DALLAS MIDYEAR MEETING
SECTION OF SCIENCE AND TECHNOLOGY, WYNDHAM ANATOLE HOTEL FEBRUARY 13, 2000

FRIDAY, February 11, 2000

12:00 noon-3:00 pm Section Officers Luncheon Meeting
(President's Boardroom, 27th Floor, Tower)

7:00 pm-9:30 pm Officers and Divisions Leadership Dinner
(Residence of Bert Black, 7315 Lavendale Avenue, Dallas, Texas)

SATURDAY, February 12, 2000

8:30 am-4:00 pm Council Meeting (Continental Breakfast)
(Monet Ballroom, Mezzanine Level, Tower)

12:00 noon-1:30 pm Council Luncheon with Speaker
(Madrid, Mezzanine Level, Tower)

4:30 pm-5:30 pm Long Range Planning Committee Meeting
(Milan, Mezzanine Level, Tower)

SUNDAY, February 13, 2000

8:00 am-10:00 am Millennium Project Committee Meeting
(Manchester, Mezzanine Level, Tower)

8:00 am-10:00 am Biotechnology Committee Meeting
(Milan, Mezzanine Level, Tower)

8:00 am-10:00 am Electronic Commerce Payment Committee Meeting
(Primula Room, 27th Floor, Tower)

LONDON PROGRAM UPDATE: BIOTECHNOLOGY AND LAW IN THE NEW MILLENIUM

In the 21st century, biotechnology will rival the effect on our lives, and therefore the law, which computers and the Internet have had in the 20th century. Cloning has captured headlines, but it is only one aspect of what is to come. Everyone, not just those working directly with the biotechnology industry, will be faced with the consequences of a broad range of scientific research. To open the new century, the Section will present in London a symposium which looks ahead to the challenges, opportunities, and consequences presented by fields such as human genetic testing, genetic manipulation, and the development of new drugs and foods through genetic alteration. Speakers will be prominent scientists, ethicists, and lawyers actively involved on a daily basis in grappling with these issues.

Co-Sponsors: Family Law, Health Law, Intellectual Property Law, and Coordinating Group on Bioethics and the Law. The London 2000 Plenary Session program is scheduled for Thursday, July 20, from 9:00 am to 12:00 Noon in the Assembly Hall of Church House, London. Immediate Past-Chair, Scott F. Partridge, Baker & Botts, Houston, TX and Gilbert Whittemore, Of Counsel, Stalter & Kennedy, Boston, MA will moderate the program.

Speaker Overview
Dr. Tom Wilkie, Head of the Programme in Biomedical Ethics, The Wellcome Trust, London, England. With assets of over 12 billion pounds and an annual expenditure of 400 million pounds, the Wellcome Trust is the world's largest medical research charity. It is a major funder of the human genome project. In July 1997 the Governors of the Trust established a programme of research into the social and ethical consequences of biomedical advances.

Prof. Everett Mendelsohn, Chair, Department of the History of Science, Harvard University, Cambridge, MA. Prof. Mendelsohn is a noted authority on the history of biology and its social impact in the twentieth century.

Genetic Information
Dr. Richard Durbin, Head of Informatics Division and Deputy Director of The Sanger Centre, Cambridge, England. The Sanger Centre is currently funded by the Wellcome Trust to decode one-third of the human genome by 2003 as part of an international collaboration. The Sanger Centre is the largest single contributor to this project.

Dame Fiona Caldicott, Principal, Somerville College, Oxford, England. Dame Fiona is a past president of the Royal College of Psychiatrists and chaired the Nuffield Council Committee which recently issued a report on "Mental Disorders and Genetics: The Ethical Context."

Genetic Manipulation
Dr. Keith Campbell, Professor of Animal Development, University of Nottingham, School of Biological Sciences, Division of Animal Physiology, Loughborough, Leicestershire. Dr. Campbell is a member of the research team which cloned "Dolly."

Prof. Alexander Capron, University of Southern California Law Center. Prof. Capron is a member of the U.S. National Bioethics Advisory Commission.

