Welcome to Science Talk the weekly podcast of Scientific american for the seven days starting October 4th. I am Steve Mirsky. This week on the podcast, science and the law. Starting on October 5th in Chicago, judges and lawyers from around the country will attend four days of science training, getting up to speed on some important current issues in biology, bioengineering and medicine. The sessions are organized by a group called the Advanced Science and Technology Adjudication Resource [Center], or ASTAR. Franklin Zweig is ASTAR's president, and Robert Bell, the chief judge of the Court of Appeals of Maryland, is one of ASTAR's directors. The three of us recently shared a conference call. We will also talk about eating like an animal in the ask a scientist segment. Plus, we will share some listener mail.
First up! Franklin Zweig and Chief Judge Robert Bell.
Steve: Gentlemen! Thank you very much for being here.
Bell: Thanks for having me.
Zweig: Thanks! Steve, this is an unusual opportunity to join science and law.
Steve: Dr. Zweig, tell me about ASTAR. What is it, what's the purpose of it, and give me little bit of the history. I know there is some kind of relationship to the Human Genome Project.
Zweig: Yeah! ASTAR is a child of the Human Genome Project in some ways. Our predecessor nonprofit provided eight years of education for judges in the science and ethical and legal issues related to the Human Genome Project.
Steve: And there was a congressional mandate for that kind of training.
Zweig: Yes, there was. Congress, in approving the Human Genome Project, required a percentage set aside
to [from] research funds to educate the relevant communities who might be affected by new developments in genetics and genomics.
Steve: Some rare foresight on the part of Congress, there. Can you tell me more about the organization? What is its current charter? What's its current mission?
Zweig: ASTAR is a not for profit. The board of directors is principally comprised of judges and the few scientists who are very active in the genome-related work and who ask the question: when the Human Genome Project [was] completed and our work was done as well, what would be the next step? We wanted to bring... to unite science and justice, and the answer was that more judges had to have a longer connection with scientific information in order to equip or enhance the capacity of their jurisdiction on new evidence, new experts, causation, and the related issues to those legal matters. The training that we provide is far more general than any judge is likely to reach about a conclusion about something that occurs directly at trial. For example, most of our judges haven't had an exposure to science since either their high school or early college days. Science has changed, and in the approximately 30 years elapsed since then and now that most judges are on the bench, they have to be... to shed a certain amount of phobia about science in order to develop the underlying concept and disciplinary perspective that constitute modern science, which
is itself [has] undergone revolutions several times in that period of time.
Steve: Are you using a science phobia just metaphorically?
Zweig: I'll give you my homemade definition.There is a certain averseness that comes to many judges who found science either repelling—sometimes due to bad instruction—or not compatible with their interests. But when you add that to novelty and probability statistics...
Steve: Right! Statistics all the way.
Zweig: You get phobia.
Steve: Chief Judge Bell, I know that in Maryland there is a specific... which you call a business and technology court.
Bell: What we've done is to not make it a court as much as a part of our case management system. It is a case management program. The point is to train judges to be able to handle these complex business and technology cases, cases involving thick, complex business issues
or and/or technology, using technology or involving technological advances. We tried to not only have judges who are able to try those cases, but who are able to mediate or in some other way resolve those cases. What we've done is to designate judges in each circuit as business and technology judges and then provide them with the requisite training as to enable them to be able not only to recognize the cases when they commit, but then to handle them, and to the extent that there is a need to do so, to consult with other judges in the state and in their particular circuit concerning such issues.
Steve: Can you give me a specific case—other than the Kitzmiller case, which has gotten a lot of attention—where this kind of specialized background in science really made a difference in the case?
Zweig: A lot of cases have pivoted on issues of causation: is it reasonable to, or is it possible and reasonable to conclude that a certain set of antecedent factors led up to some kind of bad event or adverse event? And there are whole series of cases in the DES litigation. One of them, having to do with the possible teratogenic effect of the medication to calm nausea during pregnancy, led to a decision in Daubert versus Merrell Dow Pharmaceuticals that created a sea change in [the] judicial role, where huge differentials occurred between courts who concluded that Bendectin was a causative factor to birth defects, and lots of courts
that concluded otherwise, and what happened when the Supreme Court took up that case was to lay a procedural foundation for regularizing the judicial role in considering novel complex evidence. Before that, the judge merely had to determine whether when one or more relevant disciplines accepted the science proffered at trial. But what Daubert did was to say the judge has a duty to safeguard the fitness of the evidence, and that has changed the way that both the Daubert jurisdictions and what are called the Frye jurisdictions, the two main lines of evidence law in the United States. Both of them hold that the judge is a gatekeeper. There are different, new answers and emphasis in these different evident law packages, but they all require the judge to be the gatekeeper of the evidence.
