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Pollack.doc

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P
OLLACK
.
DOC
2/10/09
 
1:14 AM
383
WARNING! EXPERTS MAY BE HAZARDOUS TOYOUR HEALTH
M
ALLA
P
OLLACK
*
The academy is now emphasizing inter-disciplinary scholarship and decision-making,especially the use of science to guide legal and political policy. This approach hasmany strengths, however, some caution is also appropriate. Using inter-disciplinarysources, this article discusses four inter-related problems with the scientific solution tosocial problems. First, and most central, science is about means, not ends. Second,expertise is often applied beyond its relevant field. Third, non-experts have difficulty judging competing experts. Fourth, experts’ predictions are often wrong. The United States is presented as a horrible example of over-valuing expertise, specificallyeconomic theory. In conditions of uncertainty, decision-makers are advised to prioritize people. Throughout, actors are reminded to keep a sense of proportion, i.e. to recognizethe humor of their own pretensions
Angels Can Fly Because They Take Themselves Lightly.
I. I
NTRODUCTION
..........................................................................................383
 
II. T
HE
P
ROBLEM
...........................................................................................386
 
A. Science Provides Means, Not Ends.............................................386
 
B. Experts Act Outside Their Areas of Expertise............................388
 
C. Non-experts Need To Evaluate Claims of Expertise..................397
 
D. Expertise Does Not Ensure Accurate Predications.....................401
 
III. A H
ORRIBLE
E
XAMPLE
: T
HE
U
NITED
S
TATES
, E
CONOMIC
G
ROWTH
,
AND THE
P
OWER OF
N
EGATIVE
R
IGHTS
.........................405
 
IV. T
HE
S
OLUTION
........................................................................................408
 
“Given the chance, law will appropriate, consume, and corrupt any cultural or intellectualresource—including reason itself.”
1
 
I. I
NTRODUCTION
 Legal scholarship is increasingly going “inter-disciplinary,” often
* Malla Pollack is co-author of Callmann on Unfair Competition, Trademarks, and Monopolies(4th ed. West). After receiving her Master’s degree in library science, she graduated
summa cumlaude
from Benjamin N. Cardozo School of Law, Yeshiva University. Her scholarship centers onintellectual property and constitutional law with a focus on the public domain. She has clerked forJudge Charles Proctor Sifton, E.D.N.Y., and Judge (now Associate Justice) Ruth Bader Ginsburg,D.C. Cir. An earlier version of this paper was presented at the University of Louisville, in theLouis D. Brandeis School of Law’s
First Annual Conference on Law, Ethics, and the LifeSciences
(Oct. 27, 2007).
1
Pierre Schlag, T
HE
E
NCHANTMENT OF
R
EASON
145 (Duke Univ. Press 1998).
 
P
OLLACK
.
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2/10/09
 
1:14 AM
384
THE DARTMOUTH LAW JOURNAL
Vol. VI:3
incorporating fields within the natural sciences and beyond. Why? Perhapsbecause the proliferation of law journals has run out of new niches to fillwithout finding a law review slot for every law student. Perhaps becauselaw professors want law to seem relevant to students fixated on planetaryproblems such as global warming and waning biological diversity. Perhapsbeing “scientific” can make law seem more than a game used to justifypolitical control, the liberal state’s replacement for religion as the opiate of the masses.
2
Perhaps science can give objectivity so that administrativeagencies are forced to work for the public good instead of special interests.Perhaps professors have run out of new ways to discuss the counter-majoritarian difficulty but still need to keep publishing to get that annualsummer research stipend.Why am I bothering you with this opening? I am being humorous not just to grab your attention, but because humor is intensely serious. Judges,law professors, and, to some extent, practicing attorneys, tend to takethemselves too seriously. Humor is a sense of proportion, a recognition thatone and one’s profession are not at the center of the universe. The belief that more knowledge is the answer to all disagreement is extraordinarilynaive.
3
This article is intended to rain on everyone’s parade—but not toohard.My message is simple: reason is not infallible; or to be colloquial:“Warning! Experts may be hazardous to your health.”Of course human beings (lawyers or otherwise) should use all toolsand knowledge available.
4
To academics, the danger of interdisciplinary
2
Compare
Schlag,
supra
note 1, at 12 (Law “is the language through which the [Americanliberal] state organizes itself, effectuates its actions, and legitimizes itself and its actions to itssubjects.”),
with
V. I. Lenin,
 Novaya Zhizn
, No. 28 (Dec. 3, 1905),
in
10
 
