Dispatches from the Creation Wars

The Discovery Institute’s Media Complaints Division, also known as their blog, has a new writer. His name is Michael Francisco and he’s a second year law student at Cornell. His first contribution to the ongoing diatribe against Judge Jones’ ruling in the Dover case is the subject of this post. In his essay, Francisco beats much the same dead horse that the DI was beating even before the ruling came out, the entirely false notion that Judge Jones had no justification for ruling on the scientific status of ID. I will show that not only was he justifed in doing so, he had no choice but to do so. Here’s Francisco’s take on it:

Judges should only be deciding matters of law, not declaring as authoritative his opinion on matters of politics, or philosophy, or science…the Kitzmiller opinion has no legal basis to determine the scientific status of intelligent design, and as such, is merely the opinion of one man, not the law as proclaimed by a federal district court judge.

Perhaps because Francisco is only a second year law student, he seems to be unaware of the fact that judges must, of necessity, make the kinds of judgements he is objecting to every day. In fact, they have no choice but to do so. In cases involving medical or engineering malpractice, for example, both sides will present expert scientific witnesses who will present their theoretical explanations of what happened and who or what is to blame and the judge must determine which side is right. They have no choice; there simply is no alternative. The Federal rules of evidence require that the trial judge make those determinations, as the court said explicitly (and unanimously) in Daubert:

The Rules – especially Rule 702 – place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. 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…the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.

This makes clear not only that judges must consider and resolve these types of questions about the scientific nature of a claim, but that they must do so on precisely the same grounds that Judge Jones does so in the Dover ruling – testability, acceptance in the scientific community, peer review and publication, and so forth. And bear in mind that as a district court judge, Jones was bound to follow this ruling and apply those standards. Further one must recognize that the specific precedents dealing with this issue – McLean v. Arkansas and Edwards v. Aguillard – both addressed the question of whether the alternative being offered to evolution was genuinely scientific or merely religion dressed up in scientific-sounding language. Again, Judge Jones had no choice but to follow those precedents and apply the same type of analysis to them.

Just as importantly, one must bear in mind that the issues in the case were framed not by the judge but by the attorneys for the two sides. And in this case, the defense strategy was to argue that ID is not religious but is rather a genuine scientific theory. From the opening statement of the defense:

Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion.

Defendants’ expert will show this Court that intelligent design theory, IDT, is science, a theory that’s advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. This expert testimony will also demonstrate that making students aware of gaps and problems in evolutionary theory is good science education.

They even brought in two of the Discovery Institute’s fellows (and tried to bring in three more) to testify in support of that strategy and argue that ID is scientific. Thus, Judge Jones had no choice but to evaluate those arguments and rule on them. It was the key argument in the case by the defense. There is a third reason why the scientific status of ID had to be ruled upon and Francisco quotes it directly in his post. In the Edwards decision, the Court specifically said that a genuinely scientific critique to evolution was permissable:

We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.

Francisco quotes this but doesn’t take the obvious next step – the court says a scientific critique is allowed but who decides whether the critique is scientific or not? Only the judge can do that, of course. The legislature in Louisiana asserted that creation science was scientific and not religious as well, but the court found otherwise. So Judge Jones simply had no choice but to rule on that question. The defense was arguing that it fit that exception carved out in Edwards and the plaintiffs said otherwise. The judge must rule on that issue or he’s not following precedent.

It is ironic that the Discovery Institute would send its own fellows to testify that ID is science and then claim, when the ruling went against them, that the judge has no authority to rule on that issue. Had the judge ruled instead that ID is legitimately scientific, do you think we would be hearing about his lack of authority to do so? I’d put the odds of that well on the other side of Dembski’s universal probability boundary. So we’ve got a new contributor peddling the same old hypocritical nonsense.

Comments

  1. #1 Dave
    January 27, 2006

    “Perhaps because Francisco is only a second year law student, he seems to be unaware of the fact that judges must, of necessity, make the kinds of judgements he is objecting to every day.”

