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Judges under the microscope

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LEGAL ALCHEMY: THE USE AND MISUSE OF SCIENCE IN THE LAW David L. Faigman W. H. Freeman 233 pp., $24.95

No one will dispute that math and science skills are in strong demand in this highly technological age. Yet surveys show that school-age children are still deficient in these areas. According to David Faigman, those deficiencies are even more troubling when the poorly informed are people who should know better: America's lawyers and lawmakers.

What troubles Faigman most in "Legal Alchemy" is that legislators, lawyers, and judges don't recognize their lack of scientific knowledge and consequently end up making decisions based on "bad science."

Faigman buttresses this argument with examples of several cases that, to him, demonstrate the Supreme Court's lack of expertise or unwillingness to base legal decisions on sound scientific facts.

For instance, in Brown v. Board of Education, the 1954 case that signaled the beginning of the end of segregation, the Supreme Court cited studies by Dr. Kenneth Clark and others that found segregation caused emotional damage to black schoolchildren.

Faigman contends that this research had questionable validity that did not apparently concern the Court. The Court's reliance on this faulty basis meant that it had to contend with a later case in which experts asserted that integrated education led to decreased performance tests among black students. But in fact, the Court had little trouble reasserting its standard of "inherently unequal" in the face of "new studies" offered in Stell v. Savannah-Chatham County Board of Education.

Faigman's concerns are more convincing in Roe v. Wade. The controversial decision was based on "present medical knowledge" in 1973. Writing for the Court, Justice Blackmun set the parameter of the first trimester as a medically safe period for abortions. Further, the opinion set the point of the fetus's ability to sustain meaningful life outside the womb as the point that the state could oppose a woman's decision to abort.


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