L
ENIN
C
OLLECTED
W
ORKS
83-87 (Progress Publishers, 1965) (“Religion is opium for the people. Religion is a sortof spiritual booze, in which the slaves of capital drown their human image, their demand for a lifemore worthy or less worthy of man.”),
available at 
 http://www.marxists.org/archive/lenin/works/1905/dec/03.htm (last visited Oct. 1, 2007).
3
“The information model treats all factual assertions as bits of data, and all disagreements asresolvable on the basis of more information. The problem with this model is that it often does notwork to add more information. . . . Disagreements persist without being significantly altered bythe ‘information’ because the viewpoints that enable the facts to be given divergentinterpretations also persist.” Stephen P. Turner, L
IBERAL
D
EMOCRACY
3.0: C
IVIL
S
OCIETY IN AN
A
GE OF EXPERTS
, at 48 (Sage Publications Ltd, 2003).
4
“The rejection of any source of evidence is always treason to that ultimate rationalismwhich urges forward science and philosophy alike.” Alfred North Whitehead, T
HE
F
UNCTION OF
R
EASON
61 (Beacon Press pbk. 1958 print of 1929 ed.). “The point is not that social scientificresearch contributes nothing useful to law and policy debates. The point is that we should be waryof the hope that social scientific data – or anything else – will serve as a
deus ex machina
that canresolve difficult issues for us.” William B. Turner,
“A Bulwark Against Anarchy:” Affirmative Action, Emory Law School, and Southern Self-help
73-74 (2007), E
MORY
U
NIVERSITY
S
CHOOLOF
L
AW
P
UBLIC
L
AW
& L
EGAL
T
HEORY
R
ESEARCH
P
APER
S
ERIES
No. 07-16,
available at 
 <http://ssrn.com/abstract=1009616>.
 
P
OLLACK
.
DOC
2/10/09
 
1:14 AM
Fall 2008
EXPERTS MAY BE HAZARDOUS TO YOUR HEALTH 
385
work is doing poor work. Historians object to law office history;
5
scientistsshould be expected to object if interdisciplinary work results in shoddy lawoffice science.I see law as a practical subject; I think law professors should keep inmind the probable outcomes of following their theories.
6
Therefore, myfocus in this article is on several types of danger to the public. Here, I firstneed to distinguish between the use of scientific facts and the use of scientific language.As for the usefulness to law of scientific metaphors, I admit to aproblem with any type of metaphor (or analogy or other verbalcategorization) being used instead of nuanced analysis of disparatesituations. Consider, for example, the on-going problems caused byclassifying the Internet as a type of “space,”
7
or labeling the post-9/11 U.S.foreign policy as a “war on terror.”
8
Consider also that none of us everagreed to the allotment of disproportionate electoral power to voters in lesspopulous states, and yet discussion of the Constitution as a “socialcontract” blinds many of us to this irrefutable fact.
9
The power of wordchoice to change human reactions is widely documented but certainly notinfinite.
10
This article, however, is not focused on the power of wordchoice.
Such problems may beset even the most highly respected authors. For example, one outcome of Judge Posner’s desire “to bring measurement to bear on legal issues” was an excursion intobibliometrics, counting citations to an author’s works.
See, e.g.,
Virgil L. P. Blake,
CitationStudies—The Missing Background 
, 12 CARDOZO L. REV. 1961 (1991) (book review of RichardA. Posner, C
ARDOZO
: A S
TUDY
I
N
R
EPUTATION
(1990)).
5
See, e.g.,
Saul Cornell
‘Don’t Know Much About History’: The Current Crisis in Second  Amendment Scholarship,
29 N. K
Y
.
L
.
REV
. at 657-81 (2002) (discussing the overabundance of works using shoddy historical scholarship as a prop to support an already chosen positionregarding the Second Amendment).
6
But see
Schlag,
supra
note 1, at 132-33 (pointing out the absurdity of law professorswriting articles as if arguing for clients in real lawsuits).
7
See, e.g.,
Thomas C. Folsom,
 Defining Cyberspace (Finding Real Virtue in the Place of Virtual Reality
), 9 T
ULANE
J. T
ECH
. & I
NTELL
. P
ROP
. 75, 110 at n.90 (“Thinking of cyberspaceas it actually is yields far richer images than seeing it only dimly through simile or metaphor”including that of physical space.). The trope of “visibility” may be undercutting the movement toprotect personal privacy on the internet.
See
Julie E. Cohen,
Privacy, Visibility, Transparency,and Exposure
, 75 U. C
HI
. L. R
EV
. 181, 181-201 (Fall 2008) (outlining her argument for thisconclusion).
8
See, e.g.,
Adeno Addis
, “Informal” Suspension of Normal Processes: The “War onTerror” as an Autoimmunity Crisis
, 87 B.U. L. R
EV
. 323, 329-332 (2007) (discussing “TheRhetoric of ‘War on Terror’”).
9
See, e.g.,
Malla Pollack,
 Dampening the Illegitimacy of the United States Government 
, 42
 
I
DAHO
L. R
EV
. 123, 135-39 (discussing the power of describing the Constitution as a ‘contract’).
10
See, e.g.,
Malla Pollack,
Your Image Is My Image: When Advertising DedicatesTrademarks to the Public Domain—With an Example from the Trademark Counterfeiting Act of 1984
, 14 C
ARDOZO
L. R
EV
. 1391, 1440-46 (1993) (discussing Sapir-Worf hypothesis inrelationship to trademark genericism).

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