For more information on the London Sessions during the ABA 2000 Annual Meeting, call the Section office at 312/988-5599 or email: SCIENCETECH@ABANET.ORG Additional information for New York/London at: www.abanet.org/annual/2000/home.html

"NUTS & BOLTS OF E-BUSINESS" VIDEO PROGRAM WITH AUDIO SIMULCAST
SPONSORED BY THE SECTIONS OF SCIENCE & TECHNNOLOGY, BUSINESS LAW, AND LITIGATION, ABA CENTER FOR CLE, THURSDAY, JANUARY 20, 2000

E-commerce is more than just one of the hottest new areas of the law- it puts an unaccustomed spin on fundamental legal concepts and forces lawyers to "dig beneath" the surface. The old laws may (or may not) still apply, but they somehow look different and uncertain.

In its evolving complexity and scope, the law of e-commerce may become yet another "seamless web." This star panel of electronic commerce law experts has extracted the essentials to give you the platform you need to understand the law to date and developments to come. They will survey and critique the developing local, national, and global regulation of electronic commerce. With your clients flocking online, you can't afford to do without this information.

This program will be ideal for covering the basics you and your clients need to know to avoid common pitfalls and conduct e-commerce with confidence.

Topics to be covered: Encryption, "digital signatures" and electronic contracting; Privacy; Jurisdiction; E-payment and digital cash; Copyright, trademarks, and domain names.

Program Faculty

Moderator: Ian C. Ballon, Esq. Finnegan, Henderson, Farabow Garrett & Dunner, LLP Palo Alto, CA
Leonard T. Nuara, Esq. Nuara & Associates, PC, Morristown, NJ
W. Scott Blackmer Wilmer, Cutler & Pickering Washington, DC
John L. Douglas, Esq. Alston & Bird, LLP Atlanta, GA
Richard L. Field Law Office of Richard Field Cliffside Park, NJ

SEXUAL OFFENDER RISK ASSESSMENT AND SCIENTIFIC EVIDENCE: A JURISPRUDENT THERAPY PERSPECTIVE
by Eric Y. Drogin, J.D., Ph.D., ABPP

In the last issue of BLAST (No. 111), I mentioned that the Behavioral Science Committee would devote considerable effort to emphasizing a Jurisprudent Therapy perspective, in which "mental health science, mental health practice, and mental health roles are gauged in terms of their jurisprudent effects, or contributions to justice." The use of sexual offender risk assessments in the context of "scientific evidence" lends itself handily to such an analysis.

In recent years, all 50 states have instituted some version of "Megan's Law" in order to provide for registration and community notification upon the release of incarcerated sexual offenders. Many states (e.g., Kentucky, Maine, and Vermont) have mandated pre-release forensic assessment of sexual offenders, assigning to each sexual offender a low, medium, or high "risk level" for recidivism within a certain period of time.

The minimal ability of forensic clinicians to predict future behavior has been asserted by many experts over the course of the last two decades (e.g., Monahan, 1981; Grove & Meehl, 1996; and Garb, 1998). In some cases, clinical judgment has actually proven worse than chance. As a result, forensic psychologists were decreasingly utilized in risk assessments until the recent, federally mandated explosion of registration and community notification legislation.

In order to address the inadequacies of clinical prediction, a slew of new "actuarial" instruments have been developed and pressed into service. They vary considerably in terms of their length, complexity, and predictive accuracy.

The Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR) consists of only four components: the number of prior sexual offenses, the offender's age at release, the gender of the victim, and the offender's relationship to the victim. The RRASOR's predictive accuracy (r = .27) is none too impressive.

The Minnesota Sex Offender Screening Tool - Revised (MnSOST-R), by contrast, is a 16-item measure boasting considerably higher predictive accuracy (r = .45). One drawback, however, is that the MnSOST-R is extraordinarily difficult to score, particularly without ready access to the delicate, item-specific exclusionary rules employed and constantly revised by the instrument's developers.

