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Overnight Defense: Senate bucks Trump with Yemen war vote, resolution calling crown prince 'responsible' for Khashoggi killing | House briefing on Saudi Arabia fails to move needle | Inhofe casts doubt on Space Force
By Rebecca Kheel - 12/13/18 06:53 PM EST
Happy Thursday and welcome to Overnight Defense. I'm Rebecca Kheel, and here's your nightly guide to the latest developments at the Pentagon, on Capitol Hill and beyond.
THE TOPLINE: In a historic vote, the Senate approved Thursday a resolution to end U.S. support for the Saudi-led war in Yemen.
The vote is mostly symbolic since the House effectively blocked similar action for the rest of the year and the White House threatened to veto the resolution it did make it President Trump Donald John TrumpTrump rails against impeachment in speech to Texas farmers Trump administration planning to crack down on 'birth tourism': report George Conway on Trump adding Dershowitz, Starr to legal team: 'Hard to see how either could help' MORE's deal.
But the vote still deals a significant blow to Trump amid heightened tensions over the death of U.S.-based Saudi journalist Jamal Khashoggi.
Senators voted 56-41 on the resolution, which would require the president to withdraw any troops in or "affecting" Yemen within 30 days unless they are fighting al Qaeda.
All 49 Democrats supported the resolution and were joined by seven Republicans: resolution co-sponsor Sen. Mike Lee Michael (Mike) Shumway LeeSenators are politicians, not jurors — they should act like it Sens. Kaine, Lee: 'We should not be at war with Iran unless Congress authorizes it' Overnight Defense: War powers fight runs into impeachment | Kaine has 51 votes for Iran resolution | Trump plans to divert .2B from Pentagon to border wall MORE (Utah) and Sens. Susan Collins Susan Margaret CollinsMitch McConnell may win the impeachment and lose the Senate Murkowski wants senators to 'really hear the case' before deciding on impeachment witnesses Republicans will pay on Election Day for politicizing Trump's impeachment MORE (Maine), Steve Daines Steven (Steve) David DainesKoch network could target almost 200 races in 2020, official says GOP senators introduce resolution to change rules, dismiss impeachment without articles Congress to clash over Trump's war powers MORE (Mont.), Jeff Flake Jeffrey (Jeff) Lane FlakeGOP senator calls CNN reporter a 'liberal hack' when asked about Parnas materials The 5 most vulnerable senators in 2020 Poll: Democrat Mark Kelly leads incumbent McSally in Arizona Senate race MORE (Ariz.), Jerry Morean (Kansas), Rand Paul Randal (Rand) Howard PaulMitch McConnell may win the impeachment and lose the Senate GOP threatens to weaponize impeachment witnesses amid standoff Paul predicts no Republicans will vote to convict Trump MORE (Ky.) and Todd Young Todd Christopher YoungIran resolution supporters fear impeachment will put it on back burner Senate GOP's campaign arm hauls in million in 2019 Sens. Kaine, Lee: 'We should not be at war with Iran unless Congress authorizes it' MORE (Ind.).
Why it's historic: The resolution was brought to the floor using the War Powers Act, which was passed in 1973 as Congress worked to reassert its authority over the decision to go to war amid Vietnam.
But in all those years since, the War Powers Act was never successfully invoked.
Thursday's vote changed that.
MBS 'responsible': Shortly after the Yemen vote wrapped up, the Senate also easily approved a resolution naming Saudi Crown Prince Mohammed bin Salman as "responsible" for Khashoggi's slaying.
The measure, which was introduced earlier Thursday, passed the Senate by voice vote. It will now go to the House.
The resolution, spearheaded by outgoing Foreign Relations Committee Chairman Bob Corker Robert (Bob) Phillips CorkerRNC says ex-Trump ambassador nominee's efforts 'to link future contributions to an official action' were 'inappropriate' Lindsey Graham basks in the impeachment spotlight The Hill's 12:30 Report — Presented by Nareit — White House cheers Republicans for storming impeachment hearing MORE (R-Tenn.), is nonbinding, but it puts the Senate on the record about the crown prince amid growing frustration on Capitol Hill over the U.S.-Saudi relationship.
