Sheila Jasanoff (sheila_jasanoff@harvard.edu)
Office: KSG, L354; Phone: 617-495-7902
Office hours: By appt.; contact Shana Rabinowich
Assistant: Shana Rabinowich (shana_rabinowich@hks.harvard.edu)
Assistant Office: KSG, L355; Phone: 617-495-5636
M, W 10:00-11:00AM
Sever 212
Law, Science and Society in America
IGA-516/SOC 180: Spring 2014
Course Description
This course explores the tensions, contradictions, and mutual dependencies that characterize the
relations between law, science, and technology in America. It contextualizes the interactions of
law, science, and technology in relation to wider transformations in US culture and society. It
examines how ideas of evidence, expertise, and public reason have evolved over the past halfcentury in response to such phenomena as the rise of environmentalism, the risk society, race and
gender activism, and the genetic and information revolutions. “Law” is broadly construed in this
course to include the activities of legislatures, regulatory agencies, and courts. “Science”
correspondingly is used as a cover term for both scientific discoveries and technological
innovations. Throughout, the course seeks to understand how the law’s tacit assumptions and
explicit rules connect the power and authority of science and technology to those of other social
institutions, such as the state, the market, and expert professional bodies. Students are expected to
learn how law, science, and technology work together to reproduce and sustain deep-seated
cultural commitments to particular forms of evidence and reasoning, particular notions of liberty,
and particular understandings of what constitutes a well-ordered society.
Readings:
Required readings will be posted on the course iSite. Required texts will also be placed on reserve
in the library.
For additional background, interested students may consult:
S. Jasanoff, Science at the Bar: Law, Science and Technology in America (Cambridge, MA:
Harvard University Press, 1990) [available at Harvard Coop]
Requirements:
1. (20%) Attendance and participation, including weekly response papers. (This requirement
will be adjusted depending on whether sections are held.)
2. (20%) Mid-term examination (in class)
3. (20%) Short issues paper (8 pgs.) on topic(s) to be announced
4. (40%) Final examination.
Collaboration Policy
Discussion and the exchange of ideas are essential to academic work and professional practice in
law and science. Throughout this course, you are encouraged to discuss the readings and your
responses to them with your classmates and to share ideas. However, you should ensure that any
written work you submit for evaluation is the result of your own research and writing and reflects
your own approach to the topic. You must also adhere to standard citation practices in the social
sciences and humanities and properly cite any books, articles, websites, lectures, etc. that have
helped you with your work. If you received substantial help with your writing (e.g., written
feedback or extensive editorial help on drafts, etc.), you must also acknowledge this assistance.
IGA 516/SOC 180 Syllabus – p. 1
COURSE OUTLINE AND READINGS
PART I:
INTRODUCTION
The first week introduces the syllabus and requirements and maps the intersections of
science and law. We see how pervasively these two institutions shape and direct our lives.
Several common narratives about the relations between law, science and technology are
introduced. The remainder of the course explores what is problematic about these
narratives and why we need a more nuanced approach.
January 27:
Course Overview and Requirements
S. Jasanoff, Science at the Bar (Cambridge, MA: Harvard University Press, 1995), Ch. 1
(“The Intersections of Science and Law”), 1-23.
PART II: MAKING LEGAL FACTS
This section addresses the construction of expertise and evidence in science and law, tracing
the law’s attempts to establish reliable facts as a prerequisite for delivering justice.
Particular attention is paid to case law dealing with the admissibility of expert testimony.
Decisions on fingerprinting and DNA fingerprinting illustrate the law’s capacity to make as
well as unmake expertise.
January 29:
Expertise in the Law
T. Golan, Laws of Men and Laws of Nature (Cambridge, MA: Harvard University Press, 2004), Ch. 3
(“Who Shall Decide Where Experts Disagree: The Nineteenth-Century Debates”), 107-143.
Justice Learned Hand, “Considerations Regarding Expert Testimony,” Harvard Law Review 15: 40-58
(1901).
February 3:
Science and Evidence
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).
S. Jasanoff, “What Judges Should Know about the Sociology of Science,” Judicature, Vol. 77(2):7782 (1993).
February 5:
Judicial Authority
M. Angell, Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case
(New York: Norton, 1996), Ch. 5 (“Scientific Evidence: What It Is and Where It Comes From”),
90-110.
S. Jasanoff, “The Eye of Everyman: Witnessing DNA in the Simpson Trial,” Social Studies of Science,
Vol. 28, No. 5-6, pp. 713-740 (1998).
February 10: The Fingerprints of Law
S. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge, MA:
Harvard University Press, 2001), Ch. 11 (“Fraud, Fabrication, and False Positives”), 259-286.
