David Opderbeck wrote:
> 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.
I understand that the court is a resolver of disputes so why is it bad
to have the court resolve this particular issue. Especially since the
issue of ID being science or not was argued by both sides. I understand
that perhaps not the best or fullest information had been presented but
how many expert witnesses are needed for the court to make such a
decision so that people won't object to it being incomplete?
What could Dembski have offered that was not offered in the Amicus brief
or in testimony by others?
>
> 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
Hence the use of expert witnesses. But similarly, scientists are poorly
trained in history or philosophy of science as well. Should scientists
leave such important decisions to philosophers or historians who may
have little training in science?
> 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.
Which is of course why there are experts on both sides. And once again,
why does this apply to science only, is this not an issue for many of
the cases in which the judge has to rely on (expert) testimony?
> 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.
How more voices needed to be heard for the court to have been able, in
your opinion, to reach the conclusion? And again, is that not the issue
for almost any dispute?
After all, science has already spoken clearly: ID fails as a science. So
how much more evidence and voices need to be heard? Is the judge not
listening to these voices and making a decision of law in the case of a
legal controversy?
>
> 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.
I disagree, and so do the ID proponents. They are clearly suggesting
that they are not going to be stopped by the ruling. Of course, the
judge's ruling will have impact on other 'controversies' but will it
prevent or even stop the public debate? And what if the debate has
already been decided? Or how long should the debate continue before one
can accept any conclusion?
> 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.
>
I'd say that the Judge merely codified that which science already had
concluded.
> 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.)
>
People indeed wisened up to the Board's policy but why should legal
decisions exclude issues of 'philosophy' ?
> 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?
>
I believe that when it comes to the purpose prong, it is essential to
determine if something which is claimed to be scientific, actually is.
Especially when the scientific status determines if the claim is not a
sham.
In McLean v. Arkansas, the judge I believe ruled on whether or not
creationism is science.
See http://www.pandasthumb.org/archives/2005/12/prof_dewolfs_cr.html for
some other cases in which the court address whether something false into
a certain category or not.
Daubert v. Merrell Dow Pharm ruled (see also
http://www.dcmsonline.org/jax-medicine/1997journals/march97/whatisscience.htm)
"Numerous cases are cited in support of this rule. Just when a
scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential force of the
principle must be recognized, and while courts will go a long way in
admitting expert testimony deduced from a well-recognized scientific
principle or discovery, _the thing from which the deduction is made
must be sufficiently established to have gained general acceptance
in the particular field in which it belongs._
We think the systolic blood pressure deception test has not yet
gained such standing and scientific recognition among physiological
and psychological authorities as would justify
the courts in admitting expert testimony deduced from the discovery,
development, and experiments thus far made.
Daubert guides the admissability of scientific evidence.
The Court explicitly refused to adopt any "definitive checklist or test"
for determining the reliability of expert scientific testimony, and
emphasized the need for flexibility. The Court did list several
factors, however, that it thought would commonly be pertinent:
bullet whether the theories and techniques employed by the scientific
expert have been /tested/;
bullet whether they have been subjected to /peer review/ and
/publication/;
bullet whether the techniques employed by the expert have a /known
error rate/;
bullet whether they are subject to /standards/ governing their
application; and
bullet whether the theories and techniques employed by the expert enjoy
widespread acceptance.
To assuage fears that its ruling would result in a "free for all" in
which juries would be confounded by "absurd and irrational
pseudoscientific assertions," the Court emphasized the continued
availability of traditional tools under the adversary system, including
vigorous cross-examination, presentation of contrary evidence, and
careful instructions to jurors on burdens of proof. The Court also
noted the availability of other mechanisms of judicial control,
including summary judgment and the ability to exclude confusing or
prejudicial evidence under Fed. R. Evid. 403
<http://www.law.cornell.edu/rules/fre/rules.htm#Rule403>.
http://www.daubertontheweb.com/Chapter_2.htm
Note that the list is neither exhaustive nor do all the questions have
similar relevance or applicability.
In http://www.daubertontheweb.com/2005/12/more-on-kitzmiller.html I
found some interesting comments on the decision which seem quite
relevant to our discussion.
>
>
>
>
> On 1/1/06, *Pim van Meurs* <pimvanmeurs@yahoo.com
> <mailto: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 <mailto:Dawsonzhu@aol.com> wrote:
> >
> >
>
>
Received on Sun Jan 1 21:43:16 2006
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