Cornelia Dean on Scientific Disputes in the Courts

A recent New York Times commentary by Cornelia Dean discusses the general subject of scientific disputes in the courts (this is a two-page article). Incidentally, Dean has been criticized many times by both Evolution News & Views and Darwinian Fundamentalism for biased reporting on the evolution controversy.

Dean's article says,

Perhaps the knottiest problem . . . . has been deciding what scientific evidence or testimony should be considered in the first place.(emphasis added)

However, deciding what scientific evidence or testimony to consider is not the only knotty problem; other knotty problems -- which Dean completely ignores -- are deciding whether or not to rule on a scientific question and whether or not to hear or look at scientific evidence or testimony. For the following reasons, courts should IMO avoid deciding scientific questions except when such a decision is absolutely necessary to reach a decision in the case:

(1) The courts have no general constitutional or statutory authority to decide scientific questions.

(2) For various reasons, the courts are ill-suited to decide scientific questions.

(3) Many scientific questions cannot be answered with any degree of certainty.

(4) Often the courts get to hear only a very narrow range of expert opinions on a scientific question.

(5) A court ruling on a scientific question can prejudice scientific debate and adversely affect careers.

An amicus brief submitted by 85 scientists in the Kitzmiller v. Dover intelligent design case discusses why courts should try to avoid deciding scientific questions. Also, two legal scholars -- one of them definitely anti-ID -- said that Judge Jones should not have ruled on the scientific merits of ID; see here and here.

In Edwards v. Aguillard, a case where the courts refused to even hear scientific arguments, the Supreme Court said (482 U.S. 578, 595-596),

. . . .the postenactment testimony of outside experts is of little use in determining the Louisiana Legislature's purpose in enacting this statute. The Louisiana Legislature did hear and rely on scientific experts in passing the bill, but none of the persons making the affidavits produced by the appellants participated in or contributed to the enactment of the law or its implementation. The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law.

Of course, Judge Jones did not follow this Edwards precedent when he decided the Kitzmiller v. Dover case.

I think that product liability cases and environmental cases might generally be the only kinds of cases where courts can justify ruling on scientific questions. In these kinds of cases, deciding scientific questions may be essential for deciding the case.

The current global-warming case before the Supreme Court is really a matter of whether the US Environmental Protection Agency is obligated to consider regulating greenhouse gas emissions and not a matter of how the EPA should regulate those emissions or even whether the EPA should regulate those emissions. In a Supreme Court oral hearing on this case, Massachusetts et al. v. Environmental Protection Agency et al., No. 05-1120, James Milkey, Mass. Assistant Attorney General, argued(pages 3-4),

EPA's principle (sic) grounds was that it lacked authority over the emissions of the four substances at issue, even if they, in fact, endanger public health and welfare . . .

We are not asking the Court to pass judgment on the science of climate change or order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations.

Also, Dean wrote,

They [lawyers] know their desired outcome at the outset, so they gather arguments to support it. While it would be unethical for scientists reporting on their work to omit findings that don’t fit their hypotheses, lawyers are under no compunction (sic) to introduce evidence that hurts their cases; that’s the other side’s job.

That is not entirely true -- in criminal trials, prosecutors are obligated to reveal evidence that would tend to exculpate the defendant.