| Book Review | The American Historical Review, 110.4

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| Book Review | The American Historical Review, 110.4 | The History Cooperative

Book Review

Comparative/World

Tal Golan. Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Cambridge: Harvard University Press. 2004. Pp. viii, 325. $49.95.
Tal Golan's book offers an innovative account of the fractious history of scientific expert testimony in the Anglo-American courtroom. Ranging widely over topics and time periods, Golan seeks to lend historical perspective to recent complaints about the shortcomings of expert evidence, showing that core concerns about partisan witnesses,untrammeled adversarialism, and the limits of jury competence in matters of science have deep theoretical and practical roots. The book follows a broadly chronological organization, integrating detailed discussions of individual cases with rich contextualization drawn not only from the history of law and science but from the history of technology and social and economic history as well.	1
The opening chapter exemplifies this interdisciplinary sensibility, exploring the complex history and legacy of Folkes v. Chadd, a protracted eighteenth-century dispute in the English civil courts about whether the degradation of a Norfolk harbor was caused by a man-made embankment or by the forces of nature. The case involved a clash between two distinct forms of science: an emergent "Newtonianism" seeking to provide evidence of nature's imperceptible but law-like regularities, and an older version grounded in long and tested experience in matters both practical and immediately verifiable. The legitimation of the "Newtonian" challenge, in Golan's account, was the core feature of Lord Mansfield's eventual, precedent-setting judgment, which, in recognizing James Smeaton's abstract and theoretically sophisticated report on the dynamics of harbor silting, opened up the courtroom to a new model of scientific testimony based on privileged knowledge of the unseen laws of nature. In an interesting twist, Golan demonstrates that Folkes v. Chadd's iconic status in subsequent Anglo-American legal commentary rests on a series of misreadings of the case. Most tellingly, he takes on the late nineteenth-century American legal scholar John Henry Wigmore's influential view that it enshrined the expert's exclusive privilege to pronounce opinion on facts not directly observed, arguing that Wigmore was misled by incomplete court reports that neglected the painstaking direct observation upon which Smeaton's testimony was actually based.	2
Mansfield's radical ruling presents a paradox that Golan pursues over the next two chapters: why was he seemingly unconcerned that he might be opening the floodgates to partisan testimony, especially since at the time other witnesses were treated with pronounced suspicion? For Golan, the answer lies in Mansfield's faith in the code of gentlemanly conduct governing late eighteenth-century science. Whether this faith was ever properly justified, Golan shows how nineteenth-century developments—notably the expanding opportunities for delivering paid expert testimony, the growing utilitarian cast of science in the context of industrial transformation, and conceptual and procedural instabilities within the rapidly proliferating scientific subspecialties—contributed to its progressive erosion among judges, legal theorists, and the wider public. Chapter two documents the increasingly conflictual nature of nineteenth-century expert testimony in cases ranging from industrial accidents, patent disputes, nuisance litigation, and criminal poisoning. The sheer range of topics covered here makes for a more fragmented discussion than the previous chapter, and the significance of each case and their relation to one another is not as clearly established. But Golan offers some fine insight along the way. For example, he explores the inherent tensions in the use of experimental science as a form of legal evidence, with the experimentalist's tendency to simplify and distill in order to demonstrate falling foul of what he aptly calls the law's abhorrence of shortcuts. Chapter three focuses on a series of mid- to late nineteenth-century debates about what, if anything, should be done about the growing contentiousness of expert testimony, situating these within broader contemporary discussions about the character of English science itself. Golan shows that tensions between an "applied" and "pure" vision of science led to different understandings of the basis for and significance of expert disagreement in courts—whether science, like law, advanced through adversarial contest, or whether dispute was a sign of science "corrupted."	. . .

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