Bernstein on SKAPP (part 2)
The estimable Professor Bernstein says my post of 7/2/03 misapprehends his point about SKAPP. The real outrage, if I understand him correctly, is that "junk science" led to the "extortion" of "billions of dollars" from breast implant manufacturers in the first place. It just adds "insult to injury," Bernstein says, that some of those funds ended up subsidizing a study concluding that Daubert's guidelines are too strict. Bernstein grants that the content of the SKAPP study must stand or fall on its own merits.
Unfortunately, Bernstein still does not engage those merits directly, but instead launches a different ad hominem attack. The SKAPP study's sponsors, he now says, have an obvious "left-wing, environmentalist, redistributivist bias." Moreover, "the panel that conducted the study had no representative of 'hard science' on it: no one from a physics, biology, or chemistry department. Instead, there are professors from the squishy field of Environmental Health, an Urban and Environmental Policy and Planning Professor, and an MD." Prof. Bernstein goes on to note that "one or more of these professors is [apparently] a philosopher by training." It is not certain whether Prof. Bernstein regards this last circumstance as boon or bain.
Courts performing Daubert analyses commonly distinguish between an expert's qualifications, on the one hand, and the validity or reliability of the expert's reasoning, on the other. If we think of ourselves as subjecting the SKAPP study to a similar analysis, Bernstein's remarks go almost entirely to the former issue. Concerning the actual content of the SKAPP study, Prof. Bernstein says only that the report "reads like a legal brief." (I am therefore safe, so far, from having to deliver on my end of the bargain offered on 7/2/02 -- viz., that I would find some proposition advanced by the Atlantic Legal Foundation with which I could bring myself to concur, if only Bernstein would offer his own substantive views on the SKAPP study's stated conclusions.)
Let's focus, then, as Bernstein does, on qualifications. If the subject under investigation is the admissibility of expert scientific evidence in litigation, why would we look primarily to physicists, chemists, or other "hard" scientists for insight? Physics may be a relatively rigorous discipline, but physicists' expertise is in the study of matter and energy. Presumably Bernstein doesn't consider physicists to have privileged insight into matters of litigation policy. Nor do most disputes about the admissibility of expert testimony involve experts from the "hard" sciences. Expert testimony about physics, for example, is just plain rare. Much more commonly, Daubert challenges involve experts from the very fields that Bernstein disparages as "squishy," like medicine and psychology -- and inquiry in those fields follows very different models. The reliability and utility of expert testimony from those fields may therefore implicate very different considerations, which practitioners from those fields may be better equipped to evaluate than are (say) chemists.
Or is Bernstein really giving voice to an underlying view that all expert testimony purporting to draw on science should match chemistry and physics in style and rigor, on pain of exclusion? Such a standard would put much of forensic science in evidentiary peril. But perhaps I misapprehend again.
Unfortunately, Bernstein still does not engage those merits directly, but instead launches a different ad hominem attack. The SKAPP study's sponsors, he now says, have an obvious "left-wing, environmentalist, redistributivist bias." Moreover, "the panel that conducted the study had no representative of 'hard science' on it: no one from a physics, biology, or chemistry department. Instead, there are professors from the squishy field of Environmental Health, an Urban and Environmental Policy and Planning Professor, and an MD." Prof. Bernstein goes on to note that "one or more of these professors is [apparently] a philosopher by training." It is not certain whether Prof. Bernstein regards this last circumstance as boon or bain.
Courts performing Daubert analyses commonly distinguish between an expert's qualifications, on the one hand, and the validity or reliability of the expert's reasoning, on the other. If we think of ourselves as subjecting the SKAPP study to a similar analysis, Bernstein's remarks go almost entirely to the former issue. Concerning the actual content of the SKAPP study, Prof. Bernstein says only that the report "reads like a legal brief." (I am therefore safe, so far, from having to deliver on my end of the bargain offered on 7/2/02 -- viz., that I would find some proposition advanced by the Atlantic Legal Foundation with which I could bring myself to concur, if only Bernstein would offer his own substantive views on the SKAPP study's stated conclusions.)
Let's focus, then, as Bernstein does, on qualifications. If the subject under investigation is the admissibility of expert scientific evidence in litigation, why would we look primarily to physicists, chemists, or other "hard" scientists for insight? Physics may be a relatively rigorous discipline, but physicists' expertise is in the study of matter and energy. Presumably Bernstein doesn't consider physicists to have privileged insight into matters of litigation policy. Nor do most disputes about the admissibility of expert testimony involve experts from the "hard" sciences. Expert testimony about physics, for example, is just plain rare. Much more commonly, Daubert challenges involve experts from the very fields that Bernstein disparages as "squishy," like medicine and psychology -- and inquiry in those fields follows very different models. The reliability and utility of expert testimony from those fields may therefore implicate very different considerations, which practitioners from those fields may be better equipped to evaluate than are (say) chemists.
Or is Bernstein really giving voice to an underlying view that all expert testimony purporting to draw on science should match chemistry and physics in style and rigor, on pain of exclusion? Such a standard would put much of forensic science in evidentiary peril. But perhaps I misapprehend again.
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