    No dice. I’m neither a lawyer nor a law student, but I am well aware that judges make such decisions every day.

  2. #2 Mr_Christopher
    January 27, 2006

    Great article. Why not do a trackback at the Disco article to this one?

  3. #3 Dave S.
    January 27, 2006

    From Justice Blackmun, who delivered the opinion of the Court in DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC. (1993) :

    Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to [509 U.S. 579, 12] Rule 104(a), 10 whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. 11 This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review.

    Apparently, second year law students are not as confident.

  4. #4 Rich
    January 27, 2006

    Suprise suprise – he’s a charile churcher…

    http://www.evangelsociety.org/francisco/about.html

    What could his motivation *possibly* be?

    Michael, KEEP UP THE GOOD WORK. Your post has been
    catalogued and archived and added to the many
    biblicaly quote laden fundamentalist op-ed pieces
    being penned at the moment. The “effect” prong of the
    establishment clause needs to show that the popular
    understanding is that ID is religious, and you’ve done
    a great job. Kudos.

  5. #5 Rich
    January 27, 2006

    Evangel Society Mission Statement

    Established 2002

    In order to love the Lord our God with all of our minds, The Evangel Society of Thought exists for the purpose of examining the world around us. From the foundation of a Christian worldview and a passion for the Good News, the Evangel, we will explore issues ranging from politics and economics to religion and popular culture.

    The Evangel Society believes that

    We are able to go up and take the country,
    To possess the land from Jordan to the Sea.
    ‘Though the giants may be there, our way to hinder,
    Our God has given us the victory.
    ~ Paraphrase of Numbers 14

    We will take every thought captive to Christ. Our vision is that the Lord will use us to equip believers with reasoned analysis of the critical issues of the day. There are “giants in the land,” ideas and institutions that stand opposed to the Gospel of Christ, but we are confident that the Bible, as the inspired word of God, shall prevail over all of its challengers. We will contend for its primacy in the arena of ideas.

  6. #6 grasshopper
    January 27, 2006

    Wow, Rich!
    Where do I sign?

  7. #7 Dave S.
    January 27, 2006

    Rich –

    Regardless of whether his religious convictions motivate him in this matter, the substance of his post is the issue here. And in this case, he’s simply flat wrong in asserting that the judge had no business in deciding this issue. That’s exactly what judges are supposed to do when presented with such a case.

  8. #8 Rich
    January 27, 2006

    Dave, I agree. But I’m not going to turn down a chance to show fundamentalist religious motivation. The effect prong and all that.

  9. #9 spyder
    January 27, 2006

    The persistence of “these” people to disregard facts of the matter(s) in order to promote their deeply held beliefs, and demand others follow them, is beginning to alarm me. Although they represent a minimum proportion of the population, and are hugely over represented in the current Administration (as well as Congress and parts of the Judiciary), it is starting to seem that they are envisioning a Christian US that is on par with and run similar to China. I can visualize them sitting around wishing the “if only” mantras about: everyone believed as they do; censorship of everything is necessary for good society; spying on everyone’s communications is necessary to insure correct thinking; etc….
    Is Francisco studying the law to become a wealthy lawyer, or to demand that laws be held to hold to his religious views????

  10. #10 2Hulls
    January 27, 2006

    I’m not a lawyer, and maybe this is an over simplification of this “issue” but it seems to me that in layman’s terms, the issue in Kitzmiller was entirely about whether ID was science or religion. If it WAS science, and thus, represented a scientific alternative to evolution (no matter whether it was a poor alternative), then there could be no reason to keep it out of the science classroom, right? – i.e., there would have been no establishment issue at all.

    Thus, Judge Jones had no choice but to determine whether it was science or not, right?

    Am I missing something?

  11. #11 Ed Brayton
    January 27, 2006

    Nope, you’ve got it exactly right 2Hulls.

