| James N. Markels | ||||
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Information Constitutionalist
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Science
in the Courtroom by
James N. Markels Sound impossible? Poppycock? That’s what Bjørn Lomborg, a statistics professor at Aarhus University in Denmark, thought when he read those same pronouncements in a 1997 Wired profile of the late Julian Simon, a professor of economics at the University of Maryland. Despite the repeated predictions by those like Stanford entomologist Paul Ehrlich, Al Gore, and the Worldwatch Institute that soon we will suffer mass starvation and run out of oil and clean air, Simon claimed that all the available evidence proved that precisely the opposite was occurring. Lomborg set out to prove Simon wrong. Instead, he found out that Simon was exactly right, contrary to all conventional wisdom, and his new book, The Skeptical Environmentalist (Cambridge University Press, 2001), documents the results of his research. Examining everything from acid rain to waste production, forest coverage to ozone, Lomborg presents hard data showing that despite our growing belief that the world is getting worse, in fact it is getting better in almost every way, even as there are more of us consuming more resources. Yet when it comes to the creation and application of law, conventional wisdom still often beats scientific fact, especially when it comes to product liability. In 1996, a Tulane study published in Science claimed that combinations of the chemicals from pesticides and PCBs have effects potentially 1,000 times more potent as endocrine disruptors than the individual chemicals alone, apparently confirming the conventional wisdom that chemicals are bad for us, even when each exposure individually is deemed harmless. In response to the media hubbub around the study, just a month later, Congress required by law that the EPA develop a program to screen thousands of chemicals for the potential “cocktail effect.” Good policy, right? The only problem is, the results of the study have never been duplicated, and the Tulane researchers were forced to withdraw the study in 1997. Just recently, former Tulane researcher for that study, Steven F. Arnold, was found to have “committed scientific misconduct by intentionally falsifying the research results published in the journal Science and [provided] falsified and fabricated materials to investigating officials” by the federal Office of Research Integrity. The punch line? We still have the EPA program, costing millions of taxpayer dollars and much more to private industry each year. In 1981, the National Institutes of Health published the Women’s Health Study, finding that intrauterine birth control devices (IUDs) increased the risk of pelvic infections by 60 percent. Obviously, it seems to make sense that a foreign object placed intentionally in the pelvic area would be the cause of such infections, right? It wasn’t until 1991 that the study was fully analyzed and found that it “showed almost a compete disregard for epidemiological principles in its design, conduct, analysis, and interpretation of the results” in an examination in the Journal of Clinical Epidemiology. There was no added danger of infections from IUD use. Too little, too late, though, for the companies that made IUDs and the women who would have benefited from them. Fortunately, courts are starting to get wise about the dangers of bad science. A recent study by the EPA purported to finally find a link between secondhand tobacco smoke and cancer, a link that has long been assumed but never scientifically proven. When brought to scrutiny by the U.S. Court of Appeals for the Fourth Circuit this year in Armstrong v. Olsteen, the court found that the EPA had manipulated the confidence intervals in order to make its results seem scientifically significant. “The record and EPA’s explanations to the court make it clear that using standard methodology, EPA could not produce statistically significant results with its selected studies,” the court discovered. This time, bad science was caught. However, the EPA was willing to twiddle results in order to confirm its original hypothesis, and this theme recurs in the previous examples as well as many others. This is a good sign that politics has become a part of the science, if not part of the original hypothesis itself. How, as a lawyer or judge, are you supposed to tell when this is going on? Simple: Learn the details of how scientific studies are conducted and then examine the fine print of the study pertaining to your case. Well, actually, that’s not so simple. Unless you’re already interested in science, odds are that things like p-value testing and the differences between ecologic studies and cohort trials will be about as fun as, well, learning about economics. But considering the upcoming storm brewing around genetically-modified foods and cloning, it pays to have a head start on what tomorrow’s courtrooms will be wrestling with. A good (short!) introductory book on what to watch out for is Junk Science Judo (Cato Institute, 2001) by Stephen Milloy. And for those of you still wondering how it could be that things are getting better despite there being more humans consuming more resources than ever, Simon and Lomborg realized that the one thing missing from common assumptions was human ingenuity. In short, although resources are ultimately finite, our ingenuity is not, and so we will always find new resources and new ways to use existing resources better than before, meaning there will be more for everybody. The ultimate resource, as Simon put it, is the human mind. At least until politics get involved. |
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