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Tuesday, February 21, 2006

A Reasonable Degree of Scientific Certainty

Over the years I have heard people say, "I believe/know to a moral certainty that such-and-such (is true)." I have said it myself but have no idea what it means. I think it means the same thing as "I really, really, really believe such-and-such (is true)." Interestingly, when people use it they may be talking about a moral issue as in "I know to a moral certainty that screwing goats is a sin." But it doesn't have to be a moral issue. Right now, I know to a moral certainty that George Bush has lost his fu__ing mind. Selling the operating rights to something like 6 or so of our most important ports to some dudes in Dubai is what one of my acquaintances calls "dirt fu__ing stupid." Maybe some Dubai citizens involved in the purchase of these operating rights are reliable but if you are familiar with the 9/11 Commission Report, you will know that
Bin Laden relied on the established hawala networks in Pakistan, Dubai, and throughout the Middle East to transfer funds efficiently.
Hawala networks are informal banks that allow persons to transfer money around and hide the interactions from government investigators charged with making us as safe as possible. Unfortunately our President doesn't seem to give a damn about the safety of the American people when there is money to be made.

However, it is not my primary intention to bash Bush though it is always good fun but to worry about phrases like "to a moral certainty" and the widely used legal phrase "to a reasonable degree of scientific certainty." I don't know of any other similar phrases. I have never heard, for instance, things like "to a religious certainty," for instance or "to an academic certaint" or any other such phrase.

Attorneys using expert witnesses who are scientists ask them things like "Do you know to a reasonable degree of scientific certainty that OJ's blood was present at the crime scene?" The scientist replies, "Yes" and he or she might give the reasons. I have argued in an earlier blog that scientific certainty is not attainable. We can say with great certainty if not total scientific certainty things like "I know to a scientific certainty that John Jones' heart was beating at noon because he showed a blood pressure reading of 120/70 at that time." However, our speaker could not say, "I know to a reasonable degree of scientific certainty that John Jones' blood pressure was 120/70 at the time in question." The problem is that the hearing of the person taking John Jones' blood pressure could be bad or the mercury manometer employed might be inaccurate. Only the most trivial of facts, if any, are knowable to a scientific or any other certainty.

If you buy into this argument, then we are forced to talk about degrees of scientific certainty as the phrase we are looking at suggests. In some cases, as in experiments that provide levels of confidence experts may say what the level of confidence of some finding was. However, the experiment may have been predicated on problematic assumptions or the sample of subjects (mice, people, etc.) might have been defective in one way or another.

In some cases, as when dueling psychiatrists give expert testimony they cannot honestly say that they know to a reasonable degree of scientific certainty that the defendant did (or did not) know the difference between right and wrong or that the defendant was (or was not) legally insane. The problem here is that no measuring is being done and without that, there can be no degree of certainty, much less scientific certainty. When I gave expert testimony during depositions about alleged deceptive advertising by some eight or nine major oil companies in regard to the inclusion of alcohol in gasoline ("gasohol," as it is sometimes called) I did say that it was my expert opinion that the language of any sign put up at a gasoline filling station saying, "No Alcohol Added" or "No Alcohol in Our Gasoline" implicates that adding alcohol to gasoline is somehow bad. I could say that I knew with a reasonable degree of scientific certainty that some people would do so because I did and the claim is so phenomenally weak that my drawing the inference is enough to verify it. (Another linguist and a psycholinguist said the same thing.) I could have said that I was reasonably sure that the oil company ad agencies and the oil executives involved in deciding to use signs like that also must have believed that people would draw that inference or they wouldn't have bothered creating and putting up the signs. In fact, I believe that most people would draw that inference but I couldn't assert that with any specific degree of scientific certainty.

The link associated with the title of the present blog also notes that we cannot be certain about the claims of scientists, and goes on to say that there are those who exploit this lack of certainty for their own ends. The anti-Darwinian Creationist believes this leaves room for Intelligent Design in the classroom, as if the latter (non)theory actually could be as certain or more certain than the theory of evolution (or theories of evolution, if you prefer). Or a conservative politician like Bush might exploit the existence of scientific uncertainty to delay action on some environmental regulation when acting on it will be expensive.

To exploit the fact that scientists cannot be certain about their claims (not counting trivial claims based on observations such as "John is alive") simply because this uncertainty exists is intellectually dishonest. Its like blaming a rose for having thorns. Unlike roses, however, where we have alternatives, there is no alternative to science as a means of understanding the physical universe (including our minds but alas, not our souls, whatever those things are).

