Wednesday, July 20, 2005

American Journal of Public Health Publishes Special Issue on Science, Public Policy, and Daubert

The American Journal of Public Health has published a special supplemental issue (titled "Scientific Evidence and Public Policy") on the use of science in judicial and regulatory proceedings. It includes over twenty articles on that general topic, focusing heavily on Daubert and its less well-known regulatory cousin, the Data Quality Act. Many of the articles offer new and thought-provoking analyses, as well as some intriguing empirical work. As a whole, they reflect a generally unfavorable take on Daubert, but even readers who disagree with that stance will find much to stimulate their thinking.

Contributors include a number of scientists and scholars whose names will already be familiar to many of our readers. Among others: Margaret Berger, Richard Clapp, Sander Greenland, Susan Haack, Sheila Jasanoff, George Lakoff, David Ozonoff, Kenneth Rothman, and David Michaels (who also served as guest editor for the special issue). Topics range from juror competence in gauging scientific evidence, to the courts' troublingly permissive posture on forensic evidence in criminal cases, to tensions within the set of epistemological assumptions embedded in the Daubert decision and its progeny. The papers grew out of a March 2003 symposium in Coronado, California, sponsored by the Project on Scientific Knowledge and Public Policy, and they can be downloaded from SKAPP's website. They have been deposited at PubMed too.

There's a lot to absorb here, and we plan to be delving into some of the individual articles, as time permits, over the next little spell. For now, we'll venture some thoughts on just one overarching theme. Expert scientific evidence is a controversial subject, and some of the articles in this collection will inevitably become fodder for lively debate, if not outright polemic. Some of the authors' conclusions will be dismissed in some quarters as driven by ideological predisposition, and some of the analyses will be criticized, fairly or no, for a perceived want of neutrality. We make that prediction with a mixture of apprehension and satisfaction. Apprehension, because it would be a shame if the genuinely fresh insights reflected in some of this work were drowned out by the stale rhetorical posturing so familiar in the expert evidence wars. Satisfaction, because we don't believe it's profitable any longer, if ever it was, to pretend that these issues are without substantial political content. That may as well be acknowledged explicitly.

The notion that there exists some single true measure of bona fide science, or some single set of neutral and objectively valid rules about how the tools of science should be discussed, evaluated, or deployed -- such a notion, in our view, is itself an ideological artifact, and only very dubiously defensible. To say this is not to embrace some version of postmodern intellectual nihilism, in which inconvenient empirical results are simply discarded in some junkheap of relativistic oblivion. Nor is it to say that we should become casual about allowing jury verdicts and policy decisions to be based on charlatanry. It is to say that we should be resoundingly skeptical, and bring all our critical faculties to bear, when somebody's blinkered and doctrinaire vision of what does and does not constitute "sound science" aligns uncannily with a specific set of political or economic interests.

The truth is that values are at stake here, and these debates have an irreducible political component. It does not suffice, therefore, to charge opponents in the debate with holding a certain political outlook, or to accuse them of being associated in one way or another with certain interests. There is no neutral and value-free intellectual location from which such stones could be cast without sin -- and anybody who claims there is, is probably selling something. The real question should be whether people show a willingness to depart from preconceived viewpoints, when rational analysis and honest empirical inquiry suggest that the picture may be different from what somebody originally wanted to believe.

What is refreshing about this collection is the way in which many of the contributors (not all) appear have come to their views through a process of reasoned investigation, employing recognized canons of independent inquiry that did not predetermine some desired conclusion. They may not have come to their work free from all bias. Like the rest of us, they are mortals. But there is, in much of this writing, a willingness to go beneath the surface, and to drill down to serious business, that is evocative of the best in the scientific temperament. There will be those who want to praise this work, and those who want to criticize it. The best praise, and also the best criticism, would be to take up the same project, in the same spirit, and do better.


Ilena Rose writes ...

I was just coming here to blog this same article ...

Women injured by breast implants have suffered more because of Daubert decisions ...

1:10 AM  

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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.