Law and the uncooked--a reply.

Law and the uncooked--a reply. First, let me express my thanks to Burke and Fergie for theirgenerous and considered responses. I am sympathetic to theircontributions, particularly the desire for more macroscopic macroscopic/mac��ro��scop��ic/ (mak?ro-skop��ik) gross (2). mac��ro��scop��icor mac��ro��scop��i��caladj.1. Large enough to be perceived or examined by the unaided eye.2. theorising,sensitivity to power relations and Fergie's provisionalprogrammatic pro��gram��mat��ic?adj.1. Of, relating to, or having a program.2. Following an overall plan or schedule: a step-by-step, programmatic approach to problem solving.3. sketch. Indeed this general agreement leads me to defend orexplain aspects of 'Thick Decisions' in response to what areoccasionally surprising criticisms. I am not inclined to defend my approach against criticisms whichsuggest that 'Thick Decisions' should have done things whichwere never intended or clearly beyond its legitimate scope. The articlewas not presented as a comprehensive account of law-anthropologyrelations, but rather to indicate 'how a judge practically managedlaw and evidence' (Edmond 2004a: 190) in a decision which made uppart of the HIB Hibabbr.Haemophilus influenzae type b litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.When a person begins a civil lawsuit, the person enters into a process called litigation. . The title was, after all, 'ThickDecisions' and not 'Law and Anthropology'. Clearly, thearticle was not offering a macro-theory of law-expert relations, afully-blown analysis of power or detailed account of the treatment of(anthropological) expertise in all legal and quasi-legal settings. Thearticle evidently has contributions to make on these issues butgenerally maintains more modest explanatory pretensions (see also Good2004). Nevertheless, we can be usefully guided by the thoughtful responseswhich draw attention to important aspects of law-expert relations andare suggestive of suggestive ofDecision making adjective Referring to a pattern by LM or imaging, that the interpreter associates with a particular–usually malignant lesion. See Aunt Millie approach, Defensive medicine. future lines of inquiry and possibly intervention. Iwill list what I consider to be the main criticisms of 'ThickDecisions' along with my responses seriatim [Latin, Severally; separately; individually; one by one.] seriatim(sear-ee-ah-tim) prep. Latin for "one after another" as in a series. Thus, issues or facts are discussed seriatim (or "ad seriatim") meaning one by one in order. . Focussing on von Doussa's judgment, Edmond ignores thebackground to the trial, including the preparation, performances,discovery materials and 10, 000 pages of transcript (Fergie 2004: 51,53-54). The purpose of 'Thick Decisions' was to consider theappropriation of anthropological expertise in judgments using theHindmarsh Island Hindmarsh Island (Kumarangk in Ngarrindjeri dialect, coordinates Coordinates: ) is an island in the lower Murray River near the town of Goolwa, South Australia. Bridge (HIB) litigation in the Federal Court as anexample. The analysis did not purport to provide a comprehensiveexamination of the large volume of materials 'behind' thejudgment or provide a detailed assessment of the performance of variousprotagonists during the trial and its preparation. The analysis does,however, explain how a judge may draw upon such materials to support orimpose closure. This approach unavoidably focused attention upon,without necessarily privileging, judicial perspectives. Having saidthis, I agree that these areas are important and constitutive constitutive/con��sti��tu��tive/ (kon-stich��u-tiv) produced constantly or in fixed amounts, regardless of environmental conditions or demand. dimensionsof legal practice and that further study would disclose an even richerrealm. Nothing in 'Thick Decisions' was intended to deny orelide e��lide?tr.v. e��lid��ed, e��lid��ing, e��lides1. a. To omit or slur over (a syllable, for example) in pronunciation.b. To strike out (something written).2. a. this important consideration. Those familiar with socio-legal literatures would be aware thatalmost all potential litigation is 'lumped' or settled wellbefore entering the courtroom (Galanter 1974). Consequently, backstageand pre-trial activities should not be trivialised when endeavouring tounderstand legal practice and its long shadow (Mnookin and Kornhauser1979). Sensitivity to broader dimensions of law-expert relations hasbeen a conspicuous feature of my work on law and science. My PhD thesis,for example, studied the Chamberlain 'case' across thousandsof pages of