Sunday, February 15, 2004

John Edwards and Cerebral Palsy (cont'd)

The debate on John Edwards's representation of cerebral palsy victims with malpractice claims continues, with Franco Castalone posting an extended discussion of the medico-scientific literature on cerebral palsy causation as it stood during John Edwards's legal career, in response to Walter Olson's most recent salvo.

Castalone's broader point, if we are interpreting him correctly, is that once you delve into the details, the scientific questions arising in litigation often lack the simple and unequivocal answers that participants in political debate may want to portray them as having. The same is true, let it be said, of the legal questions. Most Americans probably have no better understanding of the detailed rules and processes governing civil litigation than they do of the principles of particle physics. The combined prevalence of scientific and legal illiteracy leaves a lot of room for partisans to spin things their way, and few are seen to resist the temptation. To us, this implies that alongside the debate over the ethical bona fides of lawyers who offer scientific evidence that their adversaries may consider dubious, there is also room for inquiry into whether public discourse on the science wars is currently being conducted in an acceptably ethical fashion. Here are some criteria that may be relevant to such an inquiry:

-- Is the speaker's discourse free from ad hominem attack?
-- Is it free from needlessly inflammatory rhetoric, and from question-begging dysphemisms like "junk science"?
-- Does it recognize the possibility of legitimate disagreement?
-- Does it pander to the audience's preconceived antipathy for lawyers?
-- Does it marshall its evidence in an intellectually honest fashion, disclosing the existence of contrary evidence?
-- Does it engage the underlying science in more than a superficial or partisan way?
-- Does it propose practicable and balanced solutions to any problems to which the speaker may be pointing?

These are high standards, to which few would always succeed in conforming. And we have probably missed some important factors that would also warrant attention. But maybe politico-legal discussion should try to follow some standards of intellectual integrity too, and we have to start somewhere.

Update: Franco Castalone's commentary had already satisfied most of these conditions. With the publication today of his latest post, on no-fault compensation systems for cerebral palsy cases, he seems to us to have satisfied all of them.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.