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Beyond “Expressing Scientific Uncertainty” Expressing Scientific Uncertainty in Legal Terms: One More Option for Effective Communication in the Consideration of Climate Change Michael Dworkin, Professor of Law and Director, Institute for Energy and the Environment Vermont Law School MDworkin@vermontlaw.eduMDworkin@vermontlaw.edu 802-831-1319 Annual Meeting: Climate and Energy Decisionmaking (CEDM) Carnegie Mellon University – Engineering & Public Policy May 23-24, 2016
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Warning and thanks This is VERY much a ‘work in progress” We owe a debt to current and recent VLS Research Associates: Taylor Curtis, Hallie Lorber, Johanna DeGraffenreid, Michael Gan, Flora Ji Partial Support from NSF, via CEDM 2
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Shoulders Upon Which We Stand: Charles Weiss l Expressing Scientific Uncertainty Granger Morgan l Uncertainty: A Guide to …. Ed Rubin l The IPCC Characterization of Uncertainty Thomas Kuhn l The Structure of Scientific Revolution 3
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What can we do in 20 Minutes? l Describe what is at stake l Describe the dual terminology of IPCC and typical legal ‘fact-finders” l Highlight two goals: l Help “two cultures” understand each other l Help “two cultures” supplement each other? 4
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Why Does This Matter So Much? For all the reasons that public understanding is one of the three basic themes of the CEDM project We face a fundamental divergence between l scientific consensus on the need for large, prompt actions to mitigate and adopt to climate change vs. l public inertia, doubt, and hesitancy about prompt action at meaningful scale Decades of efforts to overcome that gap are not working well, even if linked to increased data, sustained scientific consensus and repeated IPCC expressions of enhanced certainty Supplemental ways to communicate are needed 5
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The IPCC Vocabulary See Separate File of Three Tables: l Degrees of Likelihood in IPCC Findings l IPCC Confidence Table l IPCC & Legal Page. 6
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IPCC Test Re Confidence Level “In determining the degree of certainty, the IPCC considers (1) the degree of confidence, (2) strength of evidence, and (3) agreement among the participating scientists … This confidence level is then portrayed in likelihood and probability …. “ ((see second attached table)) 7
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Note how THREE part IPCC test becomes a TWO element table of IPCC confidence. (parpaphrase text of full essay) Understand whether that matters.. 8 Open Issue Re IPCC
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Can Legal Terms as Supplement This? We do have a data set of one million+ digitaly searchable legal decisions covering more than two centuries. More than ten thousand cases in that data set include serious discussions and applications of how to describe uncertainty Thousands of decisions address expert vs. inexpert understanding of important facts. 9
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The Fact-Finders’ Limited Task “[I]n a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the factfinder can acquire is a belief of what probably happened.” Justice Harlan, In re Winship, 397 U.S. 358, 370 (1970). Note the past-tense! 10
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Legal Users of Uncertainty Concepts Juries: lay/semi-random people asked to resolve disputes about facts Arbitrators/Mediators/Negotiators trying to predict how a jury would decide Judges asked to apply legal expertise to facts in areas beyond expertise Appellate Judges Reviewing Fact-Finders’ work Regulators asked to apply legal expertise to facts in areas of limited factual expertise. 11
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The Vocabulary of Legal Fact-Finders Clearly Erroneous (No) Reasonable Grounds to Detain Mere Scintilla of Evidence Reasonable Grounds for Suspicion (warrant) Probable Cause Preponderance of the Evidence Clear & Convincing Evidence Beyond A Reasonable Doubt Beyond A Reasonable Doubt –Twice! 12
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Example of 1 Definition: Beyond Reasonable Doubt Proof beyond a reasonable doubt is constitutionally required for conviction in criminal cases. The court in United States v. Fatico described the standards of proof as a continuum representing varying degrees of probability of truth. On this scale, the beyond a reasonable doubt standard “might be in the range of 95+% probable.” Reasonable doubt is a doubt that a person has after carefully weighing all evidence and would cause a reasonable person to “hesitate to act” in making an important decision. In re Winship, 397 U.S. at 364. United States v. Fatico¸ 458 F.Supp. 388, 403 (E.D.N.Y 1978) 13
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When Does Law Need Certainty ? Differences in importance of what is at stake roughly match a gradient of certainty: l Preserve Status Quo (TRO) l Assign future costs l Assign current assets l Detain for a “Street Stop” l Require personal performance l Seize & jail a person l Execute a person 14
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Mapping IPCC & Legal Terms Together See full screen image on next slide. 15
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The Biggest Question(s) Would use of jury-instruction-type language actually help improve public understanding? Is limited public acceptance of IPCC concerns due, in any significant part, to issues curable by supplemental terminology? Or is it the ‘inconvenience’ of the truth, or “the heaviness of existing reality” (at 3% depreciation) Given limited success with what we have done for decades, is it worth trying something new? 17
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Thanks….. and invitation for Questions & Comments Michael Dworkin Vermont Law School MDworkin@VermontLaw.edu 18
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