transcript, numerous documents, media accounts, coronialinquiries, a trial, multiple appeals and a Royal Commission. This workexplored representations of evidence diachronically. In particular, itconsidered how images of evidence and expertise along with rules andprocedures were contested and adapted to support particular outcomes atdifferent stages (see, for example, Edmond 1998, 1999). To be accused ofinsensitivity to the tremendous volume of materials, practices,performances, and strategies around trials, appeals and judgments is,therefore, quite surprising. All the more surprising because I have evenproposed a method--legal regression--for following the orderly accountsof evidence presented in judgments back to the messiness, orcontingency, associated with the production of reports andtestimony--particularly tactical submissions and the results ofaggressive cross-examination--during the trial (Edmond 2004b: 145-147). Moreover, I would draw the reader's attention to my ownpublished writings which recognise that access to these materials, alongwith conventional legal practice and scholarship, provide the judiciarywith structural advantages in assessing and rationalising whatfrequently becomes the 'official version' of events: In democratic states judges are sensitive to a range of ostensibly non-legal concerns, particularly responsibility to the public at large and the social legitimacy of legal institutions. Notwithstanding the purported political commitment to public access and openness flowing from liberal democratic formulations of the 'rule of law', attempts to follow a trial and access legal materials such as exhibits and transcripts can be difficult, fragmentary and expensive. Judgments are often difficult to read and comprehend, even for lawyers. Few academics or journalists have the resources or inclination to review cases in detail. Together, these impediments conspire against observers and strengthen the position of the judge, vis-a-vis the interested parties and more remote publics, in the endeavour to transform the judgment into an official record. From a distance, and perhaps closer for the winning party, the judgment can become a surrogate for the entire trial (and even the events leading to trial). The opportunity to observe all of the evidence and hear the legal argument provides the trial judge with an important advantage in the production of a judgment capable of rationalizing the decision. Before having to make a decision the judge usually hears at least two strategically adumbrated, dynamic cases. These conditions afford the judge an unparalleled opportunity to selectively draw from the complex and often fragmentary arrays of evidentiary resources and legal interpretations. The judge has the opportunity and responsibility to produce what frequently becomes the authoritative version. As the authority on law, charged with the responsibility of writing the official 'summary', the perspective of the judge is privileged. The closure produced through the judgment typically exploits many of the tropes and techniques used in creating and sustaining factual representations and reality effects in other contexts. But the privileged legal perspective of the judge and the institutional procedures associated with trials and appeals offer several strategic advantages in the endeavour to produce a convincing rationalization of decision-making. (Edmond 2004b: 145-146 references omitted) I do not apologise for focusing on von Doussa's judgment,given its seminal significance in ongoing anthropological discourse. ButI also agree that we need to undertake, and have publicly called for,more intensive, ethnographically-based studies of experts and expertisein and around legal settings. 'Thick Decisions' was neverintended as the final word. The article aimed to examine thejudge's privileged position in fact-making rather than perpetuatethe privilege conventionally assigned to judicial perspectives (Edmond2005a). Edmond elides critical differences between various legal domains(Fergie 2004: 52-53). Fergie's attempt to distinguish between atrial and a Royal Commission is hardly germane to an article concernedwith representations of anthropological evidence in a judgment from theFederal Court? Along with her reference to 'the barrister'sgolden rule', they expose a certain superficiality, or rigidity, inlegal analysis. Both suggest a rather formal and unreflexive approach tolegal rules and institutional practices. For example, references tostatutory differences between the rules pertaining to trials, appealsand Royal Commissions may be formally correct, but disclose little aboutactual practice. Often and perhaps