Seven Warning Signs of Scientific Nonsense

Hat tip to SF Signal for this link:

Advice to lawyer and judges: Seven warning signs to help you spot Junk Science.

This is these paragraphs that caught my eye:

In 1993, however, with the Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. …  the court instructed federal judges to serve as “gatekeepers,” screening juries from testimony based on scientific nonsense. Recognizing that judges are not scientists, the court invited judges to experiment with ways to fulfill their gatekeeper responsibility. Justice Stephen G. Breyer encouraged trial judges to appoint independent experts to help them.

In the legal community, the debate has been going on for years whether or not the court system should allow for “Blue Ribbon” juries to be empaneled. A blue ribbon jury is one composed, not of ordinary citizens and freemen, but of experts with specialized medical or scientific knowledge.

The argument in favor of blue ribbon juries is that when the facts of the case turn on a technical or scientific argument the average juror is in no way qualified to assess, justice is not served. Expert witnesses simply lie on the stand, and the jury grants the award to whichever party provokes their sympathy.

The argument against blue ribbon juries is that the core function of a jury in a society of free and equal men, is to restrain the court system from finding results at odds with the general consensus (rightly or wrongly) held by the community of what justice is. Justice is the one thing everyone is qualified to have an opinion about: everyone knows the difference between right and wrong. Divorcing the court system from the common man, even in a limited number of cases (such as medical malpractice), so the argument goes, creates an elite that may well carry the court system away from its democratic foundation. We have seen a phenomenon called ‘regulatory capture’ go on with regulators placed in authority over businesses, where the so-called experts merely become partisans of a particular vested interest.

My own opinion: I do not see the two solutions as mutually exclusive. A blue ribbon panel could, for example, rule only on the admissibility of a defined field of evidence, such as expert witness testimony, while the lay jury retained the balance of its traditional role.

I do think a drastic overhaul of our tort system is called for. In the current system, there is simply no notion of common ideas of fairness that any more apply to manufacturers: they are held strictly liable (that is, they are “at fault” even if they did nothing wrong) whenever anyone gets injured by one of their products, including persons suffering a class of injury that could not be foreseen. The juror’s sense of justice includes the notion that we should soak the rich.

It is so bad, that I do not see why anyone even had medical malpractice trials any more. No matter what the doctor does, if the patient suffers any injury whatever, he is likely to soak the doctor. Imagine how likely you would be to open a garage, if you had to pay out of your pocket, or out of your insurance, for each and every car engine you could not restore to working order–whether such a repair was possible or not. Why don’t they just have trial by ordeal for doctors, these days? If he floats, he’s a witch! That would be about as fair as our current system.

Let me tell you why I like the idea of a blue ribbon jury. If a doctor had to explain to a jury of twelve doctors exactly what procedures he did and did not do, they could rely on their day-to-day experience to know whether that was a negligent or a normal procedure. Likewise, if there is an ex-waitress eating with me, I would prefer her to decide the tip: her judgment will be better than mine whether we were waited on properly or not. Her critique will be better.