J. Mnookin, “Fingerprints: Not a Gold Standard,” Issues in Science and Technology 20(1): 47-54
(2003), http://www.issues.org/20.1/mnookin.html.
United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D.Pa. 2002).
February 12:
DNA: The Infallible Identifier
E.S. Lander and B. Budowle, "DNA Fingerprinting Dispute Laid to Rest," Nature 371 (1994), 735738.
J. Aronson, Genetic Witness (New Brunswick, NJ: Rutgers University Press, 2007), Ch. 3 (“DNA on
Trial”), 33-55.
IGA 516/SOC 180 Syllabus – p. 2
M. M. Houck “CSI: Reality,” Scientific American 295(1): 84-89 (July 2006).
B. Grissom, “Inmate’s Release Brings Call for New Evidence Law,” New York Times, October 8,
2011, http://www.nytimes.com/2011/10/09/us/inmates-release-brings-call-for-new-evidencelaw.html?pagewanted=all&_r=0
February 17: *** NO CLASS PRESIDENTS’ DAY ***
February 19: Seeing and Believing
Rodney King video, http://www.youtube.com/watch?v=SW1ZDIXiuS4
J. Medina, “Rodney King Dies at 47,” New York Times, June 17, 2012,
http://www.nytimes.com/2012/06/18/us/rodney-king-whose-beating-led-to-la-riots-dead-at47.html?pagewanted=all.
C. Goodwin, “Professional Vision.” American Anthropologist 96: 606-33 (1994).
February 24: The Social Foundations of Trust
M. Powell and S. Otterman, “Jailed Unjustly in the Death of a Rabbi, Man Nears Freedom,” New York
Times, March 20, 2013, http://www.nytimes.com/2013/03/20/nyregion/brooklyn-prosecutor-toseek-freedom-of-man-convicted-in-1990-killing-of-rabbi.html?pagewanted=all.
Sally Jacobs, “Annie Dookhan pursued renown along a path of lies,” Boston Globe, February 3, 2013,
http://www.bostonglobe.com/metro/2013/02/03/chasing-renown-path-paved-withlies/Axw3AxwmD33lRwXatSvMCL/story.html.
Perry v. New Hampshire, 565 U. S. ____ (2012).
PART III: MAKING PUBLIC REASON
In democratic societies, law is used to impose limits on executive (and in the US legislative)
power. That power includes the state’s uses and abuses of science and technology. This
section looks at the role of law in shaping the rules and discourses of political participation
in America, including the state’s duty to act in accordance with scientific evidence under
law and citizens’ freedom to hold beliefs that are incompatible with scientific knowledge.
February 26: Risk and Reason
D. A. Kessler, “The Legal and Scientific Basis for FDA’s Assertion of Jurisdiction over Cigarettes and
Smokeless Tobacco.” JAMA: The Journal of the American Medical Association 277(5): 405–409
(1997).
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
A. Liptak, “Where Free Speech Collides With Abortion Rights,” New York Times, January 12, 2014,
http://www.nytimes.com/2014/01/13/us/where-free-speech-collides-with-abortion-rights.html.
March 3: Objectivity in the Public Sphere
S. Jasanoff, “The Practices of Objectivity in Regulatory Science,” in C. Camic, N. Gross, and M.
Lamont, eds., Social Knowledge in the Making (Chicago: University of Chicago Press, 2011), pp.
307-337.
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).
March 5: Law, Science, and Religion
R. Numbers, The Creationists (New York: Knopf, 1992), Ch. 14 (“Creation Research Institutes”), 283298.
S. Goldberg, Seduced by Science: How American Religion Has Lost Its Way (New York: NYU Press,
1999), Ch. 3 (“Using the Bible as a Science Text”), 25-39.
Tammy Kitzmiller, et al. v. Dover Area School District, et al., 400 F. Supp. 2d 707 (2005).
IGA 516/SOC 180 Syllabus – p. 3
March 10: Inclusion and Exclusion
D. E. Winickoff, “Judicial Imaginaries of Technology: Constitutional Law and the Forensic DNA
Databases,” in S. Jasanoff, ed., Reframing Rights (Cambridge, MA: MIT Press, 2011), 147-167.
D. Roberts, Fatal Invention (New York: New Press, 2011), Ch. 11 (“Genetic Surveillance”), 261-286.
March 12: *** MIDTERM EXAMINATION (IN CLASS) ***
March 17 & 19: *** NO CLASS SPRING BREAK ***
PART IV: BODILY LIBERTY
We are at one and the same time biological citizens, enjoying certain liberties because of
advances in the life sciences and technologies, and citizens whose bodies are constrained by
law. This section examines how the law has responded to changing definitions of life, death,
and reproduction, as well as associated new uses (and abuses) of the human body.
