LAW, SCIENCE, AND TECHNOLOGY

George Mason University School of Law

Spring 2000

Thursdays 1/13/00-4/20/00 from 8-10 p.m.

Course Outline

Instructors: Granta Y. Nakayama & Jeffrey Bossert Clark, Kirkland & Ellis

Mr. Nakayama has taught at George Mason University School of Law since 1998. Mr. Nakayama has received the S.B. and S.M. degrees from the Massachusetts Institute of Technology in Nuclear Engineering. Mr. Nakayama received a J.D. degree from the George Mason University School of Law. Mr. Nakayama is an attorney with Kirkland & Ellis and practices in the area of environmental law.

Mr. Clark received his undergraduate degree from Harvard College, where he graduated with honors in a dual concentration in economics and history. He then spent three years working in state government in Delaware, advising the executive and legislative branches about tax policy and doing tax-policy reform studies. While there, Mr. Clark received an M.A. in public policy from the University of Delaware. After leaving Delaware state government, Mr. Clark received his law degree with honors from the Georgetown University Law Center, where he was an articles editor on the Georgetown Law Journal. After clerking for Circuit Judge Danny J. Boggs on the U.S. Court of Appeals for the Sixth Circuit, Mr. Clark became associated with Kirkland & Ellis, where he practices appellate litigation, environmental and administrative law, and dabbles in antitrust law and labor law.

INTRODUCTION

Week 1: Science, Technology, and the Law (Jan. 13, 2000)

An overview of the interactions between law, science, and technology. What is science? What is technology? What is law? A comparison and contrast of the objectives, norms, and culture of science/technology and the law. How do law and science interact? What are the potential tensions and problems when law and science interact? How can law benefit from science? How can science benefit from law?

PART I: LEGAL CONTROLS OF TECHNOLOGY RISKS

Week 2: Technology Assessment (Jan. 20, 2000)

Balancing the risks and benefits in the development of new technologies. Expert versus lay perceptions of hazards. Who should make the decisions -- scientists, legislatures, courts, regulators, or the public? Informational versus regulatory approaches. Case Study: Nuclear Energy

Week 3: Courts: Scientific Evidence and Toxic Torts (Jan. 27, 2000)

The role of science in litigating causation in toxic torts. The use of scientific expert testimony in litigation. The Federal Rules of Evidence and science. Standards for the admissibility of scientific evidence under Daubert and its progeny. The courtsí capabilities as scientific gatekeeper. Which courts, appellate or trial, are the superior gatekeepers? Case Study: Tricloroethylene ("TCE") Litigation -- A Civil Action.

Week 4: Agency Regulatory Science (Feb. 3, 2000)

The use and promotion of "good science" in regulatory decisionmaking. The "politicization" of regulatory science. Risk assessment in the regulatory process. Agency use of scientific advisory panels. Judicial review of scientific issues underlying regulation. Case Studies: Air Pollution.

PART II: THE LEGAL SYSTEM AND NEW TECHNOLOGIES

Week 5: Role of the Constitution and Congress in Regulating New Technologies (Feb. 10, 2000)

Constitutional Clauses bearing on science and the dissemination of knowledge (Weights and Measures, Authors and Inventors, First Amendment, Fourth Amendment). Uses and abuses of science in the legislative process. Capabilities and competence of Congress to address scientific and technical issues. How specific should legislation be? When and to what extent should Congress delegate to expert agencies? Substantive versus procedural statutory requirements. Case Studies: Regulation of the Internet (Communications Decency Act) and the Nondelegation Doctrine.

Week 6: Legal Mechanisms for Promoting the Benefits of New Technologies (Feb. 17, 2000)

Legal mechanisms for promoting competition and technological progress. The influence of antitrust and intellectual property doctrines on technology development. Use of incentives, subsidies, mandates, and technology-forcing legal requirements for encouraging technology development. What are the appropriate roles of the government and the market in technology development? Does federalism make the states, as laboratories of legal innovation, the appropriate vehicles for regulating new or existing technologies? Case studies: Electric vehicles, Microsoft litigation, and Recent Intellectual Property Federalism Cases.

Week 7: Law, Economics, and Technology (Feb. 24, 2000)

What does economics have to teach us about the regulation of technology? Contrasting approaches of economists and scientists to regulatory. Science as the source of constraints or the source for lifting constraints in regulation according to economic principles. The logic of markets versus the logic of science. Case study: Regulation of the Electromagnetic Spectrum.

PART III: ETHICAL ISSUES CONCERNING LAW AND TECHNOLOGY

Week 8: Privacy, Law, and Technology (Mar. 2, 2000)

Privacy concerns created by new technologies. Descriptive and normative analysis of the role of the legal system in protecting privacy from new technologies. When and how should the legal system intervene? Individual risks from the disclosure of personal information. How should the rights and interests of affected parties be balanced? Case Study: Workplace Monitoring (or other subject to be determined).

Week 9: Ethics, Law, and Technology (Mar. 9, 2000)

What role do and should moral and ethical concerns play in the legal control of technology? Professional responsibility and ethical principles in the conduct of science. What is the duty of the scientist to consider the ethical implications of his or her work? How well does the legal system respond to moral and ethical concerns about technology? Case Study: New Reproductive Technologies Including Cloning.

SPRING RECESS (Mar. 11-19, 2000)

PART IV: INSTITUTIONAL ISSUES

Week 10: The Use of Science and Technology in Legal Decisionmaking (Mar. 23, 2000)

How does technology affect the conduct of law? Implications of new scientific findings in psychology and cognition for jury trials. How do new forensic, computer, and communications technologies affect the practice of law? What are the implications of new technologies for the professional responsibility and training of attorneys? Case Study: The Uses and Misuses of Statistics in the Law.

Week 11: The Impact of the Law on the Conduct of Science (Mar. 30, 2000)

Legal restrictions and controls on the conduct of science. Is there a constitutional right to freedom to research? Legal discovery and subpoenas of scientific data. The role of lawyers in industry research programs. Case Study: Tobacco Research -- The Insider.

Week 12: The Use of Courts to Resolve Scientific/Technical Disputes (Apr. 6, 2000)

The record and role of courts in resolving scientific disputes. Alternatives to litigation. Should a different standard apply to scientific issues than other issues in litigation? The role of juries versus judges in resolving scientific issues. The judge and jury as filters for expert evidence and opinion. Alternatives to a conventional judge and jury system. How deferential are courts to scientific claims to authority, and how does this deference vary in different contexts? The role of public and media participation in science-based legal disputes. Case Study: Breast Implants.

Week 13: Dealing with Uncertainty (Apr. 13, 1999)

The importance of uncertainty in legal, scientific, and economic decisionmaking. The contrasting approaches of the legal system, economists, and scientists to uncertainty. Mechanisms to control or address uncertainty. Case Study: Global Warming.

CONCLUSION

Week 14: Law, Science, and Technology: A Review and Reprise (Apr. 20, 1999)

Review of major themes of the course. The "culture clash" between law and science (and economics). Defining the boundaries between science and law. What is the role of the law in promoting "good science?" How can the scientific community contribute to "good law" on scientific-technical subjects? What is the future of law, science, and technology?