One should not assume that these measures, even when employed by psychologists, are somehow "administered" to individual offenders. In fact, both the RRASOR and the MnSOST-R are purely actuarial devices. They are scored entirely on the basis of available, archival data. Any errors or omissions in an institutional record are likely to detract from the given instrument's accuracy in a particular case.

If actuarial approaches are truly superior to clinical judgment (as the research consistently suggests they are), then why are "psychological" experts employed to conduct them? It is here that a Jurisprudent Therapy analysis attaches: these actuarial assessments are cloaked in the guise of "clinical" practice (to their advantage or detriment, depending on the judge's regard for clinicians), obscuring their true nature and thus complicating the fact-finder's ability to gauge their import and value as scientific evidence.

Section members with an interest in the role of mental health evidence in legal contexts are encouraged to contact the Behavioral Science Committee. Eric Y. Drogin, J.D., Ph.D., ABPP Chair, Behavioral Science Committee P.O. Box 22576 Louisville, KY 40252-0576 Voice: (877) 877-6692 Facsimile: (877) 877-6685 Electronic Mail: EYD@DROGIN.NET

COURT-APPOINTED SCIENTIFIC EXPERTS: A DEMONSTRATION PROJECT OF THE AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE
by Deborah Runkle, Project Manager

The American Association for the Advancement of Science (AAAS) has launched a challenging and innovative project called Court Appointed Scientific Experts (or CASE). As judges increasingly deal with the challenge of litigation that presents complex scientific questions, they often express concern regarding the objectivity and reliability of parties' experts, believing that they on occasion adopt not only the zeal but also the adversarial posture more appropriate to counsel. CASE will address these concerns by responding to requests from district judges to help them obtain highly qualified, independent scientists and engineers to serve as court-appointed experts in cases where the judge believes that the traditional method of presenting scientific evidence would not yield information that is clear, accurate, or complete.

The concerns of judges regarding the resolution of these scientific disputes are echoed by much of the scientific community. Service as an expert for a party to litigation can be perceived as incompatible with deeply held professional norms. Because legal and scientific goals and procedures differ in several respects, those scientists accustomed to presenting their opinions in traditional scientific arenas often are unwilling to serve as an expert retained by a party. The result is that the judiciary may be deprived of the very people best able to inform a judge or jury about the issues in dispute. CASE will provide scientists with an opportunity to render a valuable public service while maintaining professional integrity.

CASE reflects a long-term interest on the part of the National Conference of Lawyers and Scientists (NCLS) in scientific evidence and technical expertise in the courts. Project staff will respond to requests from federal district judges who wish to appoint their own experts by identifying highly qualified and independent scientists and engineers. This is a five-year demonstration, or pilot, project that will be rigorously evaluated by the Federal Judicial Center.

Background
In 1990 the Carnegie Commission on Science, Technology, and Government asked NCLS to contribute to its study by recommending ways in which scientific and engineering societies could help improve the scientific advice available to the federal courts. NCLS appointed a special task force to respond to this charge.

The task force included representatives from the legal community as well as from scientific and engineering societies. The task force's September 1991 report recom-mended a demonstration project to test the feasibility of establishing a coordinating mechanism that would respond to requests from federal judges to identify scientists and engineers who could serve as court-appointed experts. In its report on Judicial and Regulatory Decision Making, the Commission "encouraged and supported a project of the ABA/AAAS National Conference of Lawyers and Scientists to develop mechanisms that would enable the scientific community to identify potential expert witnesses."

AAAS followed through on the recommendation by convening a planning meeting - co-sponsored by the Federal Judicial Center and the American Chemical Society - to explore the possibility of AAAS initiating such a pilot effort. Participants at this multi-disciplinary meeting included federal judges; attorneys from the plaintiffs' and defense bars and from academia and the federal government; and scientists and engineers. Although diverse views and perspectives were aired at the meeting, the most significant outcomes were the substantial support from the federal judges for a demonstration project; the confidence that scientists and engineers expressed that their colleagues would cooperate in its implementation; and recognition that AAAS was an appropriate link between the scientific and judicial communities. Subsequently, working and steering committees composed of the same variety of professional perspectives noted above drafted and reviewed the project design.