March 24: The Right to Die
L. Gostin et al., eds. Law. Science and Medicine, 3rd edition (New York: Foundation Press, 2005), Ch.
8 (“Death and Dying”), pp. 1001-1017, 1050-1059 [read especially Cruzan v. Director, Missouri
Department of Health]
G.J. Annas, “Culture of Life” Politics at the Bedside — the Case of Terri Schiavo. New England
Journal of Medicine 352:1710-1715 (2005).
The Terri Schiavo Story [video], Part 3, Christian TV Channel,
http://www.youtube.com/watch?v=TsHHuILulZ4.
E. Good, “After a Prolonged Execution in Ohio, Questions Over ‘Cruel and Unusual’,” New York
Times, January 17, 2014, http://www.nytimes.com/2014/01/18/us/prolonged-execution-promptsdebate-over-death-penalty-methods.html.
M. Fernandez, “Texas Hospital Takes Pregnant Woman Off Life Support,” New York Times, January
26, 2014, http://www.nytimes.com/2014/01/27/us/texas-hospital-to-end-life-support-for-pregnantbrain-dead-woman.html?hp&_r=1.
March 26: Human Reproduction: Who Decides?
L. Gostin et al., Law. Science and Medicine, Ch. 9 (“Reproduction and the New Genetics”), pp. 11341143.
S. Jasanoff, Designs on Nature: Science and Democracy in Europe and the US (Princeton: Princeton
University Press, 2005), Ch. 6 (“Natural Mothers and Other Kinds”), 146-170.
March 31: Naturalizing Assisted Reproduction
C. Cussins, “Ontological Choreography: Agency through Objectification in Infertility Clinics,” Social
Studies of Science 26: 575-610 (1996).
L. Gostin et al., Law. Science and Medicine, Ch. 9 (“Reproduction and the New Genetics”), 11821212.
S. Saul, “Building a Baby, With Few Ground Rules,” New York Times, December 12, 2009,
http://www.nytimes.com/2009/12/13/us/13surrogacy.html?pagewanted=all.
K. Zernike, “Court’s Split Decision Provides Little Clarity on Surrogacy,” New York Times, October
24, 2012, http://www.nytimes.com/2012/10/25/nyregion/in-surrogacy-case-nj-supreme-court-isdeadlocked-over-whom-to-call-mom.html?pagewanted=all.
In the Matter of the Parentage of a Child by T.J.S. and A.L.S.,
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20NJCO%2020121024367.xml&docbase=C
SLWAR3-2007-CURR.
IGA 516/SOC 180 Syllabus – p. 4
April 2:
Brain, Mind, and Law
J. Dumit, Picturing Personhood: Brain Scans and Biomedical Identity (Cambridge, MA: MIT Press,
2004), Ch. 4 (“Ways of Seeing Brains as Expert Images”), 109-133.
M. J. Farah, “The Consciousness Continuum,” Center for Neuroethics and Society, University of
Pennsylvania, http://www.neuroethics.upenn.edu/index.php/penn-neuroethics-briefing/theconsciousness-continuum.
Roper v. Simmons, 543 US 551 (2005) (Supreme Court decision banning capital punishment for under
18-year-olds), http://www.law.cornell.edu/supct/html/03-633.ZS.html.
G. Miller, “Neuroscience Is Getting Its Day in Court, Whether It’s Ready or Not,” Wired, December
16, 2013, http://www.wired.com/wiredscience/2013/12/brain-science-law//.
PART V: PRIVACY AND PROPERTY
This section looks at the law’s role in reestablishing social order when settled expectations
are destabilized through novel objects, practices, and relationships emerging around science
and technology. In particular, we consider how social norms are co-produced along with
dominant understandings of the possibilities and limits of science and technology.
April 7:
Privacy in a Technological Age
P. Galison and M. Minow, “Our Privacy, Ourselves in the Age of Technological Intrusions,” in R. A.
Wilson, ed., Human Rights in the ''War on Terror'' (Cambridge: Cambridge University Press,
2005), 242-294.
U.S. v. Jones, 565 US ___, 132 S.Ct. 945 (2012), http://www.law.cornell.edu/supremecourt/text/101259 [Scalia majority opinion].
April 9:
What Google Sees (and Hears)
M. Nizza, “Scenes Through the Eye of Google,” New York Times, May 31, 2007,
http://thelede.blogs.nytimes.com/2007/05/31/scenes-through-the-eye-of-google/.
E. Pfanner, “Google Failed to Delete Street View Data in France,” New York Times, July 31, 2012,
http://www.nytimes.com/2012/08/01/technology/01iht-google01.html.
Joffe v. Google, (9th Cir. 2013), http://cdn.ca9.uscourts.gov/datastore/general/2013/12/27/1117483_opinion122713.pdf.