"Unanimously, the United States Senate has said that Crown Prince Mohammed bin Salman is responsible for the murder of Jamal Khashoggi. That is a strong statement. I think it speaks to the values that we hold dear. ... I'm glad the Senate is speaking with once voice unanimously toward this end," Corker said shortly after the vote.
In the House: The House does not appear headed toward action any time soon even after a briefing by Defense Secretary James Mattis James Norman MattisLawmakers push back at Pentagon's possible Africa drawdown Overnight Defense: Book says Trump called military leaders 'dopes and babies' | House reinvites Pompeo for Iran hearing | Dems urge Esper to reject border wall funding request Trump called top military brass 'a bunch of dopes and babies' in 2017: book MORE and Secretary of State Mike Pompeo Michael (Mike) Richard PompeoCountries reach agreement in Berlin on Libya cease-fire push, arms embargo Trump Jr.: If 'weaker' Republicans only call for certain witnesses, 'they don't deserve to be in office' House Democrats may call new impeachment witnesses if Senate doesn't MORE -- the same briefing that infuriated senators into action.
House leadership from both parties emerged Thursday from the briefing without committing to take legislative action.
House Majority Whip Steve Scalise Stephen (Steve) Joseph ScaliseTrump welcomes LSU to the White House: 'Go Tigers' Republicans criticize Pelosi for gifting pens used to sign impeachment articles The Hill's Morning Report - Impeachment trial a week away; debate night MORE (R-La.) cited an "ongoing investigation" into Khashoggi's death when asked whether leadership would support a resolution condemning Saudi Arabia for the killing.
Asked about moving something this year on the Yemeni civil war, where the United States supports a Saudi-led military coalition, he said the briefing "maybe addresses some of the questions" that were driving lawmaker concern about the war.
Meanwhile, House Minority Leader Nancy Pelosi Nancy PelosiDemocrats worry a speedy impeachment trial will shut out public Schiff huddles in Capitol with impeachment managers Media's selective outrage exposed in McSally-Raju kerfuffle MORE (D-Calif.), who is expected to be Speaker in the next Congress, noted there was enough bipartisan support to act on Yemen this year, but added "we'll see how events proceed" when asked whether she will bring it up for a vote next year.
Pelosi did say she'd support sanctions against Saudi Crown Prince Mohammed bin Salman, but said the investigation into Khashoggi's death needs to conclude first.
"Our decisions are evidenced based," she said.
Pay up: Meanwhile, the Pentagon is now seeking reimbursement for $331 million from Saudi Arabia and the United Arab Emirates it never collected for the years of refueling their aircraft in the Yemen war.
Earlier, the Pentagon told Senate Armed Services Committee ranking member Sen. Jack Reed John (Jack) Francis ReedOvernight Defense: Book says Trump called military leaders 'dopes and babies' | House reinvites Pompeo for Iran hearing | Dems urge Esper to reject border wall funding request Senate Dems urge Esper to oppose shifting Pentagon money to border wall Sanders defends vote against USMCA: 'Not a single damn mention' of climate change MORE (D-R.I.) that it didn't collect the money from the Saudis and Emiratis because of "errors in accounting."
On Thursday, Reed said in a statement the Pentagon has now told him it will recoup the money.
"This is good news for U.S. taxpayers and underscores the need for strong oversight of the Department of Defense," Reed said in a statement. "While the accounting error is being corrected, the larger issue remains that the Trump administration and international community must capitalize on the progress that has been made during the Yemen peace talks in Sweden."
About Sweden: Speaking of the peace talks, there appeared to be a breakthrough Thursday.
The warring parties have agreed to a ceasefire in the port city of Hodeidah, the United Nations announced Thursday, prompting cautious optimism about progress in ending the long-running war.
U.N. Secretary-General António Guterres said in Sweden that Saudi-backed Yemeni fighters and the Iranian-backed Houthi rebels had agreed to the ceasefire in the city and around the port, which serves as a gateway for 70 percent of humanitarian aid entering the country.
"The UN will play a leading role in the port," Guterres said. "This will facilitate the humanitarian access and the flow of goods to the civilian population. It will improve the living conditions for millions of Yemenis."
