Volume 5, May 2005
Epistemological Study in Theory and Practice
* Cooper Senior
Scholar in Arts and Sciences, Professor of Philosophy, and Professor of Law at
Sometimes the word ["science"] degenerates into a
vague honorific, synonymous with the advertiser's "reliable" or
"guaranteed"... [JACQUES BARZUN]
(1923) the D.C. Court upheld the exclusion of testimony of the results of a
then-new blood-pressure deception test on the grounds that novel scientific
testimony "crosses the line between the experimental and the
demonstrable," and so is admissible, only if it is "sufficiently
established to have gained general acceptance in the particular field to which
Ignored for a decade, rarely cited for a quarter-century, over time the "Frye test" became increasingly
influential, until by the early 1980s it had been adopted by 29 states.
In 1975, however, newly-enacted Federal
Rules of Evidence had set a seemingly less restrictive standard: the testimony
of a qualified expert, including a scientific expert, is admissible provided it
is relevant (unless it is excluded, under Rule 403, on grounds of unfair
prejudice, waste of time, or confusing or misleading the jury). In Barefoot, a 1983 constitutional case,
the Supreme Court affirmed that the rights of a Texas defendant were not
violated by the jury's being allowed to hear psychiatric testimony of his
future dangerousness at the sentencing hearing -- even though an amicus brief
from the American Psychiatric Association reported that 2 out of 3 such
predictions are mistaken. Writing for the majority, Justice White observed that
state and federal rules of evidence "anticipate that relevant,
unprivileged testimony should be admitted and its weight left to the
fact-finder, who would have the benefit of cross-examination and contrary
evidence by the opposing party."
Justice Blackmun wrote an angry dissent.
In 1991, amid increasing public concern
that the tort system was getting out of hand, Peter Huber argued in his
influential GALILEO'S REVENGE that under the Federal Rules worthless "junk
science," which would have been excluded by the Frye test, was flooding the courts. In 1992 proposals to tighten up
the Federal Rules were before Congress. In 1993 the Supreme Court issued its
ruling in Daubert
-- the first case in its 204-year history where the central questions concerned
the admissibility of scientific testimony. The Frye rule arose in a criminal case, and had for most of its history
been cited in criminal cases; but Daubert
was a tort action in which the trial court had relied on Frye in excluding the plaintiffs' experts' testimony that the
morning-sickness drug Bendectin was teratogenic. So the Supreme Court was to
determine whether the FRE had superseded Frye,
and in particular how Rule 702 was to be interpreted.
Yes, Justice Blackmun wrote for the
majority, the FRE had superseded Frye; but the Rules themselves require
judges to screen proffered expert testimony not only for relevance, but also
for reliability. In doing this courts must look, not to an expert's
conclusions, but to his "methodology," to determine whether
proffered evidence is really "scientific ... knowledge," and hence
reliable. As to what that methodology is, citing an article by law professor
Michael Green citing Karl Popper, and quoting an observation of Carl Hempel's
for good measure, the Daubert ruling
suggests four factors that courts might use in assessing reliability:
"falsifiability," i.e., whether proffered evidence "can be and
has been tested"; the known or potential error rate; peer review and
publication; and (in a nod to Frye),
acceptance in the relevant community.
In dissent, however, pointing out that
the word "reliable" nowhere occurs in the text of Rule 702, Justice
Rehnquist anticipated difficulties over whether and if so how Daubert should be applied to
non-scientific expert testimony; worried aloud that federal judges were being
asked to become amateur scientists; and questioned the wisdom of his colleagues'
readiness to get involved in philosophy of science. I think he was right to
suspect that something was seriously amiss; in fact, what I shall have to say
here might be read as an exploration, amplification, and partial defense of
his reservations about that philosophical excursus.
-- *** --
Apparently equating the question of
whether expert testimony is reliable with the question of whether it is
genuinely scientific, taking for granted that there is some scientific
"methodology" which, faithfully followed, guarantees reliable
results, and casting about for a philosophy of science to fit this demanding
bill, the Daubert Court settled on an
unstable amalgam of Popper's and Hempel's very different approaches -- neither
of which, however, is suitable to the task at hand.
