Well, not very much of the discussion there was actually about Kitzmiller. But to the extent it was, I mostly find myself strangely in agreement with Behe, except to the extent that he disparages the intellectual capability of Judge Jones.
I think that it is a mistake to assume – as Behe seems to have assumed, in going into the Kitzmiller litigation – that litigation in a common-law court is a process meant to discover some sort of ultimate truth. It is a mistake to assume that even those who practice law believe this – indeed, they believe it less than anyone else does. Litigation is war, and as Sherman said, “War is all hell.”
Understand this: we have, in contrast to much of the civilized world, a deep commitment to the notion of an adversarial system of justice. The civil law model, of an inquisitorial system where judges take an active role in establishing the facts and the law, has certain arguable merits, and you’ll find that system in most European countries. But our system is and has always been one based upon combat: the notion is that a rule-bound, refereed combat in which each side strives to put forth the best case it can will tend to produce legitimate results. If you are an expert and you don’t face harsh cross-examination, frankly, that probably is because your testimony isn’t very important. If your testimony is very important, as Behe’s unquestionably was here, then you should expect the sharpest sort of conflict. The judge is only a referee as to the fairness of that conflict, both procedurally (what kinds of questions can be asked?) and substantively (what is to be made of the conflicts between witnesses on both sides?).
Next: does anyone think that debate in a courtroom and deliberation upon scientific expert testimony is a good way to resolve a scientific dispute? No. Nobody thinks that, least of all those who practice litigation. So why do we do it?
We do it because the adversarial system is based upon cases or controversies. Courts do not reach out into the world to find disagreements and resolve them. They take parties who are at loggerheads, one of whom has refused to back down from some stance and the other of whom has decided that, that being the situation, it must after all be war. And the case is ABOUT that conflict. It is about flesh-and-blood people. In this particular case, it was about religious extremists who chose to take a stand, and citizens who decided they weren’t bloody going to take it any longer. That’s the conflict. It is the role of the lawyers, in that conflict, to analyze that conflict, break it down into issues, frame those issues and endeavor, to the extent those issues are issues of “fact” rather than of “law,” to bring evidence to the court. It is then the role of their adversaries to explain away, contradict, and/or discredit that evidence.
Behe talks about Jones being an English major, lawyer, and “failed politician” as though any of these things have anything to do with it – as if to ask how such a miserable creature could be presumed capable of understanding the illuminating insights of a Behe. The fact is that nobody expects a US District Judge to come to a case pre-loaded with expertise bearing upon the very points at issue. I have litigated, before these judges, all of these matters:
- The extent and nature of floodwater behavior and management in river plains;
- The uniqueness and patentability of particular modes of creating the timbre of the individual notes on a church organ;
- The relationship between prison overcrowding and inmate-on-inmate violence;
- Police approaches to domestic violence, and the effectiveness of those approaches;
- The manner of termination of a municipal cemetery management contract;
- The nature and consequences of a collective bargaining agreement governing the closure of a manufacturing plant, as bearing upon the entitlement of then-disabled workers to pension benefits;
- The scope of visibility afforded a school bus driver by various configurations of mirrors, and the effectiveness of additional mirrors and other equipment in preventing children from being run over;
- The impact upon fish populations of construction of small run-of-the-river hydroelectric plants on mountain streams;
- The feasibility of anadromous fish passage through particular types of drainage ways;
- and so on, and so on.
We do not expect – and could not reasonably expect – our system to have, as its judges, people who come to the bench richly aware of the full range of technical issues with which they may have to cope. What we do expect is that the parties will choose experts well. What we do expect is that judges will be intelligent and patient. And – though the trendline is rather ugly in recent years – for US District Courts the intellectual quality of our judges has been, on the whole, excellent. Our state courts are quite variable, not just because of the quality of the judges but also because they tend to have excessively large dockets and limited staffing as compared to a US District Judge.
