Laypersons vs. specialists
SLEVINSON at MAIL.LAW.UTEXAS.EDU
Fri Mar 6 13:56:35 PST 1998
Jim Maule writes:
>Given their respective track records, I wonder if we (or the
>courts) ought to ascribe any deference per se to scientists or
>theologians. At best, one can treat them as "experts" but that ought
>to permit examination of qualification, methodology, reputation, and
>bias, and ought to permit introduction of "experts" with competing
>views. After all, isn't the question one of "WHICH biologists?"
This is surely true as one gets to more and more precise questions. Indeed,
because of some recent medical problems in my family, we have come to
realize that there is no agreement among top-flight medical professionalsin
regard to treatment protocols of certain diseases. BUT I seriously doubt
that one would find *any* MD who rejected the germ theory of disease or who
believed that prayer was a rational (exclusive) treatment for disease.
Similarly, I presume that there is a substantial body of material on which
*all* biologists would agree.
This is just another version, incidentally, of the "indeterminacy" argument.
Does the fact that we professional academics disagree vigorously about the
meaning of the First Amendment mean that there is no consensus at all among
us about what counts, at least today, as "on-the-wall" (as against
"off-the-wall") argument? Although we might have different underlying
theories explaining why there is in fact a very high consensus among us
(just as there is between, say, Stephen Reindhardt and Alex Kozinski, if one
looked at the entire universe of 9th Circuit cases), I doubt that anyone
believes that, as an empirical matter, everything is up for grabs at every
instant. I agree with Mark Tushnet that everything *could,* given a variety
of assumptions, become contested. (I don't think "35" necessarily has a
singular meaning.) But I don't believe that either of us believes there is
a credible argument--i.e., one that would not be dismissed as irredeemably
flaky or out-and-out incompetent--that any of our daughters, whatever their
obvious merits, are eligible to become president at the present time.
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