Re: Dover Intelligent-Design Case

[Ed Darrell]

My apologies for any offense -- I did not mean to imply you said Kuhn favored ID; in fact you appear to be on the right side of Kuhn.  I do weary of ID advocates who claim that, if we are to comply with the "rules" of Kuhn, we must allow ID to be taught.  Kuhn took exactly the opposite view.  Mr. Lipkin was right.

 

I do think that questioning the judge's capacity to decide the issues before the court is more problematic.  Where does he get the legal capacity?  From his appointment and confirmation.  Where does he get the intellectual capacity?  We hope he has a good education.  Where does he get the expertise?  He may (and should) rely on experts in the field. 

 

It seems to me the alternative is to say judges may not decide many issues:  For example, what is an injury?  What is accepted medical practice?   There are some who argue that we sh! ould not be able to say at all what is science, but I'm too old fashioned to accept that.  There are standards about what is science and what is not, and those standards can be reduced to a writing that judges may use.  The decision is not so much what the judge intends as what the evidence says.

 

There was no jury in this case.  Facts need to be determined before the law is applied; in this case Judge Jones was the judge of fact. 

 

I also regret that Mr. Lipkin considered my comments about philosophy gratuitous.  There are law review and other journal articles that argue that, philosophically, ID can be taught under existing law.  The Dover school board was told that directly, and thought it accurate.  It may be good philosophy, I don't pretend to know.  But it's bad law, and we shouldn't be reticent to say so.  ID doesn't meet the standards of science of any of the great relig! ious universities in this nation.  I think a lawyer is remiss if he or she fails to inform the client that it is an uphill battle to argue that ID is science and that teaching it complies with the establishment clause law on the topic. 

 

As Judge Jones noted, such bad advice led to this case.  Consequently, I don't think the issue gratuitous at all.  I think Judge Jones' standing up for high standards on this issue is a good thing.

 

Ed Darrell

Dallas

[EMAIL PROTECTED] wrote:

        Unfortunately, Ed Darrell distorts my post.  I never said or implied that Kuhn's theory of science favors intelligent! design in any way at all. " What I said was "I do not see any likelihood of intelligent design providing the thrust for a paradigm shift concerning what is or what is not science." Further, I never said Judge Jones imposed  "his views over the experts in science who were called to testify." My point is directed at capacity, and the indefensible contention, in my view, that somehow a legal education provides the necessary ingredients for assessing expert testimony in a wide range of domains of human inquiry.  

 

        When it comes to science (if not everything else) the distinction between not deciding what is or is not science and "following accepted legal procedures in use of expert testimony" is, in my view unhelpful.  It is entirely circular to suppose that because there are "accepted legal procedures of expert testimony," that these procedu! res are anything more than "accepted." There is little more than hubris in the view that the fact that courts use these procedures means that these procedures count as legitimate evaluations of expert testimony. 

 

        What gives judges the requisite background to decide whether experts are correct about defining science as naturalistic, testable, and so forth?  In other words, what prepares judges to assess such abstract debates?

 

        I agree with the experts (and the court) about what science is.  But my agreement is irrelevant to the question of whether judges have the ability to sift through conceptually difficult testimony about the nature of science, religion, and a host of other issues. What in a legal education (or in practicing law) provides the required background?  

 

        As for the gratuitous remark about philosophy, well I'll leave it at that.

 

Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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