TROUBLE FOR SPACE FORCE: Senate Armed Services Committee Chairman Jim Inhofe James (Jim) Mountain InhofeLawmakers push back at Pentagon's possible Africa drawdown Senators take oath for impeachment trial Trump, Democrats set for brawl on Iran war powers MORE (R-Okla.) is unconvinced that President Trump's proposed Space Force is necessary, leaving it out of his top priorities for next year's defense policy bill.
With Inhofe's soon-to-be House counterpart opposed to the idea for a new military branch, the senator's wavering spells trouble for a plan Trump wants done by 2020.
Inhofe, a staunch Trump supporter, has been briefing reporters one-on-one on his priorities for his committee next year, laying out them in bullet points in a two-page document. Space Force is not mentioned in the document.
In a recent interview with The Hill, Inhofe said he didn't include one of Trump's top priorities in his list because he still thinks Space Force is unnecessary until the Pentagon proves otherwise.
"It wasn't on my list because I don't think we need it," he said Wednesday morning. "I have time and time again, ever since this subject came up, I've said there are two things you have to answer. One is, is it going to do a better job than we're doing today? And then two, it's going to cost more — how much more money is it going to cost?"
Still, Inhofe did not rule out the possibility that the Space Force could be in next year's National Defense Authorization Act (NDAA) if he gets the answers he's looking for.
"Until I hear those questions, I will be opposing it, but that doesn't mean it's not going to happen," he said.
Common ground: Inhofe also said space is an area where he might be able to find agreement with Rep. Adam Smith David (Adam) Adam SmithLawmakers push back at Pentagon's possible Africa drawdown Overnight Defense: Foreign policy takes center stage at Democratic debate | House delivers impeachment articles to Senate | Dems vow to force new vote on Trump's border wall House Armed Services chairman exploring options to stop Trump from taking .2B in DOD funds for wall MORE (D-Wash.), who is poised be House Armed Services Committee chairman come January.
"We're two different backgrounds," Inhofe said of him and Smith. "I think this is a good example of something that we agree on, for different reasons."
Inhofe, who warns Russia and China is jumping ahead of the U.S. military in certain areas, said he is unconvinced space is one of those areas.
Smith, meanwhile, thinks the military can do better in space, but does not believe Space Force is the answer.
In a recent breakfast with reporters, Smith reaffirmed his opposition, saying "creating a whole new bureaucracy" is not the solution to the problem.
"It costs more money than it nets," Smith told the Defense Writers Group. "So we will have a conversation within our committee about the best way to place a greater emphasis on space. I think there is bipartisan concern about creating a separate branch of the military for space."
COMMITTEE SHUFFLE: Senate Minority Leader Charles Schumer Charles (Chuck) Ellis SchumerTrump administration installs plaque marking finish of 100 miles of border wall Sanders defends vote against USMCA: 'Not a single damn mention' of climate change Schumer votes against USMCA, citing climate implications MORE (D-N.Y.) announced next year's committee assignments Thursday, including the three senators who will fill the holes left the three Senate Armed Services Committee Democrats who lost their re-election bids in the midterms.
The new Democrats on the committee next year will be Sens. Joe Manchin Joseph (Joe) ManchinTrump's trial a major test for McConnell, Schumer Poll: West Virginia voters would view Manchin negatively if he votes to convict Trump Pelosi set to send impeachment articles to the Senate next week MORE (W.Va.), Tammy Duckworth Ladda (Tammy) Tammy Duckworth Democratic senator asks for meeting with Amtrak head over alleged disability discrimination Democrats request briefing on intel behind Trump's embassy threat claim Duckworth slams Collins's comments: 'I left parts of my body in Iraq fighting terrorists' MORE (Ill.) and Doug Jones (Ala.).
Manchin is actually returning to the committee after leaving it two years ago to take a slot on the Appropriations Committee. For the next Congress, he is giving up his spot on the Intelligence Committee to come back to Armed Services.
Duckworth, who lost both her legs serving in Iraq, brings her combat experience to the panel.
"My buddies in Iraq refused to leave me behind, and I want to make sure that they don't ever regret those sacrifices that gave me a second chance at life," she said in a statement Thursday. "That's why ever since I woke up at Walter Reed, I've made serving our nation's service members and veterans my life's mission. I'm proud to be able to continue that mission as a member of the Armed Services committee."
