Law and Science

Carolina Academic PressLaw Casebook Series

Advisory Board

❦

Gary J. Simson, ChairmanCornell Law School

Raj K. BhalaThe George Washington University Law School

John C. Coffee, Jr.Columbia University School of Law

Randall CoyneUniversity of Oklahoma Law Center

John S. DzienkowskiUniversity of Texas School of Law

Robert M. JarvisShepard Broad Law Center

Nova Southeastern University

Vincent R. JohnsonSt. Mary’s University School of Law

Thomas G. KrattenmakerDirector of Research

Federal Communications Commission

Michael A. OlivasUniversity of Houston Law Center

Michael P. ScharfNew England School of Law

Peter M. ShaneDean, University of Pittsburgh School of Law

Emily L. SherwinUniversity of San Diego School of Law

John F. Sutton, Jr.University of Texas School of Law

David B. WexlerUniversity of Arizona College of Law

Law and ScienceCases and Materials

Victoria Sutton,M.P.A., Ph.D., J.D.Associate Professor

Texas Tech University School of Law

Carolina Academic PressDurham, North Carolina

Copyright © 2001,Victoria Sutton.

All Rights Reserved.

ISBN: 0-89089-950-9LCCN: 2001088040

Carolina Academic Press700 Kent Street

Durham, North Carolina 27701Telephone (919) 489-7486

Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

To Summer, Remington and Allan

Contents

Table of Cases xiA Scientist’s Foreword xiiiA Jurist’s Foreword xvPreface xixAbout the Author xxiAcknowledgments xxiii

Chapter One. Law and Science: The Interdisciplinary Relationship 3

A. Introduction to the Relationship between Law and Science 3Missouri v. Illinois and the Sanitary District of Chicago 27Keynote Address, 1998 Annual Meeting of the American

Bar Association. 34B. Statistics, Courts and Regulatory Approach 39

1. Statistics, legislation and the judiciary 39Walker v. Hall 40Craig v. Boren 47

NOTES 52Cuellar v. Hout 59

NOTES 61Department of Commerce v. United States House of

Representatives 62NOTES 65

Chapter Two. The Government, Law and Science 67

A. Federal Government and Science — the Executive Branch, LegislativeBranch and the President 67

1. Presidential Science Advice 672. Administrative Law and Science 68

Lombardo v. Handler 71Animal Legal Defense Fund v. Shalala 77Animal Legal Defense Fund v. Shalala 82

NOTES 88Food Chemical News v. Frank E. Young, Commissioner Food

and Drug Administration 89NOTES 93

B. Government Support of Basic Research — Application of Ethics, Lawand Science 94

vii

1. Executive Branch, National Science Foundation and ResearcherEthics 94

NOTES 1002. Executive Branch, National Institutes of Health and Researcher

Ethics, Researcher Individual Rights 100McCutchen v. DHHS 102Needleman v. Bernadine Healy, Director of the National

Institutes of Health, Jules Hallum, Director of Office ofScientific Integrity, et. al. 108

NOTES 116C. Regulation of Biotechnology 118

Foundation on Economic Trends v. Lyng 125Edmonds Institute v. Babbitt, Secretary of Interior 129

D. State & Local Control of Science, Regulating Professions 138NOTES 139

Chiropractic Cooperative Association of Michigan v. AmericanMedical Association 139

State Board of Examiners for Architects and Engineers et al.v. Standard Engineering Company et al. 141

NOTES 142

Chapter Three. The Private Sector, Law and Science 145

A. Science, Law & Religion 1451. Law and the Teaching of Evolution —Conflict with Religion 145

Epperson v. Arkansas 145NOTES 151

Moore v. Gaston Co. Board of Education 153Edwards, Governor of Louisiana, et al. v. Aguillard et al. 158

