This paper provides a historical perspective to one of the liveliest debates in common law courts today — the one over scientific expert testimony. Arguing against the current tendency to present the problem of expert testimony as a late twentieth-century predicament which threatens to spin out of control, the paper shows that the phenomena of conflicting scientific testimonies have been perennial for at least two centuries, and intensely debated in both the legal and the scientific communities for at least 150 years.

The publication of Johannes Kepler's brilliant and revolutionary Astronomia nova (1609) has hitherto been viewed as somehow inevitable. This paper argues that, on the contrary, the book's very existence and a measure of its unusual form and content are in fact highly contingent, and derive from a legal dispute between Kepler and Tycho's heirs over the right to capitalize on his astronomical legacy. On Tycho's death, Kepler rather accidentally found himself in charge of Tycho's posthumous astronomical publications, especially the highly prestigious Rudol phine Tables. Tycho's legal heirs, not having been paid by the emperor for Tycho's astronomical assets and feigning Kepler's unworthiness as his successor, wrested this mandate back. Ordered in turn to justify his employment, Kepler contrived the Astronomia nova as an interim announcement of the fruits of his astronomical research. In an effort to block Kepler's continuing exploitation of Tycho's observations, the heirs obtained the legal right to censor his publications, which severely threatened his philosophical freedom. The threat of editorial interference was responsible in part for Astronomia nova's unusual narrative form.

In the summer of 1783, a trial took place in the French city of Arras. One M. de Vissery, a resident of the nearby village of St. Omer, was appealing a decision by his local aldermen, who required him to remove a lightning rod he had put on his chimney. His young defense lawyer was Maximilien Robespierre, who made a name for himself by winning the case. In preparation, Robespierre and his senior colleague corresponded with natural philosophers and jurisconsultants. Robes- pierre then persuasively resolved the crucial problem, namely, the proper relations of scientific to legal authority. He exploited the empiricist dogma common to contemporary physics and jurisprudence to argue that judges need not defer to scientific experts, but must only consider the facts, which required no expertise. It was a first approximation of an argument Robespierre would make with mounting authority over the next decade.

In the nineteenth century, American legal educators drew on the idea of “legal science” the claim that the study of law was similar to the study of the natural sciences. In this paper, I propose to examine the particular conceptions of “science” that were incorporated into that idea. The primary point of the paper is to argue that in antebellum America, a particular view of the natural sciences dominated public discourse, and it was this conception that was appropriated by contemporaneous legal scientists. Public discussions of natural science in lyceums, surveys, and journals, were carried out in a language grounded in the same religious commitments and the same normative conception of nature that drove the ideology of laissez-faire. Described under the rubric “Protestant Baconianism,” the approach was characterized by commitments to four elements: natural theology; a constrained version of Baconian inductivism; a belief in grand synthesis and proof by analogy; and claims of moral improvement. These elements were typical of the efforts of a particular influential circle of natural scientists and, similarly, of some of the more influential legal scientists in the antebellum period. This article examines the elements of the Protestant Baconian approach that were incorporated into Christopher Columbus Langdell's model of legal science in the 1870s, a model that continues to influence thinking about both legal education and jurisprudence to this day.

Blood tests developed at the turn of the century could in some cases discern genetic relations. While such tests could never prove that a given individual had fathered a child in question, men of certain blood types could be exonerated from paternity of children with other blood types. Starting in the 1930s, scientists and lawmakers attempted to introduce such evidence into paternity or bastardy trials to attest to a man's innocence. Evidence from blood tests soon came to be used in divorce cases.

Blood tests appeared to be ideal for providing relevant information in cases when divorcing men claimed as a part of their suit that they had not fathered their ex-wife's child or children. Nevertheless, the courts remained reluctant to intro duce such evidence in divorce cases. This paper will argue that reluctance derived not from a distrust of the science, but from the courts' clinging to a definition of paternity that was not rooted in genetic connection.

Many judges and juries fell back on the pre-industrial assumption that once a man married a woman he was automatically the father of any children she bore. While this assumption flew in the face of scientific evidence, it did have the advantage of ensuring that the children of married women could not be bastard ized. The changing manner in which courts handled the tension between genetic paternity and traditional paternity in divorce cases reveals how society's views on paternity have evolved over the course of this century.

Two parallel traditions have coexisted throughout the history of modern finger print identification. One, which gave more emphasis to the rhetoric of “science,” has always been somewhat troubled by the lack of an easily articulated scientific foundation for “dactyloscopy.” The other, more concerned with practicalities, was satisfied that the method of fingerprint identification appeared to “work” and that it won widespread legal acceptance. The latter group established conser vative rules of practice to guard against errors and preserve the credibility of latent fingerprint identification in the eyes of the law. The legacy of this history is coming home to roost today, as some latent fingerprint examiners (LFPEs) are beginning to argue that the traditional practice of latent fingerprint comparison lacks a scientific foundation appropriate to contemporary forensic science. This issue raises the question of what constitutes a “scientific” method for individual ized identification in a legal setting.

In this article I argue that brain images constructed with computerized tomography (CT) and positron emission tomography (PET) are part of a category of “expert images” and are both visually persuasive and also particularly difficult to interpret and understand by non-experts. Following the innovative judicial analogy of “demonstrative evidence” traced by Jennifer Mnookin (1998), I show how brain images are more than mere illustrations when they enter popular culture and courtrooms. Attending to the role of experts in producing data in the form of images, in selecting extreme images for publication, and in testifying as to their relevance, I argue that there is an undue risk in courtrooms that brain images will not be seen as prejudiced, stylized representations of correlation, but rather as straightforward, objective photographs of, for example, madness.

Cell lines and other human-derived biological materials have since 1980 become valuable forms of patentable matter. This paper revisits the much-critiqued legal case Moore v. Regents of the University of Cahfornia, in which John Moore claimed property rights in a patented cell line made from his spleen. Most work to date has critiqued the text of the decision and left the relevant scientific and technical literature unexamined. By mapping out the construction of discontinuity and continuity between human body and cell line in this literature, this paper provides a novel critique of the Moore case regarding the source and mobilization of scientific information in the decision. At the same time, the elisions of the case are used to move to a larger set of questions. Comparative material from the history of the first widely used cell line, HeLa, and a discussion of the relation of the scientific and economic value of cell lines, are aimed at analysis of how new objects such as patented human cell lines come into existence through science and law, and what kinds of definitions and practices make them valued objects of contention in the first place.

This paper construes various positions in the philosophy of science and the philosophy of law as responses to the problem of underdetermination in science and in law. We begin by drawing a close analogy between the successive approaches to this problem in the two fields. In particular, we stress the analogy between conventionalism as a philosophy of science and legal realism as a philosophy of law, and between Putnam's and Dworkin's critiques of these positions. We then challenge the Putnam-Dworkin strategy, arguing that their attempts to combat underdetermination are unsuccessful. We are thus led to scepticism regarding the outlook underlying the celebrated maxim, “ruled by law, not by men”.