditary theories of Jean Baptiste Lamarck, which included the view that acquired characteristics could be passed on to future generations. See MICHAEL RUSE, TAKING DARWINISM SERIOUSLY 44 (1986).

61. For a brief account of Kammerer's experiment, see STEPHEN JAY GOULD, THE PANDA'S THUMB 76-84 ("Shades of Lamarck") (1980).

62. Id.

63. Id. Under the Darwinian analysis one could, for example, explain the long necks of giraffes by postulating that at one time some giraffes had longer necks and some shorter necks. The long-necked giraffes had the survival advantage of being able to reach high leaves on which to graze. Short-necked giraffes thus did not survive long enough to breed, so the only genes that passed to later generations gave giraffes long necks. After a sufficient number of generations, all manifestations of the shorter neck characteristic were bred out. See supra note 60.

64. DOV OSPOVAT, THE DEVELOPMENT OF DARWIN'S THEORY 113-14 (1981).

65. CHARLES DARWIN, ON THE ORIGIN OF SPECIES (facsimile reprint of first edition with introduction by Ernst Mayr) (1964).

66. Ernst Mayr wrote of Darwin's work:

The publication of the Origin of Species ushered in a new era in our thinking about the nature of man. The intellectual revolution it caused and the impact it had on man's concept of himself and the world were greater than those caused by the works of Copernicus, Newton, and the great physicists of more recent times.

Id. Introduction at vii.

67. OSPOVAT, supra note 64. One might support the statement that science exists exclusively to discover facts by stating that natural selection, causing changes in species over time, is a "fact." An ambiguity of the English language will permit such an assertion, but it is not what the legal authors claiming science exists for the purpose of finding facts suggest. Rather, they seem to suggest that facts are direct observations not subject to significant dispute or interpretation. "Facts," these authors imply, are not theories or complex chains of events. The words, "[t]he purpose and function of science is to learn physical facts," quoted in the text accompanying note 50, do not appear to refer to such a broad use of the word "facts."

However, if one were to include in the definition of the word "fact" complex chains of events and their consequences, then law is only interested in "facts." Whether a given individual should have to pay a judgment or suffer a criminal penalty would properly be called a "fact" under this definition. The absurdity of this use of language implies that the legal literature assumes a less inclusive definition of "fact" when it refers to science as a fact-finding regime.

68. See JACQUE BARZUN & HENRY GRAFF, THE MODERN RESEARCHER 148-153 (1957), which argues that studying history without analyzing the causes of events is valueless. The authors analogized to the study of science, stating:

It is the organization of the past that makes the past valuable, just as it is the organization of phenomena in scientific formulas that makes the study of nature valuable.

The ultimate question for the historian therefore is: What pattern?

Id.

69. NICHOLAS RESCHER, SCIENTIFIC EXPLANATION 131 (1970).

70. Id. Some legal authors are aware of these broader goals of science. See, e.g., Wessel, supra note 13; Seymour Pollack, Observations on the Adversary System and the Role of the Forensic Scientist: "Scientific Truth" v. "Legal Truth," 18 J. FORENSIC SCI. 173, 175-76 (1973).

71. See William A. Thomas, Scientists and Lawyers: Their Obligation to Cooperate, in MEDDLERS OR CONTRIBUTORS, supra note 16, at 1, for the view that science "seeks truth with impartial objectivity." However, scientists do not operate in a world of impartial objectivity, making it impossible for "science" to do so. See infra notes 73-77 and accompanying text.

72. MITROFF, supra note 53. It has been noted in the literature of the sociology of science that this study had a small sample population. See Zuckerman, supra note 27, at 517.

73. MITROFF, supra note 53, at 64. It is worth noting that most lawyers and judges, unlearned in science, could fairly be classed as "the general public" with regard to knowledge of science and scientists. See supra note 48 and accompanying text.

