Fwd: Judge Jones sided with the Discovery Institute and ruled against the Dove...

Courts are bad forums for deciding "big" questions like "what is
science" for several reasons.

First, a court proceeding is somewhat artificial, in that the court
generally only has access to such information as the parties submit.
A court is not, contrary to popular mythology, an omniscient and
all-wise seeker of Truth. A court is a resolver of particular
disputes, and the answers a court gives will be framed by the legal
framework under which it must decide a given dispute, the information
gathered by the parties during the discovery phase of the proceeding,
and the information submitted to the court in accordance with the
rules of evidence. The universe of information available to a court is
tiny relative to the set of information available on any issue. In
the Kitzmiller case, for example, there were only a few expert
witnesses on each side; some key people, like Demski, didn't even
testify. That wasn't the court's fault, but it does undercut the
value of the opinion.

A related problem is that judges typically are ill-equipped in terms
of training or time to decide such big questions. The vast majority
of judges have little background in the history or philosophy of
science. A busy trial judge -- and they all are exceedingly busy --
has almost no time to learn the contours of such a big dispute in any
detail. The judge therefore is almost entirely dependent on outside
experts. Outside experts usually are paid for by the parties, and
they earn their pay. An expert who testifies at trial rarely gives a
truly objective opinion. This is appropriate within the context of
courts resolving individual cases and controversies -- each side
presents its witnesses, including any experts, and the court decides
between them. It's not appropriate in the context of a broader debate
in which many voices should be heard and no one voice may be fully
correct.

The problem of the artificiality of the proceeding and the judge's
relative incompetence to decide such questions is compounded by the
judge's legal and cultural authority. Even if the judge's decision
is completely wrong in a broader sense, what the judge says is law, at
least as to the parties involved in the dispute. Moreover, a
publicized judicial opinion (like the one in Kitzmiller) was enormous
power to sway public debate. The net effect of the judge's cultural
and legal authority is to stifle open, honest public debate. The side
that "won" in court can argue that "this is the law" or that "this was
already decided by a smart judge after a long trial." That's exactly
what's been happening with respect to the ID debate after Kitzmiller.

An additional, and also related, problem, is that courts are
inherently undemocratic institutions. This for me is one of the
biggest issues. Federal judges are not elected and they serve for
life. In a case like Kitzmiller, the effect is that one unelected,
life-tenured white male was able to override the judgment of parents
and elected officials in a local community in which he does not even
reside. This is contrary to the principle of subsidiarity, which I
believe is very important: government decisions generally should be
made at the most local level possible if government is truly going to
be of, for, and by the people. I do not believe it should ordinarily
be the place of a single judge (or a panel of 3, 5, or 9 judges), to
put the governmental stamp of authority on big philosophical and
policy questions. In the case of what "science" means, I think this
is particularly important, since there are so many different ways to
answer that question, particularly as it impacts on the education of
children within any given local community. (I know the judge made
findings about how the school board was misled and railroaded by a few
creationist members. If that was so, however, the best remedy is to
educate the public and vote those people out of office, which is
eventually what happened anyway.)

As to cases in which the question of whether something is a science is
central to the issue of constitutionality, I can't imagine any
circumstances under which that truly would be the case. Pim, you and
I continue to disagree on the centrality of the question under the
establishment clause in the Kitzmiller case. Setting that case aside,
can you think of any other kind of case in which that question would
arise?

On 1/1/06, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
> May in inquire as to why it is dangerous for the courts to try to define
> science? What if the issue of whether something is a science were
> central to the question of constitutionality?
>
>
>
> Bill Hamilton wrote:
>
> >Thanks, Wayne. I agree with your -- and David's -- concerns. It strikes me
> >that it's dangerous for the courts to try to define science. I wrote to David
> >offline while trying to understand this thread and observed that it seemed to
> >me the judge was striving for completeness -- trying to reduce the chances that
> >someone else would argue that ID includes an element of science and that
> >therefore including it in a science curriculum can be justified. I don't think
> >that would fly based on the other tests ID fails, but as David said, the judge
> >may have been angry and was trying to fire a shot across the bow of the ID
> >community. He certainly was justified in his anger based on the court record,
> >but letting anger determine the course of action is dangerous.
> >
> >--- Dawsonzhu@aol.com wrote:
> >
> >
>
>
Received on Sun Jan 1 20:56:39 2006