Expertise in Regulation and Law

Gary Edmond, Gary Edmond

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351937726
• Edition: 1
• Topic: Diritto
• Subtopic: Etica e responsabilità professionale nel diritto

This collection of essays examines the multi-faceted roles of experts and expertise in and around contemporary legal and regulatory cultures. The essays illustrate the complexity intrinsic to the production and use of expert knowledge, particularly during transition from specialist communities to other domains such as policy formulation, regulatory standard setting and litigation. Several themes pervade the collection. These include the need to recognize that: expert knowledge and opinion is often complex, controversial and contested; there are no simple criteria for resolving disagreements between experts; appeals to 'objectivity' and 'impartiality' tend to be rhetorical rather than analytical; contests in expertise are frequently episodes in larger campaigns; there are many different models of expertise and knowledge; processes designed to deal with expert knowledge are unavoidably political; questions around who is an expert and what should count as expertise are not always self-evident; and the evidence rarely 'speaks for itself'.

Chapter 1

Experts and Expertise in Legal and
Regulatory Settings

Gary Edmond and David Mercer

Introduction

Who is an expert? How is expertise authorized? How are the opinions of one expert to be weighed against those of another? Can experts be trusted? What are the responsibilities of an expert? Are the legal and regulatory demands placed on experts distorting expert practice? How should courts and regulators deal with new technological processes and knowledge claims? What processes or institutional designs will produce the most appropriate forms of expertise? How do we prevent experts from becoming advocates or ‘hired guns’? How do our visions of society shape our responses to expertise (and vice versa)? While many of these questions are not new, what binds the contributions to this book is an empirical orientation explicitly sensitive to changing discourses about science and expertise and the emergence of new institutional forms and procedures.

Most of the chapters have been shaped by recent and intense debate over the nature of expertise (see, for example, Turner 2001; Collins and Evans 2002). Renewed interest in expertise seems to have been prompted by a series of crises, public controversies and litigation clusters, many of which are ongoing. ‘Mad cow’ disease, genetically modified organisms, environmental pollution, the regulation of domestic economies, the efficacy and distribution of pharmaceuticals, recognition of indigenous knowledges, changes in forensic science, institutional reform and the ethical dimensions of expertise have brought expertise to the forefront of contemporary politics, law and regulation. As the subject matter for this collection, these examples provide a clear indication of the continuing significance of experts and expertise in public life. Protracted controversies, unimaginative proposals for reform, the prevalence of polemical concepts such as ‘junk science’ and impediments to public participation all point toward limitations in much contemporary theory and practice.

Most commentators treat the concepts of expert and expertise as non-problematic. The concepts are presented as predetermined, temporally and spatially stable, quite often obvious, and even natural. Typically, ‘experts’ from specific fields, occupations or with special skills—perceived or represented as relevant— are identified and their ‘expertise’—whether skills, opinions, authority and so on— invoked, evaluated or criticized. Problems tend to arise when experts stray beyond their proper sphere, misrepresent their knowledge or experience, exaggerate degrees of certitude and disregard the standards (or norms) of their field or profession. In contrast, the essays in this text encourage the reader to dispense with some of these commitments in order to direct attention to the roles played by experts and expertise in real world situations.

Questions around what counts as expertise and who is an expert need to be examined in context. What ought to be considered as ‘context’, along with its perceived significance, will vary. It will depend on the stakes involved, the issues being considered, the resources available, the strength of institutional traditions, rules and procedures, the position of institutions in the particular legal or regulatory hierarchy, the audiences, and the interests of experts and those engaging them. What we can suggest is that expertise has no natural condition. Definitions of expertise, like the development, mobilization, appropriation and representation of expertise, are always situated, always purposive. That some experts and some forms of expertise appear mundane, institutionally appropriate or uncontroversial should not disguise the historical emergence of different kinds of expertise, the roles of legal and regulatory institutions in the social legitimation of specific kinds of expertise, competition between individual experts or entire fields, and continuing professional and institutional dynamics.¹ Attention to context extends the analytical focus beyond the technical content of expertise.

The following essays provide a challenging response to much of the existing literature on expertise in legal and regulatory settings. Each of the studies problematizes the ostensibly orderly operation of legal and regulatory institutions, especially in relation to the roles played by experts and expert knowledge. Each, in its own way, could be read to suggest that attempts to design (or reform) institutions and procedures to produce (non-problematized forms of) objective, neutral, impartial or reliable knowledge might be incorrigible. None of the contributors makes recourse to such simplistic images of expertise, accepts expert rhetorics at ‘face value’ or adverts to the need for, or possibility of, acquiring more objective knowledge. To suggest that expertise, whether in courts or regulatory agencies, can be reduced to impersonal formulaic expressions trivializes or excludes the social, institutional and political dimensions which underlay the production, management and representation of all expert knowledge. Instead, these essays illustrate the complexity intrinsic to the production and use of expert knowledge during the transition from specialist to other domains—particularly policy formation, regulatory standard-setting and litigation. Consequently, our understanding of the production and use of specialized knowledges and skills is infused at every stage with potential socio-political significance.