Popper describes his philosophy of
science as "Falsificationist," by contrast with the Verificationism
of the Logical Positivists, because his key theme is that scientific
statements can never be shown conclusively to be true, but can sometimes be
shown conclusively to be false. Hence his criterion of demarcation: to be
genuinely scientific, a statement must be "testable" -- meaning, in
Popper's mouth, "refutable" or "falsifiable," i.e.,
susceptible to evidence that could potentially show it to be false (if it is
false). Curiously, Popper acknowledged from the beginning that his criterion of
demarcation is a "convention"; and in 1959, in his Introduction to
the English edition of THE LOGIC OF SCIENTIFIC DISCOVERY, affirmed that
scientific knowledge is continuous with common-sense knowledge.
Nevertheless, his whole philosophy of science turns on his criterion of
demarcation. Falsifiability is to discriminate real empirical science, such
as Einstein's theory of relativity, from pre-scientific myths, from
non-empirical disciplines like pure mathematics or metaphysics, from
non-scientific disciplines like history, and from such pseudo-sciences as
Freud's and Adler's psychoanalytic theories and Marx's "scientific socialism."
Falsifiability is also central to Popper's account of the method of science as
"conjecture and refutation": making a bold, highly falsifiable
guess, testing it as severely as possible, and, if it is found to be false,
giving it up and starting over rather than protecting it by ad hoc or "conventionalist"
modifications. (This readiness to accept falsification and eschew ad hoc stratagems is Popper's
"methodological criterion" of the genuinely scientific.)
Popper also describes his philosophy of
science as "Deductivist," by contrast with "Inductivism,"
whether in the strong, Baconian form that posits an inductive logic for
arriving at hypotheses or in the weaker, Logical Positivist form that posits an
inductive logic of confirmation. According to Popper, Hume showed long ago
that induction is unjustifiable. But science doesn't need induction; the method
of conjecture and refutation requires only deductive logic -- specifically, modus tollens, the rule invoked when an
observational result predicted by a theory fails.
Theories which have been tested but not
yet falsified are "corroborated," degree of corroboration at a time
depending on the number and severity of the tests passed. That a theory is
corroborated, to however high a degree, doesn't show that it is true, or even
probable; indeed. the degree of testability of a hypothesis is inversely related to its degree of
Corroboration is not a measure of verisimilitude, but at best an indicator
of how the verisimilitude of a theory appears,
relative to other theories, at a time;
and that a theory is corroborated doesn't mean that it is rational to believe
it. (It does mean, Popper writes,
that it is rational to prefer the theory as the basis for practical action;
not, however, that there are good reasons for thinking the theory will be
successful in future -- there can be no
good reasons for believing this.
So it seems that all this "concession" amounts to is that in deciding
how to act we can do no better than go with theories we don't so far know to be
The first problem with the Daubert Court's reliance on
Popper is that applying his criterion of demarcation is no trivial matter; as Justice
Rehnquist pointed out, observing wryly that, since he didn't really know what is meant by saying that a theory is
"falsifiable," he doubted federal judges would, either.
Indeed, Popper himself doesn't seem quite sure how to apply his criterion. Sometimes,
for example, he says that the theory of evolution is not falsifiable, and so is
not science; at one point he suggests that "survival of the fittest"
is a tautology, or "near-tautology," and elsewhere that evolution is
really a historical theory, or perhaps metaphysics. Then he changes his mind:
evolution is science, after all.
It's ironic; for Popper's criterion of demarcation had already found its way
into the U.S. legal system,
a decade before Daubert, in a 1982
first-amendment case: MacLean v. Arkansas
Board of Education, where Michael Ruse's testimony that creation science
is not science, by Popper's criterion, but the theory of evolution is,
apparently persuaded Judge Overton.
But there is an even more serious
problem with the Daubert Court's reliance on
Popper, of which Justice Rehnquist doesn't seem aware: Popper's philosophy of
science is signally inappropriate to the Court's concern with reliability. When
Popper describes his approach as "Critical Rationalism," it is to
emphasize that the rationality of the scientific enterprise lies in the
susceptibility of scientific theories to criticism, i.e., to testing, and potentially
to falsification, not in their verifiability
or confirmability. True, early on Carnap translated Popper's word
"Bewahrung" by "confirmation"; and for a while, thinking
the issue merely verbal, Popper let it go -- even, occasionally, using
"confirm" himself. But in a footnote to the English edition of THE
LOGIC OF SCIENTIFIC DISCOVERY he comments that this had been a bad mistake on
his part, conveying the false impression that a theory's having been
corroborated means that it is probably true.
