The main idea is that each side should take charge of their own fate, in a kind of courtroom analog to capitalism and free-market individualism, and that this self-determination is the best way to produce fairness and truth. The judge serves merely as the umpire ensuring each side follows the rules, which themselves are designed to create a level playing field between the parties. The jury must decide whose facts to believe.

This presents problems when the facts at issue are steeped in scientific dispute. In the American system (and, perhaps to a lesser extent, in all countries following the Anglo-American legal approach), science and scientific evidence emerges and is interpreted through the actions of the parties involved. Expert witnesses testify for a particular side, and are employed by a particular side.

This also presents some problems for scientific experts, who have historically grounded themselves in disinterestedness and objectivity. How does one keep out the influence of one’s employer, either out of self-interestedness or just a lack of access to anything but what one’s own side provides?

While the U.S. judicial system has developed a number of methods to deal with these problems–from various rules of evidence, to standards for judging scientific evidence from Frye to Daubert–there are still problems for scientific expertise in the courtroom. As just one example, how do you enforce rules against perjury if an expert is testifying to a theory? How are lay juries–consisting of specifically of people unfamiliar with the evidence, the case, and the facts–supposed to evaluate and decide between competing scientific claims?

Scientists and others have come up with a number of suggestions, but all of them have involved too many changes to the process for lawyers and judges to agree on implementing them. Appointing experts as direct advisors to the court, for example, interferes with traditional ideas of the judge as a neutral umpire, merely refereeing each side’s zealous advocacy. (Contrast this with European methods, which place approved experts in direct service to the judge, who, incidentally, often gathers evidence as well as overseeing the trial.) Putting scientists into the jury isn’t too popular with lawyers either–typically, special knowledge disqualifies you instead, because lawyers don’t want jurors with preconceived knowledge or ideas.

But at the very least, why not allow experts–jurors who are “people having ordinary skill in the art”–in the jury on patent trials? Or how about eliminating juries for patent trials entirely? (England, our common-law mother, did this already.) But the Constitution can make such distinctions between types of cases problematic, and in any case, lawyers and judges are invested in the current system. Questioning its fairness in one kind of case might lead to questioning it in other situations.

So what to do? How can juries possibly decide between equally compelling and apparently valid scientific theories? Do we need to change the system? Or can lay juries do just fine, despite the scientific complexities of many cases?

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• The Daubert Standard (socyberty.com)
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One pertinent example: most biologists look at the diversity of species and say that evolution by natural selection (with at least a hint of randomness) is the best explanation, whereas believers in Intelligent Design see God’s hand at work. Given a certain view of available evidence, both explanations might be possible (especially if an all-powerful God simply creates everything–including fossils–in situ).

So how can we resolve this problem whereby a set of facts can justifiably be argued to support multiple potential theories?

One approach is to limit ourselves to certain kinds of theories as potential explanations: science tends to allow for only theories that are potentially testable, verifiable, falsifiable, etc. Most scientists say–despite arguments to the contrary–that the existence of a divine presence guiding evolution is simply out of bounds for scientific inquiry. It’s a matter for faith, not empirical inquiry; it’s religion, not science.

Another approach, favored by Owen Gingerich, astronomer and author of God’s Universe, turns to Aristotle to help differentiate these two kinds of explanation. Put in Aristotelean terms, faith could be seen as a search for “final” causes, while traditional science could be said to stick instead to “efficient” causes. There is thus no conflict between science and religion–and no worries about underdetermination traceable to this conflict–since each explains different things.

Gingerich looks to Blaise Pascal’s notion that “some things only the heart knows” to explain this idea and justify his belief in (small case) “intelligent design.” Since science cannot know or determine certain truths (final causes, in Aristotelian terms), we can freely posit a (distant) intelligent designer without worrying about stepping on scientific concepts of proof. In essence, two truths become simultaneously possible, because they occupy different domains of truth.

The law is somewhat similarly concerned with causality. But the law is not concerned with science’s version of “efficient” causes, nor is the law looking for “final” causes in the metaphysical sense. Instead, legal analyses look to “but-for” causation and speak of “proximate” cause in a search for limited, but specific, legal culpability. The point, though, is similar to that advocated by Gingerich: to limit the scope and breadth of various theories of causation. In other words, the idea is to restrict potential problems of underdetermination.

