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August 01, 2017

Not Too Sure We Are Right

Eileen Smith Ewing

“The spirit of liberty is the spirit which is not too sure that it is right.” Judge Learned Hand said that to a crowd of new, immigrant Americans gathered in New York’s Central Park in 1941.

By the way, that was just about 10 years before my own parents emigrated by ship from Ireland to New York City (after some years in London during the Blitz). Then another 10 years until they proudly were awarded U.S. citizenship. Along the way, they had good friends and neighbors in Bay Ridge, Brooklyn, and Whitestone, Queens. Jews, Muslims, Christians. Some Hindus; some Buddhists. Wonderful food and wonderful people. I grew up blessed.

The point, however, is that Judge Hand told us (and those taking on the new mantle of becoming American) to reexamine ourselves. Liberty is slowly but surely eroded when we simply rely on received knowledge from the past, instead of educating ourselves as to how scientific research and human experience have evolved in the meantime.

This issue of The SciTech Lawyer—focusing on forensic science in the courts—speaks to our colleagues, our judges, and lawyers around the country. Please listen. Don’t be complacent. Don’t be too sure you’re right. We rely on forensics to show or disprove criminal guilt: fingerprinting, arson investigations, ballistics. However, there are serious scientific issues as to the reliability of some of these methods. And if the courts cannot get it right, liberty lies in the balance. Not for nothing. That might be a conviction for someone you love in the courtroom seat next to you. Or maybe no justice for someone you love who has been harmed.

This is what our Section does. We bring science and technology to bear on the law. Please read the articles from Judge Kennedy, Judge Domitrovich and Milt Nuzum, as well as our other authors. Carol Henderson and Eileen Fynan write, “Only 25 percent of U.S. law schools offer courses in scientific evidence.” How can we, as lawyers and judges, do a good job if we don’t understand the science behind the evidence?

Be sure to read Michael O’Brien’s piece on liability for (and the lag in forensic knowledge about) smart home technology gone rogue. Internet of Things, anyone? Our Section just had its Second Internet of Things National Institute in Washington, D.C., in mid-May. What a powerful two-day event that was. We started out with Rajesh De, the former general counsel of the National Security Agency, whose appearance was right in the moment: the day James Comey was unhappily stepping away from his federal post. Angela Hinton, chief counsel for the City of Atlanta, Georgia, told us how her beautiful, historic city is completely revamping itself as an Internet of Things hub: traffic lights, trash collection, police, and fire. Our Third National Institute is in the works for 2018. Roll up your sleeves and help us for next year. We welcome new members to our Section, on both the information technology and the life sciences sides of the aisle. Email me at ewing.[email protected]. We need good people!

Speaking of New York City, please join us there August 10–13 for the ABA Annual Meeting. Come to the CLE Showcase Program on cybersecurity, which is what our SciTech experts do best. We will also have an extraordinary CLE track on arts and the law, starting with our former chair Heather Rafter’s panel on music and copyright, then a segue into the visual arts, led by Katherine Lewis and Barron Oda. In between sets, the Section will host a prominent artist from Pace University, who will offer the audience a unique spectacle, not to be missed. All this plus a wonderful dinner at the Harvard Club of NYC with, among others, Judge Bernice Donald of the Sixth Circuit Court of Appeals to offer remarks. Summer in the City—hope to see you there. u