I am more than a little troubled by use of the word "reasonable" in "to a reasonable degree of scientific certainty." There are some published articles discussing this notion but I would have to go to the library to find the publications since they are all at pay to view sites. I did run into Blog 702, which concerns legal issues, that noted that the Third Circuit held that a "Handwriting Expert's Testimony Need Not Be Given to "Reasonable Degree of Scientific Certainty."

Once one puts the word "reasonable" in "to a reasonable degree of scientific certainty" an unacceptable level of subjectivity is involved in assessing the claim because what might be reasonable to one scientist or judge or jury might not be reasonable to another. In short, use of "reasonable" and "scientific certainty" in such a phrase makes it into a kind of oxymoron. We have at best an illusion of scientific credibility. It wouldn't be the first time a court has deemed credible quite sloppy science. In my expert opinion, experts should restrict themselves to saying "It is my expert opinion that ...." and add whatever measures might have been used or defend the opinion and then shut up.

I fear I have meandered a bit in this blog. I trust most will forgive me.

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25 Comments:

Blogger Kelly said...

I would suppose that lawyers added the word "reasonably" simply as a compulsion. I don't think there's any area of the law where you can avoid it, and it's used so much that many professors, when writing on a whiteboard, will simply put the letter "R" in a circle (®) to indicate the word "reasonable" or some variation thereof.

That said, generally it has some legal significance. A ® person brings to mind a person of average knowledge that generally makes good decisions. When something is proven beyond a ® doubt then it is proven to an extent that you would make an important decision in your own life on it. The two don't appear to have much in common, but I suppose a ® doubt could be a doubt that a ® person would entertain. You can ® believe something, or ® rely on something, or you could encounter an event that would put make a ® person do things that a ® person wouldn't ordinarily do (don't ask me to explain that last one, it's a crazy legal fiction related to the crime of manslaughter that I didn't even put in the precisely correct terms).

It is, however, a word that is bandied about far too often in the legal sphere, to the point that it loses meaning.

12:01 PM

 
Blogger jo_jo said...

I think the reasonable person test is the way subjectivity and prevailing moral and ethical standards get shoehorned into the law. Without them I think it would be difficult for the law to evolve with society, but in general I think the phrase is bogus. Most people I meet don't meet the reasonable person test according to *my* standards, and vice versa!

1:07 PM

 
Blogger Kelly said...

That's entirely true. We all fail to meet the relevant "standard of care" on a regular basis. That's one reason I think damages are calculated poorly and too much in favor of plaintiffs (see my edutaining post on tort reform here)

I think it's more intended as a standard of care to which we should aspire. No real person is entirely reasonable at all times, and the law says that if something bad happens when you're being unreasonable then you have to pay.

2:53 PM

 
Blogger J_G said...

This comment has been removed by a blog administrator.

3:50 PM

 
Blogger J_G said...

This post has a lot of variables in it but I will try to be pacific in my comments. I believe that reasonable people will understand that during a time of war you must rely on allies to do certain jobs in order for your side to prevail. The true test of an ally however must be in both strength and moral commitment to the cause in order to be considered reliable. One job you might call on an ally to do on the battlefield would be to provide sustained fire on your flank so you may maneuver your troops into a more advantageous position in order for you to launch and conduct an overwhelming offensive to defeat your enemy. You must have the confidence that your ally will have the strength to accomplish this assignment and the commitment to fight to the last person in order to conduct this type of maneuver.

Another job you may ask an ally to perform during a war might be to provide logistical support by moving supplies from a location in the rear of the battle up to the front in order for your troops to have enough food and ammunition to have the ability to kill more of them then they kill of you. You must have the confidence that your ally has the strength and moral commitment to overcome the many obstacles and attacks they will inevitably face to accomplish this task.

It is my educated opinion that the United Arab Emirates does not meet these requirements in a sufficient enough degree to be considered reliable allies to the point of being the operators of six major American Ports. They do not have the strength to resist their own vulnerabilities to Islamic extremists in their own country and may become a huge liability if that happens. I do not believe that the United Arab Emirates have a moral commitment to the cause of defeating Islamic extremists due to the reasons LG has stated about their banking system. That is too much detail so refer back to original post.

A reasonable person would then assume these are reasons enough to deny such a sensitive position to a foreign country but as I have been reminded by a Marine on another blog; we may as well get out the fife and drum and start marching to the tune of “The World Turned Upside Down” because otherwise reasonable people are sounding very unreasonable.

I have found that using the term “otherwise reasonable person” to be very useful. It implies the person or parties we are referring to is normally reasonable in other cases but is considered to be unreasonable in this specific case.

This is not to say that I think that the opposition party is correct in their disagreement with the president on this issue. Their disagreement is an exploitation of a mistake made by the president and I do not consider them to be an otherwise reasonable party on the issues of defense.

