Category: Law and Policy

On Friday, February 10, I will participate in a Symposium at Temple Law School on The Evolution of the Open Source Model: To Life Saving Drugs and Beyond. A copy of my presentation is available on my website.

Pointer: some more challenging discussion of Kitzmiller by Al Altschuler at U Chicago Law.

I hate to post again about the Kitzmiller case, as I don’t want to become the “intelligent design law blog.” But, I feel it’s necessary to correct some misinformation that’s being spread about the case on some advocacy sites like Panda’s Thumb. The misinformation is that it was “essential” for Judge Jones to provide a detailed explanation of what constitutes “science” in order to decide the establishment clause issues in the case. Judge Jones made reference to this on pages 63-64 of the Opinion where he states:

…we will offer our conclusions on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred, but also in the hope that we it prevent the obvious waste of judicial and other resources which would be occasioned by a second trial involving the precise question which is before us.”

Some uninformed commentators, including those at Panda’s Thumb, have concluded from this comment that case law or practice in the Third Circuit (the federal court circuit in which the Pennsylvania federal trial courts sit) in fact compelled Judge Jones to examine this issue in detail. This is patently wrong.

Just a heads up and a place holder — Al Altschuler at U. Chicago Law has another challenging post about the Kitzmiller decision. Altschuler explores some of the philosophy of science questions that should be the focus of this debate and were largely glossed over by the Kitzmiller court.

Merry Christmas and Happy Holidays everyone!

In an earlier entry I linked to the a post by Alex Altschuler at the University of Chicago Law Faculty Blog concerning the Dover case. Altschuler made some good points, I think, but the commentary that followed his post was even more illuminatating — and discouraging. With well over 100 comments, it became a swamp of nastiness. I posted a few of my criticisms of the Kitzmiller opinion as well as some other thoughts about scientific methodology and got hammered as a “liar,” “dishonest,” a “creationist troll,” etc., and was called things like “dpoopderbeck.” I have to confess that once or twice I tried the “nasty” approach as well. Someone derided me for being stealthy about my Christian convictions — as if I try to hide them on this site. After a while, I gave up, and later on the thread degenerated further into utterly silly mock letters from school children and pastors to their school boards.

Now, in the abstract, “dpoopderbeck” actually could be kind of funny, almost as funny as when someone at Evangelical Outpost called me “dopderdoink.” But when you read through that thread, it breathes bile and hate. There are lots of people with varying perspectives on the Dover case who are making good and reasonable arguments, like the arguments some commenters here have made. But there is something wrong with our culture if a challenging comment on a legal decision from an eminent law professor at one of the top law schools in the world becomes a playground for bullies who think adding “poop” to someone’s name is a bon mot. It’s really discouraging.

Just a heads up to good discussion of the case over at the University of Chicago Law Faculty blog.

As everyone knows by now, the Dover ID case has been decided. I think the court was right on the establishment clause issues, partly becasue the existing Supreme Court establishment clause jurisprudence is such a mess. Hopefully I’ll blog about that another time. For now I want to focus on the court’s unecessary, and wrong-headed, discussion of whether ID is “science.”

I should note that I have to go back and read the decision more carefully. On my first quick read, here’s what, from my perspective, is objectionable about the court’s discussion of “science”:

1. The judge went far beyond the case / controversy at hand by giving his primer on whether ID is “science.” There was enough in the record to establish the religious motives and effect of the particular Dover school board policy at issue that the establishment clause decision could easily have been decided without the long explication of ID as “science.” It strikes me that the court in that respect was acting more like a soldier in the culture war than as a neutral arbiter of facts and law.