unremarkably, notwithstanding certainfreedoms, Royal Commissioners tend to adhere to adhere toverb 1. follow, keep, maintain, respect, observe, be true, fulfil, obey, heed, keep to, abide by, be loyal, mind, be constant, be faithful2. conventional legal rulesand procedures. This constraint is hardly surprising given that RoyalCommissions are usually presided over by (former) judges and almostalways involve issues affecting rights and interests. The formalprocedural differences between a trial and Royal Commission may beimportant, but the point is to explain how any differences areunderstood or made to matter. That is, the strategy behindrepresentations, when and why derogations from formal rules areattempted, allowed or rejected, and what perceived benefits andimplications flow from these activities, deserve attention andexplanation. Furthermore, trial judges are empowered to depart from thenormal rules of evidence and procedure when they consider it to be inthe 'interests of justice' to do so. To merely cite an Act orrule, without more detail, reveals little about traditions, practices,performances, legal experience or power relations. Nevertheless, the need to recognise differences between legalcontexts, especially local rules, practices and strategies, is animportant point with which I agree. Though, we should not assume thatlaw or things legal are particularly stable, or peculiarly rule-basedand orderly. The following extracts, affirming and expanding theseobservations, are taken from an introductory essay 'Experts andexpertise in legal and regulatory settings'. 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, the organization of the discipline, field or profession, the particular (institutional) context, and pervasive public registers of science and expertise. 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. 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. (Edmond and Mercer 2004a: 3 references omitted) And, Specific contests may be part of a larger controversy Often, individual trials, submissions to a regulatory agency and appeals [and here we could add Royal Commissions] can be meaningfully interpreted as episodes in ongoing campaigns.... Different stages in legal and regulatory processes may shape the selection, presentation and assessment of evidence. From a methodological perspective, the breadth of inquiry and the 'stage(s)' examined will structure how expertise and its treatment is understood. Focusing upon particular stages or cases in isolation may conceal a much richer realm of strategic moves and responses. In consequence, the trial or the case may not always be the appropriate unit for analysis. (Edmond and Mercer 2004a: 6-7) Recognising the complexity of formal and informal practices in andaround courts may suggest a point of entrance and collaboration betweenlegally-oriented anthropologists and sociologically andanthropologically-interested lawyers and legal academics. There may be aneed to develop more rigorous interdisciplinary methods and knowledgeswhere different skills, experiences, theories and perspectives meet andundergo attempts at sympathetic integration (Strathern 2004: 23-24). Edmond perpetuates a 'myopic disregard for practice,performance and experience in social analysis for which these differentHindmarsh Island cases cry out' (Fergie 2004: 54). Again these areimportant dimensions of law-expert relations. They deserve detailedconsideration but it is perhaps unfair to criticise an article concernedwith judicial decision-making for not considering these issues in moredetail. 'Thick Decisions', along with my other writings,recognises the importance of practice, performance and strategy alongwith the experience of participants (Edmond 2001). The specific focus onjudicial practice and performance was not intended to discount otherexperiences, performances and practices. Edmond presents too strong a view of judicial agency (Burke 2004:56-57). Burke's response is typically charitable and expansive. Hecreatively suggests ways of developing our understanding ofanthropology-law relations, referring to both anthropological andsociological literatures. Indeed, this is the basis of his currentresearch project. As for my purportedly strong view of judicial agency:if I have emphasised the freedom of judges, to the detriment ofconstraints--such as socialisation, institutional and managerialconcerns, professional training, experience and even eliteideology--then this is unintentional, and perhaps a methodological riskassociated with focusing primarily upon the judgment. Burke, like Fergieon power (below), does well to remind readers of the importance