Kitzmiller, the Universe, and Everything

Electrically?

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You might want to explain that to @Eddie:
https://discourse.peacefulscience.org/t/on-eddies-gluttonous-consumption-of-kitzmiller-vs-dover-documents/9291/9
“But the scales which he used to weigh the testimony were supplied for him by the expert witnesses for one side. So his “weighing” ended more like parroting. And indeed, study showed that his judgment contained a much higher than normal amount of direct borrowing from the words of the expert witnesses. There was much more borrowing than weighing.”

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I got a charge out of that.

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And some people here want to discuss what Behe is allegedly thinking…

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Hm. I do think that the repeated appearance of textual criticism rather than substantive analysis, while it may not be strictly po-mo, does suggest some strong inclinations in that direction.

The function of expert testimony is not usually to supply facts, but to illuminate them. It is often central to the case, because, for example, when I was litigating issues concerning river flooding and the consequences of various approaches to restoration of scoured lands and construction of berms and dykes, it is reasonable to suppose that the District Court judge had absolutely no familiarity with those issues at all.

It is a common feature, fortunately, of most people who have developed expertise in one field to understand that others have expertise that they themselves do not. This isn’t universal; you do see computer programmers who think that their work gives them more insight into genomics than geneticists have. But a good US District Judge knows that whatever intuitive notions he might have about river flooding are liable to be quite false and that he needs to listen to, and honestly try to come to grips with, the testimony of people who make river flooding the subject of rigorous empirical study.

There simply were no good rationales offered by the experts for the defense in Kitzmiller. And while some caricatures of Behe’s testimony are out there that are a bit unfair, the things that came out of his mouth were red flags. The acknowledgement that he really needed to amend conventional understandings of what constituted a scientific “theory” and that the broadening of this conception would admit such things as astrology to the discussion wasn’t a great moment.

"[Q] And using your definition, intelligent design is a scientific theory, correct?

[A] Yes.

[Q] Under that same definition astrology is a scientific theory under your definition, correct?

[A] Under my definition, a scientific theory is a proposed explanation which focuses or points to physical, observable data and logical inferences. There are many things throughout the history of science which we now think to be incorrect which nonetheless would fit that – which would fit that definition. Yes, astrology is in fact one, and so is the ether theory of the propagation of light, and many other – many other theories as well."

It’s a good thing I wasn’t in the courtroom during that passage because I would either have fallen out of my seat or been ejected from the room with a case of irrepressible giggles.

The intellectual history of ID as presented to Jones was a bit truncated, but whose fault was that? Several DI fellows provided expert reports, and then, as I understand it, they refused to appear for depositions and so could not be called at trial.

–passage here deleted for reasons not now important – But when you provide an expert report in preparation for your testimony at trial in a federal lawsuit, it’s not hard to understand what you are doing and what your actions predictably lead to. If the DI had not given encouragement to Buckingham, Bonsell, et al., this whole thing might well not have happened. The DI evidently got cold feet, and why? Nobody really can know what was going on there except the people who will never, never tell the story and could not be trusted if they did.

At any rate: the expert testimony was what it was largely because of the DI’s decision to withdraw. Behe honored his commitment to the District, but most did not. I think that complaining about the judge’s take on the expert testimony, given that background, is pretty rich. The judge is supposed to rule upon the record. There was no reasonable dispute of record as to the origins of ID; there was no reasonable dispute of record as to whether ID was a scientific theory, with even Behe basically saying that it would be, if we just redefined “scientific theory” to include it. Of course, ID would be a Buick Century if we redefined “Buick Century” to include it, too.

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I’d certainly like to know that, too. I have never conflated that with Kitzmiller, nor have I ever known anyone to do so, so I don’t know what the DI is on about. My recollection of it is rather vague compared to that of Kitzmiller, but if it was anything other than a sordid episode, that’d be a first for the DI.

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Re-addressing this point now that it is clearer (if anyone’s curious, there was a bit of confusion over a typo previously – no big deal):

That’s likely. But perhaps this shows that the DI really had no idea what it was getting into. An expert witness is there to TESTIFY at depositions and at trial, and in some cases also to assist counsel in preparation. But an expert is not a party. An expert has no right to control the course of the litigation.

If I were still a lawyer and you were retained as my expert witness on some scientific issue, you might tell me why you thought that, your expert opinion notwithstanding, my case was doomed – perhaps some other credible scientific issue outside of the scope of your testimony led you to think this, or perhaps you looked at my client’s version of the facts and said, “no jury’s ever going to believe that, and if they don’t believe that, my testimony doesn’t even become relevant.” This can happen. It does happen.

But the question whether to seek a settlement or to go to trial is never a question for the expert. His counsel may be sought, or offered. But the client is the only one who can make the call. I have told people they should take settlement offers, and had them refuse. I have told people they should make settlement offers, and they have refused. It’s not for me to decide – it is for me as a lawyer to ADVISE and explain, and then, so long as there is not some unethical dimension to the thing, to do what the client says. And as the lawyer I have the whole picture in mind. My expert may tell me things that I should understand and that I should heed, but he is not the judge of the weight of the rest of the evidence and he is not in charge – his job is to testify to the things he is retained to testify to, and my job is to give advice as to the whole picture, and the client’s job is to decide. He may direct me to sail into the iceberg, on the strength of his belief that it will turn out to be a mirage, even as both I and the experts tell him that it is not and that we are all doomed.

