Re: [asa] thinking was prosecutors and not that of the judge

From: David Opderbeck <dopderbeck@gmail.com>
Date: Fri May 04 2007 - 15:00:08 EDT

*I don't think the judge had a choice because it appears that precedent and
the desire of both parties to answer is ID science question hemmed him into
this kind of decision. In other words, it's because Judge Jones was not an
activist judge that this happened. (I do understand that the judge was
piling on reasons in order to not be reversed and that contributed to the
problem.) David O., am I off base here?
*
This is a fair point -- particularly given Ted's correct reference about the
Supreme Court's creation science precedent. It's true that, given those
earlier creation science cases, the Dover court probably couldn't have
completely punted the question of "science." I think a very parsimonious
way to handle this, however, would have been to note that the ID advocates
on the Dover board clearly were using ID as a smokescreen for introducing
Biblical creationism, which the Supreme Court has already held is not
"science," and just to leave it limited to those facts without discussing ID
more broadly.

 I'd hesitate just a bit, though, on the judge being hemmed in by the way
the parties framed the case. Judges are free to decide a case in ways
completely different than what the parties present or intend. This happens
all the time -- actually it can be quite frustrating for the litigants --
but it's supported by an important principle of judicial independence.
Also, throughout a case, judges often play an active role in framing the
issues for decision. In federal courts in particular, there is always a
pretrial conference during which the judge meets with the lawyers and hashes
out exactly what will be covered at trial. It's usually pretty clear by
that point what the judge thinks is important, and good lawyers shape their
cases accordingly.

On 5/4/07, Rich Blinne <rich.blinne@gmail.com> wrote:
>
>
>
> On 5/4/07, Terry M. Gray <grayt@lamar.colostate.edu> wrote:
> >
> > Rich,
> >
> > Unfortunately, I don't have time to deal with this in any depth
> > right, but I just wanted to say that I find the Dover ruling to be
> > atrocious. Not because I'm an ID sympathizer, but because it's
> > radically demarcationist in its definition of science. It
> > incorporates a fairly naive philosophy of science--one that makes
> > easy disposal of ID, YEC.
> >
>
> I agree with that. I'll give an example for you. String theory is not
> tested and may not even be testable. Many scientists complain "it's not
> science". Yet, there is no great movement to ban string theory from the
> classroom. In the past, you have eloquently defended the historical sciences
> vis-a-vis the experimental ones and such demarcations also make this not
> science. Having bright-white-line demarcation is not helpful. Having said
> all that, I still believe that the NAS definition of a scientific theory is
> superior to Behe's. What I am trying to propose is a kind of a "smell test"
> for proposed demarcations, even fuzzy ones. Does it exclude generally
> recognized science like the bright-white-line demarcation proposed by some?
> Then the definition is too narrow. Does it include generally recognized
> non-science? Then the definition is too broad.
>
> The demarcation question is IMHO appropriate but what makes the decision
> particularly atrocious is that the wrong parties are deciding it, namely
> unelected judges versus elected school boards. I don't think the judge had a
> choice because it appears that precedent and the desire of both parties to
> answer is ID science question hemmed him into this kind of decision. In
> other words, it's because Judge Jones was not an activist judge that this
> happened. (I do understand that the judge was piling on reasons in order to
> not be reversed and that contributed to the problem.) David O., am I off
> base here?
>

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Received on Fri May 4 15:00:23 2007

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