Concurrent with these activities, opinions issued by the Supreme Court reinforced the need for court-appointed experts. Specifically, in its 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Court found that where scientific expert testimony is proffered, the trial judge "must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue." The Court made passing reference to the use of a court-appointed expert to assist the judge in this task, noting that "Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing."

In its subsequent 1997 decision in General Electric Co. v. Joiner, Justice Stephen Breyer expanded on that reference in a concurring opinion. Quoting an amicus brief of the New England Journal of Medicine, he wrote: "[A] judge could better fulfill his gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority¼to appoint experts¼. Reputable experts could be recommended to courts by established scientific organizations." AAAS was specifically cited as an appropriate organization to make such recommendations.

Finally, speaking at the 1998 AAAS Annual Meeting, on the occasion of the Association's 150th anniversary, Justice Breyer fully endorsed the then proposed AAAS project, saying: "[AAAS has] offered their help. We in the legal community should accept that offer¼The result, in my view, will further not only the interests of truth but also those of justice."

In late 1998, AAAS received funding for the project from two private foundations, the Leland Fikes Foundation and the Open Society Institute. We are now in the organizational phase of the project and expect to begin accepting cases soon.

Project Organization
CASE is staffed by Mark S. Frankel, Ph.D., Project Director, Deborah Runkle, Project Manager, and Jennifer Harle, Program Associate. A Project Advisory Committee will provide guidance on the overall structure, objectives, and direction of the demonstration project. The committee will be active in the development of educational materials and guidelines for conflicts of interest. The committee will appoint members of subcommittees on education, standards, and evaluation. The Advisory Committee will not be involved in the day-to-day operation of the project. Specifically, the committee will have no role in the selection of cases or in the identification and recruitment of experts for these cases.

The Project Advisory Committee is chaired by Honorable Pamela Ann Rymer, Judge, U.S. District Court of Appeals for the Ninth Circuit. Other members are Honorable Martin Feldman, Judge, U.S. District Court for the Eastern District of Louisiana; William Hendee, Ph.D., Senior Associate Dean and Vice President, Medical College of Wisconsin; Richard Meserve, Covington and Burling (Washington, DC); Gilbert Omenn, MD, Ph.D., Executive Vice President, Medical Affairs, University of Michigan; Honorable Louis Pollak, Senior Judge, U.S. District Court for the Eastern District of Pennsylvania; Susan Poulter, College of Law, University of Utah; Paul Rheingold, Rheingold, Valet, and Rheingold (New York, NY); and Sheila Widnall, Ph.D., Abby Mauze Professor of Aeronautics and Astronautics, Massachusetts Institute of Technology.

Subcommittees on education, professional stand-ards, and evaluation are now being appointed. The Education Subcommittee will oversee efforts to develop educational materials for experts selected by the courts. These materials will be generic and will not provide information relating to any particular case. The materials will assist experts in understanding aspects of the adversarial process, such as discovery and cross- examination, with which they may not be familiar. These discussions will not only explain the justification for these procedures but will also help the experts know what they might expect. Additionally, the educational material will advise the experts on the role of AAAS following their appointment by the judge.

Other educational material will be prepared for judges to give them more information about the project. In addition to this rather general material, judges inquiring about assistance in selecting an expert will be given procedural materials. Judges who are appointing a CASE expert will be provided with additional material that may be helpful in managing pretrial and trial proceedings.

Still other educational efforts will be aimed at the scientific community in general. This information will provide background on CASE and will have as its objective the enhancement of cooperative and fruitful relations with scientific societies and academic institutions.

The Professional Standards Subcommittee will draft guidelines for conflicts of interest, including questionnaires or other instruments designed to gather pertinent information for use by the courts. In addition to considering questions regarding conflicts prior to appointment, the committee may also address policies relating to permitted professional activities following an expert's appointment by the court.

The Evaluation Subcommittee will review the evaluation plans prepared by the Federal Judicial Center and advise project staff and the Advisory Committee on the evaluation process.

