Prof. David L. Faigman, MA, JD
John F. Digardi Distinguished Professor of Law at the University of California, Hastings College of the Law in San Francisco and Director of the UCSF/Hastings Consortium on Law, Science and Health Policy

Professor Faigman is the 2008-09 Visiting Consortium Professor. He will visit from April 2-3, 2009. The public is invited to attend his lecture on April 3 (description below).

April 3, 2009
11:30am-1:00pm
Room 25
Mondale Hall

Science has an enormous role to play in constitutional cases. Oddly, this function for science has been largely overlooked by both courts and commentators. There has been little systematic analysis of how science has been, and how it should be, integrated into constitutional decision making. Yet, even the most casual inspection of constitutional cases quickly reveals the overwhelming presence of scientific hypotheses — ordinarily in the form of factual assertions — that are amenable to empirical test. Indeed, many of the most famous constitutional decisions contain robust scientific questions worthy of intensive study. Does segregated schooling contribute to psychological injuries and lowered self-esteem among black school children? (Brown v. Board of Education of Topeka). At what point-in-time in a pregnancy does a fetus become "viable," that is, able to survive outside the mother's womb? (Roe v. Wade). And these examples are merely the tip of an enormous empirical iceberg.

Prof. Faigman's talk will focus primarily on three issues: He will consider why judges and constitutional scholars appear so uninterested in the scientific premises that underlay their constitutional judgments. The answer appears to involve a number of factors, including an overwhelming lack of training in science and its methods (particularly statistics), a fetishistic attachment to the normative, historical, and philosophical underpinnings of constitutional doctrine, and an intense fidelity to a jurisprudence of continuity, which rejects the implicit promise of progress inherent in science. He will also explore what this profound lack of scientific curiosity and fundamental innumeracy has meant for constitutional doctrine. Using specific examples, Prof. Faigman will consider the empirical hypocrisy that pervades much of constitutional law, ranging from Abrams v. United States to Young v. American Mini Theatres. Finally, he will ask what is to be done. Is it possible, and is it desirable, to have a scientifically rational and empirically sophisticated constitutional jurisprudence?

This event is free and open to the public. A box lunch will be served. Registration is required.

Intended Audience: students, faculty, researchers, scientists, policymakers, and community members.

Susanna Blumenthal, PhD, JD Associate Professor of Law and History University of Minnesota		Eugene Borgida, PhD Professor of Psychology and Law University of Minnesota