Re: Judge Jones sided with the Discovery Institute and ruled against the Dover school board policy.

From: David Opderbeck <>
Date: Wed Dec 28 2005 - 15:47:45 EST

Hello everyone. I'm a law professor and a recent ASA member, and am the
author of the "legal analysis" referenced further down in this discussion.
It appears on my blog, Through a Glass Darkly, at (I'm
not the author of the "Dawn Treader" post that is the main focus of the
discussion; my post was linked by the Dawn Treader, who's a good guy and a
friend of mine). In response to Pim's comment about my blog post, I'd like
to clarify a few things:

First, as I stated clearly in my blog post, I was not addressing there the
establishment clause issues. I believe the judge correctly decided the
establishment clause issues, consistent with what I believe is awful
establishment clause jurisprudence from the Supreme Court. So, I didn't
"miss the point" of the decision; I think Pim missed the point of my post.
And, I don't view this case as an example of "judicial activism," whatever
that may be. This judge, I believed, reached the correct result under the
constraints of the existing law. I should also note that my post was
intended to offer some quick thoughts upon reading the Opinion; I don't
claim that it's an exhaustive legal analysis of the sort that I might submit
for professional publication.

I also believe, however, that the judge unnecessarily decided the question
of what constitutes "science." The extended discussion of what constitues
"science," in my view, wasn't needed to decide what was a relatively simple
establishment clause issue, given the governing law and the record
concerning the school board's conduct. We should all be wary, I think, of
having federal district courts define for us what "science" means. And, in
this instance, I think the judge's effort to define "science" was largely
vaucous. He ignored any serious discussion of the philosophy and history of
science, and instead came up with a communitarian definition that boils
down, in my view, to "*a theory is 'scientific' if the currently ascendant
scientific establishment approves of it."* Being something of a Kuhnian /
Quinian myself, that kind of definition is unsatisfying to me, and when
backed with the force of law, seems somewhat frightening.

I'd also like to note that an excellent and very civil discussion followed
in the comments to my original post on the judge's opinion, with a variety
of views represented. That discussion is ongoing, and I'd heartily welcome
the perspectives of my fellow ASA members there (once again, the URL is

Wishing you all a great new year,

David Opderbeck

On 12/28/05, George L. <> wrote:
> >
> >
> >
> >
> >
> > Love it! ~ Janice :)
> > Linked from:
> >
> >
> >
> > *Dover Ruling * December 2005
> > "....Judge Jones sided with
> >
> > the Discovery Institute<>and ruled against the Dover school board
> > policy. No promotion of biological design in public school
> > science classrooms.
> > A better approach, in my opinion, is to allow biological design to
> > flourish as a metascience as
> >
> > Dr. Robin Collins suggests here.<>As a metascience, biological design
> > will receive the time and support it needs to mature and
> > flourish.
> > Scientists make wonderful pragmatists and lousy philosophers.
> > Philosophical arguments about science will not convince them to switch
> > away from their current research paradigms. In order to gain
> > traction and acceptance, design based research programs need to produce
> > more discoveries, more break throughs and more cures. Research
> > grants will follow, and so will more scientists.
> > *One interesting area to keep a close eye on is the oxymoronic research
> > area known as directed evolution. *It may prove to be an
> > interesting testing ground of paradigms (design -vs- chance). I
> > hope to post more on this interesting subject as I learn more about
> > it.
> > A second area where I think design based programs may yield superior
> > results is in forensic biology. Just a hunch.
> > *Once biological design gains traction in the scientific community,*
> > and I have every reason to expect it will, then *you will see a more
> > interesting trial than the one we witnessed in Dover.
> > *Update: Some legal and philosophical analysis of the case from an
> > expert over at
> >
> > Through A Glass Darkly<>
> .
> 1) "Intelligent design as a metascience" is fine as long as we realize
> that its a specifically theistic metascience, thus religious, thus not
> something that should be appealed to by a science that operates in accord
> with methodological naturalism, which just gets us back to where we started:
> Intelligent design can be good theology but it's bad science.
> & on this distinction, the essay by physics Nobel Laureate Eric Cornell in
> the 14 November issue of Time is quite good.
> 2) Scientists may make lousy philosophers but they generally don't compare
> in badness with philosophers telling scientists how to do science. Comte &
> the supposed impossibility of knowing stellar compositions is a prime
> example. If you want to know how science works, look at what scientists -
> both experimental & theoretical - do. Philosophers of science come in
> afterwards, after scientific successes & failures have occurred, & clean
> things up & make them look more respectable for their fellow philosophers. &
> if what's worked isn't in accord with current ideas about the philosophy of
> science, so much the worse for those ideas.
> George L. Murphy
Received on Wed Dec 28 15:50:20 2005

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