The New York Times has a nice profile of Judge Ed Korman, the judge who faced down HHS in the Plan B case. See Jonathan Adler’s posts, here, here, here, and here. Whatever one thinks of the merits, it takes great fortitude for a district judge to stand up to a recalcitrant administration. As for Judge Korman’s judicial philosophy: “I basically share Bork’s view that the Constitution should be interpreted based on the understanding of the framers of Constitution.” Korman is a first-rate judge.
Archive for the ‘Politicizing Science’ Category
Yesterday the Obama Administration announced it would drop its appeal of a district court ruling ordering the Food and Drug Administration to make Plan B contraception available over-the-counter to women and girls of all ages. According to the FDA, the pill will become available as soon as the manufacturer submits an application for OTC sales without sales restrictions.
Salon has an interesting report on Tuesday’s court hearing before federal district judge Edward Korman in which the Administration sought to defend its newly announced policy of limiting the over-the-counter availability of Plan-B contraception to females 15 and older instead of removing all restrictions as Korman had previously ordered. A taste:
This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug.
The Administration is also appealing Korman’s order.
Last month, a federal district court rejected the Department of Health and Human Services’ decision not to allow the sale of Plan-B contraception over-the-counter to females under 17. On Tuesday, the Food and Drug Administration (FDA) responded. On Wednesday, the FDA announced it would allow Plan-B to be sold over-the-counter to females 15 and older. Then on Wednesday, the Justice Department announced it would appeal the district court’s ruling overturning the prior policy. The Justice Department claims the appeal is necessary to defend the integrity of the FDA’s drug approval process, and the agency’s ability to base its decisions on expert “scientific judgments.” Yet as Ronald Bailey notes, the whole reason the Administration’s Plan-B rules ended up in court in the first place was that political officials overruled the FDA’s expert judgment. Further, as I noted here, drug approval decisions necessarily involve policy considerations, and cannot be resolved by science alone.
This morning, a federal district court judge overturned the Department of Health and Human Services’ decision to maintain limits on access to Plan B contraception by girls under the age of 17. As I noted here, the Food and Drug Administration had initially decided to grant a petition urging a removal of the age restrictions but was overruled by HHS Secretary Kathleen Sebelius. Today’s decision overrules the Secretary’s decision on the grounds that it was “arbitrary, capricious, and unreasonable,” and the judge accuses HHS of “bad faith” and “intolerable” delays in considering the initial petition that prompted this litigation. The opinion is here and a related order is here. The opinion’s conclusion summarizes the case as follows:
The decisions of the Secretary with respect to Plan B One-Step and that of the FDA with respect to the Citizen Petition, which it had no choice but to deny, were arbitrary, capricious, and unreasonable. I decline to direct a remedy comparable to that which I directed in my 2009 opinion, such as directing that emergency contraception be made available without a prescription but with the current point-of-sale restrictions to women whom studies have demonstrated are capable of understanding the label and using the product appropriately. As I have previously observed, the obstructions in the path of those adolescents in obtaining levonorgestrel-based emergency contraceptives under the current behind-the-counter regime have the practical effect of making the contraceptives unavailable without a doctor’s prescription. Consequently, the decision of the FDA denying the Citizen Petition is reversed, and the case is remanded to the FDA with the instruction to grant the Citizen Petition and make levonorgestrel-based emergency contraceptives available without a prescription and without point-of-sale or age restrictions within thirty days. On remand, the FDA may determine whether any new labeling is reasonably necessary. Moreover, if the FDA actually believes there is any significant difference between the one- and two-pill products, it may limit its over-the-counter approval to the one-pill product.
The question now is when, if ever, will the FDA make all contraception available over-the-counter?
UPDATE: More from Wonkbook here.
A recent paper in Science reconstructing climate records for the Holocene received substantial media attention because it showed a gradual cooling for several thousand years followed by a dramatic uptick in temperature in the past 100 years. This uptick seemed to replicate the blade of Michael Mann’s “hockey stick,” and was highlighted in media reports on the study. Not so fast. In response to questions about the study’s methodology, one of the study’s authors has acknowledged that the study’s conclusions with regard to the past 100 years are not reliable. In a “Q&A” posted on the RealClimate blog, Harvard’s Jeremy Shakun says: “the 20th century portion of our paleotemperature stack is not statistically robust, cannot be considered representative of global temperature changes.” In other words, the study may tell us something about the Holocene, but it doesn’t tell us much of anything about the past 100 years. But then why didn’t the press release about the study or any of the news reports on the study say so? Why didn’t the authors clarify this point with reporters until now? Roger Pielke Jr. discusses why this is important. More from Andrew Revkin here.