74. TYRUS HILLWAY, INTRODUCTION TO RESEARCH 129-30 (1964).

75. MITROFF, supra note 53, at 64-70, 99-100, 113-14.

76. MITROFF, supra note 53, at 64-70. One scientist interviewed by Professor Mitroff stated, "The uninvolved, unemotional scientist is just as much a fiction as the mad scientist who will destroy the world for knowledge. Most of the scientists I know have theories and are looking for data to support them; they're not sorting impersonally through the data looking for a theory to fit the data." Id. at 65. Another stated, "The notion of the disinterested scientist is really a myth that deserves to be put to rest . . . . One has to be deeply involved in order to do good work." Id. at 66.

77. MAX PLANCK, SCIENTIFIC AUTOBIOGRAPHY AND OTHER PAPERS 33-34 (1949). See also THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962) for further discussions of the fallacy of the disinterested scientist who seeks facts alone. Max Planck's statement is paralleled by Charles Darwin. Darwin reported in his autobiography having once commented as a young naturalist that it would be a good thing to have every scientist die at age 60, because "afterwards he would be sure to oppose all new doctrines." CHARLES DARWIN, AUTOBIOGRAPHY OF CHARLES DARWIN 100-01 (1958).

78. The general public may share this perception. See, e.g., David C. Beardslee & Donald D. O'Dowd, The College-Student Image of the Scientist, in BERNARD BARBER & WALTER HIRSCH, THE SOCIOLOGY OF SCIENCE 247 (1962) (for sources on the public perception of scientists as withdrawn); Margaret Mead & Rhoda Metraux, The Image of the Scientist among High-School Students: A Pilot Study; in BERNARD BARBER & WALTER HIRSCH, THE SOCIOLOGY OF SCIENCE 230 (1962). See JOHN R. BAKER, THE SCIENTIFIC LIFE 26-30 (1943) for claims that scientists are actually withdrawn from normal social interaction.

79. Id.

80. As one who is married to a working scientist I have had many opportunities to meet with scientists socially. I find them to be at least as social, involved in concerns outside their work, and informed about current events as groups of lawyers and professors with whom I have socialized over the years.

81. BERNARD BARBER, SCIENCE AND THE SOCIAL ORDER (1952) (noting many interrelationships between science and society ).

82. Although popular culture and some science writers may portray science as withdrawn, it is not so. See Epstein, supra note 32,at 49-51.

83. For a summary of the defenses, including this one offered at the trials by Nazi scientists and doctors, See Arthur L. Caplan, How Did Medicine Go So Wrong?, in WHEN MEDICINE WENT MAD: BIOETHICS AND THE HOLOCAUST 53, 71-77 (Arthur L. Caplan ed., 1992) [hereinafter WHEN MEDICINE WENT MAD].

84. Id. at 73-74.

85. See generally id.

86. Scientists' conduct, like that of all citizens, is bound by law. Certain laws exist in this country to control the behavior of researchers. See infra notes 120-21, 173-74 and accompanying text.

87. It is interesting that of the three courts purporting to apply the heuristic, two of them relied directly on Markey, supra note 50, which is perhaps the strongest article in the legal literature arguing that science is an emotionless search for facts. For a sample of other authors' assertions of the supposed consequence-neutrality of science in relation to law, see, e.g., B. Abbot Goldberg, Teratogens and "Litogens," 316 NEW ENG.J.MED. 1093 (1987); David A. Rier, Teratogen Litigation: Where Science Meets Law (and the Media) (1989) (unpublished M.S. thesis, Columbia University, Division of Sociomedical Sciences) (on file with the author). This point has also been used in support of legal arguments in articles concerning contemporary legal problems, e.g., Nancy K. Rhoden, Trimesters and Technology: Revamping Roe v. Wade, 95 YALE L.J. 639, 694 (1986) (arguing, in a "postscript," for judicial scrutiny of the developing scientific technology for determining and assisting the viability of a fetus under Roe v. Wade. The article cautions readers that law, which is a value-enforcing agency of society, should not defer utterly to science, which "seeks to be value free." Id. at 696.). See also supra and infra notes 50-51, 71, 88-90, and accompanying text.