6:55 PM

 
Blogger L>T said...

Reading this post, it's really becoming clear to me the need both for Lawyers & Linguisists. (we are kinda slow up here in the peanut gallery)

Being of the commen man, w/'common sense' (which won't hold up in court, BTW) all this talk of; 'reasonable levels of subjectivity' etc...is quite frustrating.

Having been involved in the 'system' myself & becoming angry & frusterated, I have great symathy for simple people trying to survive in this complex world.

Someone said, "Anyone who says they don't have any use for Lawyers, never needed one."
(Will Rogers?)

1:05 PM

 
Blogger IbaDaiRon said...

[I]t's really becoming clear to me the need both for Lawyers & Linguisists.

Well, my jury is still out regarding the former group. (I know that you, L>T, have a few prejudices here as well. Me, I'm thinking that ole lake bottom could use some more filling in.)

Instead of overusing reasonable or some variant thereof, why not simply state at the outset of discussion (or the beginning of a legal document) that all persons or actions referred to are assumed to be "reasonable" unless otherwise indicated. This would seem to be more efficient linguistically. (Or do the people involved have such short attention spans?)

In the five or six times in my life that I have needed a lawyer, they have proven to be fairly useless.

("Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.")

10:56 PM

 
Blogger J_G said...

After discussing matters with my doctor today. The doctor was certain that it is reasonable for me to return to work on Sunday night.I suppose it doesn't take a scientist to figure out that everyone will be glad that I won't be taking up so much space here after that.

I have been off of work all week due to a minor procedure and I'm Okayed to return to duty. Yay (I think)

4:35 AM

 
Blogger Language Guy said...

Kelly, you have done us a service in pointing out the many ways the legal community uses "reasonable." I wonder why I didn't think about that myself, since the legalistic notion of a "reasonable man" has been known to me for years.

The irony of the phrase "reasonable man" is that it excludes women. This should be noted since men make laws that affect women in ways the laws don't affect men. The just passed S. Dakota law making abortion illegal except to save the life of the pregnant woman. (I was about to write "mother" here but that would be as wrong as refering to the fetus as a "baby". Those statuses don't kick in until birth.

I suppose "expectant mother" would be a bit different. Interestingly, note how odd it would be to refer to a woman who is going in to have an abortion as "an expectant mother." The "expectant" person must be the one to do the expecting and it implices that the person is looking forward to the birth of the child. This has never occurred to me before.

L>T, your noting that we need linguists and lawyers is "spot on" as the Brits would say. Indeed, I could construct a course for lawyers that would teach them a lot of the things they should know about language in order to practice law effectively.

J-G, I will be sorry to see you take up less space here. But, it is good that the doctor has cleared you for work, not so much because of the working, but the being healthier. I am myself delighted to be retired.

7:18 AM

 
Blogger J_G said...

Thanks LG and thanks to everyone else for keeping me company with the enlighting converstaions we've had this week. I'll still post comments but not nearly as often.

12:22 AM

 
Blogger Kelly said...

Thanks, LG. I don't think the concept of a reasonable man is supposed to exclude women in the current legal atmosphere (although at one time I think it did). The term is so pervasive that it's been slow to change to "reasonable person" linguistically if not in content.

12:02 AM

 
Blogger L>T said...

L. Guy, do you mean a course to make it easier for the rest of us to understand them (Lawyers) or easier for them to manipulate the language?

Also, how correct is it to use the term, 'the system' when refering to Government & etc... I say etc...because it seems such a general term. What exactly is the scope of 'the system'? I'm asking because the term is bandied around when ever people are dissatisfied. ( I am guilty of it myself)

11:14 AM

 
Blogger Language Guy said...

Ah, l>t, you ask a good question. I had in mind just making them better lawyers. I don't think of lawyers as trying to obfuscate and confuse on purpose so much as by accident.

Nice question about "the system." We seem to use that phrase to cover a wide variety of very different things from "our system of justice" to "the solar system." The latter seems to be very well behaved but it is not a human creation. Human creations are always flawed, including especially our system of justice, the free enterprise system, or our system of government.

4:30 PM

 
Blogger L>T said...

Regarding 'the system'; since you put it that way, I see it is proper to use the term in a generally disparaging way.

As for those poor maligned Lawyers, it seems a time honored tradition to make jokes at their expense. There must be something to it. :)

9:48 PM

 
Blogger Kelly said...

"I don't think of lawyers as trying to obfuscate and confuse on purpose so much as by accident."

I love that quote. I've put it up as a number of different random things that can pop up under the title of my blog.

