This chapter maps the reasons why scientific arguments do not lend themselves to straightforward judicial appraisal. The study identifies epistemic, doctrinal, and legitimacy challenges, which generate difficulties in using science in an adjudicatory setting. Epistemic challenges stem from the fact that science and law are both capable of lending cognitive authority to knowledge claims, and these authorities may be in conflict with each other. Doctrinal challenges emerge from the fundamental differences in the ways in which law and science conceive basic concepts and their different levels of tolerance towards probabilistic evidence and uncertainty. Legitimacy challenges entail difficulties for judges to preserve their monopoly over the resolution of disputes and to select the appropriate rationality to justify their reasoning. This chapter also introduces the analytic framework of the book, which is designed to evaluate the varied judicial reactions given to the intrusion of science into the adjudicatory process. It therefore introduces and discusses the framing of disputes, the scientific fact-finding process, the causal inquiry, and the standard of review.

This chapter provides a comprehensive classification of the adjudicatory techniques identified in previous analytical chapters. As no unified approach manifests in the adjudicatory landscape with respect to handling scientific knowledge, the chapter discerns two parallel trends in the scientific engagement of major international fora. Certain practices impede or even preclude the intrusion of science into adjudicatory assessment and thereby downplay the role of science in the judicial inquiry; while others aim to incorporate scientific knowledge in the judicial analysis. The chapter provides a typology of judicial techniques that serve either to downplay science or to integrate it in the judicial analysis in terms of the framing of disputes, the process of fact-finding, the causal inquiry, and the standard of review. The comparative analysis also includes references to quasi-adjudicatory solutions of the UN Compensation Commission, and the US – Marshall Islands Nuclear Claims Tribunal. It also addresses good practices from domestic climate change litigation case law and US toxic tort jurisprudence to provide good practices of conducting a science-intensive judicial inquiry.