2. The judge’s criteria for determining what constitutes “science” seem muddled and dangerous to me, for several reasons.

a. He distorts the history of science by stating that science since the Enlightenment has always proceeded under the assumption of absolute methodological naturalism. That just isn’t so. Many giants in the history of science, Netwon not the least among them, started with the assumption of a creator / designer who built intelligible order into the universe. In fact, from an historical perspective, absolute methodoligical naturalism arguably is the anomaly.

b. He distorts the philosophy of science by essentially equating the assumption of naturalism with the definition of science. I have to go back and check carefully, but I don’t recall any serious mention of how the philosophy of science has developed from the Enlightenment to Karl Popper’s falsifiability criterion, and then from there has split into numerous strands including Kuhn’s observations about paradigm shifts, Lakatos’ criteria for a “scientific program,” and Polanyi’s critiques of what constitutes scientific “knowledge.” Given the rich debates that surround serious discussion of the philosophy of science, it’s facile to conclude that absolute naturalism must be the sine qua non.

c. He further distorts the demarcation (“science” or “non-science”) question by focusing the definitional question on whether a theory has gained acceptance within the scientific community. It seems that, in the court’s view, it is “science” only if it has a sustained record of peer reviewed pubications and endorsements by major scientific organizations. That can’t, however, be a test for whether something is categorized as “science.” Almost any new theory initially meets with resistance. Under the court’s “science is what science says it is” test, most theories would start out as “not science” and then only later evolve (pardon the pun) into “science.” We’d have to say, for example, that many of the revolutionary scientific theories of the past centuries were not “science” when first proposed, and that many important theories today, such as string theory and multiverse theory, may not really be “science” yet.

d. He misrepresents key ID arguments by stating that they are only negative arguments against evolution rather than positive evidence for design. Once again, this is flat wrong. The irreducible complexity argument, for example, doesn’t only state that an IC system can’t have evolved and thus must be designed. It states that an inference of design can be drawn if there is a system is irreducibly complex, there is a statistical probability that the system could not have been assembled merely by chance, and there are no reasonable explanations for the system’s development other than design. It is true that this analysis includes negative arguments against other possibilities for the system’s appearance, including evolution, but every scientific claim proceeds by discounting alternative explanations.

e. He misrepresents the merits of key ID arguments, in particular irreducible complexity. As noted above, he simply doesn’t understand the irreducible complexity argument. Moreover, he uncritically credits arguments by Ken Miller and others against certain ID systems, such as the bacterial flagellum, that have been responded to effectively in many cases by ID proponents, and that should remain the subject of vigorous debate in the scientific community.

In short, it seems to me the court is saying that any truth claim not based on absolutist naturalistic materialism cannot be “science,” regardless of the history of science, the philosophy of science, or the nature of the claim. That seems to me a recipe for censorship rather than for free and open scientific inquiry.

Recently I wrote a letter to the editor in response to an editorial in Christianity Today. I never heard back from them, and assumed it had disappeared into the ether. Apparently, though, they published it! Here’s the online version (you have to scroll down a bit to see my letter). I have to go check for my hard copy of the magazine — I hope I haven’t let it expire.

Here is a good rubber-meets-the-road issue for faith-and-policy wonks like myself. I learned recently that the sleepy little town in which I live is considering an ordinance that would require a regular inspection of every residence in town by the Building Inspector. Currently, inspections are only made after the completion of new construction under a building permit. The ostensible reason for the new ordinance is that there has been a flurry of off-permit do-it-yourself home improvement lately that has slipped through the inspection net. The real reason may be less sanguine.

There’s an article in today’s Wall Street Journal about how Kraft Foods is modifying its advertising of less-than-healthy processed food to kids. Kraft’s motives are base. As an affiliate of tobacco giant Philip Morris, Kraft knows a few things about public relations spin. Thus, Michael Mudd, the architect of Kraft’s obesity strategy, made the following connection between tobacco and food marketing:

If the tobacco industry could go back 20 or 30 years, reform their marketing, disarm their critics, and sacrifice a couple of hundred million in profits, knowing what they know today, don’t you think they’d take that deal in a heartbeat?

From a law and economics perspective, it seems that product liability law is not working here as it should. The potential costs of product liability litigation are causing Kraft to plow resources into an “aversion” or “avoision” strategy of “crafty” marketing. The threat of such costs should instead drive Kraft to invest in safer, healthier products. From a natural law perspective, the problem is even more grave: Kraft wants to invest in deception rather than good old fashioned honest products. Either way, it leaves a bad taste in my mouth.