Intelligent Design (not Creationism, and not the lower-case “intelligent design” of Gingerich), on the other hand, believes that science can be used to access the truth of an intelligent creator, and that this search is scientific.

Creationism, on the other hand, tends to reject science more firmly. It inherits from a tradition of the literal exegesis of scripture used, for example, in the 16th century. 16th-century exegesis is related to but not identical to today’s Biblical literalism. After all, bringing in a passage of scripture today is no longer a means of shutting down debate.

So how did Copernicans in the 16th century deal with the issue, given the power of literalism at the time? They argued that perhaps scripture itself underdetermines potential explanations–even if it can shut down blatantly conflicting theories.

Thus, for example, Johannes Kepler tried an accommodation approach with literalism. He maintained that God–in order to be understood by normal people–caused the Bible to be written in ordinary language. This is why there are no discussions of epicycles (or DNA, for that matter) in the Bible. The Bible thus accomodates ordinary folk with a different, non-scientific vocabulary that, if read correctly, does not conflict with science.

Of course, many–most?–of today’s scientists simply step outside of the argument, and simply point to materialist, naturalistic explanations as being all that is necessary, and certainly as the only valid scientific theories. Why? Because they work.

If all of these approaches to dealing with underdetermination are dissatisfying you, and you can’t accept naturalism, then there is always the choice to go to absolute knowledge, as David Bloor reminds us: if the Pope says it’s true, then no doubt exists, and we escape the problem of underdetermination and uncertainty.

This post is based on discussion in a graduate seminar on science and religion on Monday, April 27, 2010.

As just one example, many vaccination opponents focus on potential conflicts of interest by researchers, especially when researchers may be influenced by pharmaceutical companies and the potential profits such companies may enjoy through the use–especially the mandated use–of vaccines they manufacture.

These “[a]ccusations of having engaged in mercenary practices” are intended to reduce the authority of scientific experts. Many anti-vaccine Web sites, according to a 2002 study published in Archives of Disease in Childhood, take the accusation further, casting doctors and scientists as either “willing conspirators cashing in on the vaccine ‘fraud’ or pawns of a shadowy vaccine combine.”

Conflict-of-interest criticisms are also used by proponents of vaccination when they evaluate and review claims. For example, critics of vaccine opponent and scientist Andrew Wakefield, author of a now-retracted study published in The Lancet, accuse him of being “paid big bucks by trial lawyers” and of not revealing this “conflict of interest.”

Most proponents of vaccination see themselves, in the words of Dr. Paul Offit, as “science advocate[s],” not “vaccine advocate[s].” A major critique they make of vaccination opponents is that they ignore or distort science, equate correlation with causation, or fasten on preliminary or poorly-conducted studies as the final word on a subject.

Current opponents of vaccination also seek to align themselves on the side of science. Even as they criticize the mainstream scientific perspective on vaccination, nonetheless, “in what appears as a paradox, the appeal to scientific expertise” remains:

In the context of a controversy, any group which attempts to present its case and to participate in the critical assessment of alternative viewpoints without appealing to any scientific expertise puts itself in a very vulnerable position.

Despite this appeal to science, expertise in the vaccination debates remains a contested issue. Sharon Kaufman, a professor of medical anthropology at the University of California, San Francisco, says that with the proliferation of “experts” on the Internet, “many parents see even the most respected vaccine experts’ perspective on the issue as just one more opinion.”

Vaccination opponents often combine references to science with a powerful emotional hook. Citing the 2002 study mentioned earlier, Liza Gross writes, “The bulk of antivaccination Web sites present themselves as legitimate sources of scientific information, using pseudoscientific claims and emotional appeals.”

The National Vaccintion Information Center site, for example, combines a “Memorial to Vaccine Victims” with a “Doctor’s Corner” containing materials written by physicians.  Gross adds that, on many anti-vaccination Web sites, intuitive views about vaccines were elevated above “cold, analytical science,” and accounts of children “maimed or killed by vaccines” were common–a finding that may help explain why those who advocate immunization receive death threats.