ofprofessional and institutional constraints. These structural,professional and ideological factors undoubtedly influence judicialpractice. Judicial freedom or agency is always constrained in a varietyof ways; even if freedoms and constraints are not always simplycommensurable com��men��su��ra��ble?adj.1. Measurable by a common standard.2. Commensurate; proportionate.3. Mathematics Exactly divisible by the same unit an integral number of times. Used of two quantities. . In 'Thick Decisions' the issue of constraint emerges mostclearly in the treatment of precedent, the case of Voli, the legalcauses of action and the need to rationalise the decision. It is notsuggested, although it might have been a real possibility in the HIBcase, that von Doussa could have simply ignored Voli, if not the variouscauses of action he ultimately addressed. Although, even here it isimportant to recall that von Doussa reconstructed the pleadings intowhat he considered more legally recognisable causes of action, beforedispensing with them. Accepting the need to attend to structural, institutional,professional, ideological and even personal constraints, one interestingfeature of law-expert interactions is the fact that expert knowledgesmay, on some occasions, provide even more interpretive flexibility thanprocedural rules and substantive legal doctrine Legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. . (Though, we should notunderestimate the mutual constitution of 'law' and'fact'.) In many cases the law is 'so clear that judgeshave no discretion' (Cardozo 1921: 160). The manipulation of expertevidence, along with images of expertise and their subjection to law,may provide judges with (additional) interpretive discretions, evenwhere the law appears settled (Edmond 2004b). Edmond fails to take power seriously or to differentiate legalpower from other kinds of power (Fergie 2004: 51-52). While questions of power may not always be explicit in 'ThickDecisions' they do emerge, perhaps most acutely in the practically,if not formally, marginalised indigenous voices, disciplinary responsesto legal 'colonisation', and in helping us to understand thediscretions (and constraints) associated with judicial decision making.Fergie's comments are, never theless, important. Power relationsshould feature prominently in our understanding of law-expert relations.However, Fergie's response implies that judges tend to be theprimary repository of (legal) power. While this may be appropriate, asa generalisation with respect to anthropological evidence, recentdevelopments in other jurisdictions introduce variegation VariegationPatchy variation in color.Mentioned in: Malignant Melanoma and complexityto our understanding of law and expertise. For two decades judges in US federal courts have been raising theadmissibility ad��mis��si��ble?adj.1. That can be accepted; allowable: admissible evidence.2. Worthy of admission.ad��mis standards for expert evidence. This exclusionaryorientation seems to have been stimulated by widespread, but empiricallyunfounded, anxieties about litigation explosions, unmeritoriouslitigation and the prevalence of unreliable expertise (Halthom andMcCann 2004; Edmond and Mercer 2004c). In 1993 the US Supreme Courtconsolidated this trend with the influential Daubert v Merrell DowPharmaceuticals, Inc. decision. Daubert was followed and extended inGeneral Electric Co. v Joiner join��er?n.1. A carpenter, especially a cabinetmaker.2. Informal A person given to joining groups, organizations, or causes. (1997) and Kumho Tire Co. v Carmichael(1999) (Edmond and Mercer 2004a). Interestingly, the images of expertise'accommodated'--rather than 'appropriated'--in thesedecisions seem to have been, at least in part, the result of strategicactivities by big business, conservative think tanks and peak scientificbodies. (2) This exertion of influence provides both a challenge tofuture law-expert relations and faint directions for intervention (seealso Collins and Evans 2002; Irwin 2004). In the face of problems attributed to expert evidence, particularlythe alleged prevalence of 'junk science', the US Supreme Courtadopted the convergent images of science and expertise promoted inamicus curiae amicus curiae(Latin: “friend of the court”) One who assists a court by furnishing information or advice regarding questions of law or fact. A person (or other entity, such as a state government) who is not a party to a particular lawsuit but nevertheless has a ('friend of the court') briefs submitted by arange of business organizations, think tanks and peak scientificinstitutions. (3) These institutions, maintaining a near monopoly onpublic definitions