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

I don't think anyone disputes that some of the criteria courts look to under
*Daubert* could be generally useful criteria, at least in a limited "first
cut" sense, for evaluating scientific claims. What you haven't addressed,
though, are the broader policy questions I raised about the proper role of
courts -- the very questions that prompted the Supreme Court in *Daubert* to
caution that its opinion in that case should not be used for any purpose
other than the narrow question it was addressing under the Federal Rules of
Evidence. Your view of *Daubert* contradicts what *Daubert* says about
itself. Why should the Federal Rules of Evidence govern broad public
debates about big questions? Do you see the first amendment problem there?

On 1/2/06, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
>
> David Opderbeck wrote:
>
> > I wish I had more time to write about this today, but here, in a
> > nutshell, is why /Daubert/ is a red herring. As Pim correctly notes,
> > the /Daubert/ Court adopted some principles that are similar to those
> > used by Judge Jones in reviewing whether ID is "science." However,
> > the question the /Daubert/ court was addressing was was a pragmatic
> > one: in the limited and somewhat artificial context of a court
> > proceeding, what sorts of evidence can qualify as "expert" testimony
> > under the Federal Rules of Evidence ("FRE").
>
>
> And the same rules which guide the judge to rule if a particular expert
> testimony would meet the scientific standards would apply equally well
> in establishing if a particular thesis, in this case ID, meets the same
> scientific standards. In both cases, the judge rules on whether
> something is science.
>
> > Under the FRE, expert testimony is not subject to some of the
> > restrictions that are imposed on lay fact evidence. Expert testimony,
> > for example, can rely on and summarize other information in ways that
> > would be considered hearsay for a lay witness. The jurisprudence
> > concerning expert testimony also recognizes that expert witnesses
> > often are accorded great weight by juries. Therefore, courts
> > interpret the FRE carefully to limit the sorts of evidence that can
> > qualify as "expert" testimony.
> >
>
> There are of course other reasons why expert testimony may be restricted
> but Daubert lays the groundwork for 'scientific'.
>
> > Judge Jones was not animated by any of these limited concerns, nor are
> > they the concerns of any sort of case under the first amendment.
> > /Daubert/ seeks to streamline the judicial process by limiting the
> > sorts of evidence that can be presented in a given trial.
>
> By allowing a judge to determine if something is science. What
> difference is there between a Daubert hearing and a judge ruling that ID
> is not science, other than that ID being science or not was not relevant
> in the expert testimony phase as this was actually part of the dispute?
>
>
> > A decision about the admissibilty of expert evidence after a /Daubert/
> > hearing has only a limited impact on broader debate in the public
> > square. Generally, a /Daubert/ ruling is limited to a particular trial
> > or a particular set of related trials.
>
>
> As is Judge Jones' decision.
>
> > The result of Judge Jones' decision, or any decision under the
> > establishment clause, in contrast, is to restrict what can be
> > discussed in the broader public square. In this regard, the Supreme
> > Court's recognition that "a gatekeeping role for the judge, no matter
> > how flexible, inevitably on occasion will preent the jury from
> > learning authentic insights and innovations." This may be acceptable
> > in a given trial because trials are limited proceedings that have to
> > come to an end. It's not acceptable, in my view, in the broader
> > context of public debate.
>
> Nothing prevents ID from impressing the scientific community resulting
> in a re-evaluation of its claims. But as presently stands, ID is
> considered to be scientifically vacuous by the scientific community and
> fails to meet the standards of scientific methodology as laid out, in
> part, in the Daubert ruling. Yes, the Daubert ruling is more extensive
> than just deciding if something is or is not science, it deals with the
> impact of expert witness testimony on the jury.
>
>
> My argument is that in Daubert the SC provides guidelines to determine
> if a particular issue is scientific or not. These are exactly the
> guidelines Judge Jones followed in ruling that ID is not science. In
> other words, the same evidence which would let a judge conclude that
> expert witness testimony arguing ID would not be scientific led to the
> same conclusion that ID is not scientific.
>
> I know that we disagree on whether or not the Judge had to rule on the
> scientific nature of ID but if, as the Judge argues, such a ruling is
> essential then applying the same rules which would allow a judge to rule
> on whether or not something is scientific under Daubert seem appropriate.
>
> Ironically, John Calvert, lawyer and ID activist argues
>
> /*In Daubert v. Merrill Dow Corporation, Pharmaceuticals, Inc., 509
> U.S. 579 (1993) the Supreme Court squarely addressed the question of
> what is "science." In Daubert, Merrill Dow was being sued by two
> children with serious birth defects alleged to be caused by
> Benedectin, a drug marketed by Merrill Dow. Merrill Dow produced
> expert testimony based on a review of extensive scientific
> literature on the subject that the drug could not have caused the
> birth defects. The attorney for the children submitted the testimony
> of eight other well-credentialed experts, who based their conclusion
> that Benedectin can cause birth defects on animal studies, chemical
> structure analyses, and the unpublished "reanalysis" of previously
> published human statistical studies. However, the lower court ruled
> that the evidence was not admissible because the evidence did not
> meet the applicable "general acceptance" standard for the admission
> of expert testimony. It then dismissed the case and the Court of
> Appeals affirmed, citing Frye v. United States, 54 App. D.C. 46, 47,
> 293 F. 1013, 1014, for the rule that expert opinion based on a
> scientific technique is inadmissible unless the technique is
> "generally accepted" as reliable in the relevant scientific
> community.* /
>
> */ The Supreme Court overruled both courts and sent the case back
> to the trial court for reconsideration of the evidence presented by
> the children. In doing so it provided an extensive analysis of how
> courts should determine whether a proposed scientific view is one
> that should be heard by a trier of fact. Although Daubert strictly
> deals with the evidentiary requirements of the Federal Rules of
> Civil Procedure relating to the admissibility of expert testimony,
> the principles it announced are consistent with the issue of whether
> inferences of design from data that occurs in nature are "scientific."
> /
> *
>
> *http://www.intelligentdesignnetwork.org/idISsCIJHC.htm
> *
>
>
Received on Mon Jan 2 13:20:54 2006