This combination of science plus emotion–validating the intuition of parents while providing alternative expertise to back up their beliefs–is a compelling one.

Scientific knowledge–or, at least the appearance of such knowledge–remains key on anti-vaccination Web sites. This is visible in “informed choice” rhetoric, for example, and is a key theme of the NVIC site.  It is also, perhaps obviously, a key component of pro-vaccination rhetoric as well.

For more specific comparisons of pro– and anti-vaccination Web sites, see Markers of Trust: How Pro– and Anti-Vaccination Web Sites Make Their Case on SSRN.

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Why then is it that modern Protestant evangelicals appear to struggle with accepting science today? Why does this struggle emerge especially around biology, particularly evolution? And why have many evangelicals turned to approaches like “Intelligent Design,” which instead of replacing science with religion, instead seeks to co-opt science within terms acceptable to Protestant evangelicalism?

These are the questions I was considering today while discussing sociology and science, and considering how the nature of certain kinds of evidence and theory influences its acceptance and utility by different social groups. (For more, see, e.g., Religion and Science: Beyond the Epistemological Conflict Narrative, by John Evans and Michael Evans.)

Let’s consider Protestant fundamentalists, who generally consider the Bible literally true (despite problems of translation, changes in fundamentalist interpretations over time, and other difficulties). This is the group, one would expect, who might well have the most objections to science, and indeed when it comes to geological sciences and evolution, they do.

But interestingly, most Christian fundamentalists see no conflict with other kinds of science (chemistry, for example), and are typically — despite what one might extrapolate from Young Earth Creationists or geo-centrists, for example — quite happy to accept many forms of modern science and technology.

Evangelicals — who take the Bible less literally than the fundamentalists, but otherwise share many values — have even fewer quibbles with mainstream science, but do tend still to object specifically to the concept of Darwinian evolution. They object so strongly, and yet otherwise consider science so important, that they have struggled to create and teach their own theory of “Intelligent Design” to account for the empirical data scientists have accumulated.

But why is it evolution, and not heliocentrism or photosynthesis, both of which draw from scientific theories which organize and explain empirical data, which has attracted such vehement opposition from evangelicals and fundamentalists?

First, I think evolution, and especially the apparent “randomness” of mutations that leads to change (even if natural selection itself is far from random), generates a kind of anti-materialist repugnance that sees in it a threat to the moral order. If our existence owes as much to chance as anything else, does this not threaten the role of the divine in our lives and, perhaps more importantly, does this not threaten or status as the elite of the world? If we as humans came to exist in the same manner as every animal on Earth, what right do we have to claim an immortal soul?

Second, Protestantism comes from a tradition that values evidence and observation, but looks suspiciously at over-abstract concepts and trust in elites. Thus, evangelicals are wary of science that relies on abstractions, but are fine with science that is strongly connected with observable events. We can see and experience a chemical reaction, but we cannot see or directly experience macro-evolution over millennia.

So why is evolution a target? It is abstract. It is difficult to observe directly, and thus seem to require trusting in scientific elites. (Both of these have historically been issues for Protestantism generally.) It is threat to the established order of things. It feels wrong.

In short, it is less about the truth of the matter than it is about values.

Does this same kind of analysis apply to conservative resistance to climate change research? How many of those who do not believe that the Earth’s climate is being impacted by human activity are evangelical or fundamentalist Protestants? I’m not sure of the answers to these two questions, but I am curious.

A federal judge has dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency’s mass surveillance of millions of ordinary Americans’ phone calls and emails.

via EFF Plans Appeal of Jewel v. NSA Warrantless Wiretapping Case | Electronic Frontier Foundation.

The government had argued, first, that sovereign immunity applied and, second, that the state secrets and related privileges would prevent the introduction of critical evidence. The judge, however, avoided ruling on these (potentially controversial) grounds, and instead ruled that the harm alleged was a “generalized grievance shared … by all or a large class of citizens,” citing Seegers v. Gonzalez (this is sometimes called “ducking the question”).

The EFF plans to appeal.