NOTES 1652. Law and the Religion/ Medical Science Conflict 169

Brown v. Stone 169Walker v. the Superior Court of Sacramento County 174

NOTES 184Commonwealth v. David R. Twitchell v. Ginger Twitchell 184

B. Disclosure of Medical Information and Privacy Law 187Norman-Bloodsaw v. Lawrence Berkeley Laboratory 188

NOTES 194C. Human Tissues, Science and Law 195

Moore v. Regents of the University of California 195NOTES 202

D. Technology and the Changing Concept of “expectation of privacy” 203Dow Chemical Company v. United States 203United States of America v. Ishmael 213

NOTES 219

Chapter Four. Law, Science and the Courts 221

A. Introduction 221B. The Courts and Scientific Evidence 223

viii CONTENTS

Frye v. United States 223Daubert v. Merrell Dow Pharmaceuticals, Inc. 224General Electric Company v. Joiner 232Kumho Tire Company v. Carmichael 238Kennedy v. Southern California Edison 248

Notes 256C. The Courts and the Science of Evidence 261

1. DNA evidence and controversies 261Restriction Fragment Length Polymorphism (RFLP) and

Polymerase Chain Reaction (PCR) Techniques 262State of Oregon v. Robert Wallace Lyons 263

NOTES 2702. Toxicological and Epidemiological Concepts in Law 270

A. Toxicology 270B. Epidemiology 272In re Paioli Railroad Yard PCB Litigation 273Raynor v. Merrell Pharmaceuticals, Inc. 278

NOTES 2813. Toxic tort litigation 282

In re “Agent Orange” Product Liability Litigation 284In re Dalkon Shield 287Mariam Hopkins v. Dow 288

NOTES 2944. Social Science Evidence 295

Elgin National Watch Co. v. Elgin Clock Co. 299Triangle Publications v. Rohrilich 301Zippo Manufacturing Co. v. Rogers Imports, Inc. 304Arche, Inc. v. Azaleia, U.S.A., Inc. 312

NOTES 315D. Scientific Evidence in Trial Practice 315

1. Pretrial motions, depositions of experts 315Wintz v. Northrop Corporation and Eastman Kodak Company 316Wintz v. Northrup 319

2. Direct examination and cross examination of experts 326

Chapter Five. The Future of Law and Science 327

I. Where will science bring about changes in the law? 327A. National Security, Science and Law 327

NOTES 339United States v. Wise 339

B. Explosives and Technology and Causation 344United States v. Panzero 346

C. DNA, Genome, Cloning, Body Patterns, Identification and Privacy 351The Case Against Human Cloning 351United States v. Waters 356

NOTES 359D. Tracking Identities 361E. Toxic Torts, Emerging Diseases 364

CONTENTS ix

F. Environmental Diseases 365Frank v. New York 366

NOTES 371G. International Boundaries 373

Symposium on Regulating Medical Innovation: The Architecture of Government Regulation of Medical Products 374

II. Where will the law demand that science respond ? 374Zenith Laboratories, Inc. v. Bristol-Myers Squibb 375

NOTES 376Scientific Evidence Symposium: Article: Jurisprudence

or “Juriscience”? 377The Law-Science Interface in Public Policy Decisionmaking 383

NOTES 385

Index 387

x CONTENTS

Animal Legal Defense Fund v. Shalala, 53F.3d 363 (D.C. Cir. 1993), 77

Animal Legal Defense Fund v. Shalala,104 F.3d 424 (D.C. Cir. 1997),82

Arche, Inc. v. Azaleia, U.S.A., Inc., 882 F.Supp. 334 (S.D.N.Y., 1995), 312

Auril v. CBS “60 Minutes,” 67 F.3d 816(9th Cir. 1993), 282

Bradley v. Brown, 42 F.3d 434 (7th Cir.1994), 366

Chiropractic Cooperative Association ofMichigan v. AMA, 867 F.2d 270 (6thCir. 1989),139

Commonwealth v. Twitchell, 617 N.E.2d609 (Mass., 1993), 184

Craig v. Boren,429 U.S. 190 (1976), 47Cueller v. Hout, 522 N.E.2d 322 (Ill. App.

2d 1988), 59Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993), 224,316Dept. of Commerce v. U.S. House of Rep-

resentatives, 525 U.S. 316 (1997), 62Dow Chemical Co. v. United States, 476

U.S.227 (1986), 204Edmonds Institute v. Babbitt, 93 F. Supp.