The essays might also be read in a way that suggests the need for caution. There may be a need to temper the expectations we place on institutions, procedures, experts and decision-makers. The contributions, therefore, raise important and enduring questions about the shapes of our legal, regulatory and political institutions and the nature and roles of expertise in contemporary democratic societies (see Albury 1983; Ezrahi 1990).

Knowledge in context: Sociological approaches to experts and expertise

From here this essay is divided into two parts. Part one offers several themes for approaching the study of expertise in legal, regulatory and political settings. Insights from recent empirical studies of science and technology suggest fresh sites and issues for investigation. They direct attention to areas which have often escaped investigation because they were not perceived as significant or to have serious social and epistemological implications. They expand our analytical scope beyond poorly theorized or empirically implausible images of expertise and unreflective aspersions directed at the technical competence of lawyers, judges and other publics. The second part offers two interpretations of the influential Daubert v Merrell Dow Pharmaceuticals, Inc. decision.² These divergent interpretations illustrate how theories of expertise may generate very different impressions of the operation of our legal and regulatory systems as well as the social and political implications of procedures and decision-making.

Context shapes contests over expertise and the emergence of specific forms of expertise

Expertise is not mono-dimensional. Expert knowledge, authority and opinions are regularly contested, and contested in ways which are sensitive to the standing and credibility of individuals (Shapin 1994, 1995), the organization of the discipline, field or profession (Gieryn 1998; Abbott 1988), the particular (institutional) context (Wootten 2003; Glass 2003), and pervasive public registers of science and expertise (Irwin and Wynne 1996).

Expertise is designed (or adapted) for particular settings and to fulfil particular purposes within those, usually institutional, settings. Usually this requires active processes of selection, emphasis and omission. It may also involve misrepresentation, exaggeration and, particularly in legal settings, degrees of simplification (Hilgartner 1990). Contests around the meaning of technical and specialized knowledges unavoidably, and sometimes strategically, ‘spill over’ into debates about rules, procedures, public technical literacy, public safety, the economic consequences of decision-making, the significance and reliability of instruments, the meanings of standards and guidelines, and even arcane debates about the philosophy of science. Because regulatory institutions, courts and public inquiries have established rules, procedures and traditions—usually reflecting entrenched politico-legal values such as procedural fairness, degrees of transparency and burdens of proof—the use and assessment of expert knowledge is difficult to extricate from its specific institutional incarnations. Controversies, therefore, routinely extend beyond the technical dimensions associated with ‘battles’ between experts and are not adequately captured by the concept of legal or regulatory distortion (Hand 1901; Goldberg 1994).

Extending our analytical focus beyond narrow technical debates or knowledge claims reveals how experts are simultaneously required to balance a range of expectations and obligations which may be in tension. For example, an expert may need to provide expertise tailored to the needs of an employer, and attend to their professional and ethical responsibilities, while adhering to particular institutional requirements and rules (Caudill in this volume).³ In many legal and regulatory contexts being (perceived as) a competent expert requires training, a performance and reputation which extends beyond the provision of detail or demonstrations of technical prowess. Some experts are chameleon-like in their ability to adapt to or manipulate legal or administrative processes. As the essay by Mercer (in this volume) suggests, many experts are entrepreneurial: able to deftly traverse a variety of settings and perform in a variety of capacities. To designate experts with positions in international organizations responsible for negotiating health standards, such as the World Health Organization, and who hold professional consultancies to large corporations or trade groups, and undertake research, and possess considerable experience as advisers and witnesses—including some with legal qualifications—simply as ‘experts’ is to eliminate some of the complexity associated with, and stimulated by, modern legal and regulatory practice. It excludes—or suggests the possibility of excluding—the disciplinary constraints, social character, institutional dimensions and valencies of what is presented and recognized as expertise.

Recognizing social, disciplinary and institutional dimensions, and their interactions, is important for understanding expertise. Many areas of specialization, such as the forensic sciences, patent and intellectual property law, and certain areas of psychology, psychiatry, epidemiology and social work, possess something of a hybridized legal or regulatory character which reflects their historical emergence in tandem with particular legal and regulatory cultures (Wynne 1989a; Cambrosio et al. 1990; King and Kaganas 1998).⁴ The peculiar history of adversarial trial procedures (Langbein 1977, 2003; Damaska 1997) and the more recent creation of regulatory agencies has generated a range of institutional forms which bolstered their own legitimacy through the use of experts and expertise. Courts and agencies continue to play an important role in the recognition, legitimation and status of different forms of expertise (Jasanoff 1990).