Project Scope
CASE will focus on federal district courts, rather than state courts; civil rather than criminal cases, although the project could accept an especially compelling criminal case; and, of course, cases that have a significant science or technical issue. Judges using AAAS-recommended experts may appoint them under any source of authority available to them, including Rule 706 of the Federal Rules of Evidence or the inherent authority of the court.

Experts will be provided for use in a variety of roles: educating the judge or jury on a difficult technical issue; commenting on the testimony of parties' experts; assisting the judge in a ruling on the admissibility of proffered evidence; or testifying at trial. Due to constraints on our resources, the project will not likely be able to take all cases for which help is requested. Decisions on which cases to accept will be made by staff, with the Project Advisory Committee being advised of the request and decision only after the selection process is complete.

Identifying and Selecting the Experts
CASE will respond only to requests from a court. When a judge contacts us, we will begin a standard process of collecting information necessary to respond to the request. For example, what kind of a case is it? Who are the parties? What scientific or technical issues are in dispute or need clarifying? What kind of a scientist or engineer is needed and how does the judge anticipate using the expert? This information will help us decide whether the case is suitable for the project and will give us the information needed to begin searching for an appropriate expert. If contacted by a party's attorney, we will provide them with information about the project and will suggest that they discuss the matter with their judge. Indeed, throughout the process, staff will not discuss the case with any of the parties.

Finding a qualified scientist who is willing to engage in this important public service, and doing so in a timely fashion, will be a challenge. There are three general methods that will be used to identify experts. First, project staff will conduct Internet searches, using databases such as the Community of Scientists, CRISP, and NSF Grants and Awards.

Second, project staff will turn to scientific and engineering societies, to AAAS sections, and to academic and research institutions, for help. On August 23, AAAS hosted a meeting attended by 32 representatives from these groups, chaired by Judge Rymer. The attendees heard background presentations on court-appointed experts, the plans for managing the project, the nature of the FJC evaluation, the importance of this project for the scientific and technical communities, and the role that societies can play in this effort. The afternoon was devoted to breakout sessions, providing society representatives with an opportunity to discuss how their organization could cooperate with AAAS. The attendees at the meeting were uniformly in favor of CASE and expressed their eagerness to help. Staff is currently following through on detailed plans to move forward with this effort.

Finally, a blue-ribbon Recruitment and Screening Panel is the third method of identifying experts. This panel, appointed by staff, will consist of approximately 25 individuals from key scientific and engineering disciplines. These men and women will be well known and respected and, in turn, be acquainted with a great many people in their own field or related areas of research. When we receive requests from judges, we will be able to turn to the appropriate member or members of this panel and ask them to use their contacts to help us identify qualified scientists or engineers to assist the court. That is the recruitment aspect of the panel's assignment. Additionally, Panel members will be asked to screen or vet individuals who have been identified through other sources, for example, in database searches. They can again use their contacts to make confidential inquiries into a potential expert's scientific distinction, reputation, and ability to communicate highly technical information to non-scientific audiences. In some instances, a panel member may make the initial approach to potential experts, to encourage them to participate in the project. This panel will be appointed by staff only, so that there will be a solid wall between the Advisory Committee and the selection of particular experts.

Before we send scientists' or engineers' names on to a judge, they must fill out a conflict of interest form. While we can eliminate from consideration scientists with very obvious conflicts, it is up to the court itself to make the final determination on whether a more subtle conflict is disqualifying. We hope that for every request from a judge, we are able to provide three or four names of potential experts.

About AAAS
AAAS is the world's largest multi-disciplinary scientific society. The Association's 144,000 members are scientists, engineers, science educators, and policy makers. AAAS is also the world's largest federation of scientific and engineering societies, with almost 300 affiliates. The Association publishes Science, the world's leading peer-reviewed general scientific journal. Through the NCLS, AAAS is the only scientific society that has institutionalized a formal program of activities at the science/law interface, including the use of scientific expertise by the courts. We at AAAS believe that, through implemen-tation of CASE, the courts will be better able to resolve complex scientific or technical disputes in a principled and reasoned manner.