H. Fakhoury, “What the Google Street View Decision Means for Researchers (and Cops),” Electronic
Frontier Foundation, September 16, 2013, https://www.eff.org/deeplinks/2013/09/what-googlestreet-view-decision-means-researchers-and-cops.
April 14:
Data, Metadata, Security
Optional Video, NSA Whistleblower Edward Snowden: “I don’t want to live in a society that does
these sorts of things,” http://www.youtube.com/watch?v=5yB3n9fu-rM.
Editorial Board, “Edward Snowden, Whistle-Blower,” New York Times, January 1, 2014 (2014),
http://www.nytimes.com/2014/01/02/opinion/edward-snowden-whistleblower.html?hp&rref=opinion&_r=1&.
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 568 U.S. __ (2013),
http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf.
Klayman v. Obama (DCDC 2013),
http://www.wired.com/images_blogs/threatlevel/2013/12/leonruling.pdf [Skim pp. 23-30, 42-56].
S. Vladeck, “Why the Constitutional Holding in Klayman Wasn’t Necessary,” December 17, 2013,
Just Security, http://justsecurity.org/2013/12/17/constitutional-holding-klayman-wasnt/.
April 16:
Invention, Innovation, and Property
Diamond v. Chakrabarty, 447 U.S. 303 (1990).
D. J. Kevles. “Of Mice and Money: The Story of the World’s First Animal Patent,” Daedalus
131(2):78-88 (2002).
IGA 516/SOC 180 Syllabus – p. 5
F. Murray, “Patenting Life: How the Oncomouse Patent Changed the Lives of Mice and Men,” in M.
Biagioli, P. Jaszi, and M. Woodmansee, eds., Making and unmaking Intellectual Property:
Creative Production in Legal and Cultural Perspective (Chicago: University of Chicago Press,
2011), 399-411.
April 21:
Whose Body?
Moore v. Regents of the University of California, 51 Cal.3d 120 (Cal. 1990).
S. Jasanoff, “Taking Life: Private Rights in Public Nature,” in K. Sunder Rajan, ed., Lively Capital:
Biotechnologies, Ethics, and Governance in Global Markets (Durham: Duke University Press,
2012), 155-183.
April 23:
Owning the Stuff of Life
S. Parthasarathy, Building Genetic Medicine: Breast Cancer Technology and the Comparative Politics
of Health Care (Cambridge, MA: MIT Press, 2007), Ch. 3 (“Eliminating the Competition and
Ensuring Success”), 115-144.
J. Conley and D. Vorhaus, “Applying Mayo to Myriad: Latest Decision Brings No New News (Plus:
“Why the Final Myriad Decision May Not Matter for Personalized Medicine),” Genomics Law
Report, Robinson, Bradshaw & Hinson, August 17, 2912,
http://www.genomicslawreport.com/index.php/2012/08/17/applying-mayo-to-myriad-latestdecision-brings-no-new-news/#more-6807.
Association for Molecular Pathology et al. v. USPTO and Myriad Genetics, USCA Federal Circuit,
August 16, 2012 [excerpts].
PART VI: WIDENING THE LENS
In a globalizing world, how do the American dynamics of law, science and technology
affect the possibilities for social justice beyond the borders of the United States? What
new issues should we expect to see emerging in coming decades?
April 28:
Global Asymmetries
S. Jasanoff, “Bhopal’s Trials of Knowledge and Ignorance,” New England Law Review 42(4):679692 (2008).
S. Greenhouse, “Documents Indicate Walmart Blocked Safety Push in Bangladesh,” New York
Times, December 6, 2012, http://www.nytimes.com/2012/12/06/world/asia/3-walmartsuppliers-made-goods-in-bangladeshi-factory-where-112-died-in-fire.html.
C. Hayden, “No Patent, No Generic: Pharmaceutical Access and the Politics of the Copy,” in
Biagioli et al., eds., Making and Unmaking Intellectual Property, 285-303.
V. Bajaj and A. Pollack, “India’s Supreme Court to Hear Dispute on Drug Patents,” New York
Times, March 6, 2012, http://www.nytimes.com/2012/03/07/business/global/indias-supremecourt-to-hear-long-simmering-dispute-on-drug-patents.html?pagewanted=all.
April 30:
Law, Science, and Public Values
S. Jasanoff, “Making Order: Law and Science in Action,” in E, Hackett et al., eds., Handbook of
Science and Technology Studies, 3rd ed. (Cambridge, MA: MIT Press, 2007), 761-786.
S. Jasanoff, “Law’s Knowledge: Science for Justice in Legal Settings,” American Journal of
Public Health 95(S11):S49-S58 (2005).
IGA 516/SOC 180 Syllabus – p. 6