2d 63 (D.D.C.2000), 128Edwards v. Aguillard, 482 U.S. 578 (1987),

158Elgin National Watch Co. v. Elgin Clock

Co., 26 F.2d 376 (D.Del. 1928),300Epperson v. Arkansas, 393 U.S. 97 (1968),

145Food Chemical News v. Frank E. Young,

Commissioner Food and Drug Ad-ministration, 900 F.2d 328 (U.S.App.D.C., 1990),89

Frank v. New York, 972 F. Supp. 130(N.D.N.Y., 1997),365

Frontero v. Richardson, 411 U.S. 677(1973), 52

Frye v. United States, 293 F.1013 (D.C.Cir.1923),223

General Electric Company v. Joiner, 232Graham v. Canadian National Railway

Co., (D.C. Vt., 1990), 282Griswold v. Connecticut, 138In re “Agent Orange” Product Liability

Litigation, 100 F.R.D. 718 (E.D.N.Y.,1983), 284

In re Dalkon Shield, 693 F.2d 847 (9thCir. 1982), 287

In re Paoli Railroad Yard PCB Litigation,35 F.3d 717 (3rd Cir. 1994), 273

Kennedy v. Southern California Edison,2000 WL 99 1836 (9th Cir. Cal.),248

Kumho Tire Company v. Carmichael, 526U.S.137 (1999), 238

Lombardo v. Handter, 397 F. Supp. 792(D.D.C., 1976),71

Loudermill v. Dow Chemical, 863 F.2d566 (D.W. Ark., 1988), 316

Mariam Hopkins v. Dow, 33 F.3d 1116(9th Cir. 1994), 288

McCutchen v. DHHS, 30 F.3d 183 (D.C.Cir. 1994), 102

Missouri v. Illinois and the Sanitary Dist.of Chicago, 200 U.S. 496 (1906), 27

Moore v. Regents of the University of Cal-ifornia, 793 P.2d 479 (Calif. 1990),196

Moore v. Gaston Co. Board of Education,357 F. Supp. 1037 (W.D.N.C. 1978),153

Motorola, Inc. v. Ward, 223 Ga. Ap. 678(1996), 295

Muller v. Oregon, 39

xi

Table of Cases

Needleman v. Mealy, (D.West.D. Penn.,1996 U.S. Dist LEXIS 21614), 108

Nelson v. American Sterilizer Co., (MichCt. App. 1997), 282

Newark v. Gimbel’s Inc., 258 A.2d 697(N.J., 1969), 142

Norman-Bloodsaw v. Lawrence BerkeleyLaboratory, 135 Fl3d 1260 (9th Cir.1998), 188

Public Citizen v. FDA, 704 F.2d 765 (D.C.Cir. 1983), 69

Raynor v. Merrell Pharmaceuticals, Inc.,204 F.3d 1374 (D.C.Cir. 1997), 278

Reed v. Reed, 411 U.S., 52Spring v. Edgar, 99 U.S. 645 (1868),223State Board of Examiners for Architects

and Engineers v. Standard Engineer-ing Co., 7 S.W.2d 47 (Tenn. 1927),141

State of Oregon v. Robert Wallace Lyons,863 P.2d 1303 (Ore. App. 1993),263

Underwages v. Satter, 22 F.3d 730 (7thCor., 1993), 366

United States of America v. Kyllo, No. 96-30333 (D.Ore., 1999), 219

United States v. Ishmael, 48 F.3d 850 (5thCir. 1995), 213

United States v. Panzero, 2000 U.S. App.LEXIS 16210 (6TH Cir. 2000), 346

United States v. Scheffer, 572 U.S. 303(1998), 356

United States v. Waters, 194 F.3d 926 (8thCir. 1999), 357

Vaughn v. Rosen, 69Wade-Greaux v. Whitehall Laboratories,

No 30. 1998 (D. USVI, 1994), 282Walker v. The Superior Court of Sacre-

mento Co., 763 P. 852 (Calif., 1988),174

Walker v. Hall, 399 F. Supp. 1304 (W.D.Okla., 1975), 40

Wintz v. Northrup Corp., 110 F.3d 508(7th Cir. 1977),326

Wintz v. Northrup Corp., 1995 U.S. Dist.LEXIS 18952 (N.D. Ill., 1995),316

Zenith Laboratories, Inc. v. Bristol-Mey-ers Squibb, 19 F.3d 1418 (Fed. Cir.1994),374

