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Friday, July 14, 2017

Junk Science in the Courtroom

     Junk science is the mirror image of real science, with much of the same form but none of the same substance. There is the astronomer, on the one hand, and the astrologist, on the other. The chemist is paired with the alchemist, the pharmacologist with the homeopathist. Take the serious sciences of allergy and immunology, brush away the detail and rigor, and you have the junk science of clinical ecology. The orthopedic surgeon is shadowed by the osteopath, the physical therapist by the chiropractor, the mathematician with the numerologist and the cabalist. Cautious and respectable surgeons are matched by some who cut and paste with abandon. Further out on the surgical fringe are outright charlatans, well documented in the credulous pulp press, who claim to operate with rusty knives but no anesthesia, who prey on cancer patients so desperate they will believe a palmed chicken liver is really a human tumor.

     Junk science cuts across chemistry and pharmacology, medicine and engineering. It is a hodgepodge of biased data, spurious inference, and logical legerdemain, patched together by researchers whose enthusiasm for discovery and diagnosis far outstrips their skill. It is a catalog of every conceivable kind of error: data dredging, wishful thinking, truculent dogmatism, and now and again, outright fraud.

     On the legal side, junk science is matched by what might be called liability science, a speculative theory that expects lawyers, judges, and juries to search for causes at the far fringes of science and beyond. The legal establishment had adjusted rules of evidence accordingly, so that almost any self-styled scientist, no matter how strange or iconoclastic his views, will be welcome to testify in court. The same scientific questions are litigated again and again, in one courtroom after the next, so that error is almost inevitable.

     Junk science is impelled through our courts by a mix of opportunity and incentive. "Let-it-all-in" legal theory creates the opportunity. The incentive is money: the prospect that the Midas-like touch of  a credulous jury will now and again transform scientific dust into gold. Ironically, the law's tolerance for pseudoscientific speculation has been rationalized in the name of science itself. The open-minded traditions of science demand that every claim be taken seriously, or at least that's what many judges have reasoned. A still riper irony is that in aspiring to correct scientific and medical error everywhere else, courts have become steadily more willing to tolerate quackery on the witness stand. [While during the past ten years efforts have been made to keep junk science out of the courtroom, it remains a problem.]

Peter W. Huber, Galileo's Revenge, 1991

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