of expertise and the economic consequences of('excessive') litigation, supplied senior judges with anappealing solution-'reliable expertise' through the adoptionof higher admissibility standards--to what was conceived as a pressingpublic problem--'unreliable expertise' supportingunmeritorious litigation, compromising commercial competitiveness,stifling innovation and eroding legal legitimacy (Huber 1991; Foster andHuber 1997; compare Edmond and Mercer 1998, 2004c). Higher admissibilitystandards: tend to serve the interests of corporations--producing lowerlevels of liability and less litigation; resonate with thepronouncements of peak scientific organizations--upholding the publicrhetoric of science Rhetoric, since Aristotle, is best known as a discipline that studies the means and ends of persuasion. Science can be seen as the making of knowledge about the natural world. Rhetoric of science and technology, and purporting to reduce the scandalassociated with undisciplined experts; and reduce the workload of judgesand criticism of legal decision making. More onerous admissibilitystandards, predicated upon highly idealised Adj. 1. idealised - exalted to an ideal perfection or excellenceidealizedperfect - being complete of its kind and without defect or blemish; "a perfect circle"; "a perfect reproduction"; "perfect happiness"; "perfect manners"; "a perfect specimen"; "a images of science andexpertise, have made it harder for plaintiffs (and criminal defendants)to get their expert evidence into federal courts--effectively'chilling' case filings--and enabled federal judges to disposeof To determine the fate of; to exercise the power of control over; to fix the condition, application, employment, etc. of; to direct or assign for a use.See also: Dispose more litigation at the pre-trial stage--which provides a range ofadministrative 'efficiencies' and allows judicial elites toremove cases from consideration by civil juries (Edmond 2005b). (4) The point here is that because all images of expertise have social,political and economic implications they are often actively contested.In the US forms of social power, including representations of expertiseand socio-legal disorder, appear to have been strategically mobilised.Interventions, through the submission of briefs in important appeals,ongoing public relations public relations,activities and policies used to create public interest in a person, idea, product, institution, or business establishment. By its nature, public relations is devoted to serving particular interests by presenting them to the public in the most and media campaigns, lobbying for law reform aswell as judicial training, all suggest degrees of judicial (and perhapsdemocratic) vulnerability to forms of legal and extra-legalmobilisation. Here we can observe an example of the colonization of law,as epistemologically and economically dominant groups imposed theirpreferred models of science, expertise and doctrine on legal practice. When anthropologists intervene in such skirmishes, they need to beattentive not only to rules and procedures, but also to images ofexpertise and jurisprudence jurisprudence(jr'ĭsprd`əns), study of the nature and the origin and development of law. emerging from protracted pro��tract?tr.v. pro��tract��ed, pro��tract��ing, pro��tracts1. To draw out or lengthen in time; prolong: disputants who needlessly protracted the negotiations.2. contests inadjacent domains (especially tort, medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health careprofessional. and productliability) and other jurisdictions (such as the US and England).Anthropology has the potential to play a central role in enhancing,particularly demythologising, our understanding of law and expertise. Italso has a foundational contribution to make to practical law reform.Yet anthropologists, and ethnographic eth��nog��ra��phy?n.The branch of anthropology that deals with the scientific description of specific human cultures.eth��nog approaches in particular, may bevulnerable where more scientistic images of expertise and objectivitypredominate. As I suggested in 'Thick Decisions', one of themost important activities, especially in the wake of decisions likeDaubert, recent reforms to procedures in the Federal Court of Australia The Federal Court of Australia is the Australian court in which most civil disputes, and some summary criminal matters, governed by federal law are decided. Cases are heard at first instance by single Judges. and the Civil Procedural Rules in England, is to provide serviceablealternative models of expertise so that judges do not feel compelled toapproach all ways of knowing