Jones fills the Alabama-shaped hole the committee has had since former Sen. Luther Strange Luther Johnson StrangeThe biggest political upsets of the decade State 'certificate of need' laws need to go GOP frets over nightmare scenario for Senate primaries MORE (R-Ala.) left. Prior to this year, the committee had not been without an Alabama senator for 20 years.
"Alabama and its citizens have long played a significant role in our national defense, from building or maintaining ships and other vehicles to leading cutting-edge research and development to volunteering to serve in our armed forces," Jones said in a statement Thursday. "It is vital that we have a voice on the Senate Armed Services Committee, a role that I am honored to be able to fill in the next Congress. I am committed to serving as Alabama's advocate for a strong national defense, which also means a strong and prosperous economy in our state."
-- The Hill: Senate Dems urge Trump to continue nuclear arms control negotiations after treaty suspension
-- The Hill: House funding bill scraps Arctic icebreaker program
-- The Hill: Trump administration asks Supreme Court to temporarily allow transgender military ban
-- The Hill: Bolton warns Russia, China threaten US in Africa
Tags Charles Schumer Tammy Duckworth Luther Strange Susan Collins Steve Scalise Nancy Pelosi James Mattis Donald Trump Steve Daines Mike Pompeo Joe Manchin Bob Corker Todd Young Adam Smith Jim Inhofe Jeff Flake Jack Reed Rand Paul Mike Lee


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filter your search All ContentAll JournalsDaedalus
Science, Common Sense & Judicial Power in U.S. Courts
Sheila Jasanoff
SHEILA JASANOFF is the Pforzheimer Professor of Science and Technology Studies at Harvard University. She is the author of The Ethics of Invention (2016), Science and Public Reason (2012), and Designs on Nature: Science and Democracy in Europe and the United States (2005).
© 2018 by the American Academy of Arts & Sciences. Published under a Creative Commons CC BY-NC 4.0 license.
The American Academy of Arts & Sciences
This is an open-access article distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0) license, which permits copying and redistributing the material in any medium or format for noncommercial purposes only. For a full description of the license, please visit https://creativecommons.org/licenses/by-nc/4.0/legalcode.
Daedalus (2018) 147 (4): 15–27.
https://doi.org/10.1162/daed_a_00517
Sheila Jasanoff; Science, Common Sense & Judicial Power in U.S. Courts. Daedalus 2018; 147 (4): 15–27. doi: https://doi.org/10.1162/daed_a_00517
Courts routinely resolve factual disputes as an adjunct to settling legal controversies, and such fact-finding frequently involves scientific and technical evidence. It is important to ask what intellectual resources judges bring to this task. Instead of assessing how much science judges know or understand, this essay focuses on the judge's role in articulating and reinforcing prevailing cultural attitudes toward science. Background judicial assumptions matter at three significant junctures. First, judges maintain the lay-expert boundary by deciding whether an issue demands expert testimony at all. Second, judges act as epistemological gatekeepers, by determining which expert claims and ways of reasoning are entitled to deference and which are not. Third, judges decide how to classify and categorize things of uncertain ontological status as a prelude to applying legal rules. Each kind of decision offers a window into judicial common sense, a relatively neglected topic in studies of law and science.
The courtroom is a space of reenactment. Something happened in the world to awaken society's demand for moral reckoning: someone must be blamed, someone punished, someone rewarded for exceptional enterprise, someone, if possible, made whole. Whether the event was a deadly assault or the misappropriation of private funds through an elaborate Ponzi scheme or a scientific discovery giving rise to intellectual property claims, the legal process offers an opportunity to replay the sequence of events before an authority capable of making binding judgments that satisfy our collective sense of order, compassion, or moral indignation. Such weighty decisions demand a full-blown commitment to factual truth, for without a baseline of agreed upon facts, no judgment could satisfy the world's demands for justice.