Steve: That's sort of a massively new responsibility.
Zweig: It is, and it's a daunting one. And in the Supreme Court case, then Chief Justice Rehnquist dissented, saying the formulation would require judges to become armchair scientists. I am not sure that experience has borne that out. The judges need to be armchair scientists, but certainly judges in novel complex cases should be scientifically literate, able to bring their background to the qualification of expert and the determination of expert testimony.
Steve: Where are we going? What are things going to be like 10 years from now when there is so much more technical material that the legal system is going to have to process?
Zweig: There'll be virtually no case without long lines of expert witnesses on both sides, or in huge cases with interveners, lots and lots of experts arguing over whether a nanoparticle is toxic, for example.
Zweig: And the more nanoparticles get generated and are placed into commerce, the more opportunity there is for legal contests over the fate and means of action of those particles. That gives the opportunity for all sorts of causes, controversies, cases, that I think we will find come up into court, and which also will fall in ethical issues such as: should certain substances, by their very nature, be prohibited from production? Or, should there be scientific norms as well as laws that structure what happens with new material, new entities? And your Scientific American had an elegant article on engineering life
in this past June – the merger of biological and electrical circuits. These issues would come into court.
Steve: Well! Gentlemen, I am sure we will have an opportunity to come back in a few years and see where things have gone, and I greatly appreciate your being available today. It's a fascinating subject, the intersection of science and law, and I thank you very much.
Zweig and Bell: Thank you, sir!
Steve: For more information about ASTAR, go to www.einshac.org. That's e-i-n-s-h-a-c.org, because ASTAR is an offshoot of the Einstein Institute for Science, Health, and the Courts. ASTAR boot camps in life science
is [are] scheduled for November in White Plains in New York and for December in Seattle.
Tired of switching [to] the Internet in a vain attempt to answer your science question? Well now you can ask a scientist.Peter Duramorph a computer programmer in Sydney, Australia, wants to know:
Duramorph: Why is that human beings are the only animals that need to cook their meat? I mean, if you think about it, [a] fox can eat a chicken, right, and does not have to cook the chicken. If I eat a chicken, that's where I get sick. Hyenas eat stuff that I get sick just looking at. What's going on in there?
Steve: To find out, I called
Peter [Paul] Calle, senior veterinarian with the Wildlife Conservation Society at the Wildlife Health Center at the Bronx Zoo.
Calle: It's an interesting question, a complicated answer. The first part of it, of course, is people can and do eat raw foods, certainly raw fruits and vegetables, but also raw meat. If you go to a fine French restaurant and order say, tartar, that's actually raw meat. Or you go to a sushi bar and eat raw fish. And so people, if it's good quality raw food, people can eat it and not get sick. And kind of converse as well: wild animals certainly do eat raw foods. Sometimes they do get sick
in [from] it, and in both cases, the people and wild animals, it's really question of the quality of what is eaten. Wild animals generally prey upon, you know, predators prey upon live animals and so that meat is very fresh. Most of the raw products that people get sick from is, they get sick as a result of food contamination or bacterial or viral contamination or growth in the food and so, you know, eating fresh, good quality meat, fish, fruits, and vegetables – either people or animals can eat safely, and both people and animals eating poor quality or contaminated or infected food they can get sick.
Steve: Are there any really interesting or unusual mechanisms that some species have to protect them, like the carrion eaters, like vultures?
Calle: Yeah, certainly scavengers that eat old or dead prey are more resistant to these things and they have evolved to exploit that food resource and they have adaptations and adjustments in the gastrointestinal flora and absorption and tolerance to different things so that they are more resistant. And there are, however, lots of instances, especially of infectious diseases, of wild animals eating and in fact that even, you know, live prey animal and getting sick. Avian influenza is certainly... domestic and wild cats that eat birds that have died of avian influenza have gotten sick and died from the avian influenza. Certainly, in our country, raptors eating birds that have—raptors meaning birds of prey hawks, eagles and owls—that have eaten animals that have died of West Nile virus can get infected and die from West Nile virus.
