David Opderbeck wrote:
> 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/.
Daubert, especially in later SC rulings do not merely address what is
scientific evidence but Daubert is certainly helpful in establishing
what is science and what is not, or in other words, what is allowed as
scientific testimony and what is not.
You are correct that Daubert addresses admissibility of expert testimony
but the issue of whether the testimony is scientific is for what Daubert
provides guidance:
The SC ruled that the testimony must be based on methods and procedures
of science (the scientific method).
/
/
/The reliability standard is established by Rule 702's requirement
that an expert's testimony pertain to "scientific . . . knowledge,"
since the adjective "scientific" implies a grounding in science's
methods and procedures, while the word "knowledge" connotes a body
of known facts or of ideas inferred from such facts or accepted as
true on good grounds. The Rule's requirement that the testimony
"assist the trier of fact to understand the evidence or to determine
a fact in issue" goes primarily to relevance by demanding a valid
scientific connection to the pertinent inquiry as a precondition to
admissibility.
and
/*Testability, falsification
*/
Ordinarily, a key question to be answered in determining whether a
theory or technique is scientific knowledge that will assist the
trier of fact will be whether it can be(and has been) tested.
"Scientific methodology today is based on generating hypotheses and
testing them to see if they can be falsified; indeed, this
methodology is what distinguishes science from other fields of human
inquiry." Green, at 645. See also C. Hempel, Philosophy of Natural
Science 49 (1966) ("[T]he statements constituting a scientific
explanation must be capable of empirical test"); K. Popper,
Conjectures and Refutations: The Growth of Scientific Knowledge 37
(5th ed. 1989) ("[T]he criterion of the scientific status of a
theory is its falsifiability, or refutability, or testability").
/*Peer review and publication*/
Another pertinent consideration is whether the theory or technique
has been subjected to peer review and publication. Publication
(which is but one element of peer review) is not a //sine qua non of
admissibility; it does not necessarily correlate with reliability,
see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers
61-76 (1990), and in some instances well grounded but innovative
theories will not have been published, see Horrobin, The
Philosophical Basis of Peer Review and the Suppression of
Innovation, 263 J. Am. Med. Assn. 1438 (1990). Some propositions,
moreover, are too particular, too new, or of too limited interest to
be published. But submission to the scrutiny of the scientific
community is a component of "good science," in part because it
increases the likelihood that substantive flaws in methodology will
be detected. See J. Ziman, Reliable Knowledge: An Exploration of the
Grounds for Belief in Science 130-133 (1978); Relman and Angell, How
Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of
publication (or lack thereof) in a peer reviewed journal thus will
be a relevant, though not dispositive, consideration in assessing
the scientific validity of a particular technique or methodology on
which an opinion is premised.
/*Known error rates (reliability)
*/
Additionally, in the case of a particular scientific technique, the
court ordinarily should consider the known or potential rate of
error, see, //e. g., //United States v. //Smith,869 F. 2d 348,
353-354 (CA7 1989) (surveying studies of the error rate of
spectrographic voice identification technique), and the existence
and maintenance of standards controlling the technique's operation.
See //United States v. //Williams, 583 F. 2d 1194, 1198 (CA2 1978)
(noting professional organization's standard governing
spectrographic analysis), cert. denied, 439 U.S. 1117
<http://supct.law.cornell.edu/supct-cgi/sup-choice.cgi?439+1117> (1979).
/*General acceptance
/
/*/ Finally, "general acceptance" can yet have a bearing on the
inquiry. A "reliability assessment does not require, although it
does permit, explicit identification of a relevant scientific
community and an express determination of a particular degree of
acceptance within that community." United States v. //Downing, 753
F. 2d, at 1238. See also 3 Weinstein & Berger ¶ 702[03], pp. 702-41
to 702-42. Widespread acceptance can be an important factor in
ruling particular evidence admissible, and "a known technique that
has been able to attract only minimal support within the community,"
//Downing, //supra, at 1238, may properly be viewed with skepticism./
http://supct.law.cornell.edu/supct/html/92-102.ZO.html
In other words, these rules give guidance for the court to determine
whether something is science.
Compare this with the Kitzmiller ruling
/we find that ID is not science and cannot be adjudged a valid,
accepted scientific theory as it has failed to publish in
peer-reviewed journals, engage in research and testing, and gain
acceptance in the scientific community./
There seems to be quite a parallel here between the ruling and
Daubert/Rule 702.
From the Plaintiffs Findings of Fact
/Other considerations also strongly support the conclusion that
intelligent design/
/is not science. For example, the federal courts have well-developed
criteria for/
/evaluating whether something is science, junk science, or vacuous
pseudo-scientific/
/jargon for purposes of determining the admissibility of expert
testimony. Specifically,/
/the Supreme Court identified four factors for determining whether
proffered evidence/
/is scientific:286/
/(1) whether the theory or technique can be and has been tested;287/
/(2) whether the theory or technique been subjected to peer
review and/
/publication;288/
/(3) whether there is a known or potential rate of error;289 and,/
/(4) whether the theory or technique is “generally accepted” in
the relevant/
/scientific community.290/
/In doing so, the Supreme Court rejected the argument that “a
screening role for the/
/judge that allows for the exclusion of ‘invalid’ evidence will
sanction a stifling and/
/repressive scientific orthodoxy and will be inimical to the search
for truth.”291 Thus,/
/a determination that intelligent design is non-scientific is not
only important for/
/deciding this case but also well within the fact-finding function
that the federal courts/
/regularly undertake in any case that raises scientific issues.292/
/286 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)./
/287 Id. at 593./
/288 Id./
/289 Id. at 594./
/290 Id./
/291 Id. at 596. This Court should similarly reject any suggestion by/
/defendants or their amici that this Court cannot evaluate whether
intelligent design is/
/science in order to determine whether there could be a secular
purpose in presenting/
/it to students in a public-school science class./
/292 And nothing about such a finding would stop the intelligent-design/
/movement from conducting research, publishing results, or gaining
acceptance in the/
/scientific community — should it choose to try to do so.
/
In other words, courts regularly evaluate whether something is
scientific in Daubert hearings.
> 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
> <mailto: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
> <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)
> <http://www.dcmsonline.org/jax-medicine/1997journals/march97/whatisscience.htm%29>
>
>
>
> "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
> <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
> <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>
> > <mailto: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> <mailto:
> Dawsonzhu@aol.com <mailto:Dawsonzhu@aol.com>> wrote:
> > >
> > >
> >
> >
>
>
>
Received on Sun Jan 1 23:22:35 2006
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