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Junk Science and the Law

Skeptical Inquirer, July, 2001 by John E. Dodes

Legal systems throughout the world have often been corrupted into suppressing unpopular scientific knowledge and into promoting pseudoscience, for political, religious, or economic reasons. In the United States new regulations regarding "expert" testimony and new strategies to quiet scientific truth are gaining strength. Because of this it is imperative that skeptics realize the extent to which legal abuses may support and advance the agenda of those opposed to rational thought.

"Let the jury consider their verdict," the King said, for about the twentieth time that day. "No, no!" said the Queen. "Sentence first--verdict afterwards." "Stuff and nonsense!" said Alice loudly.

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Lewis Carroll, Alice's Adventures in Wonderland

Alice's indictment of the Queen's justice may be a prescient observation of what is occurring in parts of the U.S. legal system as it applies to scientific issues. "Junk science" refers to the use of the language of science but not the methods of science. A pragmatic definition might be: Junk science results when conclusions are drawn using low-quality data such as testimonials, anecdotes, and case reports rather than from randomized, controlled clinical experiments. These conclusions are often in support of a political or legislative agenda.

Medicine and the Law

The very idea of licensing of healthcare providers was deemed unnecessary during the era of Jacksonian Democracy. An early report on public health in Massachusetts had these comments: "Any one, male or female, learned or ignorant, an honest man or a knave, can assume the name of physician, and 'practice' upon any one, to cure or to kill, as either may happen, with-our accountability. It's a free country!" (Shattuck 1948).

From the founding of America until 1906 there were no laws governing the manufacture and promotion of real or alleged medicines, medical devices, or treatments. The first Federal Food and Drug Law, in 1906, required accurate labeling but no testing for safety or efficacy. The Congress responded to a spate of deaths due to unsafe medicines with the 1938 Food and Drug Law, which required proof that a drug was safe and did what the manufacturer said it did before it could be marketed. In 1994, under pressure from "health food" proponents, Congress passed ill-informed legislation which seriously weakened these consumer protections. We are now seeing the marketplace flooded with advertising for unproven remedies being marketed under the guise of "food supplements."

Malpractice and the Law

The fairness and accuracy of America's malpractice litigation system is often criticized and debated. Many physicians state that our system is haphazard and that lawsuits bear little relation to the quality of care that the plaintiff received. On the other hand, many patient and consumer advocates argue that so-called "tort-reform" legislation has led to such difficult legal hurdles that lawsuits with merit often bring little or no compensation (Rosenfeld 1994). Epidemiological research on malpractice claims has shown that many injuries caused by negligence do nor result in claims. Interestingly, similar studies have also concluded that a substantial number of claims have been brought in cases where the plaintiff was not a victim of negligence and where there was no medical injury (Brennan 1996).

The most recent major study, published in the New England Journal of Medicine, actually investigated the outcomes of malpractice lawsuits. The researchers reviewed fifty-one malpractice cases over a ten-year period and obtained detailed summaries of the cases. The authors concluded: "Among the malpractice claims we studied, the severity of the patient's disability, not the occurrence of an adverse event or an adverse event due to negligence, was predictive of payment to the plaintiff" (Brennan 1996).

It is therefore evident that our malpractice laws do not help either patients or doctors--perhaps only lawyers.

Scientific Evidence in the Courtroom

In 1923 the federal court of appeals created the Frye Rule. The case was a criminal one in which the defendant wanted to prevent evidence from a rudimentary polygraph (lie detector) from being used by the prosecution. The court excluded the polygraph results and declared:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (United States v. Frye, 293 F. 1013 D.C. Cir. 1923)

Thus the Frye Rule, also referred to as the "general-acceptance rule," became the law of the land. But the Supreme Court ruled on the last day of the 1992-1993 term that the Federal Rules of Evidence, which were first drafted in 1942, should supersede the Frye Rule. The effect of this ruling is that federal judges can now admit all scientific testimony and evidence that is "relevant" and "reliable" (Annas 1994). And because of the vagueness of the Supreme Court's ruling, judges will play a much more important role in evaluating the relevance and reliability of scientific evidence. Since judges are often scientifically naive, the doors have been opened for the introduction of pseudoscientific "expert" who employ unscientific, biased, and discredited research methods. Justice Blackmun, who wrote this Supreme Court opinion, recognized that without the Frye Rule juries and judges could be confused by "irrational pseudoscientific assertions" (Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 1993). It was hoped that Justice Blackmun's considerations would encourage the training of judges in scientific method (Annas 1994).

Junk Science and the Law

Skeptical Inquirer, July, 2001 by John E. Dodes

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