Courts can be seen in this sense as sites of translation. What happened back there and then must be replayed as accurately as possible here and now before an empowered moral adjudicator, a judge, usually supported in U.S. lower courts by a fact-finding jury. Like a pointillist painting decomposed into its individual dots and pixels of paint, each moment, each unit of action from the bygone event must be brought into the adjudicatory setting, physically or verbally, in a form sufficiently reliable to render moral evaluation both possible and plausible. Each element, then, must be transported before the eyes of the adjudicator in trustworthy form, a form recognizably related to the reality of the circumstances in question. No wonder, then, that a murder trial can consume months of preparatory time, a corporate financial scandal can take years to unravel, and a regulatory or patent controversy can take seven years or more to journey to the Supreme Court. No wonder, too, that the rules of translation by which the external drama is brought in and reenacted in contexts of adjudication have attracted so much attention from legal analysts.
Scientific evidence presents special problems of translation. First, science itself is already a form of translation: it is a means of making the facts of nature knowable in human terms, through instrumental measurements, visual or quantitative representations, and specialist discourses that enable followers to build on findings that have gone before. Second, when serving the purposes of the law, science and its associated technologies offer an especially powerful means for bridging time and space, as warranted truth-telling mechanisms that can, when properly used and interpreted, bypass distortions produced by human memory or motives. Yet science cannot speak for itself to a legal factfinder. Science's gaze on matters in dispute is always at a remove, transmitted through intermediaries, both human and nonhuman, that stand in for what actually is. When scientific evidence is introduced in court, there is thus a double challenge: the presentation must close the gap between the original action and its courtroom replication (for example, by establishing a chain of custody for physical samples) and it must persuade the court that science's findings relate truthfully and reliably to the events, actions, intentions, and consequences that are the subject matter of adjudication.
The primary social innovation through which the law has sought to accommodate science is the figure of the expert witness. Rule 702 of the Federal Rules of Evidence provides that a person qualified by "knowledge, skill, experience, training, or education" can offer specialized testimony to facilitate a court's determination of scientific or technical facts. The expert testifies to the authenticity and meaning of the traces left by the questioned actions, thereby bridging the gap between the unrecorded past and its present reenactment. This performance entails a second-order problem that has preoccupied the law for more than two hundred years.1 How can the legal factfinder be sure that the expert is offering dependable testimony and not unsubstantiated personal opinion or, worse, false, fraudulent, or misleading views clothed in the authority of expertise?
In this essay, I focus not on the reliability of expertise, but on the judge's role in articulating and reinforcing prevailing cultural attitudes toward science. This topic has received relatively little attention from legal practitioners and scholarly commentators. Yet judicial thinking is of paramount importance in three ways. First, judges consider and ratify how scientific and legal authority should work vis-à-vis each other, for instance by determining whether an issue does or does not demand expert testimony. Second, judges play the part of epistemological gatekeepers. The judge's eye determines which expert claims are entitled to consideration in the courtroom, or not, thereby privileging certain ways of knowing above others. Third, and perhaps least visibly, judges exercise ontological power by deciding how to classify and categorize things for purposes of legal decision-making.
In making all three sets of moves, courts operate to some extent as amplifiers of common sense, importing widely held cultural ideas about how things work into their assessments of both the necessity for and the reliability of scientific and technical expertise. Though tacit and informal, such judgments are neither wholly subjective nor arbitrary. They are rooted in engrained collective beliefs, a common sense that has power precisely because it operates below the level of conscious argument, in a register of cultural familiarity, and hence is not open to questioning, indeed is accepted as integral to law.
In an influential essay, the anthropologist Clifford Geertz urged his fellow cultural analysts to view common sense as an ordered system of thought, on a par with more formal systems such as "physics, or Islam, or law, or music, or socialism."2 Common sense, in Geertz's telling, fills in the gaps of experience, when conventional explanations and classifications fail, and it does so in ways that are culturally intelligible, widely shared, and hence unquestioned by members of a given society. Boundary-crossing anomalies, Geertz suggested, are treated differently in different cultures. Intersexuality, to take one example, is known in all human societies, but it is variously classified as horror, wonder, or simple biological error because different shared assumptions about the nature of sexuality condition responses to the apparent anomaly of not being either simply male or simply female. Geertz concluded that, "Common sense is not what the mind cleared of cant spontaneously apprehends; it is what the mind filled with presuppositions … concludes."3 Through an analysis of significant Supreme Court decisions, this essay probes the presuppositions about science and technology, and their uses as evidence, that fill the minds of the federal judiciary.