Zippo Manufacturing Co. v. Rogers In-ports, Inc., 216 F. Supp. 670(S.D.N.Y.,1963), 305

xii TABLE OF CASES

xiii

A Scientist’s Foreword

by D. Allan Bromley

Reflecting the separation of contemporary legal and scientific communities, articlesand books on the general topics of science and the law have typically focussed on sci-ence or law and only rarely, if at all, on synthesis of the two.

Prof. Sutton has been able to draw on her background both as a scientist and alawyer as well as her broad experience in the private sector, in academia and in govern-ment (as the Assistant Director of the Office of Science and Technology Policy in theExecutive Office of the President of the United States, 1990-1993) to bring togethersuch a synthesis.

In doing so, she has resisted the temptation to include extraneous and unrelated top-ics and cases — a trap into which many previous authors have fallen.

Following a lengthy introductory essay tracing the relationship and interactions ofscience and the law from the seventeenth century until the present she has selected themost important of the areas where modern science and law intersect and has providedfull documentation of illustrative cases for each. In Chapter One the interdisciplinaryrelationship of science and the law is considered; in Chapter Two governmental aspectsof the two fields; in Chapter Three private sector components of the relationship; inChapter Four, law, science and the courts; in Chapter Five the author speculates on howthe relationships will evolve in the future.

The law student will find this casebook to be well organized, up-to-date, authorita-tive and accessible. Topics and discussion flow naturally throughout the volume. It is apleasure for me as a scientist to recommend this book to them. Moreover, I would rec-ommend it with equal enthusiasm to my fellow scientists who increasingly in our tech-nological democracy find themselves confronted with interactions, both minor andmajor, between their science and technology and the law.

Not only is this an excellent, but also a much needed volume.

D. Allan BromleySterling Professor of the Sciences

and Dean of EngineeringYale UniversityNew Haven, CT

The Assistant to the Presidentof the United Statesfor Science and Technology1989-1993

xv

1. Judge S. Jay Plager has served on the faculties of a number of law schools, including theUniversity of Florida, University of Illinois, University of Wisconsin, Indiana University-Blooming-ton, where he was also dean, and as a visiting fellow at Stanford University and Cambridge Univer-sity (England). Later he served as Counselor to the Under Secretary of the Department of Healthand Human Services in Washington, and then as a member of the Executive Office of the President,first as Associate Director of the Office of Management and Budget, and later as Administrator ofthe Office of Information and Regulatory Affairs. He was appointed to the United States Court ofAppeals for the Federal Circuit in 1989, and became a Senior Judge in the year 2000. He serves onthe Budget Committee of the Judicial Conference of the United States, and is a member of theboard directors of the Einstein Institute for Science, Health & the Courts, a f ederally-funded p ro-gram for making science accessible to the instruments of justice.

A Jurist’s Foreword

by the Honorable S. Jay Plager

U.S. Court of Appeals for the Federal Circuit1

A bit of perspective on this matter of law and science. Different observers offer dif-ferent perspectives on what law is, what science is, and how they interrelate. In chapters1 and 5 you will find commentary on this question by several authors. Some focus onwhat are seen as fundamental differences surrounding the use of “scientific method;”some see other grounds for why practitioners of the one or the other can or cannot ef-fectively relate to each other. Let me offer an anecdotal perspective from my own experi-ence.