Except for the weak moments when he condoned Carnap's (mis)translation, Popper
insisted that corroboration must not be confused with confirmation. The degree
of corroboration of a theory represents its past performance only, and "says nothing whatever about future performance,
or about the 'reliability' of a theory"; even the best-tested theory
"is not 'reliable'"
-- so scornful is Popper of the concept of reliability that he refuses even to
use the word without putting it in precautionary scare quotes! Reiterating that
he puts the emphasis "on negative
arguments, such as negative instances or counter-examples, refutations,
and attempted refutations -- in short, criticism -- while the inductivist
lays stress on 'positive instances',
from which he draws 'non-demonstrative inferences',
and which he hopes will guarantee the 'reliability'
of the conclusions of these inferences," Popper specifically identifies
Hempel as representative of those inductivists with whom he disagrees.
Hempel is not, perhaps, the prototypical
inductivist: he describes the method of science as
"hypothetico-deductive"; he affirms that scientific claims should be
subject to empirical check or testing; and he doesn't follow Reichenbach and
Carnap in explaining confirmation by appeal to the calculus of probabilities.
Nevertheless, Popper is surely right to see Hempel's approach as very significantly
at odds with his own: Hempel is not centrally concerned with demarcating
science; he questions the supposed asymmetry between verification and
falsification, and argues that Popper's criterion "involves a very severe
restriction of the possible forms of scientific hypotheses," e.g., in
ruling out purely existential statements;
when he speaks of "testing" he envisages both disconfirmation and confirmation of a hypothesis; and
one of his chief projects was to articulate the "logic of confirmation,"
i.e., of the support of general hypotheses by positive instances.
Apparently the Supreme Court hoped, by
combining Hempel's account of confirmation with Popper's criterion of
demarcation, to craft a crisp test to identify genuine, and hence reliable,
science. But, though Hempel's philosophy of science is more positive
than Popper's, it isn't much more help with the question of reliability. For
one thing, the confirmation of generalizations by positive instances which
preoccupies Hempel is just too simplified to apply to the enormously complex
congeries of epidemiological, toxicological, etc., etc., evidence at stake in
a case like Daubert. For another,
Hempel himself seems eventually to have concluded (rightly, I believe) that the
"grue" paradox shows that confirmation isn't a purely syntactic or
logical notion after all,
and late in life began to think that maybe Kuhn had been on the right track.
But the most fundamental problem is
that what Hempel offered was an account of supportiveness of evidence, or as
he said, of "relative confirmation," the relation between observational evidence and hypothesis,
expressible as "E confirms H [to degree n]," or "H is confirmed
[to degree n] by evidence E." This, as Hempel acknowledged, falls short
of an account of "absolute confirmation," the warrant of a
scientific claim, which would be expressed in non-relative terms, as "H is
confirmed [to degree n], period." To discriminate reliable testimony from
unreliable, however, would require an account of the non-relative concept --
which Hempel doesn't supply.
-- *** --
So, the Daubert Court mixes up its
Hoppers and its Pempels; but isn't this just a slip, of merely scholarly
interest? No: it is symptomatic of the serious misunderstanding of the place
of the sciences within inquiry generally revealed by the Court's equation of
"scientific" and "reliable."
So successful have the natural sciences
been that the words "science," "scientific," and
"scientifically" are often used as generic terms of epistemological
praise, meaning vaguely "strong, reliable, good" -- as, in television
advertisements, actors in white coats urge viewers to get their clothes cleaner
with new, "scientific," Wizzo. This honorific usage is unmistakably
at work in the Daubert ruling;
indeed, it seems to be implicit even in the way Justice Blackmun writes of
"scientific ... knowledge," strategically excising a significant
phrase from the reference in FRE 702 to "scientific or other technical
knowledge," and apparently signalling an expectation that a criterion of
the genuinely scientific will also discriminate reliable testimony from unreliable.