88. Wessel, supra note 13, at 383. See also, Loevinger, supra note 16, at 329-32; Hugh Gibbons, The Relationship Between Law and Science, Part II, 22 IDEA 283, 288-89 (1981) (not citing exclusionary rules of evidence to support its conclusion); Howard T. Markey, Science and Law: The Friendly Enemies, 30 IDEA 13, 14 (1989) (In the context of a long set of comparisons the author wrote, "Law seeks justice. Science describes.").

89. William A. Thomas, Scientists and Lawyers: Their Obligation to Cooperate, in MEDDLERS OR CONTRIBUTORS?, supra note 16, at 2.

90. Pollack, supra note 70, at 175-76.

91. See supra notes 13, 16, 50-51, 71, 87-90, and accompanying text.

92. 593 A.2d 733, 741 (1991) (citing Markey, supra note 50). The court retained its version of the "general acceptance" test for scientific evidence in other sorts of litigation, but created an exception to allow a more liberal admission of expert testimony on links between disease and toxic exposure. The court also relied heavily upon Wells v. Ortho Pharmaceutical, 615 F. Supp. 262 (N.D. Ga. 1985), aff'd, 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986), which has been criticized in the legal, medical, and public health literatures. See, e.g., Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595, 672-74; Denemark, supra note 28, at 438-50; James L. Mills & Duane Alexander, Teratogens and "Litogens," 315 NEW.ENG.J.MED. 1234-35, (1986); David A. Rier, Premature Publication and Publication Bias: Case Study and Implications, (presented at the Society for the Social Studies of Science Fifteenth Annual Meeting, October 18-21, 1990, Minneapolis, Minnesota) (conference paper on file with author); David A. Rier, The Duty to Warn: Barrier or Gateway to New Contraceptives, (presented at the American Public Health Association 118th Annual Meeting, September 30 - October 4, 1990, New York, New York) (conference paper on file with author).

93. Emhart Indus. v. Duracell Int'l., 665 F. Supp. 549, 559, n.15 (M.D. Tenn. 1987); Allen v. United States, 588 F. Supp. 247, 259 (D. Utah 1984) (citing Markey, supra note 50), rev'd, 816 F.2d 1417 (10th Cir. 1987), cert. denied, 484 U.S. 1004 (1988). The district court opinion in Allen clearly stated the heuristic, but did not make explicit the legal issues, if any, to which the court found it applicable. This is somewhat understandable, given the extraordinary range of issues the court covered in discussing the possible liability of the federal government for health-related problems allegedly caused by aboveground testing of nuclear weapons. The case occupies 225 pages in the Federal Supplement, has over 200 footnotes, and includes the periodic table of elements, a diagram of how chromosomes reproduce, an explanation of scientific notation, and cites dozens of sources that this author believes would not be found in even the most extensive law library.

94. See supra notes 88-89.

95. See. e.g., FED. R. EVID. 402, which provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

See also, GRAHAM C. LILLY, AN INTRODUCTION TO THE LAW OF EVIDENCE 33-34 (1987); MCCORMICK, supra note 23, at 338-41.

96. See infra notes 104-19 and accompanying text.

97. This principle was recognized by the United States Supreme Court in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), and recently reiterated in Murray v. United States, 487 U.S. 533, 536-38 (1988).

98. Id.

99. U.S. CONST. amend. V.

100. This author is aware that a recent United States Supreme Court decision, Arizona v. Fulminante, 111 S.Ct. 1246 (1991), held that it is possible for a conviction to be upheld despite the entry into evidence of an involuntary confession by application of the "harmless error rule." Nonetheless, I have selected this area because much has been written on the logic of the rule. Whether exclusion for these Constitutional violations is currently waxing or waning does not decrease the value of an exploration of the logic used to support the exclusion of evidence as a way of probing the law's commitment to truth relative to science's commitment. Indeed, to the extent that one relies upon Fifth Amendment exclusion of evidence to support the assertion that science seeks only truth while law ignores truth to find justice (as one author has, see supra text accompanying note 88), the erosion of exclusionary rules might call into question the postulate that law ignores facts in the name of justice. While the primary thrust of this article is to show that science will ignore data, thus undercutting the part of the heuristic that portrays science as a purely truth-seeking institution, changes in American law may undermine the first part of the heuristic-that the law will ignore facts to achieve justice.