When I was a young faculty member teaching law at the University of Illinois, I wasasked by the Dean of the College of Engineering - a school particularly highly regardedon the campus - to participate in a series of seminars involving the faculty of the engi-neering college and a select group of professors from the humanities and social sciences.The purpose of the seminars, it was explained, was to explore whether some of theideas and thinking of the non-hard sciences might be made useful to the engineeringfaculty in enriching and broadening engineering education. The Dean obviously wassomething of a visionary.

Af ter a peri od of time I came to understand how different was the way people inthe physical scien ces were tra i n ed to think abo ut probl em s , as com p a red , for ex a m p l e ,to the way we train people to “think like a law yer.” The physical scien tist analy zed aprobl em in a manner that seem ed to me “downw a rd .” I mean by that that the scien ti s twould take the mass of acc u mu l a ted date rel evant to the probl em pre s en ted , t h en re a-s on down to a spec i fic soluti on , a soluti on that met the cri teria needed to solve theprobl em . For the en gi n eer that might be the little bl ack box that tu rn ed the lights onand of f as requ i red , and for the physicist that might be the formula that proved thehypo t h e s i s .

xvi A JURIST’S FOREWORD

Lawyers, on the other hand, and to a large extent persons trained in the humanitiesand social sciences - I think of law as falling somewhere between those two - are morelikely to analyze “upward,” to take the stated problem and then search around for alter-natives to understand and manage the problem. (One mark of a good lawyer is the abil-ity to find the alternative that maximizes the values, implicit or explicit, at issue,whether they derive from a view of the public interest or the needs of a particularclient.)

For the hard sciences, empirical, testable, evidence lies at the heart of the enterprise.Even while incorporating past knowledge, hard science is focused on the future, and onthe changes that new knowledge can bring. Law, by contrast, is very much tied to thebeliefs of the past, and is largely guided by normative principles, such as fairness andreasonableness, by which human conduct should be governed. In pure science, norma-tive principles have no place (that is not the same as saying scientists are without per-sonal bias); it is the manipulation of data, and the results that derive therefrom, thatgoverns the truth for which science strives. For the law-trained, though the resolutionof individual disputes may be fact-driven, there is generally little concern for empiricalvalidation of established legal norms. Truth is a hoped-for approximation of reality,and, like justice, is conclusively presumed to be the outcome of a process by which rulesare established and disputes settled.

The difference in professional socialization, in the ways in which different disciplinesshape thinking behavior, may explain why the effort in recent years to introduce “lawand whatever” into the law school curricula has been more successful when the “and” isa humanity or social science-based discipline, such as economics or history or sociol-ogy, than when the effort is to incorporate the lessons of the hard sciences, like mathe-matics or biology. The resistance to “thinking like a scientist” may also reflect the self-selection process of students in law schools, and of the ex-students who become lawfaculty. That, however, may be changing.

Not many years ago, the typical law school student body was drawn largely from de-partments of political science, with a sprinkling of English and philosophy and history.Today in many schools the picture is different. It is not unusual to have students withhard science backgrounds - engineering, certainly, but also microbiology, aeronauticalscience, even physics. This change reflects in part the changes in law practice, which inturn reflect changes in societal values.

Corporate wealth, in which so many Americans are invested, is found as often inpatent portfolios and other form of intellectual property as it is in plants and facilities.Intellectual property law, and particularly patent law with its focus on scientific discov-eries and once the province of a handful of boutique law firms in a few cities, is nowpracticed in most major law firms. These firms either grew their own IP department orbought outright one of the boutique firms. Federal trial judges, often lacking any par-ticular scientific expertise, find themselves wrestling with cutting-edge technology thateven the experts have trouble understanding, much less explaining to a judge and jury.And, in 1982, Congress created a unique court of appeals, the Federal Circuit, a courtsometimes referred to as the science court, charged with bringing a degree of nationaluniformity to these issues.