If "scientific" is used
honorifically, it is a tautology that "scientific" =
"reliable"; but this tautology, obviously, is of no help to a judge
trying to screen proffered scientific testimony. If "scientific" is
used descriptively, however, "scientific" and "reliable"
come apart: for, obviously, physicists, chemists, biologists, medical
scientists, etc., are sometimes incompetent, confused, self-deceived,
dishonest, or simply mistaken, while historians, detectives, investigative
journalists, legal and literary scholars, plumbers, auto mechanics, etc., are
sometimes good investigators. In short, not all, and not only, scientists are
reliable inquirers; and not all, and not only, scientific evidence is
reliable. Nor is there a "scientific method" in the sense the Court
assumed: no uniquely rational mode of inference or procedure of inquiry used by
all scientists and only by scientists. Rather, as Einstein once put it,
scientific inquiry is "nothing but a refinement of our everyday thinking,"
superimposing on the inferences, desiderata, and constraints common to all
serious investigation a vast variety of constantly evolving local ways and
means of stretching the imagination, amplifying reasoning power, extending
evidential reach, and stiffening respect for evidence.
Every kind of
empirical inquiry, from the simplest everyday puzzling over the causes of
delayed buses or spoiled food to the most complex investigations of detectives,
of historians, of legal and literary scholars, and of scientists, involves
making an informed guess about the explanation of some event or phenomenon,
figuring out the consequences of its being true, and checking how well those
consequences stand up to evidence. This is the procedure of all scientists;
but it is not the procedure only of
scientists. Something like the "hypothetico-deductive method,"
really is the core of all inquiry,
scientific inquiry included. But it is not distinctive of scientific inquiry;
and the fact that scientists, like inquirers of every kind, proceed in this
way tells us nothing substantive about whether or when their testimony is
The sciences have extended the senses
with specialized instruments; stretched the imagination with metaphors,
analogies, and models; amplified reasoning power with numerals, the calculus,
computers; and evolved a social organization that enables cooperation,
competition, and evidence-sharing, allowing each scientist to take up his
investigation where others left off. Astronomers devise ever more sophisticated
telescopes, chemists ever more sophisticated techniques of analysis, medical
scientists ever more sophisticated methods of imaging bodily states and
processes, and so on; scientists work out what controls are needed to block a
potential source of experimental error, what statistical techniques to rule
out a merely coincidental correlation, and so forth. But these scientific
"helps" to inquiry are local and evolving, not used by all scientists.
You may object that, since I have
acknowledged that scientific inquiry is continuous with everyday empirical
inquiry, I have in effect agreed with Popper that science is an extension of
common sense. Indeed, I think science is
well-described, in Gustav Bergmann's wonderfully evocative phrase, as the Long
Arm of Common Sense. But the continuity is not between the content of
scientific and of common-sense knowledge, but between the basic ways and means
of everyday and of scientific inquiry; and it is precisely because of this
continuity that the Popperian preoccupation with the "problem of
demarcation" is a distraction.
Or you may object that the Daubert Court's Popperian advice
that courts ask whether proffered scientific testimony "can be and has
been tested" surely is potentially helpful. This is true; but it is no
real objection. "Check whether proffered testimony has been tested" is very good advice when a purported expert
hasn't made even the most elementary effort to check how well his claims stand
up to evidence: such as the knife-mark examiner in Ramirez,
who testified that he could infallibly identify this knife, to the exclusion of
all other knives in the world, as having made the wound -- though no study had
established the assumed uniqueness of individual knives, and his purported
ability to make such infallible identifications was untested. This is not,
however, because falsifiability is the criterion of the scientific, but
because any serious inquirer is
required to seek out all the potentially available evidence, and to go where it
leads, even if he would prefer to avoid, ignore, or play down information that
pulls against what he hopes is true.
Yes, this is a requirement on
scientists; as Darwin recognized
when he wrote in his autobiography that he always made a point of recording
recalcitrant examples and contrary arguments in a special notebook, to
safeguard against his tendency conveniently to forget negative evidence.
But it is no less a requirement on other inquirers, too; as we all realized a
few years ago when a historian who announced that he had evidence that Marilyn
Monroe had blackmailed President Kennedy turned out to have ignored the fact
that the supposedly incriminating letters were typed with correction ribbon,
and that the address included a zip code -- when neither existed at the time
the letters were purportedly written!
"Non-science" is an ample and
diverse category, including the many human activities other than inquiry, the
various forms of pseudo-inquiry, inquiry of a non-empirical character, and
empirical inquiry of other kinds than the scientific; and of course there are
plenty of mixed and borderline cases. The honorific use of "science"
and its cognates tempts us -- like the Daubert
Court -- to criticize poorly-conducted science as not really science at all;
but "not scientific" is as unhelpful as generic epistemic criticism
as "scientific" is as generic epistemic praise. The pejorative tone
of the phrase "pseudo-science," which presumably refers to activities
which purport to be science but aren't really, derives in part from its
imputation of false pretenses, and in part from the favorable connotations of "scientific."