What qualifies an expert's testimony as good enough to count as pertinent evidence? The U.S. Supreme Court wrestled with this question in three landmark evidence decisions of the 1990s, beginning in 1993 with Daubert v. Merrell Dow Pharmaceuticals, Inc.4 In that first and still most significant decision, the Court held that the earlier rule for the admissibility of scientific evidence in federal proceedings, derived from a 1923 appellate decision in a murder trial, Frye v. United States, had been superseded by the Federal Rules of Evidence.5 The Frye standard turned on whether a novel scientific procedure enjoyed general acceptance in the relevant scientific community. The Federal Rules of Evidence, as interpreted in Daubert, did not endorse this one factor test.6 More pointedly, the Court reminded judges that they were responsible for acting as gatekeepers with respect to proffered expert testimony and offered guidance on what that meant. Judges should think like scientists in assessing the relevance and reliability of scientific evidence, using the same criteria that scientists would apply. While cautioning against treating them as a "checklist," the Court named four criteria that instantly became, to some degree, canonical: is the claim falsifiable and has it been tested; was it peer reviewed; has an error rate been determined; and has the underlying science won general acceptance?
Following Daubert, the judge's understanding of what science is, how it works, and what constitutes legitimate expert representations of scientific knowledge became a decisive influence on determinations of admissibility. What, though, did this shift mean in terms of "law's knowledge"?7 Did science's ways of knowing indeed displace traditional modes of judicial reasoning, or was some more complex alchemy at work in the translation exercise that Daubert so radically reconfigured? Did particular traits of judicial epistemology, particular styles of reasoning, or ways of assessing the facts of the world gain power and influence in the post-Daubert adjudicatory environment? Kumho Tire v. Carmichael, the last of the Daubert trilogy, offers particular illumination.8
On July 6, 1993, Patrick Carmichael, one of the plaintiffs in Kumho, was driving a minivan when the right rear tire blew out, killing one passenger and severely injuring several others. The plaintiffs claimed that the blowout was due to a defect in the design or manufacture of the failed steel-belted radial tire. Their case rested to a significant degree on the testimony of Dennis Carlson Jr., a mechanical engineer and professed expert in tire failure analysis, who offered his informed opinion that the blowout was not caused by ordinary wear or misuse, but rather by a design defect.
Through visual and tactile inspection, Carlson concluded that a manufacturing defect had caused the tread to separate from the body, or "carcass," of the tire, despite evidence that the tire was seriously worn and had been inadequately repaired for punctures on two occasions.9 The district court mechanically applied the four Daubert criteria to Carlson's evidence and found it inadmissible. The Eleventh Circuit Court of Appeals reversed on the ground that the Daubert standard applied only to scientific, not technical, evidence, and the Supreme Court, under Chief Justice Rehnquist, agreed to review that decision. The questions before the Court were whether Daubert's gatekeeping criteria applied only to scientific evidence or also to technical and other nonscientific expert evidence; and, if so, whether the four Daubert criteria could be used to assess reliability in this case. The Court ruled positively on both counts, reversing the Eleventh Circuit ruling.
In the original trial and first appeal, Dennis Carlson's legitimacy as an expert had not been in question. But it was not obvious to the courts what kind of expert he was and, consequently, whether his kind of knowledge could be held to the Daubert standard for scientific expertise. Judge Stanley Birch, writing for the Eleventh Circuit, ruled that this determination was crucial. "In short," Birch concluded, "a scientific expert is an expert who relies on the application of scientific principles, rather than on skill- or experience-based observation, for the basis of his opinion."10 Citing a Sixth Circuit decision to support this distinction, Birch revisited that court's analogy, in which a hypothetical jury needs an explanation of a bumblebee's ability to fly.11 You might bring in an aeronautical engineer, the Sixth Circuit mused, to explain general principles of flight that could be applied to the bee. Even if such an expert had never seen a bumblebee, the testimony could still be admitted as relevant evidence. On the other hand, the testimony of a beekeeper with no scientific training could also plausibly tell the jury, on the basis of firsthand observations, that bumblebees always take off into the wind. "In other words," the Sixth Circuit concluded, "the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have."12 Here, the beekeeper's experience is seen as different in degree, but not in kind, from that of a juror, and is entitled to be heard for that very reason: the beekeeper knows relevant facts better than any juror. This is not so for the aeronautical engineer, who knows nothing about bees in particular and hence must draw on certified theoretical knowledge for authority.