  12. #12 Mr_Christopher
    January 27, 2006

    Get a load of what Mikey has to say on the subject of “Honesty” and “attack ads”

    Clearly he says one thing and does another. A perfect Christian Propagandist for the Ministry Of Truth (aka the Disco Inferno).

    http://www.evangelsociety.org/francisco/attackads.html

  13. #13 blogista
    January 27, 2006

    U.S. Supreme Court, DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993) says:
    “…the trial judge… must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid … including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication … and whether it has attracted widespread acceptance within a relevant scientific community.”

    2nd YEAR LAW STUDENT says:
    “…the Kitzmiller opinion has no legal basis to determine the scientific status of intelligent design, and as such, is merely the opinion of one man…”

    So… this kid’s not passing the bar any time soon, methinks.

  14. #14 John Pieret
    January 28, 2006

    I have an article, “Trying To Keep Up With the Joneses,” at my blog addressing the legal issues Mr. Francisco raises.

  15. #15 JonF
    January 28, 2006

    Another lawyer chimes in on talk.origins: Reply to “Judge Jones said it, I believe it, that settles it”.

  16. #16 LarryFarma
    January 30, 2006

    Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., discussed in preceding comments, concern only the rules for making a judgment of expert scientific testimony, and have nothing to do with determining when such a judgment should be made.

    Some other points —

    (1) Judge Jones could have decided the case solely on the basis of the religious motivations of the former school board members — he could even have thrown out the case as moot because those members had been replaced by anti-ID members. He did not have to rule on the scientific merits of ID. Before the decision was released, the best legal experts in the country were not able to predict whether he would rule on the scientific merits of ID — so much for the idea that he was compelled to rule on that issue.

    (2) Judge Jones was generally careful to cite the procedural rules and precedents governing his Dover opinion, but this opinion does not mention Rule 702 or the Daubert case, showing that he probably did not know what rules he was supposed to follow regarding judging expert scientific testimony.

    (3) The decision to join the plaintiffs in asking Jones to rule on the scientific merits of ID was made by the defendants and their attorneys from the Thomas More Law Center, not by the Discovery Institute.

    (4) One of the two amicus briefs submitted by the Discovery Institute actually asked Judge Jones to not rule on the scientific merits of ID. This first DI brief, submitted on behalf of 85 scientists, was admitted to the case file by Jones. The second DI amicus brief, DI’s own brief, was not admitted to the case file by Jones. This brief presumably argued that ID is science just in case Jones was going to rule on that issue. See “Amicus curiae filings” in http://en.wikipedia.org/wiki/Kitzmiller_v._Dover_Area_School_District_trial_documents

    (5) Judge Jones did not have to rule on the question of ID as science just because both sides asked him to.

    (6) A very, very important issue is the degree of scrutiny that should be used in judging scientific merit. In the Daubert v. Merrell Pharmaceuticals case, a huge amount of dollars of liability hinged on the issue of the validity of expert testimony that a drug likely caused birth defects, so the courts had be sure that this testimony was nearly airtight. However, in the Dover case, all Judge Jones had to do to allow ID into public-school science classrooms was just rule that ID has just a little scientific merit. In the Daubert case, the judgment of scientific merit was used to determine liability for damages, but in the Dover case the judgment of scientific merit was used to determine existence of secular purpose. There is a huge difference.

    (7) In Edwards v. Aguillard, there was no decision regarding the scientific merits of creation science. Because the expert witnesses offered on the side of creation science had not participated in the enactment or implementation of the law in question, the Supreme Court ruled, “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.”

    (8)The McLean v. Arkansas Board of Education opinion did not rule that evolution is a science, but only ruled that evolution is not a religion. This opinion said in Sec. V(C), ” Assuming for the purposes of argument, however, that evolution is a religion or religious tenet, the remedy is to stop the teaching of evolution, not establish another religion in opposition to it. Yet it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause ….” (emphasis added)

    The Dover opinion’s use of the term “traipse” to describe the opinion’s investigation of the scientific merits of irreducible complexity and intelligent design ironically has apt connotations. The word can simply mean to “walk,” but the Merriam-Webster online dictionary also defines it as meaning “to walk or travel about without apparent plan but with or without a purpose.”