But rather than sneering unhelpfully that this or that work is
"pseudo-scientific," it is always better to specify what, exactly, is
wrong with it: that it is not honestly or seriously conducted; that it rests on
vague or flimsy assumptions -- assumptions there is no way to check, or for
which there is no good evidence; that it seeks to impress with decorative or
distracting mathematical symbolism or elaborate-looking apparatus; that it
fails to take essential precautions against experimental error; or whatever.
-- *** --
So, the Daubert Court's philosophy
of science was muddled; but haven't subsequent Supreme Court rulings cleared
things up? Not exactly: it would be more accurate to say that in Joiner (1997) and Kumho (1999) the Supreme Court quietly backed away from Daubert's confused philosophy of
At any rate, those references to Hepper, Pompel, falsifiability etc., so
prominent in Daubert, are conspicuous
by their absence from Joiner and Kumho. But there are points of
there is a bit of a kerfuffle about "methodology": Mr. Joiner's
attorneys had argued that the lower court erred in excluding their proffered
expert testimony because, instead of focusing exclusively on their experts'
methodology -- which, they maintain, was the very same "weight of
evidence" methodology used by the other party's (G.E.'s) experts --
improperly concerned itself with the experts' conclusions. Apparently
anxious to sidestep this argument, the Joiner Court (with the
exception of Justice Stevens) flatly denies the legitimacy of the distinction
between methodology and conclusions. Opining that this is No Real Distinction,
the Court sounds like nothing so much as a conclave of medieval logicians; but
given their citation to Paoli,
it seems likely that they didn't really intend to make a profound metaphysical
pronouncement, only to acknowledge, as Judge Becker had, that if an expert's
conclusions are problematic enough, this alerts us to the possibility of some
This focus on "methodology"
-- an accordion concept expanded and contracted as the argument demands
-- obscured a much deeper epistemological question. Mr. Joiner's attorneys
proffered a collage of bits of information, none sufficient by itself to
warrant the conclusion that exposure to PCBs promoted Mr. Joiner's cancer, but
which, they argued, taken together
gave strong support to that conclusion; G.E.'s attorneys replied, in effect,
that piling up weak evidence can't magically transform it into strong
evidence. In response, Mr. Joiner's attorneys refer to the EPA guidelines for
assessing the combined weight of epidemiological, toxicological, etc.,
evidence. But no-one ever addresses the key question: is there a difference
between a congeries of evidence so interrelated that the whole really is
greater than the sum of its parts, and a collection of unrelated and insignificant
bits of information, between true consilience and the "faggot fallacy"
-- and if so, what is it?
There is a difference. Evidence
of means, motive, and opportunity may interlock to support the claim that the
defendant did it much more strongly than any of these pieces of evidence alone
could do. Similarly, evidence of increased incidence of a disease among people
exposed to a suspected substance may interlock with evidence that animals
biologically similar to humans are harmed by exposure to that substance, and
evidence indicating what chemical mechanism may be responsible, to support the
claim that this substance causes, promotes, or contributes to the disease much
more strongly than any of these pieces of evidence alone could do. However, the
interlocking will be less robust if, e.g., the animals are unlike humans in
some relevant way, or if the mechanism postulated to cause damage is also
present in other chemicals not found to be associated with an increased risk of
disease, or, etc. "Interlocking" is exactly the right
word; for evidence is structured like a crossword puzzle, with each claim,
anchored by experiential evidence (the analogue of the clues), enmeshed in
reasons (the analogue of completed intersecting entries). How reasonable a
crossword entry is depends on how well it is supported by the clue and
completed intersecting entries, how reasonable those other entries are,
independent of this one, and how much of the crossword has been completed;
similarly, how warranted a claim is depends on how supportive the evidence is,
how secure the reasons are, independent of this claim itself, and how much of
the relevant evidence the evidence includes.