Just as during the last century we saw the ascension of federal law and federally-pro-tected rights and privileges, in the coming century there will be the ever-accelerating as-cension of legally recognized and protected scientific knowledge, impacting on every as-pect of life. Advanced computer hardware and software, new forms of communications

A JURIST’S FOREWORD xvii

technology, medical devices and drugs, and genomic manipulation with as yet unseenconsequences, all are a part of daily life in America, and not just futuristic speculation.As Alan Bromley, Dean of the Yale University Engineering School noted in his 1998 ad-dress to the American Bar Association, “In the early days, it might have been possiblefor science and the law to remain in splendid isolation, but in today’s increasingly tech-nological society, science, technology, and the law are inexorably dr awn together, andthe time has surely come when we need to better understand one another and how wework.”

Legislators will be expected to address the most complex social and scientific interac-tions, in ways that are beneficial with a minimum of unintended consequences. Courtsin their role as peaceful resolvers of disputes, as well as in their role as defenders of therights o f individuals to freedom and property, will be required to understand science,what it is, and what it means. The Supreme Court has assigned to judges “the task ofensuring that a [scientific] expert’s testimony both rests on a reliable foundation and isrelevant to the task at hand;” the court explains that “[p]ertinent evidence based on sci-entifically valid principles will satisfy those demands.” Daubert v. Merrell Dow Pharma -ceuticals, Inc., 509 U.S. 579 (1993). Recognizing the problem in assigning this responsi-bility to judges trained in law, and not in science, one Justice has written, “Thisrequirement will sometimes ask judges to make subtle and sophisticated determinationsabout scientific methodology and its relation to the conclusions an expert witness seeksto offer - particularly when a case rises in an area where the science itself is tentative oruncertain . . . Yet, as amici have pointed out, judges are not scientists and do not have thescientific training that can facilitate the making of such decisions.” Breyer, J., concur-ring in General Electric Co. v. Joiner, 522 U.S. 136 (1997).

Nevertheless, as every judge knows, the fact that a case presents difficult issues, orthe judge feels less than adequately prepared to sort through them, does not excuse thejudge from making a decision in a case, the best he or she knows how. Proposals havebeen made to furnish judges with “neutral” scientific advisors, in addition to the dis-puting experts the litigants provide. More fundamentally, law schools are beginning tooffer courses designed to equip future lawyers and judges to work effectively in thelaw/science regimen, and continuing legal education programs are focusing on these is-sues. New organizations like the Einstein Institute for Science, Health & the Courts, head-quartered in Washington, provide specialized training for state and federal judges incurrent gene research and biotechnology, and the related social and legal issues thesedevelopments portend for the law.

Lawyers who can participate effectively in this new order, who can incorporate intotheir thinking and workproduct both the disciplines of law and of science, will be essen-tial players in the coming era. The challenge is great, but so will be the rewards, for theindividual as well as for the society.

Given the complexities of cutting-edge science, the evolving interrelationships be-tween science and law, and the difficult problems they create for each other, it is notsurprising that there are relatively few first-rate teaching materials available. It is gratify-ing to have Professor Victoria Sutton’s comprehensive contribution to the field.

xix

Preface

As this casebook goes to press, I am keenly aware of the changes that are taking placeat a rapid rate in the interdisciplinary area of law and science. Recognition of the grow-ing importance of understanding this relationship and developing strategies for bothscience and law to cope with these changes and rapid growth is more and more wide-spread. The hope is that this casebook, will go toward perpetuating and encouragingthis dialogue.

The design of the casebook is based on the typical law school model of learning —the case-based method. Concepts in science are integrated with the legal issues, usuallypresented with a brief introduction to the science for each section. Because this is an in-terdisciplinary area, explanations of the science often found in the footnotes of cases,have been selectively included with the cases, unlike many cases edited for other case-book use. The hope is that this explanation will illustrate both the concepts in science,as well as demonstrate the need for the court, law clerks, and attorneys to have an un-derstanding of the science involved with the legal issues of the case.

But the case-based approach should not discourage science and science policy stu-dents from using this casebook as a tool for gaining insight into legal issues that may af-fect them. The cases selected, were specifically chosen because they include issues im-portant to both science and law, in the form of science principles and legal issues. Forthat reason, many areas which may involve law and science, but involve predominatelymoral and ethical issues as the center of their analysis, are not included here.