101. 346 U.S. 156 (1953).

102. Id. at 192. A dissent by Mr. Justice Frankfurter asserted that this holding was contrary to earlier decisions regarding coerced confessions. See id. at 199-208 (Frankfurter, J., dissenting).

103. See, 1 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE § 9.5 (1984).

104. See supra note 37.

105. See, e.g., Brewer v. Williams, 430 U.S. 387 (1977) (a criminal defendant's involuntary confession lead police to a murder victim's body).

106. See Rogers v. Richmond, 365 U.S. 534, 540-41 (1961) ("[I]n many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed.").

107. Jackson v. Denno, 378 U.S. 368, 386 (1963) (quoting Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960)).

108. Id. at 386 (quoting Spano v. New York, 360 U.S. 315, 320-21 (1959)).

109. See U.S. v. Bouthot, 878 F.2d 1506, 1515-16 (1st Cir. 1989) (stating in dicta, "[A] coerced confession is suppressed primarily to deter future violations of the Constitution . . . ."); United States v. Safley, 408 F.2d 603, 604 (2d Cir. 1969) ("The possibility that an involuntary confession may be untrustworthy is not the primary reason for excluding it. Exclusion is a sanction to deter the government from extracting evidence of guilt from a defendant by coercive means."); Breedlove v. Beto, 404 F.2d 1019, 1023 (5th Cir. 1968).

110. The effectiveness of the Rule as a deterrent depends upon police conduct. Chief Justice Burger noted that there is little empirical proof that the exclusionary rule actually deters police misconduct. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388, 416-17 (1971) (Burger, C.J., dissenting) (citing Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.CHI. L. REV. 665, 667 (1970)).

111. The author is aware of growing limitations on the rule requiring exclusion of evidence to enforce the Fourth Amendment right to freedom from unreasonable searches and seizures. See, e.g., Fletcher N. Baldwin, Jr., Due Process and the Exclusionary Rule: Integrity and Justification, 39 U. FLA. L. REV. 505 (1987); Craig M. Bradley, Murray v. United States: The Bell Tolls For the Search Warrant Requirement, 64 IND. LAW J. 907 (1989). Nonetheless, this subject of inquiry is valuable for the same reasons stated supra note 100.

112. 364 U.S. 206 (1960).

113. Id. at 206-08. This policy was known as the "silver platter doctrine."

114. Id. at 216-222.

115. Id. at 217.

116. Baldwin, supra note 111, at 517. A majority of the United States Supreme Court held that deterring unlawful police misconduct is the "prime purpose" of excluding illegally seized evidence under the Fourth Amendment. United States v. Calandra, 414 U.S. 338, 347 (1974). A strongly worded dissent by Justices Brennan, Douglas, and Marshall disagreed with what it deemed a narrow reading of the purpose of exclusion. Id. at 355-57 (Brennan, J., dissenting).

117. Elkins, 364 U.S. at 222.

118. See Baldwin, supra note 111, at 517 (exclusion of evidence pursuant to the Fourth Amendment is a sort of "unclean hands" defense). For a general discussion of the unclean hands defense, see also 1 DAN B. DOBBS, REMEDIES § 2.4(2) (2d ed. 1993). The Supreme Court's decision in United States v. Calandra undercuts this view of Fourth Amendment exclusions of evidence. See supra note 116.

119. Baldwin, supra note 111, at 517.

120. Skepticism regarding the worth of research codes was common in the 1960s, but gave way to acceptance by the 1980s. Also, self-regulatory codes have become the basis of legal restrictions on research, providing another source of legitimacy for the codes. BERNARD BARBER, INFORMED CONSENT IN MEDICAL THERAPY AND RESEARCH 43-44, 137 (1980). The legal restrictions governing research generally operate through government financing of research. The regulatory scheme provides for research institutions to create Institutional Review Boards (IRBs) that evaluate proposed research and prevent unethical research from taking place. See 45 C.F.R. § 46.101, et seq. (1992) ("Protection of Human Subjects"). For regulations concerning animal research, see 9 C.F.R. § 231, et seq. (1989) ("Institutional Animal Care and Use Committee"). See infra notes 173-74 and accompanying text for a discussion of how the legal restrictions have been accepted as part of the internal ethics of science.