Because of the ramification of reasons, the desirable kind of interlocking
of evidence gestured at in Joiner is
subtle and complex, not easily captured by any mechanical weighting of epidemiological
data relative to animal studies or toxicological evidence. Nor, moreover -- as
Justice Rehnquist already pointed out in Daubert
-- can its quality readily be judged by someone who lacks the necessary
background knowledge. In Kumho
the Supreme Court made a real epistemological step forward. In this
products-liability case, focused on the proffered testimony of an expert on
tire failure, the Court tried to sort out the problems with non-scientific
experts which, as Justice Rehnquist had anticipated, soon arose in the wake of Daubert; and ruled that judges can't
evade their gatekeeping duty on the grounds that proffered expert testimony is
not science: the key word in FRE 702, after all, is "knowledge," not
"scientific." No longer fussing over demarcation, recognizing the
gap between "scientific" and "reliable," in Kumho the Supreme Court acknowledges
that what matters is whether proffered
testimony is reliable, not whether it is scientific. Quite so.
Far from backing away from federal
courts' gatekeeping responsibilities, however, the Joiner Court had affirmed that a judge's decision to allow or
exclude scientific testimony, even though it may be outcome-determinative, is
subject only to review for abuse of discretion, not to any more stringent
standard; and the Kumho Court,
pointing out that, depending on the nature of the expertise in question, the Daubert factors may or may not be
appropriate, held that it is within judges' discretion to use any, all, or none
of them. A year later, revised Federal Rules made explicit what according to Daubert had been implicit in Rule 702
all along: admissible expert testimony must be based on "sufficient"
data, the product of "reliable" testimony "reliably"
applied to the facts of the case. Federal judges now have large responsibilities
and broad discretion in screening not only scientific testimony but expert
testimony generally -- but very little guidance about how to perform this
In short, since Kumho's epistemological step forward, the other problem Justice
Rehnquist worried about -- that judges generally lack the background knowledge
which may be essential to a serious appraisal of the worth of scientific (or
other technical) testimony -- is not merely unresolved, but more acute than
ever. Bad epistemology can only get in the way; but better epistemology,
unfortunately, can't by itself ensure smooth legal sailing.
This article was originally published in APA Newsletter on Philosophy and Law, Fall 2003. It
is abridged from Trial and Error: The
Supreme Court's Philosophy of Science, Am. J. Pub. Health, 2003. Copyright
2003 Susan Haack.
JACQUES BARZUN, SCIENCE: THE GLORIOUS ENTERTAINMENT (1964) at 14.
Frye v. United States,
54 App.D.C. 46, 293 F. 1013 at 1014.
Barefoot v. Estelle, 463 U.S.
880 at 898, 103 S.Ct. 3383 (1983) at 3397. Mr. Barefoot was executed in 1984.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 113 S.Ct. 2786 (1993.)
Court did not itself
scrutinize the disputed testimony; on remand, Judge Kozinski again excluded
the plaintiffs' proffered experts, this time under Daubert rather than Frye.
Because of litigation costs, Merrell Dow had already taken Bendectin off the
market in 1984. In 2000 the FDA again declared the drug safe.
KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (1934), 37; Preface, 1959 to the English edition of
this book, 18.
See Karl R. Popper, Philosophy of Science: A Personal Report,
in BRITISH PHILOSOPHY IN MID-CENTURY (C.A. Mace. ed., 1957), reprinted in KARL
R. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE
(1962), 33, and in SCIENTIFIC INQUIRY (Robert Klee, ed., 1999), 65; and The Problem of Demarcation (1974;
reprinted in THE POCKET POPPER (David Miller, ed., 1983), 118.
KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (supra, note 7), section 83.
KARL R. POPPER, OBJECTIVE KNOWLEDGE: AN EVOLUTIONARY APPROACH (1972), 102.
Daubert, 509 U.S.
579 at 600, 113 S.Ct. 2786 at 2800. Some federal judges evidently understand
falsifiability better than others. In U.S.
v. Havvard, 117 F.Supp. 2d 848, 854, admitting fingerprint identification
testimony, Judge Hamilton observes that "the methods of latent print
identification ... have been tested ... for roughly 100 years ... in
adversarial proceedings." But in Llera-Plaza I, 2002 WL 27305 (E.D.Pa,
Jan 2, 2002), 10, imposing restrictions on fingerprint identification
testimony, Judge Pollak points out that "'adversarial' testing in court is
not ... what the Supreme Court meant when it discussed testing as an admissibility
See K. R. Popper, Natural Selection and
Its Scientific Status (excerpted from a lecture of 1977, in THE POCKET
POPPER (supra, note 8)) at 298.