    Judge Jones is a megalomaniac who wanted to earn a big name in history as the judge who scuttled ID. I think that his decision has backfired, as it looks like he has earned a place in infamy as one of the most activist judges in American history.

  17. #17 pholidote
    January 30, 2006

    Let’s be clear; Rule 702 is part of the Federal Rules of Evidence, and Daubert was about admissibility of evidence, which is not the issue here. That said, the main article is completely correct that judges make rulings all the time on what is science, because they hold Daubert hearings on the proposed admission of evidence.

    LarryPharma says the judge didn’t cite Daubert, so must not have heard of it. On the contrary, even a second year law student should know Daubert. It wasn’t cited here because it had no direct relevance. Nevertheless, its influence is clear. Some of the items examined by the judge in assessing whether ID is science come straight out of Daubert.

    The ruling makes clear the judge’s reasons for wanting to include as part of his holding that ID is not science — it is crucial to the outcome of the case, and this is a question that is likely to be repeated and which was tried at great length, so that coming to a finding would help conserve judicial resources. Judges have lots of tactics for avoiding the issues, and sometimes it is appropriate for a court to avail itself of those means and duck an opinion, but it is not improperly activist, under the terms described, for a judge to make a finding. It’s called doing one’s job.

  18. #18 LarryFarma
    January 30, 2006

    From post of pholidote | January 30, 2006 04:56 AM —

    ****Let’s be clear; Rule 702 is part of the Federal Rules of Evidence, and Daubert was about admissibility of evidence, which is not the issue here.****

    Daubert is not just about the admissibility of evidence or expert scientific testimony, but is also about the rules for judging that evidence or testimony.

    ****That said, the main article is completely correct that judges make rulings all the time on what is science, because they hold Daubert hearings on the proposed admission of evidence.****

    I agree that judges make such rulings all the time, but that does not mean that such a ruling should have been made in Dover. I showed that in Edwards v. Aguillard the courts made no ruling on the scientific merits of creation science, and in Mclean v. Arkansas Board of Education made no ruling on the scientific merits of evolution.

    ****LarryPharma says the judge didn’t cite Daubert, so must not have heard of it. On the contrary, even a second year law student should know Daubert. It wasn’t cited here because it had no direct relevance. Nevertheless, its influence is clear. Some of the items examined by the judge in assessing whether ID is science come straight out of Daubert.****

    No direct relevance? Yet you say that its influence is clear ! You are just talking through your hat. As I said, Judge Jones appeared to be meticulous about discussing his precedents. Second year law students also know about many of the other cases he discussed, but he discussed these cases anyway. He devoted pages 7-18 of the 139-page Dover opinion just to the discussion of precedents. And the Dover opinion clearly shows that he made up his own rules for judging the scientific merits of irreducible complexity. Any similarities between those rules and the rules of Daubert are sheer coincidence. Deference to Jones’ Dover opinion has gone so far that people are giving bases for his rulings where he himself did not give any. Some people will stop at nothing to defend Jones.

    ****The ruling makes clear the judge’s reasons for wanting to include as part of his holding that ID is not science — it is crucial to the outcome of the case, and this is a question that is likely to be repeated and which was tried at great length, so that coming to a finding would help conserve judicial resources.*****

    I have shown that it was not crucial to the outcome of the Dover case. And the courts — particularly the Supreme Court — have generally shown that they have no interest in conserving judicial resources. Often the Supreme Court makes narrow rulings or uses the most frivolous of reasons for throwing out a case as moot (e.g., in the suit over “under god” in the pledge, the Supreme Court threw out the case as moot because the plaintiff did not have legal custody of his biological daughter on whose behalf he sued).

  19. #19 Ed Brayton
    January 30, 2006

    Mr. Farma-

    If you go to the front page of this blog, you’ll see that I moved your entire comment there and answered it because this post is getting old and I thought it deserved its own post.

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