No, this does not show that climate change is a scientific fraud. What it does show, however, is that some are willing to “sex up” climate science findings to feed sensational media coverage, and end up undermining confidence in climate science. Given that there is still much we do not know about climate change — including why mean global temperature has been flat for the past ten years — undermining confidence in climate science can (further) undermine its ability to inform policy. Climate science has taken some significant hits in the past few years. It doesn’t need any more.
Economist David Friedman has an insightful post on the problems inherent in deferring to the views of “authoritative” scientific bodies:
A pattern I have observed in a variety of public controversies is the attempt to establish some sort of official scientific truth, as proclaimed by a suitable authority—a committee of the National Academy of Science, the Center for Disease Control, or the equivalent. It is, in my view, a mistake, one based on a fundamental misunderstanding of how science works. Truth is not established by an authoritative committee but by a decentralized process which (sometimes) results in everyone or almost everyone in the field agreeing.
Part of the problem with that approach is that, the more often it is followed, the less well it will work....
The first time it might work, although even then there is the risk that the committee established to give judgement will end up dominated not by the most expert but by the most partisan. But the more times the process is repeated, the greater the incentive of people who want their views to get authoritative support to get themselves or their friends positions of influence within the organization, to keep those they disapprove of out of such positions, and so to divert it from its original purpose to becoming a rubber stamp for their views. The result is to subvert both the organization and the scientific enterprise, especially if support by official truth becomes an important determinant of research funding.
I. The Dangers of Deference to Biased Experts.
Friedman makes two important points here. Scientific truth cannot be established by the endorsement of an authoritative body such as the NAS or the CDC. And if people start to take the pronouncements of such expert bodies as gospel, there is an obvious potential for abuse.
Both problems are exacerbated in cases where the scientific question at issue is relevant to some hot-button political controversy. When it comes to politics, most people have strong incentives to be “rationally ignorant,” and therefore devote little time and effort to determining whether the pronouncements of “experts” are really backed by evidence or not. Given the very low chance that your vote in an election will be decisive, there is little incentive to make a serious effort to double-check the pronouncements of experts on political issues, if your only motivation for doing so is to figure out which candidate or party has the “right” position on a given issue. For similar reasons, voters tend to be highly biased in evaluating whatever information they do learn about politics, often acting as “fans” for their respective party or ideology rather than as objective truth-seekers. This often leads them to place excessive credence in real or imagined experts who support their preexisting views, while discounting those on the other side.
II. Why Deference is Often Unavoidable.
That said, I don’t believe we can simply dispense with deference to scientific experts. There are so many complex issues in the world that none of us have the time or expertise to really delve into the evidence on more than a small fraction of them. As I explained in reference to the “Climategate” controversy in 2009:
[O]ur knowledge of complex issues we don’t have personal expertise on is largely based on social validation. For example, I think that Einsteinian physics is generally more correct than Newtonian physics, even though I know very little about either. Why? Because that’s the overwhelming consensus of professional physicists, and I have no reason to believe that their conclusions should be discounted as biased or otherwise driven by considerations other than truth-seeking. My views of climate science were (and are) based on similar considerations. I thought that global warming was probably a genuine and serious problem because that is what the overwhelming majority of relevant scientists seem to believe, and I generally didn’t doubt their objectivity.
Even if you consider yourself a great skeptic, I suspect that you too defer to expertise on many issues. You probably follow your doctor’s advice on what medicine to take when you are sick, usually without first reading up on the scientific literature on that medicine’s effectiveness, and almost certainly without performing your own laboratory experiments to assess its potency first-hand.
III. Increasing Our Expertise on When to Defer to Experts.
Given the near-inevitability of deference to experts, can we avoid the pitfalls Friedman rightly emphasizes? There’s no perfect solution. But some rules of thumb can help. First, deference to expertise is more warranted in cases where there is an expert consensus that crosses ideological lines. Like the rest of us, experts are prone to ideological bias. Thus, if experts of differing ideologies converge on the same conclusion, that’s a sign that the resulting opinion is really driven by expertise rather than bias. It doesn’t prove that the experts are right, of course, but it does justify a stronger presumption in their favor. When, on the other hand, experts do split along ideological lines, that suggests the issue is more disputable, and that bias may be influencing their judgment. It doesn’t mean that the experts are wrong or that their expertise is useless. Their views are still probably worth listening to more than those of laypeople. But it does mean that we should be more cautious about concluding that an expert pronouncement must be correct simply because the person or the institution making it has impressive credentials.