If the real purpose of copyright law is to “promote the progress,” then why not make sure it’s doing so? In other words, why not have actual evidence-based copyright law? There’s a lot of historical evidence that can be looked at, and different ideas around copyright law can be empirically tested. If it doesn’t promote the progress, get rid of it. If it does, then shouldn’t that make almost everyone better off?

via Could Evidence-Based Copyright Law Ever Be Put In Place? | Techdirt.

Of course, how to collect, measure, and evaluate this evidence is not simple. Law & Economics provides one powerful path, and tends to support changing current copyright law. Even if evidence is controversial, at least it gives us a shared foundation to discuss appropriate copyright approaches. So why is it so hard to find studies that provide such actual evidence, as opposed to supposition and imagination?

The first ruling came in federal court in the United States as a district court judge ruled against the Administration’s attempt to restrict defense access to information:

Senior U.S. District Judge Thomas F. Hogan has turned down a request by the Obama Administration to restrict lawyers’ access — in virtually all remaining Guantanamo Bay cases — to the files the Administration’s detention task force is assembling on every prisoner remaining at the Navy prison in Cuba.

via SCOTUSblog.

The second ruling is from the U.K., and came down as a unanimous decision by nine law lords restricting the use of secret evidence in so-called “control orders” (a form of preventative house arrest):

The men, who have been held under virtual house arrest under the Government’s control order regime, won the unanimous backing of a panel of nine law lords, on the grounds that the suspects did not know what they were accused of or what evidence was being used against them.

via the Times Online.

The U.K. government argues that they have processes in place to prevent abuse of the system, but that the sensitive nature of the evidence, combined with the seriousness of the terrorist threat, justifies the use of secret evidence.

The law lords disagreed:

Lord Phillips of Worth Matravers, the senior law lord, said: “A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.”

The eight other lords agreed. “The principle that the accused has a right to know what is being alleged against him has a long pedigree. … The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him,” Lord Hope said.

This is exactly my beginning position. As a foundational proposition, a justice system based on the rule of law is incompatible with the use of secret evidence. Such evidence undermines our adversarial legal process, including fundamental rights like due process and the right to confront witnesses. Similar abuses of the English legal system, on which the American system in based, led directly to the Bill of Rights in 1789, and contributed to the desire of American colonists to separate from England.

Nonetheless, despite this, I might be convinced that such evidence could have an application in the investigatory process, or even in short-term preventative detention to prevent imminent threats or to gather evidence that can be used in court. But beyond that limited use, secret evidence provides the executive branch with too much power, a position both liberals and conservatives can, I believe, understand and support — despite the tendency for each side to oppose executive power only when the other side is in power.

I can also envision a potential system that seeks to limit the exposure of such evidence by restricting who can see it and evaluate it. Evidence does not need to be made available openly to the public (although this is the ideal, since it provides the greatest protection against abuse — but then again, the public does not always use such information responsibly). But evidence must be revealed at least to the defense so that a proper case can be mounted and questions can be asked. This is how our adversarial system functions and, while imperfect, the system is better than alternatives.

Perhaps a military commission system is the right way to balance these concerns, since our traditional system is simply not set up to handle the limited release of sensitive information to defense counsel and no one else. Certainly I have grown to have great respect for the ability of military lawyers to act as defense counsel, despite the negative impact on careers that occurred in the last 8 years to those who did so. A lawyer has an ethical duty to the law and to his or her client. And military attorneys have more than lived up to this ethical duty.

Regardless of the approach, I believe that while the use of secret evidence may be acceptable initially (as part of an investigation or short-term detention while more evidence is gathered), the defense needs access to this evidence. Without it, any trial or legal process is simply unfair.

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Yesterday, the Supreme Court granted cert in a case that, commentators say, gives them an opporunity to carve out more exceptions to the “exclusionary rule,” a criminal procedure doctrine that excludes evidence obtained from an unlawful search. At the same time, the Court, without comment, turned down an appeal from the ACLU that challenged the Bush administration’s warrantless-wiretapping program.

The growing number of e-discovery requests associated with the recently updated Federal Rules of Civil Procedure (FRCP) is forcing companies to look for ways to automate their e-discovery process (see “FAQ: Changes to the Federal Rules of Civil Procedures Affect Storage Plans”).