through the hegemonic prism of 'publicscience' (Turner 1993). Anthropologists can help judges resist theconvergence around specious spe��cious?adj.1. Having the ring of truth or plausibility but actually fallacious: a specious argument.2. Deceptively attractive. images of expertise promoted by peakscientific organizations, corporations and their 'independent'institutes. Indeed, it may be that the provision of alternative modelsof science and expertise, along with critical (anthropological)perspectives, will offer lay judges their only means of maintaininglegal autonomy and resisting the imposition of pro-business technocraticreforms (Edmond 2005a). (5) There is good reason to believe that ifjudges were cognisant of the threat to legal autonomy posed byscientistic and technocratic images of expertise they would beencouraged to engage more sympathetically-and perhaps even begin toaccommodate--the perspectives of anthropologists, social scientists andhumanities scholars. (6) Sinking Bismarck or Mis-anthropology? Unlike the other comments, responsive and concerned with improvingour understanding of the interactions and changing boundaries betweenlaw and anthropology, Weiner's (2004) imponderable im��pon��der��a��ble?adj.That cannot undergo precise evaluation: imponderable problems.im��pon reading evokesthe pessimism of a German autocrat: 'Laws are like sausages, it isbetter not to see them being made' (Otto von Bismarck). NOTES (1.) Here and elsewhere Fergie uses the term 'elide'. Myresponses, I would hope, suggest that these things have not beenintentionally omitted. (2.) 'Accommodation' suggests some additional level ofcomprehension, heightened understanding or sympathetic engagement. (3.) Active participants included the Pharmaceutical ManufacturersAssociation, the American Automobile Manufacturers Association, theAmerican Insurance Association, the Chamber of Commerce of the USA, theBusiness Roundtable Business Roundtable(BRT), an association consisting of the chief executive officers of major U.S. corporations that was founded in 1972 through the merger of the three preexisting business organizations. , the National Association of Manufacturers, theChemical Manufacturers Association, the National Academy of Sciences,the National Academy of Engineering, the American Medical Association,the American Association for the Advancement of Science, the WashingtonLegal Foundation, the Atlantic Legal Foundation and the ManhattanInstitute The Manhattan Institute for Policy Research is a self-described "free market think tank" established in New York City in 1978, with its headquarters on Vanderbilt Avenue in Midtown Manhattan. (the last three are conservative pro-advocacy think tanks). Incontrast, briefs submitted by legal academics, socio-legal researchers,historians and philosophers of science, along with trial lawyers,plaintiff and consumer organizations, appear to have exerted littlediscernible influence on the Supreme Court's approach to expertevidence in federal courts (Edmond and Mercer 2004b). (4.) This exemplifies the need to pursue 'thick'interpretations of legal rules. In this instance the Supreme Courtcircumvented the Constitutionally entrenched (Seventh Amendment) rightto trial by jury in civil cases through the novel interpretation of arule governing the admissibility of expert evidence. (5.) Institutional legitimacy is a more complex matter. (6.) Intervention might not be based on support for a particularprofessional 'rationality'--whether 'judicial' or'technocratic'--but on recognition that these broader boundarydisputes present potentially favourable opportunities for socialscientists to exert influence (Abbott 1988). In a sense, anthropologistsmight be engaged in the promotion of a 'public problem'agenda--the threat to judicial autonomy--resonating with judicialanxieties and professional self-interest (Gusfield 1981). REFERENCES ABBOTT, A. 1988. The system of professions: An essay on thedivision of expert labor. Chicago: University of Chicago Press The University of Chicago Press is the largest university press in the United States. It is operated by the University of Chicago and publishes a wide variety of academic titles, including The Chicago Manual of Style, dozens of academic journals, including . BURKE, R 2004. What judges really do: Comprehensive explanation andthe limits of agency. Oceania, 75:(1). CARDOZO, B. 1921. 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Gary Edmond The University of New South Wales The University of New South Wales, also known as UNSW or colloquially as New South, is a university situated in Kensington, a suburb in Sydney, New South Wales, Australia.