A weaker but still significant indicator of expert reliability is to ask whether expertise makes you more likely to support a given conclusion, after controlling for ideology and other factors that might bias judgment. For example, if experts in a given field are 50% more likely to believe X about a key controversy in their area of expertise than are otherwise comparable non-experts, that is some indication that X derives some support from the evidence and relevant expert analysis thereof. Bryan Caplan’s research on the differences between economists and laypeople on economic policy issues is a good example of this kind of analysis. He shows many issues where expertise in economics has a major effect on policy views even after controlling for ideology, self-interest, and various relevant demographic variables. That doesn’t mean that economists are necessarily right about those economic issues where they differ from laypeople. But it does suggest that the difference really is a product of their expertise and is therefore entitled to greater deference than a supposedly expert judgment that is mostly driven by ideology or narrow self-interest.
Finally, as in the Climategate controversy, it may be worth considering whether experts in a given field have good incentives to pursue the truth, or whether theose incentives are skewed by funding sources or by the ability of one faction to “freeze out” those who dispute the received orthodoxy. However, crude analysis of funding incentives can be even more misleading than simply ignoring them entirely. Unfortunately, properly assessing the impact of incentives on the range of views expressed by experts in a given field itself often requires detailed knowledge that most of us do not have.
Such rules of thumb don’t matter much in cases where you know enough about the field in question to assess the evidence for yourself. But in the many situations where we must defer to experts, they might help reduce the dangers inherent in doing so.
At DotEarth, Andrew Revkin summarizes recent research that is leading to some to conclude that the climate is less sensitive to greenhouse forcing than previously thought. He writes:
on one critically important metric — how hot the planet will get from a doubling of the pre-industrial concentration of greenhouse gases, a k a “climate sensitivity” — some climate researchers with substantial publication records are shifting toward the lower end of the warming spectrum.
But while plenty of other climate scientists hold firm to the idea that the full range of possible outcomes, including a disruptively dangerous warming of more than 4.5 degrees C. (8 degrees F.), remain in play, it’s getting harder to see why the high-end projections are given much weight. . . .
The reason it’s worth working to clarify what’s going on is that a lower climate sensitivity could substantially expand the timescale on which decarbonization of humanity’s energy menu would need to take place to blunt climate change. This could raise the odds of a Thornton Wilder ending to our “large-scale geophysical experiment.”
This does not mean we should stop worrying about global warming. As I’ve noted before, even if a doubling of carbon-dioxide-equivalent will produce warming at the low end of conventional projections, it is still a serious concern (even from a libertarian perspective). But it’s also important to get the science right, and not base policy on exaggerated fears or implausible scenarios. And more importantly, given the enormous difficulty of stabilizing atmospheric concentrations of greenhouse gases in the near-to-medium term, it would be good news if the rate and magnitude of future warming will be less than some fear. After all, it’s not as if we’re going to prevent climate change by adopting a “more European” work schedule.
In 2011 I noted a report in Nature suggesting that species extinction rates have been overestimated. A new report in Science has similar implications, suggesting that fears many species will go extinct before they are even discovered are overblown. Specifically, the study suggests many common estimates exaggerate the likely number of species and presume greater extinction rates than can be verified. The abstract for the new study, “Can We Name Earth’s Species Before They Go Extinct?” reads:
Some people despair that most species will go extinct before they are discovered. However, such worries result from overestimates of how many species may exist, beliefs that the expertise to describe species is decreasing, and alarmist estimates of extinction rates. We argue that the number of species on Earth today is 5 ± 3 million, of which 1.5 million are named. New databases show that there are more taxonomists describing species than ever before, and their number is increasing faster than the rate of species description. Conservation efforts and species survival in secondary habitats are at least delaying extinctions. Extinction rates are, however, poorly quantified, ranging from 0.01 to 1% (at most 5%) per decade. We propose practical actions to improve taxonomic productivity and associated understanding and conservation of biodiversity.