MacLean v. Arkansas
Board of Education, 529 F.Supp. 1255 (1982). Judge Overton's ruling, and Ruse's
testimony, along with Larry Laudan's properly scathing critique, can be found
in BUT IS IT SCIENCE? THE PHILOSOPHICAL QUESTION IN THE CREATION/EVOLUTION
CONTROVERSY (Michael Ruse, ed. 1996).
KARL R. POPPER, THE LOGIC OF SCIENTIFIC DISCOVERY (supra, note 7), 251-2, note *1, added in the English edition. When
Popper uses "confirm" for "corroborate" -- as he does in
his 1957 Philosophy of Science: A
Personal Report (supra, note 8)
-- the effect is powerfully confusing.
KARL R. POPPER, OBJECTIVE KNOWLEDGE (supra,
note 10) 18, 22.
at 20; the reference to Hempel is in footnote 29.
Carl G. Hempel, Studies in the Logic of
Confirmation, 54 MIND 1-26 and 97-121 (1945), reprinted in CARL G. HEMPEL,
ASPECTS OF SCIENTIFIC EXPLANATION AND OTHER ESSAYS IN THE PHILOSOPHY OF SCIENCE
(1965), 43-4. See also his Empiricist Criteria of Cognitive Significance:
Problems and Changes (adapted from two papers originally published in 1950 and
1951) and Postscript (1964) on Cognitive
Significance, 99-122 ASPECTS OF SCIENTIFIC EXPLANATION.
Carl G. Hempel, Postscript (1964) on
Confirmation, 47 ASPECTS OF SCIENTIFIC EXPLANATION (supra, note 18), 51.
Carl G. Hempel, The Irrelevance of Truth
for the Critical Appraisal of Scientific Theories (1990: reprinted in
SELECTED PHILOSOPHICAL ESSAYS (Richard Jeffrey, ed., 2000), 75).
Albert Einstein, Physics and Reality
(1936), in IDEAS AND OPINIONS OF ALBERT EINSTEIN (Sonja Bargmann, trans.,
For a detailed development of the conception of scientific method on which I
have relied here, see SUSAN HAACK, DEFENDING SCIENCE -- WITHIN REASON: BETWEEN
SCIENTISM AND CYNICISM (2003), chapter 4.
Ramirez v. State, 542 So. 2d 352 (Fla.
1989); Ramirez v. State, 651 So. 2d 1164 (Fla.
1995); Ramirez v. State, 8120 So. 2d 836 (Fla.
remains officially a Frye state, but
seems to be rapidly evolving in the direction of (as Michael Saks puts it) Fryebert.
CHARLES DARWIN, 45 AUTOBIOGRAPHY AND LETTERS (Francis Darwin, ed., 1893).
See Evan Thomas, Mark Hosenball, and
Michael Isikoff, The JFK-Marilyn Hoax,
Newsweek, June 6, 1997, 36-7.
General Electric Co. v. Joiner, 522 U.S.
136, 118 S.Ct. 512 (1997); Kumho Tire Co. v. Carmichael, 526 U.S.
137, 119 S.Ct. 1167 (1999).
In re. Paoli R.R. Yard PCB Litig., 35 F.3d. 717 (3d Cir. 1994).
The term "accordion concept" was introduced in Wilfrid Sellars, Scientific Realism or Irenic Instrumentalism?,
BOSTON STUDIES IN THE PHILOSOPHY OF SCIENCE, 2 (Robert Cohen and Marx
Wartofsky, eds., 1965), 172.
The word "consilience," meaning etymologically "jumping
together," was coined by William Whewell, and recently made famous as the
title of a best-selling book, E. O. WILSON, CONSILIENCE (1998), on the Unity
of Science. The phrase "faggot fallacy" was introduced in PETR
SKRABANEK AND J. MCCORMICK, FOLLIES AND FALLACIES IN MEDICINE (1997), and
adopted by G.E.'s attorneys in Joiner.
I first introduced the analogy in Rebuilding
the Ship While Sailing on the Water (in Roger Gibson and Robert Barrett,
eds, PERSPECTIVES ON QUINE, 1990, 111). It was articulated in more detail in
SUSAN HAACK, EVIDENCE AND INQUIRY: TOWARDS RECONSTRUCTION IN EPISTEMOLOGY
(1993), chapter 4, and is developed further in SUSAN HAACK, DEFENDING SCIENCE
-- WITHIN REASON (supra, note 22),
My thanks to Mark Migotti for very helpful comments on a draft.