The overview of Chapter One is an introduction to a variety of issues in law and sci-ence. The Chapter begins with a discourse on the history of science and law as an inter-disciplinary subject from the late 1600s up until 1863— the era of modern science. Inthe process, the student recalls some of the most famous scientists in history togetherwith the legal history and legal minds of these centuries. Using cases and principleslikely familiar to the second-year and third-year law student, these cases are examinedfor the science underlying the case, and analysis of the integration of these disciplines isexamined. The first of these cases addresses statistics and their application in law.

Chapter Two introduces the student to the role of government in science and the in-stitutional mechanisms by which science and law co-exist. The Executive Branch, theU.S. Congress and the President are specifically examined as to their interactions withthe scientific community. Government’s involvment in the conduct of scientists andother professionals is also examined. Regulation of science is demonstrated in the areaof biotechnology and the roles of state and local governments are also included.

Chapter Three addresses the private sector’s interaction with law and science, and in-cludes individual rights in both a civil and a criminal context. Science, law and religionas well as human tissues and disclosure issues are included. Rapidly changing techno-

xx PREFACE

logical advances are considered in terms of what impact this might have on the Consti-tutional “expectation of privacy.”

Chapter Four, the longest of the chapters, addresses the courts and the interactionwith law and science. Scientific e vidence is examined in a comprehensive approach tothe subject, and specific areas of science are examined — DNA evidence, toxicologicaland epidemiological evidence, toxic tort litigation and social science evidence. Thechapter concludes with a practical examination of trial practice, which would providesufficient background to enable students to use a trial practice exercise to apply the con-cepts learned throughout the casebook and particularly in this chapter.

Chapter Five, concludes with a look at some of the future issues in law and scienceand how these might be addressed. The inclusion of these possible future issues andconcepts is intended to provoke questions and raise new thoughts and ideas about theissues which may present themselves to new practitioners.

I am grateful to my Dean, W. Frank Newton, Texas Tech University School of Law,who provided comments, ideas as well as encouragement that such a casebook wasneeded. I am also grateful to Professor D. Allan Bromley, Yale University, for his com-ments and ideas on science and science policy, throughout.

I am grateful to the many law students whose ideas and questions were instrumentalin shaping this book. These include Kristopher Lance Anderson, Tina Barnes, JimSharon Bearden, Carrie Davis, Brie DeBusk, Patricia Dyer, John Granberg, ElizabethHundley, Matthew Hurt, Jacqueline Johns, Jason Kerr, Jami Ladue, Deborah Miller,John Z. Murphy, Christopher Pepper, Jerry L. Phillips, Richard Ruble, Stacy Santellana,Lee Scott, Karla Snead, Marjory Stewart, David Timberger, Michael Valachovic, JodyWireman, Steven Wong, Jason Bujnosek, Jarrod Busby, Brian Croyle, Erin Delaney,Ilkay Dogru, Amy Dunn, Cameron Gulley, Jeannine Haws, Mindy Medford, BartReeder, Chip Searcy, Lisa Trevino, and Stephanie Warnock. I am particularly grateful toStephanie Warnock, BSN, RN for her contribution to the research on issues in stem cellresearch and cloning discussed in Chapter Three.

Victoria Sutton

Lubbock, TexasJanuary 2001

xxi

About the Author

Victoria Sutton is both a scientist and a lawyer, enjoying careers in both fields overthe years. She graduated from American University, Washington College of Law with aJuris Doctorate degree magna cum laude; a Master’s Degree in Public Administrationfrom Old Dominion University and she graduated from the University of Texas at Dal -las with a Doctorate of Philosophy in Environmental Sciences. Her undergraduate de-grees are a Bachelor of Science in Zoology and A Bachelor of Science in Animal Science,cum laude.

Currently, she is Associate Professor of Law, Texas Tech University School of Law,and also serves as Adjunct Professor in the Texas Institute for Environmental andHuman Health, Texas Tech University. She previously served in the Bush Administra-tion from 1989 to 1993 first at the U.S. Environmental Protection Agency and then asAssistant Director of the Office of Science and Technology Policy, Executive Office ofthe President. She subsequently held the position of Executive Director of The RonaldReagan Institute for Emergency Medicine, George Washington University; and ResearchAssociate Professor at the Uniformed Services University for the Health Sciences inBethesda, Maryland, following her White House service. Prior to her service in govern-ment and academia, she worked in the private sector as Executive Vice President of amarine coatings manufacturing company.

