31 October 2005

Just a short note this morning—I need to prepare for another stint as a judge this evening (moot court over at the law school), including getting all the errands (etc.) done and arming the claymores on the front door waiting for the trick-or-treaters.

I'm not entirely displeased with Alito as a Supreme Court nominee. That is, I fully recognize it could have been much, much worse… such as any of the hyped candidates from the Fourth or Fifth Circuits. What really bothers me, though, is that there hasn't been a scientist on the Court in a looooooooooong time. The closest we've come has been Justice Blackmun, and that's far from satisfactory. Instead, we have something much closer to Paul V trying to determine whether the Earth really did move after condemning to Galileo.1 Some of the greatest errors in administrative law (and, to a lesser extent, in intellectual property law) have come because the Justices, their clerks, and the lawyers arguing before them had not internalized the scientific method… and thereby missed significant policy implications. One disturbing example of this blindness is the State Street Bank opinions; another one is the attempt to measure a scientific explanation's worth through its popularity (whether under Frye or Daubert/Kumho Tire).

It's rather ironic that the Court is so much more comfortable relying on Special Masters in riparian disputes between differing states—a matter clearly within the core competency of a bunch of lawyers who all had Property in law school—than in matters that involve evaluation of scientific evidence (with which the members are, by training and inclination, almost wholly unfamiliar) in a rubric requiring at least passing familiarity with scientific reasoning (ditto). <SARCASM> Or, maybe, it reflects the unwillingness of high-brainpower scientist-lawyers to become prominent enough in partisan political circles to become viable candidates for the bench in the first place. </SARCASM>

  1. Admittedly, many of Galileo's problems with the Papcy were due to his inept and iniquitous personal attacks and his less-than-charming personality; that's not the point here, though. Even had he been as charming as Ben Franklin, his views would have been judged by one of the more notoriously close-minded curiates of the Renaissance.