I thought you might raise *Daubert*. Any reliance on *Daubert* is
misplaced. *Daubert* establishes guidelines under which expert testimony is
admissible under the rules of evidence. *Daubert* does not purport to
define in any broad sense what "science" is, nor does any ruling about the
admissibility of some proffered expert testimony under *Daubert* constitute
the sort of broad-based conclusion about "science" that the court purported
to make in *Kitzmiller*. I used to litigate product liability cases, so I
have some familiarity with what *Daubert* is all about. I don't have time
just now, but perhaps tomorrow I'll post a little more information to
clarify why comparing *Daubert* issues to what the court did in *Kitzmiller
*is apples and oranges.
As to what I think is the key question -- what sorts of questions should
courts decide -- to some extent your answer will depend on your political
philosophy, as well as on whether you think your side "won" in a given
case. I think subsidiarity is an important principle in a democratic
society, and I don't trust judges to make decisions the people should make
for themselves. For me, that's one of the broader principles at stake here.
On 1/1/06, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
>
> 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 22:25:51 2006
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