121. 132 JAMA 1090 (1946).

122. Id.

123. BRADFORD GRAY, HUMAN SUBJECTS IN MEDICAL EXPERIMENTATION 7 (1975). See, e.g., The Nuremberg Code, in ANNAS & GRODIN, supra note 27, at 2 ("1. The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent . . . without the intervention of any element of force . . . should have sufficient knowledge . . . to make an understanding and enlightened decision. . . . [B]efore the acceptance of an affirmative decision . . . there should be made known to him the nature, duration, and purpose of the experiment; . . . all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment."); Declaration of Helsinki, in ANNAS & GRODIN, supra note 27, at 331-342; THE NATIONAL COMMISSION FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMEDICAL AND BEHAVIORAL RESEARCH, THE BELMONT REPORT: ETHICAL PRINCIPLES AND GUIDELINES FOR THE PROTECTION OF HUMAN SUBJECTS OF RESEARCH, 18-20 (1978).

124. See generally, ANNAS & GRODIN, supra note 27.

125. THE NATIONAL COMMISSION FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMEDICAL AND BEHAVIORAL RESEARCH, supra note 123 at 18-20; Maurice B. Visscher, Ethical Constraints and Imperatives, in MEDICAL RESEARCH 61-68 (1975) (concerning medical experiments using prisoners); See also Marcia Angell, Editorial Responsibility: Protecting Human Rights by Restricting Publication of Unethical Research, in ANNAS & GRODIN, supra note 27, at 278-79, and Henry Beecher, Ethics and Clinical Research, 274 NEW ENG.J.MED. 1354 (1966) for a discussion of some abuses by researchers' who used "helpless" populations.

126. Stephen J. Ackerman, Watching for Problems that Testing May Have Missed, F.D.A. NEWS & WARNINGS, Oct. 17, 1988, at 13. Indeed, until quite recently, the United States Food and Drug Administration banned drug research for women who are not pregnant, but merely of child-bearing potential. This policy is scheduled to change shortly. See Ruth B. Merkatz, Women in Clinical Trials: An Introduction, 48 FOOD & DRUG L.J. 161, 162 (l993). See also, Marilynn C. Frederiksen, Clinical Trials in Pregnancy, 48 FOOD & DRUG L.J. 195 (1993) (arguing for studies on the effects of certain drugs on pregnant women).

127. Good experimental design would require random assignment of pregnant women into two groups, with neither the experimenters nor the subjects knowing whether they were receiving the drug or a placebo (known in common parlance as a "sugar pill"), so that the subjects' and experimenters' expectations could not color the data. See, e.g., HILLWAY, supra note 74, at 166-182.

128. Ackerman, supra note 126.

129. Richardson v. Richardson-Merrell, Inc., 649 F. Supp. 799, 800-01 (D.D.C. 1986), aff'd, 857 F.2d 823 (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989).

130. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993); Brock v. Merrell Dow Pharmaceuticals, 874 F.2d 307, 311-13 (5th Cir. 1989), cert. denied, 493 U.S. 882 (1990).

131. Id.

132. There is a legitimate question about whether science itself has moral values. When observing the institutions of science behave morally, it is possible to argue that one is observing individual scientists behaving morally according to personal codes of conduct unrelated to the fact that they are scientists. It is also possible that government or other sources of funding insist upon morality in science, thus requiring that scientists conduct themselves accordingly. But see supra and infra notes 120, 173-74. It is possible that behaving morally is a way to preserve society's respect for science, hence the power science wields. While any of these theories might explain scientific conduct without positing a moral code internal to the discipline, it may not matter which explanation or explanations are true. If the institutions of science behave as if they have an internal moral code, then it is sufficient for the purposes of this analysis to assume that such a code exists.