Behe’s argument that Jones did not understand the evidence seems to be based primarily upon Jones pulling passages from the writings of the plaintiffs’ lawyers. But these passages, it must be understood, are from the parties’ proposed findings of fact and conclusions of law. These proposed findings and conclusions are REQUESTED by the court from the parties for just this purpose. While on this occasion he did not suggest that this was plagiarism, he and others have done that elsewhere and it is really misleading. The purpose of these proposed findings is for use in the ruling. That’s why the judge asked for them, and that’s how they were used. The fact that they were used in this case, as they are in almost every case that goes to bench trial, is truly unremarkable and says absolutely nothing about whether the judge subjectively understood or did not understand the testimony. The likelihood of the judge having uncritically accepted them is basically nil, and he and his law clerk(s) will have worked on this ruling for quite a while to get it right.
What does the case resolve? That’s the subject of some misunderstanding all up and down the spectrum of views. But it’s fair to say that when the law is confronted with an issue of fact (is ID a scientific theory?) it seldom if ever purports to resolve that fact for all parties, for all purposes, and for all time. Remember: the whole adversarial system is based upon the case or controversy. The system is built to render decisions not primarily for their far-reaching effects but for their proximate effects upon the behavior of the parties. The public sees it differently because the law people tend to hear about is the far-reaching law: Brown v. Board of Education, or Roe v. Wade, or Korematsu v. United States – cases which, for good or for ill, have massive policy consequences and which raise basic issues about human freedom, autonomy and equality. What you don’t hear about is the daily grinding-through of thousands upon thousands of disputes, each of which turns on its own particular details. We have “landmark” cases because sooner or later, amid those undistinguished cases, a conflict arises which encapsulates something with a depth and breadth that – due to our regard for legal precedent – means that it will mean more to those who are in its wake than it means to the very persons involved. That is the exception, not the rule. Let’s talk about what a ruling like Kitzmiller actually means – something liable to be overstated by people from all sorts of points of view.
A final judgment after trial precludes parties from relitigating the facts, except under narrow special circumstances. It establishes, likewise, the “law of the case” which means that (again, barring certain special circumstances) the parties may not reargue the legal issues. It resolves the claims which were presented, and so here it establishes that the defendants did violate the plaintiffs’ civil rights under the First Amendment, and were liable for that violation under the Civil Rights Act of 1871.
But those are the effects upon the parties: upon the Kitzmillers and other plaintiffs, and upon the Dover Area School Board, and upon the individual defendants on that Board. The effects of the decision more broadly are not so strong. Because this is a decision of a trial court, any other trial court in America (state or federal) stands at the same level and is not “bound” by any principle of stare decisis. Another trial court could hypothetically face the EXACT same facts and rule in the other direction. In any case very similar to Kitzmiller, there is no doubt that the anti-ID party will point to it and insist that the same answers should follow; but he will know, when so doing, that the value of the ruling is advisory only. The pro-ID party is free to argue that Jones got it wrong; he is free to argue that newer and better evidence shows that whether Jones was wrong or not, he would be wrong under the evidence we now have; he is free to argue that the circumstances and details of the new case are sufficiently different as to make the Kitzmiller ruling wholly irrelevant.
The law doesn’t presume to decree, for science, what is or is not science. But the law must presume to decree, for the law, what is or is not science, when that issue is squarely put at the center of a case or controversy as it was in Kitzmiller. A court faced with a case where the parties do not put it in issue, or where the merits may be resolved without reaching the issue, may decline to decide it. But when, as here, the parties on both sides are in full agreement that the scientific character of ID is at issue, the court has no choice but to resolve that question on the basis of the evidence presented by those parties.
Whether one considers this process “Kafkaesque” is, I suppose, a matter of opinion, and Behe is certainly entitled to his. But having been before some adminstrative boards now and then in my career who, as a colleague put it, “really put the ‘quasi’ in ‘quasi-judicial’,” I can’t agree that there is anything Kafkaesque – or even terribly unusual – about how this case proceeded. If this is Kafka, well, call me Gregor and watch what you do with the bug spray.