Science Court: Why and What

The idea for what has come to be called a Science Court was proposed half a century ago by Arthur Kantrowitz [1].

The development of nuclear reactors as part of the atom-bomb project made it natural to contemplate the possibility of generating power for civil purposes by means of nuclear reactors (the reactor at Hanford that made plutonium for the Nagasaki bomb was also the first full-scale nuclear reactor ever built [2]).

The crucial question was whether power-generating nuclear reactors could be operated safely. The technical experts were divided over that, and Kantrowitz proposed that an “Institution for Scientific Judgment” was needed to adjudicate the opposing opinions.

In those years, scientific activity was still rather like in pre-WWII times: A sort of ivory-tower cottage industry of largely independent intellectual entrepreneurs who shared the aim of learning how the material world works. Mediating opposing opinions could then seem like a relatively straightforward matter of comparing data and arguments. Half a century later, however, scientific activity has pervaded business, commerce, and medical practices, and research has become intensely competitive, with cutthroat competition for resources and opportunities for profit-making and achieving personal wealth and influence. Conflicts of interest are ubiquitous and inescapable [3]. Mediating opposing technical opinions is now complicated because public acceptance of a particular view has consequences for personal and institutional power and wealth; deciding what “science” truly says is hindered by personal conflicts of interest, Groupthink, and institutional conflicts of interest.

Moreover, technical disagreements nowadays are not between more or less equally placed technical experts; they are between a hegemonic mainstream consensus and individual dissenters. The consensus elite controls what the media and the public learn about “science”, as the “consensus” dominates “peer review”, which in practice determines all aspects of scientific activity, for instance the allocation of positions and research resources and the publication (or suppression) of observations or results.

It has become quite common for the mainstream consensus to effectively suppress minority views and anomalous research results, often dismissing them out of hand, not infrequently labeling them pejoratively as denialist or flat-earther crackpot [4]. Thereby the media, the public, and policymakers may not even become aware of the existence of competent, plausible dissent from a governing consensus.

The history of science is, however, quite unequivocal: Over the course of time, a mainstream scientific consensus may turn out to be inadequate and to be replaced by previously denigrated and dismissed minority views.

Public actions and policies might bring about considerable damage if based on a possibly mistaken contemporary scientific consensus. Since nowadays a mainstream consensus so commonly renders minority opinions invisible to society at large, some mechanism is needed to enable policymakers to obtain impartial, unbiased, advice as to the possibility that minority views on matters of public importance should be taken into consideration.

That would be the prime purpose of a Science Court. The Court would not be charged with deciding or declaring what “science” truly says. It would serve just to force openly observed substantive engagement among the disagreeing technical experts — “force” because the majority consensus typically refuses voluntarily to engage substantively with dissident contrarians, even in private.

In a Court, as the elite consensus and the dissenters present their arguments and their evidence, points of disagreement would be made publicly visible and also clarified under mutual cross-examination. That would enable lay observers — the general public, the media, policymakers — to arrive at reasonably informed views about the relative credibility of the proponents of the majority and minority opinions, through noting how evasive or responsive or generally confidence-inspiring they are. Even if no immediate resolution of the differences of opinion could be reached, at least policymakers would be sufficiently well-informed about what public actions and policies might plausibly be warranted and which might be too risky for immediate implementation.

A whole host of  practical details can be specified only tentatively at the outset since they will likely need to be modified over time as the Court gains experience. Certain at the beginning is that public funding is needed as well as absolute independence, as with the Supreme Court of the United States. Indeed, a Science Court might well be placed under the general supervision of the Supreme Court. While the latter might not at first welcome accepting such additional responsibilities, that might change since the legal system is currently not well equipped to deal with cases where technical issues are salient [5]. For example, the issue of who should be acceptable as an expert technical witness encounters the same problem of adjudicating between a hegemonic majority consensus and a number of entirely competent expert dissenters as the problem of adjudicating opposing expert opinions.

Many other details need to be worked out: permanent staffing of the Court as well as temporary  staffing for particular cases; appointment or selection of advocates for opposing views; how to choose issues for consideration; the degree and type of authority the Court could exercise, given that a majority consensus would usually be unwilling to engage voluntarily with dissidents. These questions, and more, have been discussed elsewhere [6]. As already noted, however, if a Science Court is actually established, its unprecedented nature would inevitably make desirable progressive modification of its practices in the light of accumulating experience.

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[1]    Arthur Kantrowitz, “Proposal for an Institution for Scientific Judgment”, Science, 156 (1967) 763-64

[2]    Steve Olson, The Apocalypse Factory, W. W. Norton, 2020

[3]    Especially chapter 1 in Henry H. Bauer, Science Is Not What You Think: How It Has Changed, Why We Can’t Trust It, How It Can Be Fixed, McFarland, 2017

[4]    Henry H. Bauer, Dogmatism  in Science and Medicine: How Dominant Theories Monopolize Research and Stifle the Search for Truth, McFarland, 2012

[5]    Andrew W. Jurs, “Science Court: Past proposals, current considerations, and a suggested structure”, Drake University Legal Studies Research Paper Series, Research Paper 11–06 (2010); Virginia Journal of Law and Technology, 15 #1

[6]    Chapter 12 in Science Is Not What You Think: How It Has Changed, Why We Can’t Trust It, How It Can Be Fixed, McFarland, 2017

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