133. See, e.g., Markey, supra note 50; Pollack, supra note 70; Rhoden, supra note 87.

134. See, e.g., supra notes 106-119 and accompanying text.

135. As early as 1966 the medical and scientific literature issued its first call to exclude data obtained unethically. Henry K. Beecher, Ethics and Clinical Research, 274 NEW ENG. J. MED. 1354 (1966) (arguing that science should follow law's example by excluding information obtained unethically). While a trend toward exclusion is developing, it is by no means universal. See William E. Seidelman, Mengele Medicus: Medicine's Nazi Heritage, 66 MILBANK QUARTERLY 221 (1988); see also infra note 171.

136. Phillip Shabecoff, Head of E.P.A. Bars Nazi Data In Study on Gas, N.Y. TIMES, Mar. 23, 1988, at A1.

137. Id.; see also, EPA Won't Use Data From Tests Nazis Conducted On Prisoners, CHI. TRIB. Mar. 23, 1988, at D16.

138. Shabecoff, supra note 136.

139. Id.

140. Id.

141. See supra note 37

142. Id.

143. See supra note 30 and accompanying text.

144. See Shabecoff, supra note 136.

145. See supra notes 106-119 and accompanying text.

146. Barry Siegel, Can Evil Beget Good?; Nazi Data: A Dilemma for Science, L. A. TIMES, Oct. 30, 1988, § 1, at 1.

147. Seidelman, supra note 135, at 229. While the fact of publication might tend to weaken the argument of this article, it might be distinguished by the era in which the data were published. While America was busily seeking the aid of Nazi scientists and preparing for what would be known as the Cold War, the use of Nazi data did not seem morally repugnant. Indeed, it was revealed recently that our own government exposed citizens to nuclear radiation to test possible battlefield nuclear weapons. Senator John Glenn, at whose request the information was revealed, explained that the government's decision to release the radiation as the result of "Cold War frenzy." Willaim Hershey, Americans Exposed to Fallout in 1948-52; Dozen Secret Weapons Tests Reported, HOUSTON CHRON., Dec. 16, 1993, at A5. Clearly, by the 1970s, the use of Nazi data raised some troubling ethical questions.

148. Siegel, supra note 146.

149. Dr. Pozos has since argued in print that using the data is ethically permissible. See Richard Pozos, Scientific Inquiry and Ethics: The Dachau Data, in WHEN MEDICINE WENT MAD, supra note 83, at 95, 97-108. For articles disagreeing with Dr. Pozos' conclusions that the Dachau data are reliable or that using the data is ethical, see Robert L. Berger, Nazi Science-The Dachau Hypothermia Experiments, 322 NEW ENGLAND J.MED. 1435, 1438-39 (1990); Velvl W. Greene, Can Scientists Use Information Derived from the Concentration Camps? Ancient Answers to New Questions, in WHEN MEDICINE WENT MAD, supra note 83, at 155, 169-70.

150. E.g., WHEN MEDICINE WENT MAD, supra note 83; J. David Bleich, Utilization of Scientific Data Obtained Through Immoral Experimentation, TRADITION, Fall 1991, at 65; Ernie Meyer, Can the End Ever Justify the Means?, JERUSALEM POST, Mar. 2, 1990; Isabel Wilkerson, Nazi Scientists and Ethics of Today, N.Y. TIMES, May 21, 1989, § 1, at 34; Donald Dale Jackson, Chilling Experiments Where Scientists Are Immersed in Helping Us Survive the Cold, CHIC. TRIB., Jan. 12, 1989, at C1.

151. See Caplan, supra note 83.

152. Benno Muller-Hill, Eugenics: The Science and Religion of the Nazis, in WHEN MEDICINE WENT MAD, supra note 83, at 43, 49-51(1992); Berger, supra note 149.

153. Siegel, supra note 146.

154. Id.

155. One of the better articles revealing flaws and outright fraud in the life and works of the principal investigator, Sigmund Rascher, is Berger, supra note 149, at 1438-39. Dr. Berger concludes, "the Dachau hypothermia study has all the ingredients of a scientific fraud, and rejection of the data on purely scientific grounds is inevitable. They cannot advance science or save human lives." Berger at 1140. For an article defending the data, see Pozos, supra note 149, at 95.