That global species extinction rates may have been exaggerated does not mean that extinction and biodiversity loss are not serious problems. I believe they are. While I am unconvinced by the arguments that a loss of biodiversity threatens humanity — largely because the available empirical evidence suggests otherwise — I believe that species extinctions impoverish the world in which we live, and support efforts to protect biodiversity, so long as they are suitably protective of property rights and individual liberty. For such efforts to succeed, it is necessary to have an accurate understanding of the problem. Overhyped fears and exaggerated claims of ecological ruin can actually frustratethe development of effective solutions.
Jon Entine details the evidence that the White House forced the Food & Drug Administration to sit on a scientific assessment concluding that approval of a genetically modified salmon developed by AquaBounty Technologies would have “no significant impact” on the environment. After Slate published an investigative report, the FDA quietly released assessment last Friday, over six months after it had been completed.
The seven month delay, sources within the government say, came after discussions late last spring between Health and Human Services Secretary Kathleen Sibelius’ office and officials linked to Valerie Jarrett at the Executive Office, who were debating the political implications of approving the GM salmon. Genetically modified plants and animals are controversial among the president’s political base, which was thought critical to his reelection efforts during a low point in the president’s popularity. . . .
The hurried release of the Environmental Assessment last Friday capped a frenzied two days behind the scenes at the White House and FDA. Within hours after the Slate article and leaked document were posted, an administration official notified the FDA that the administration was dropping its indefinite hold. “The White House had no place to hide,” said a government source. The “final” draft environmental assessment is identical to the document leaked to the GLP, but is dated May 4—two weeks later. . . .
According to sources, the White House political block—a direct violation of numerous ethics regulations and possibly of federal laws—was instituted over the objections of scientists at the FDA, but with the awareness of HHS Secretary Sibelius, her senior adviser Andrea Palm and the Office of Science and Technology Policy and its director John Holdren, who is responsible for enforcing “science integrity” across government agencies. . . .
FDA scientists and staffers say they were instructed not to discuss the decision to approve the salmon—a violation of the agency’s scientific integrity guidelines adopted last February that require the FDA to shield its staff from “political influence” and to allow officials and scientists to “communicate their personal scientific or policy views to the public, even when those views differ from official Agency opinions.
The LA Times has more here.
Earlier this week, Rand Simberg and the Competitive Enterprise Institute replied to Michael Mann’s libel suit. Specifically, they filed a motion to dismiss for failure to state a claim and, more interestingly, a special motion to dismiss under the District of Columbia’s Anti-SLAPP Act. As I noted here, Mann exposed himself to this motion by choosing to file his case in D.C. Superior Court.
Under D.C. Code Section 16-5502(b), a defendant in a libel action who is being sued for a written or oral statement made “in connection with an issue of public interest” is entitled to have the suit dismissed unless the plaintiff can show that “the claim is likely to succeed on the merits.” Further, the statute provides that filing the special motion stays discovery proceedings unless particular showings can be made. Given that global warming and climate policy are unquestionably issues of public interest (defined by the statute to include environmental issues), the relevant statements are clearly covered. So in order to prevail Mann will not only have to show that Simberg and CEI made provably false statements of fact concerning him that were defamatory, he will also have to show that Simberg and CEI made knowingly false statements or make their statements in “reckless disregard” of the truth — and that is notoriously difficult to do, particularly in the context of heated political debate. Further, Mann is unlikely to have the benefit of discovery to assist in his claims. Should Simberg and CEI prevail with this motion, they will be able to seek recovery of their legal costs. All of this makes me wonder why Mann chose D.C. as the venue for his suit.
Noted televangelist Pat Robertson firmly rejected young-earth creationism on “The 700 Club.” As CNN reports, when asked by a viewer how to respond to those who believe “the Bible could not explain the existence of dinosaurs,” Robertson suggested his viewers should not “fight science.”
“You go back in time, you’ve got radiocarbon dating. You got all these things, and you’ve got the carcasses of dinosaurs frozen in time out in the Dakotas,” Robertson said. “They’re out there. So, there was a time when these giant reptiles were on the Earth, and it was before the time of the Bible. So, don’t try and cover it up and make like everything was 6,000 years. That’s not the Bible.”
If Robertson truly doesn’t want his viewers to “fight science,” he should also dissuade them from pushing “intelligent design.” The bills attacking evolution and pushing ID pseudo-science keep coming. As HuffPo notes, a newly elected Montana state representative announced plans to require the teaching of “intelligent design” alongside evolution under the guise of “teaching the controversy.” The one federal court to consider the question rightly concluded that “intelligent design” is creationism in pseudo-scientific drag.
