{"id":1805,"date":"2026-04-14T08:12:33","date_gmt":"2026-04-14T12:12:33","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/?page_id=1805"},"modified":"2026-04-14T08:12:33","modified_gmt":"2026-04-14T12:12:33","slug":"ethical-issues-arise-when-judges-exercise-bad-scientific-analysis-worse-issues-earise-when-they-exercise-no-scientific-analysis","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/in-print\/volume-38-issue-4-fall-2025\/ethical-issues-arise-when-judges-exercise-bad-scientific-analysis-worse-issues-earise-when-they-exercise-no-scientific-analysis\/","title":{"rendered":"Ethical Issues Arise When Judges Exercise Bad Scientific Analysis: Worse Issues eArise When They Exercise No Scientific Analysis"},"content":{"rendered":"

[T]he really creative legal thinkers of the future will [. . .] more and more look behind the pretty array of \u201ccorrect\u201d cases to the actual facts of judicial behavior [and] will more and more look behind the traditionally accepted principles of \u201cjustice\u201d and \u201creason\u201d to appraise in ethical terms the social values at stake in any choice between two precedents.<\/span><\/p>\n

\u2014 Felix S. Cohen<\/span><\/p>\n

 <\/p>\n

Justice Breyer wrote at the turn of the century, \u201c[i]n this age of science, science should expect to find a warm welcome, perhaps a permanent home, in our courtrooms[,]\u201d for the resolution of \u201cbasic questions of human liberty\u201d often \u201cdemand[s] an understanding of scientific matters.\u201d<\/span> For example, in 1997, the justices needed to develop informed understandings of the relevant scientific arts while reviewing whether the U.S. Constitution confers a right to die with dignity and whether psychopathology could constitutionally justify indefinite, noncriminal confinement.<\/span> As the justices learned and computed scientific consensus and facts of nature, their work reflected what Felix S. Cohen considered a \u201cfunctionalist\u201d approach to questions of constitutional fundamental rights. In contrast though, the 21st Century Supreme Court has moved more toward what Cohen termed in 1935 \u201ctranscendental nonsense\u201d\u2014the piecing together of rules abstracted from precedential rulings to resolve a new set of facts with neither \u201cany consideration of the practical consequences\u201d of the decision<\/span> nor appraisal, in ethical terms, of the social values at stake in deciding which precedents to maintain.<\/span><\/p>\n

This Note argues that both trial <\/span>and<\/span><\/i> appellate judges have an ethical duty to grapple with the medical impacts of their rulings and to defer to scientific experts for proper interpretations of scientific evidence before them. As we will see in the example of the recent mifepristone challenge in federal court, non-scientists can easily misinterpret and misapply scientific studies; this Note argues that judges have an ethical duty to guard against such abuse. On the other hand, as we will see in a discussion of lab techniques in a challenge against acetaminophen, judges also have a duty to listen to each side\u2019s assessment of proffered scientific evidence to hear expert critiques of experimental methods.\u00a0<\/span><\/p>\n

These ethical duties for judges can be considered as arising from the ABA\u2019s Model Rules for Professional Conduct (MRPC) 8.4(c) and (d): a lawyer cannot \u201cengage in conduct involving dishonesty, fraud, deceit, or misrepresentation,\u201d nor can a judge \u201cengage in conduct that is prejudicial to the administration of justice.\u201d<\/span> To let \u201cjunk science\u201d stand as evidence; to interpret a scientific study that was done without intention of being applied in court against the conclusions of scientists who conducted it; or to overlook scientific, medical, and statistical evidence presented to the court altogether could all be considered to be misrepresentative or unnecessarily prejudicial. Thus, in addition to grappling with evidence presented, judges must recognize their own limited experience and therefore defer to scientific expertise. This provides for a functional assessment of the matters at hand and informed, ethical application of case law\u2014as opposed to more simply picking from an array of precedents available in the court record.\u00a0<\/span><\/p>\n

The <\/span>less<\/span><\/i> functionalist choosing of precedents, including a mix of centuries-old traditions and more recent court opinions that are countervailed by others, effected the overturning of <\/span>Roe v. Wade<\/span><\/i>, which has placed many women<\/span> in medical peril. A specific path through legal precedents provided for using the least scrutinous level of court review to evaluate a challenged abortion restriction. While a physician or layperson would likely see that being a pregnant woman bears a status uniquely affected by abortion-restricting laws, judges excessively focused on precedents and pre-Nineteenth Amendment history can find it prudent to exclude medical outcomes while resolving the legal question; this is what the <\/span>Dobbs<\/span><\/i> majority opinion did.<\/span><\/p>\n

Thus, this Note proposes that in their efforts to make ethical rulings, judges and justices should weigh scientific and statistical evidence heavily in health-related cases and should have trusted neutral experts at the ready to apprise the court of scientific consensuses on predicted outcomes from certain changes in law. Given how <\/span>amici<\/span><\/i> often bear partisan valences that may bias a judge\u2019s construction of their arguments, judges\u2019 access to and consideration of trusted scientific interpreters from within the courthouse may effectuate both more accurate <\/span>and<\/span><\/i> more capacious reasoning; hearing the likely health-related effects of their decisions from closely trusted scientific interpreters may spark more frequent functionalism like that applied in many 20<\/span>th<\/span> Century landmark opinions. This could be especially helpful as the recent overturning of \u201c<\/span>Chevron<\/span><\/i> deference\u201d<\/span> promises to bring many novel questions regarding modern medicine, environmental science, and technology to the bench.\u00a0<\/span><\/p>\n

With this in mind, this Note will explore federal courts\u2019 applications of science (or lack thereof) in controversies over medical matters. Part I will compare good science applied by district trial judges in a sample of FDA cases to dangerously poor science in one recent case. Parts II, III, and IV will then look at how the sidelining of science in the landmark <\/span>Dobbs<\/span><\/i> ruling contrasts with health science\u2019s influence in past critical Supreme Court rulings, including Justice Harry Blackmun\u2019s <\/span>Roe<\/span><\/i> opinion. Part IV will also probe problems arising when a justice erroneously infers a scientific conclusion themself. Finally, Part V will contemplate policy proposals for cultivating greater friendship between appellate judges and scientific experts, including the idea of requiring that some of the closest friends of the court\u2014the law clerks\u2014should have prior education in science or technology.<\/span><\/p>\n

Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

[T]he really creative legal thinkers of the future will [. . .] more and more look behind the pretty array of \u201ccorrect\u201d cases to the actual facts of judicial behavior […]<\/p>\n","protected":false},"author":14207,"featured_media":0,"parent":1755,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-1805","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1805","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/users\/14207"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/comments?post=1805"}],"version-history":[{"count":1,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1805\/revisions"}],"predecessor-version":[{"id":1807,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1805\/revisions\/1807"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1755"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/media?parent=1805"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}