During her time in Washington, D.C. she also worked for Judge S. Jay Plager, CircuitJudge for the U.S. Court of Appeals for the Federal Circuit; as well as the Department ofJustice, Indian Resources Section. She also served on the National Academy of Engi-neering, Committee on the PNGV (New Car Initiative).

Professor Sutton is a member of the District of Columbia Bar and of the Federal Cir-cuit Bar.

xxiii

Acknowledgments

The editors gratefully acknowledge permission to reprint the following articles:

An ders on , Frederi ck , “S c i en ce Advoc acy and Scien ti fic Due Proce s s ,” Is sues in Scien ceand Tech n o l ogy Online (Su m m er 2000) <www. n a p. edu / i s su e s / 1 6 . 4 / a n ders on . h tm > ,Na ti onal Ac ademy of S c i en ce s , copyri ght (c) 2000 by The Un ivers i ty of Texas at Dall a s .

Angell, Marcia, Science on Trial 100-101 (1996) copyright (c) 1996 W.W. Norton &Company, Inc.

Auchincloss, Stuart, “Does Genetic Engineering Need Genetic Engineers? Should theRegulation of Genetic Engineering Include a New Professional Discipline?” 20 B.C.Envtl. Aff. L. Rev. 37 (Fall 1993), copyright (c) 2000 Boston College.

Bromley, D. Allan, Keynote Address to the American Bar Association 1998, copyright(c) 1999 American Association for the Advancement of Science.

Calnan, Alan, Andrew E. Taslitz, “Defusing Bomb-Blast Terrorism: A Legal Survey ofTechnology and Regulatory Alternatives,” 67 Tenn. L. Rev. 177 (Fall 1999).

Ehlers, Vernon J., “The Case Against Human Cloning,” 27 Hofstra L. Rev. 523, 527-30,532. (Spring 1999) copyright (c) 1999 Hofstra University.

Gerjuoy, Edward, “Science and Technology Resources for the Courts,” 17 Technology inSociety 1-16 (1995), copyright (c) 1995 Elsevier Science, Inc.

Goldberg, Steven, Seduced by Science-How American Religion Has Lost Its Way 25-33(1999) copyright (c) 1999 New York University Press.

Green, Harold P., “The Law-Science Interface in Public Policy Decisionmaking,” Origi-nally published in 51 Ohio St. L.J. 375 (1990).

Griffiths, A.J.F., W.M. Glebart, J.H. Miller, and R.C. Lewontin, MODERN GENETICANALYSIS (c) 1999 by W.H. Freeman and Company.

Imwinkelried, Edward, “Extrapolation Testimony in Drunk Driving Prosecutions,” 34Criminal Law Bulletin 536-546 (1998).

Kelley, Andrew K., “Comment: sensitivity Training: Multiple Chemical Sensitivity andthe ADA,” 25 B.C. Envtl. Aff. L. Rev. 485 (Wint-1998).

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xxiv ACKNOWLEDGEMENTS

Slater, Eric, “Not Everyone Sees Eye to Eye on Biometics,” June 12, 1998, Friday, LIFE,Pg. D2, copyright (c) 1998 News & Record (Greensboro, NC).

Stoiber, C., cartoon, 16 Issues in Science and Technology 52 (Summer 2000) copyright(c) The University of Texas at Dallas.

Sutton, Victoria, “A Precarious ‘Hot Zone’-the President’s Plan to Combat Bioterror-ism.” This article is reprinted from the Military Law Review, Department of the ArmyPamphlet 27-100-164, at 135 (2000). The opinions and conclusions expressed hereinare those of the individual author, and do not necessarily represent the views of TheJudge Advocate General’s School, United States Army, or any other governmentalagency.