Carlson, by this reckoning, presented a conundrum. With formal degrees in mechanical engineering and ten years of experience in tire testing at Michelin, Carlson offered testimony that was hard to classify in terms of the beekeeping analogy. Judge Birch wondered, "is the testimony at issue in this case more like that of a beekeeper applying his experience with bees or that of an aeronautical engineer applying his more generalized knowledge of the scientific principles of flight?"13 Despite Carlson's engineering qualifications, Birch concluded that he was, in terms of the issue at hand, a beekeeper of tire failures: "Like a beekeeper who claims to have learned through years of observation that his charges always take flight into the wind, Carlson maintains that his experiences in analyzing tires have taught him what 'bead grooves' and 'sidewall deterioration' indicated as to the cause of the tire's failure."14 Ergo, Birch reasoned, Carlson's testimony fell outside of Daubert's scope–in the realm of experience rather than science–and the district court therefore erred in applying the Daubert criteria and ruling his evidence inadmissible.
The Eleventh Circuit's attempt to draw a bright line between science and nonscience flies in the face of much historical work in science and technology studies showing that, in the conduct of science, there is no essential distinction between theory and practice, or "head" and "hand" in the terminology of historian Steven Shapin and sociologist Barry Barnes.15 Such demarcations are culturally produced and pedagogically transmitted rather than intrinsic to the scientific enterprise. The Supreme Court did not cite such insights, but came to similar conclusions from different assumptions about how to articulate a sensible demarcation between science and nonscience.
During oral argument, Chief Justice William H. Rehnquist signaled his discomfort with any categorical distinction between science and expertise. "All right," he summed up with more conviction than elegance, "and then you'd also agree that there isn't a rigid categorization as between science or not where you could say the Daubert test is or is not useful. The answer is both within and outside something that the Harvard University would call science or something. I mean, sometimes within that, sometimes outside of it … Daubert's helpful, sometimes it's not helpful."16
Crucially, Rehnquist indicated that it is the judge who decides on a case-by-case basis when Daubert is "helpful" and when it is not–not "the Harvard University" nor the academic scientific establishment. This point was brought home by Judge Jed S. Rakoff during the discussions leading to this issue of Dædalus. He noted that judges routinely make distinctions among Daubert's four criteria based on their preconceived understandings of what is or is not germane to doing good science:
I think this error rate one is often not considered a requirement. There are many kinds of science that–they don't have a known error rate, and I think many judges will accept that that's not dispositive…. But with respect to whether it's been tested or not, most judges seem to believe that, "God, if it isn't–hasn't been tested, how could it be called science?" So, yeah, that one is taken as a sine qua non. Has it been peer reviewed and the subject of publication? Well, if it hasn't been that, then it's just someone's … idea–that we have no idea whether it's ever been put to the test, and the test there is very similar to the legal tests of cross examination. So it comes naturally to judges to say, "If it hasn't been peer reviewed and publicized, that's … pretty damning." The error rate, different–I don't think more judges regard that as a sine qua non, and then the fourth is, of course, the old-fashioned Frye test, whether it's generally accepted, and the question, always, there is what's the relevant group.17
The passage as a whole illustrates the commonsensical mindset with which judges decide how to apply Daubert, a process that foregrounds longstanding judicial intuitions about what makes any claim stronger or weaker than another. Particularly noteworthy in this text is the equating of peer review with cross-examination, a method of adversarial questioning deeply familiar to judges and one long seen as capable of separating the wheat of truth from the chaff of false pretenses.
Later in the Kumho oral argument, Rehnquist clarified his position regarding expert evidence: namely, that inductive arguments are insufficient unless they are, in effect, theory-laden.
[I]n my mind, anyway, I think the hardest question for you would be, you'd say, well, look, there is a theory going on here that in the absence of these four specific factors, not any kind of abuse but four kinds, beading, flange, whitewall discoloration, and some other thing, that your expert seems to say, in the absence of those four things, it must have been defect.
And immediately a common sense person thinks, what? You mean nails couldn't be an abuse? You mean, it's bald couldn't be an abuse?
