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 Annual Meeting: Climate and Energy Decisionmaking (CEDM) Carnegie Mellon University – Engineering & Public Policy May 23-24, 2016

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

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

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

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

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

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

 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

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

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

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

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

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

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

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

Thanks….. and invitation for Questions & Comments  Michael Dworkin  Vermont Law School  18