LABORATORY OF JUSTICE: The Supreme Court's 200-Year Struggle to Integrate Science and the Law

Faigman, a professor at the University of California–Hastings College of the Law, examines the intersection of law and science in the constitutional rulings of the Supreme Court. For Faigman, the Constitution is a charter defining rights and obligations in broad terms, but the charter remains open to new interpretations as conditions change. Science certainly changes over time, and where legal decisions are based on science, they too must adapt as new science emerges and outmoded theories are discarded. Faigman shows how this evolutionary process occurs, detailing, for example, how 19th-century beliefs about racial hierarchies (the 1857 Dred Scott decision) gave way to a revised racial theory under which separate but equal public facilities were approved (in Plessy, 1892). A later generation of social scientists demonstrated how separate schools profoundly harmed black school children, and that data supported a new constitutional result in Brown v. Board of Education . Still more recent social science comes before the Court regularly in its affirmative action cases. In addition to science bearing on race, the author considers many other points at which science has influenced constitutional law, including theories of eugenics once advanced to justify compulsory sterilization, and the biology of gestation underlying Roe v. Wade . Throughout, Faigman traces the growing receptivity of the Court to empirical data and also shows how unsystematic, even haphazard, the process is for placing such facts before the Court. This insightful and accessible study throws light on how new ways of understanding the world produce new readings of our Constitution. (June)