Introduction - Burdens of Proof - page 10

power—required the deployment of complex public-key infrastructures
whose cost could be justified for only a small fraction of all transactions. 22
The superior evidential qualities of digital signatures were also conveyed
through the technical concept of “non-repudiation,” the claim that the
mathematical properties of digital signatures made it impossible for parties
to “repudiate” their participation in a contractual exchange. That is, the
strength of the evidence provided by digital signatures simply eliminated
the need for adjudication of disputes by courts or rather reduced their role
to one of passive confirmation. Although now firmly established in the
security literature, non-repudiation never fully gained traction as a legal
concept, as it seemed to preempt the very process by which the qualities
of a given form of evidence are gradually established through the adver-
sarial process. 23 Regardless of the eventual success or failure of digital sig-
natures, as more and more categories of records are produced, exchanged,
and stored in digital form, courts are under enormous pressure to establish
the coordinates of the new electronic evidentiary paradigm.
Where are such coordinates to found? In recent years, science studies
scholars have become increasingly involved in the sometimes acrimonious
debates between scientists and the courts over how to best distinguish
between “good science” and “junk science.” In contrast to TV shows like
CSI on which forensic experts seek to “let the evidence speak for itself,”
these scholars approach the issue from the premise that no evidence has
independent powers of speech. As Sheila Jasanoff puts it, “Good science is
not a commodity that courts can conveniently shop for in some extra-
social marketplace of pure knowledge. There is no way for the law to access
a domain of facts untouched by values or social interests.” 24 In their exami-
nation of the development of forensic methods such as fingerprinting,
DNA profiling, or document examination, scholars have indeed demon-
strated that the eventual stabilization of any form of evidence occurs
through a lengthy process of mutual adjustment between scientific and
legal norms and practices, a process usually powered by the adversarial
dynamics of the courtroom. 25 The definition of the forensic properties of
digital signatures took an altogether different path: a series of political,
legal, and regulatory bodies—among others, the American Bar Association,
the United Nations Commission on International Trade Law, and the
European Union—sought to establish the parameters of courts' evaluation
of electronic documentary evidence prior to any case law.