12:47 PM

 
Blogger S.R. Deardorff said...

Holy schmoly I disappeared for a while...

nice posts lately LG...

that's all...

peace,

sean(<<--workin' 2 much/sleepin' 2 little)

4:32 AM

 
Blogger S.R. Deardorff said...

was just about to hit the sack, was rollin some ideas round in my head (you know, critical thinking), and decided to throw in my half-cent on methods/modes of critical thinking; perhaps it's practice and not method:

start a debate and play the devil's advocate-->>this has always been part of my nature, which is why people have called me:

1. arrogant
2. argumentative
3. stubborn
4. asshole
5. creative
6. genius

and also why my family tried to push me towards a career as a lawyer at age twelve...needless to say it didn't work and i grew sick of arguing-->>though my critical thinking skills were allowed to develop, i was eventually drawn to (and shall return to) psychology...

i think i was drawn to psychology because i couldn't figure out why human beings would resist things like logic, reason, and reality...

and, ironically enough, come to think of it, in your "horn tooting" post, you wrote of being a maverick...shit...let me put it this way; playing the devil's advocate all day not only promotes critical thinking, it often forces you into learning about the two polar opposite views of an issue; and, if you have any brain at all, once you have the whole spectrum of knowledge and are willing to disregard all self interest, you're guaranteed to be a maverick because everyone else is too damn lazy, frightened, or stupid to detatch from what they were spoonfed, even most "experts." Maverick? With proper motivation, I'll write books on a universal theory of human behavior (not normal/abnormal behavior, ALL behavior), philosophy, sociology (this field is so phucked it's not funny, much simplification is needed; social constructs are not that complicated really, they have very simple goals when seperated from parasitic and dissociated powers like government)...

blah, my point is, if you wanna think critically, argue, but refuse to argue YOUR opinion...

here's my legalization plug again:

just think LG; if the "majority" wasn't so "reasonably certain" that marijuana is "the devil drug," then i'd be in grad school now instead of cleaning toilets for a living in order to get back working on my bachelors!

perhaps i'm just a narcissistic loser; maybe, but, for all those who think so, I'll die tryin' to prove you wrong; and, I don't blame you or your ego from tryin' to stop me!

peace out sheep!

much luv my mavericks! lol...

blah.

5:29 AM

 
Blogger S.R. Deardorff said...

apple-G's for tha' poor language /\up/\der/\hay/\

i'm frum wisconsin dontchaknow?

lol..ohshit...lol

sorry, i smoke too much grass to care about presentation anywhere outside the professional public sector; this world's too uptight as is n shit hellifican't flip a few switches here n there...ja'know'b'dif'rent'n'shit...

g'nite...

5:33 AM

 
Blogger S.R. Deardorff said...

Wow I had a lot of errors in those posts! ;P

Oh well.

At any rate, sorry to plug here LG; but, I primarily wanted your attention here...

I just started a second blog, "The Devil's Shadow," which will be comprised of, primarily, articles about topics voted on by the readers; and, I would love to hear some suggestions from you. I feel you'd probably have some very unique topic suggestions that would actually challenge me...

Give it a whirl!

Peace out,

sean

6:43 PM

 
Blogger S.R. Deardorff said...

God damnit will somebody else post already?

kwik thot b4 bed...

aren't you really, in this post, just arguing for a socratic view of knowledge?

not that that's bad, i would personally agree:

"I am the wisest man in the land because I know one thing, and that is that I know nothing."

True (capital T for capital TRUTH, not the beginning of a sentence) knowledge is Truly hard to come by; yet, everyone thinks they know everything : (

peace and
g'nite (morning, i mean...)

sean

4:21 AM

 
Blogger Kelly said...

Just to please you, I am posting.

That is all.

9:16 AM

 
Blogger L>T said...

For some reason I hate being the last comment, esp. on this blog. I really don't know why. Maybe, because I've said such stupid stuff on here before.? apoterofacumaphobia :)

10:05 AM

 
Blogger IbaDaiRon said...

What-the-fac-o'-who-be-a?

Dear Tart, illuminate me!

2:10 AM

 
Blogger L>T said...

i'm mixing greek & latin. after- the fact- a phobia. kinda silly, but it seemed to fit. :P

3:18 PM

 
Blogger IbaDaiRon said...

Gotcha. LIke mixing oil and vinegar and getting...Italian?

(Just remember, you started the Food Theme on your blog.)

; )

(Nemnwhi? This verification string ounds like something out of the BoM. "And then did Nemnwhi take up his steel bow and hunt upon the mountain which Lehi shew him." Shew? Shoe? Shoo!)

11:36 PM

 

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