Neither young earth creationism nor the rejection of evolution is required by the Bible. As Dr. Joshua Swamidass, “a Christian and career scientist,” noted in the WSJ last week:
the age of the Earth and the rejection of evolution aren’t core Christian beliefs. Neither appears in the Nicene or Apostle’s Creed. Nor did Jesus teach them. Historical Christianity has not focused on how God created the universe, but on how God saves humanity through Jesus’ death and resurrection. . . .
there is simply no controversy in the scientific world about the age of the Earth or evolution. Evidence points to a billion-year-old planet.
The evidence for evolution is just as strong. In the past, evolution rested on ambiguous fossil evidence, but now it rests on much clearer DNA evidence that increases exponentially every month. Fully appreciating this evidence takes a lot of time, reading and patience. And it is not appropriate to “teach the controversy” in science class because there is no ongoing debate in the scientific community comparable to the theological debate.
The evolution debate is not a scientific controversy, but a theological controversy about a non-central Christian doctrine.
Religious leaders should no more try to deny evolution or the age of the earth than scientists should preach about Biblical commandments. Politicians, too, should stop pandering to scientific ignorance, even when grounded in religious belief — though this may be difficult. Polling suggests nearly 50 percent of Americans (58 percent of Republicans and 41 percent of Democrats) believe the Earth was created by God less than 10,000 years ago. As Beth Reinhard notes, “It’s not easy to reconcile matters of faith with matters of science, but smart public policy demands it.”
On Monday, famed climate scientist Michael Mann filed suit against National Review and the Competitive Enterprise Institute over some allegedly defamatory blog posts. Now some of the defendants have responded.
Here is CEI’s official response, and a legal analysis from their lawyer. Of note, while CEI refused to apologize for the initial blog post (which was edited long before Mann threatened to file suit), it has offered to publish Mann’s response on their climate blog, an offer Mann has refused. Perhaps this is because, as Mann has commented on his Facebook page, ” There is a larger context for this latest development, namely the onslaught of dishonest and libelous attacks that climate scientists have endured for years by dishonest front groups seeking to discredit the case for concern over climate change.” Of course is Mann is suing others for defamation, he may wish to be more careful about repeatedly attacking them as “front groups” for industry.
An interesting twist in this case is the fact that Mann filed his suit in D.C. Superior Court, which means it is subject to the District’s anti-SLAPP suit law which makes it particularly difficult to maintain libel and defamation suits. Alison Frankel explains:
The law, in effect, shifts the way courts decide motions to dismiss, doing away with the assumption that the plaintiffs’ allegations are true. It also restricts discovery, so plaintiffs usually have to show they’re likely to prevail without the benefit of depositions and documents from the other side. . . .
Mann’s lawyers at Cozen filed his complaint against CEI, Simberg, the National Review and Steyn in Superior Court of the District of Columbia, not in federal court. Had they brought the suit in federal court, citing Mann’s Pennsylvania citizenship and the National Review’s New York headquarters, Mann might have been able to avoid Washington’s anti-SLAPP law, . . . But it’s hard to see how, otherwise, Mann’s case won’t be subject to dismissal under the anti-SLAPP statute, since the scientific backing for climate change evidence is certainly speech of public concern.
More popcorn please.
Climatologist Michael Mann, creator of the infamous “hockey stick” graph, has filed suit against National Review and the Competitive Enterprise Institute for allegedly defamatory blog posts attacking Mann and his work. Dr. Mann has posted a release about the suit on his Facebook page. I’ll post links to the complaint once it’s on-line. In the meantime, here’s my prior post on the controversy.
Given that Dr. Mann is a public figure and a prominent participant in climate policy debates, and that debate over the soundness of the “hockey stick” graph continues, I am skeptical of this suit — and I say this as someone who believes human activity is contributing to climate change and supports appropriate policy responses. All sorts of outrageous charges are made all the time in the rough and tumble of the current climate debate, and many people forthrightly believe that Mann and others have cut corners in their scientific research. I think this will make it difficult for Mann to show that those involved acted with “reckless disregard” of the truth. I also doubt the courts will be too eager to police the word choices of polemical blog posts made by political commentators in the course of heated policy debates. Then again, I’m not being paid to offer a professional opinion on this matter, and Dr. Mann has retained prominent counsel. Stay tuned.
[Disclosure: I am a contributing editor at National Review Online, for which I write occasional articles and blog posts, and I worked for CEI in the 1990s. I have not discussed the merits of this suit with anyone in either organization.]