Steve: I mean, one of the instances happening right now is this E coli strain that's sickened and actually killed people. If something like that happens in the animal world, it's not necessarily a big news story, so that might contribute to this concept.
Calle: Not necessarily big news story, and a lot of the big outbreaks that happen in people are a result of the mass production of food and the high crowding and the genetic inbreeding for particular breeds of livestock in the mass production. And so, if you get an infected batch of meat that's mixed with a large volume, you can impact lots and lots of people, whereas, you know, one animal eating one infected meal, if that animal is sick and it died, is not noticed.
Steve: I got you. Well, thank you very much, Dr. Calle. I appreciate it.
Calle: Okay. Thank you very much.
Steve: So that was an actual "Ask a Scientist" feature. I also wanted to share with you questions that we've received from our listeners, which are not necessarily appropriate for the ask a scientist feature, but it is still very interesting, and I have a collection of them here and I am joined by John Rennie, the editor in chief of Scientific American.
Rennie: Hello, Steve.
Steve: Now, we have never met. Isn't that right?
Rennie: I do not like to mix with you little of a wage apes sector 7 very often so.
Steve: (laughs) So, actually, we
've have met many times. However, you have not seen these questions.
Rennie: No, I have not. I would prefer not to know what these questions might be.
Steve: We begin. John what exactly is the nature of silence?
Rennie: (maintains silence)
Steve: Ding. You are absolutely correct. We'll move along. Can the thoughts of the deceased be transmitted or received by the living?
Rennie: (laughs) Not by most of the living, but there is a guy who works at a coffee shop in Toledo who is, as far as we know, the only person who is a conduit between this world and the afterlife, and as far as we can determine, in the next life what people mostly want are eggs over easy on wheat toast.
Steve: And we move along. How do I become a scientist and have a scientist's reasoning?
Rennie: Well, I've always believed that if you want to become a scientist you should go to scientist school.
Steve: What is the name of the product if I mix ethanol with cyclohexane, and what precautions should I take before doing the experiment?
Rennie: (laughs) It's maybe the world's worst bartender who is writing in today. Let's see...
Steve: And there is a follow up. How should I dispose off the residue?
Rennie: (laughs) Well, I have an uncle who might drink it.
Steve: What is scientific about effect advantage resistance and level?
Rennie: This question was on my SATs, I think.
Steve: How can I optimize my thinking capacity?
Rennie: Think every day.
Steve: At least once a day?
Rennie: Yes, whether you want to or not.
Steve: Is it possible to sleep and not rest your mind and body?
Rennie: So many people on our staff suggest the answer is yes.
Steve: No questions.
Steve: Question from listener. Will there really be hotels on the moon in 50 years?
Rennie: Maybe there will be, I would likely be booking ahead.
Steve: There is one thing to do on the moon, just look at the earth and wonder just how fast you can get back to it.
Rennie: (laughs, mimicking female voice) The earth looks so big tonight!
Steve: What is the purpose of life and what is the purpose of a human being?
Rennie: The purpose of a human being is actually something of a service to the rest of nature. The human being makes the ape look dignified, makes the hyena look merciful, makes the shark look restrained.
Steve: A wild horse starts from [the] west and runs in a straight line 29 degrees north of west. After 32 seconds of running in this direction the horse has a speed of 10 meters per second. What is the magnitude of the horse's average acceleration in meters per second squared?
Rennie: Kid, you have got to learn to do your own physics homework in this life.
Steve: Okay. Question from a listener. I believe there is a special edition Scientific American just published on energy, climate change, and innovative technical solutions. How can I purchase this issue?
Rennie: Strangely enough there is such an issue – our September 2006 issue, "Energy's Future Beyond Carbon." I imagine you can go to the Scientific American Web site, www.sciam.com, and I imagine we could arrange for you to buy an issue that way.
Steve: And of course you can access the entire issue digitally from the Web site.
Rennie: That's right.
Steve: For a small fee. Oh John, thank you very much for helping to answer our listener mail and we will see you next time.
Well that's it for this edition of the weekly Scientific American podcast. Our e-mail address is firstname.lastname@example.org. Don't you forget Science News is updated daily at www.sciam.com. Lots of coverage there and
that at our blog of the Nobel Prizes being awarded this week. The blog is blog.sciam.com and you can get your short daily podcast dose with 60-Second Science on our Web site and over at iTunes. For Science Talk, the weekly podcast of Scientific American, I am Steve Mirsky. Thanks for clicking on us.