So what did the DI think? Did they think they were a party? Did they think they were in control? I can guarantee you that the Pennsylvania ACLU didn’t think such things. If the Kitzmillers and their fellow plaintiffs had all awakened one morning and said that they had had a change of heart and no longer wanted to do these things, the attorneys would have been duty-bound to drop the case – no doubt after advising their clients as to the costs and benefits of such a course of action.

But that misunderstanding of the difference between expert and client, or attorney and client, does explain why the DI’s supporters constantly say that the ACLU sued the Dover school board. The ACLU, of course, did no such thing. The ACLU would have lacked standing, by any test, to do any such thing and Jones would have dismissed the suit.

Many pieces of litigation can be settled. But I have a hard time thinking that the DI thought this could be settled, rather than tried. How could it? A settlement with these parents would have bound nobody else – this was not a class action. And how do you half-teach creationism? How can any compromise happen? Surely they had to have known the case would go to trial. This seemed to be the very thing for which Phillip Johnson had always yearned: a chance to put “Darwinists” on the stand and expose the intellectual rot and ruin that he imagined biology had become. If they believed that, they should have been eager for trial. If they did not, they should never have offered the slightest assistance.

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DI saw themselves as advisors to the board that were foolishly ignored. They recommended strongly against the actions of the board that landed them in court. The board, instead, wanted to create a test case by provoking a legal controversy, to enable a trial they thought they would win but DI was telling them from the beginning that this was foolish.

Kansas was seen as a positive counterpoint because they managed to create a media circus that they controlled without actually doing anything that would justify taking them to court.

That’s the difference. I heard it from the horses’ mouths on this one and it seems to make sense and to be independently verified, at least in part.

As for not giving assistance, no one but Behe took the stand. They advised all their fellows to stay away so they wouldn’t get implicated. Behe went rogue, and we know what happened there.

Well, not at first. There are expert reports from other DI fellows who then refused to testify, apparently because they felt they should have separate legal representation at their depositions. Stephen Meyer has one on file in the case – I don’t know whether he was in charge at the time, but he’s basically the head of the place now.

Understand: there WOULD NOT BE expert reports from these witnesses if they were not intending to testify. That’s the only purpose of them – they are provided in discovery because the person who is planning to call an expert is generally obligated to offer a report, in order to allow the opposing party to know what the scope of the expert’s testimony would be.

Well, that could be. But once the Board took those actions, they signed on as expert witnesses, and then only fled the case later.

I’m not sure what happened behind the scenes but it is clear that the DI’s involvement goes much deeper than “we told them not to do it, but they did it anyhow.” It really does appear that the DI told them that creationism needs to be called “Intelligent Design,” and that the DI did offer them extensive help in the litigation, only to withdraw it later.

Minnich, too, right? And wasn’t there another? There was a Stephen Fuller, but I do not recall if he was affiliated with the DI.

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It really does look like that. The DI and their allies are engaging in historical revisionism in order to try and conceal this.

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What you seem to be saying is that they are as clueless about the legal system as they are about science. Yet they have (or had) at least one attorney and at least a couple of (former) scientists on their staff.

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Dembski, following the Kansas hearings and a scant few months before Dover:
I’m waiting for the day when the hearings are not voluntary but involve subpoenas in which evolutionists are deposed at length on their views. On that happy day, I can assure you they won’t come off looking well.

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That hasn’t aged well.

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two things about Kitzmiller: first- since when a court decide in a scientific disicussion? second- isnt prof miller suppose to be ID supporter since he believe in design? ( by the way i think that miller is also wrong about chromosomal fusion as evidence for common descent but this is for another discussion).

They’re no great shakes at theology, either. The range of their incompetence is quite impressive.

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It wasn’t a discussion, and the defense (the ID creationist side) asked the court to decide.

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The issue was whether ID was science at all. The court ruled it wasn’t. Admittedly, maybe a court is not the best place to decide that issue. But it had to be heard there because some creationists decided to violate the Constitution.

ID is creationism. That Miller opposes it is just further evidence for that.

Well, by all means. Pull yourself up and make another big show of your amazing scientific expertise by starting a thread on that topic.

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I’m not sure they have ever had an attorney on staff in the professional sense. I am pretty sure Luskin has never had legal employment. As I was saying to Joshua Swamidass earlier, I really do not have the impression that Luskin could bring anything useful to a conversation about issues surrounding the Kitzmiller litigation – not legal issues, not litigation-practice issues. It’s rather like treating the unemployable Jonathan Wells as an expert in biology. Luskin undoubtedly knows a bunch of terms and has been in the room when legal matters were discussed, but nobody would ever ask such a man to try a case.

Just as having a Ph.D does not make one a scientist, having a J.D. doesn’t make one a lawyer. One of the most dangerous loose cannons in the law is the client who has a kid with a J.D. who insists on injecting his opinions into everything.

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The answer to that is the same as for any other question: the parties, not the court, decide what they choose to litigate. It was the Dover School Board’s decision that the court should answer this question, and once it was put in issue in the litigation, there was no way the court could really refuse.

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Ah! I hadn’t seen your answer before I replied to the same effect. Exactly. The parties put things in issue and then the court has to decide them. The court is always happy to take stipulations when the parties find something that is NOT in issue. I made it a practice, in bench trials, to try very hard to stipulate to as many facts as possible; once, dealing with a very reasonable opposing counsel in a highly contentious case, we managed to stipulate to the admissibility, without authentication, of every single exhibit offered by both sides. I can assure you that the judge, when he saw that, breathed a sigh of relief: reasonable litigants had taken a huge silly burden of making multiple rulings upon evidence off his plate.

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