Furthermore, the contextualization of expertise frequently shifts agency, and consequently the analytical focus, from the evidence (which once purportedly ‘spoke for itself) to experts, decision-makers, institutions, traditions and the procedures associated with the situated production, representation and assessment of expertise. Even where specific types of expertise are privileged or predominate, we should remain alert to the conditions in which particular forms of expertise emerge (or have emerged), flourish and decline (e.g. Mnookin 1998; Haflon 1998; Golan 2004).

Institutions, rules and procedures confer advantages and disadvantages

The institutions and processes designed to deal with experts and expertise are inherently and unavoidably political, conferring (dis)advantages and opening the possibility for strategic action both in particular settings and beyond (Abraham and Eisner in this volume).

In the US, the last two decades have witnessed intense debate around the most appropriate—in this context a politically loaded—standard for the admissibility of expert evidence in federal courts. Large corporations have been among the most active participants in campaigns for reform. Manufacturers and insurers—in Galanter’s (1974) terminology, the highly experienced, attentive and well-resourced ‘repeat players’—have orchestrated high profile campaigns designed to raise the standards governing the admission of expert evidence as well as tighten substantial tort and product liability doctrine (Edmond and Mercer 2004). That is, institutional rules and procedures and legal standards, as well as individual proffers of evidence, have been subjected to protracted scrutiny, critique and revision.

The contest around admissibility standards represents an important site in the struggle over the volume of civil litigation. If the standards for the admission of expert evidence are raised it confers advantages upon civil defendants, particularly serial defendants (i.e. the ‘repeat players’). Higher admissibility standards may also have chilling effects which radiate beyond the courts. More onerous admissibility standards may prevent recourse to litigation as a response to a perceived grievance. They make it harder for plaintiffs to succeed and tend to reduce the amount of litigation. Potential litigants may either ‘lump it’ or pursue alternative ‘solutions’. If, by contrast, admissibility standards were lowered it may become easier for plaintiffs (and their lawyers) to find relevant experts, to litigate and negotiate settlements. These conditions may encourage more plaintiffs and greater recourse to law as a remedy for perceived social ills. Judges, legislatures, regulators, lawyers, manufacturers, insurers, labor and consumer organizations are all acutely aware of these implications.

In addition to localized struggles and protracted contests over rules and procedures there are other ways in which legal and regulatory forms of life may shape proceedings and outcomes. Some types of ‘expertise’ may be discounted or excluded by the terms of reference or the traditions and values which govern an institution. In a well-known study of the Windscale Inquiry into nuclear power, Brian Wynne (1982) examined the way in which Justice Parker delimited the legitimate scope of his inquiry. While the Inquiry held serious implications for the future of British policy on nuclear power, the proceedings assumed a form which effectively excluded discussion of energy policy. Questions on these topics were raised predominantly by environmental groups, whose assembled expertise did not always neatly conform with the fairly conventional legal categories imposed by the Inquiry. Under Justice Parker, the Inquiry preferred evidence which could be quantified, such as ‘scientific risk estimates’, presented by experts with more legally familiar credentials. These particular framing choices, shaped by Parker’s legal training and judicial experience, tended to favor industry groups. Parker routinely preferred evidence derived from more ‘recognisable’ forms of expertise, such as engineering and physics, particularly from those experts with industrial experience with nuclear power (see also Yearley 1989).

Expertise rarely stands alone

Expert knowledge is usually combined with other types of knowledge and values, frequently in novel (factual and/or institutional) situations. These combinations can make assessments quite complicated.

It is rare for courts or regulators to be confronted with a single type of evidence. And, even rarer to be confronted with a single type of ‘unequivocal’ evidence. Consequently, decision-makers are often required to choose between or evaluate a range of different types of evidence and opinions. How, for example, should epidemiological evidence be weighed against apparently inconsistent in vivo, in vitro and chemical structure evidence? Even where there are long traditions associated with the use of particular types of evidence and established preferences, these may be qualified by the existence of other types of evidence, controversy around the value of the preferred evidence or (apparent) inconsistencies between different types of evidence.

This kind of issue may be particularly acute in trials where the evidence of experts is combined with the testimony of lay people; whether victims, witnesses or defendants. The combinations may require considerable finesse and creativity as common law judges and lay juries seek to evaluate contradictory claims from a variety of different sources. How should incriminating DNA evidence be compared with the incons...