156. Muller-Hill, supra note 152.

157. E.g., Greene, supra note 149.

158. See, e.g., Eva Mozes Kor, Nazi Experiments as Viewed by a Survivor of Mengele's Experiments, in WHEN MEDICINE WENT MAD, supra note 83, at 3; Sara Seiler Vigorito, A Profile of Nazi Medicine: The Nazi Doctor-His Methods and Goals, in WHEN MEDICINE WENT MAD, supra note 83, at 9, 13.

159. E.g., Bleich, supra note 150.

160. Siegel, supra note 146 (emphasis supplied).

161. ZIMAN, supra note 18, at 137-142. But see Indyk & Rier, supra note 27.

162. Id.; see also KLAWANS, supra note 33.

163. Id.

164. See supra notes 99-110.

165. "Virus X" is a pseudonym used by Marcia Angell, an editor of the New England Journal of Medicine, in writing about the rejected research project discussed infra at the text accompanying notes 166-171. Having rejected the article for publication, the ethics of journal science preclude her identifying the research project in detail. However, it is likely that "virus X" is Cytomegalo Virus. Personal Communication with Grace M. Tannin, M.D., August 8, 1993.

166. Marcia Angell, Editorial Responsibility: Protecting Human Rights by Restricting Publication of Unethical Research, in ANNAS & GRODIN, supra note 27, at 283-84.

167. Id.

168. Id.

169. Id.

170. Id.

171. Id. See supra note 30 and accompanying text regarding importance of publication to scientists. There are some who doubt the practicality of banning data. No external agency will regulate the journals, and where information exists interested scientists will find some way to use it. See Greene, supra note 149 and accompanying text, at 168. Moreover, the more useful the data the lower the likelihood that a self-imposed ban will work. For example, the Tuskegee Syphilis Studies, arguably the lowest moment in American medical ethics, are too pervasively cited to root out of the literature. Arthur L. Caplan, When Evil Intrudes, 22 HASTINGS CTR. REP. 29, 31 (1992). In those studies black men in Tuskegee, Alabama who suffered from syphilis were monitored but left untreated for 37 years. Much of what is known about the disease comes from this unethical research, so to ban it would leave the field of medicine ignorant on many important clinical and public health questions. Id. For an excellent book on the Tuskegee research, see JAMES H. JONES, BAD BLOOD: THE TUSKEGEE SYPHILIS EXPERIMENT (1981).

172. See supra note 120.

173. See, e.g., 233 ANATOMICAL RECORD inside back cover (1992); 132 ENDOCRINOLOGY 19A (1993); 40 LABORATORY ANIMAL SCIENCE 670 (1990).

174. E.g., J.R. Smid et al., Cytochemical Localization of Dipeptidyl Peptidase II Activity in Rat Incisor Tooth Ameloblasts, 233 ANATOMICAL RECORD 493 (1992) (research conducted in Australia); Sylvie Barcellini-Couget et al. The Regulation by Growth Hormone of Lipoprotein in Lipase Gene Expression is Mediated by c-fos Protooncogene, 132 ENDOCRINOLOGY 53 (1993) (research conducted in France); J. Rothuizen et al., Increased Neuroendocrine Reactivity and Decreased Brain Mineralocorticoid Receptor-Binding Capacity in Aged Dogs, 132 ENDOCRINOLOGY 161 (1993) (research conducted in The Netherlands); D.H. Percy & K.L. Williams, Experimental Parker's Coronavirus Infection in Wistar Rats, 40 LABORATORY ANIMAL SCIENCE 606 (1990) (research conducted in Canada).

175. See supra notes 19-26 and accompanying text.

176. See supra notes 27-36, 41-44 and accompanying text.

177. See supra notes 27-36 and accompanying text.

178. See supra notes 27-36 and accompanying text.

179. See supra notes 20-21 and accompanying text.

180. See supra notes 99-110, 136-64 and accompanying text.