And the expert says–if the expert then says, well, I have a lot of experience at this, you say, wait a minute. You couldn't have seen hundreds or thousands of tires that have had two nails–you know, two nails driven into them, and they're bald, and they've gone 100,000 … that's impossible.
You're going on some theory, and if you're going on some theory, you tell me who else believes that theory.18
Implicit in Justice Rehnquist's thinking, as in Judge Birch's, is the idea of the putative "common sense person" as an expert on things-in-the-world, and a person whom the judge is entitled to represent when elucidating such everyday understandings. In his spontaneous dramatization of expertise encountering lay skepticism, the Chief Justice in effect tests the limits of the expert's reasoning, as well as the improbable certainty of his experience-based claims, by constructing alternative, common-sense scenarios that display the gaps between Carlson's observations and the conclusion drawn from them. To support a claim on the basis of experiential knowledge, Rehnquist's imagined interlocutor insists, the expert must be "going on some theory," because only such a theory could rule out all other intervening causal stories (such as the nails or the baldness); and then the expert had better be able to marshal the resources of a like-minded community ("you tell me who else believes that theory"). If such support is not forthcoming, Rehnquist implies, then that expert's gaze is no more reliable than anyone else's.
Behind Rehnquist's questioning is classic Humean skepticism, an assumption that a finite number of observations of other tires could not possibly provide a firm basis for conclusions regarding the one that failed. The only legitimate foundation for so particular a claim must be a general theory, and here Rehnquist reverts back to the familiar comfort of the Frye rule. If there is an applicable theory, then others should also believe in it; in other words, it should be generally accepted.
In deciding Kumho, the Court unanimously agreed that no a priori boundary between science and engineering or other forms of expertise was practically workable: "Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge. There is no clear line that divides the one from the others."19 Illustrating a judicial predilection for citing legal authority even for matters of epistemic principle, the Court turned to the great common law jurist Learned Hand for the proposition that experts may come to their conclusions through the use of "general truths derived from … specialized experience."20
But it was in part three of the opinion, authored by Justice Stephen Breyer, that the majority most clearly articulated its epistemological sensibilities. Ostensibly instructing the trial court on how it could reasonably have applied the Daubert criteria to Carlson's testimony, Justice Breyer never mentioned the four tests. He instead conducted, in effect, his own virtual inspection of the contested tire; significantly, the opinion even included a picture from a manual on how to buy and care for tires. The conclusions reached by the tire expert's eye fell short in the light of the judge's (presumably more rigorous) re-examination of the evidence:
The [trial] court could reasonably have wondered about the reliability of a method of visual and tactile inspection sufficiently precise to ascertain with some certainty the abuse-related significance of minute shoulder/center relative tread wear differences, but insufficiently precise to tell "with any certainty" from the tread wear whether a tire had traveled less than 10,000 or more than 50,000 miles.21
We see here the law's age-old reliance on direct eye-witnessing as the means through which events are most reliably reconstructed in the courtroom–but with a twist.22 Carlson's spurious precision failed to meet the common-sense standard of "intellectual rigor" that Justice Breyer and his coauthors deemed necessary to rule out alternative causes.
The Daubert trilogy tilted epistemic authority subtly but surely in favor of how judges see and know the world, including how they imagine science itself, when they are prepared to substitute their own authority for that of an expert witness, and how they classify the products of science and technology. These judgments are pervasive, cutting across many domains of law that are not normally seen as ripe for epistemic analysis; for example, environmental law, intellectual property law, and constitutional law. Yet in high-profile cases in all these areas, the ultimate legal judgment has turned on how the courts, including especially the Supreme Court, analyze the things that science and technology introduce into the world. Once again, these are decisions in which judicial common sense governs, though the foundations of such intuitions are seldom questioned or laid bare for critical inquiry. Examples from recent case law illustrate these points.
Environmental law. Few areas of modern law rely as much on the scientific assessment of causes as environmental regulation and the repeated challenges against it. Causes and consequences are difficult to establish with any certainty. It is clear from the long record of environmental litigation that repose on technical issues ultimately results less from agreements about what is true than from parties' acceptance that scientific assessment procedures were properly followed, including those for soliciting expert advice and subjecting it to the scrutiny required by applicable statutory mandates.
Environmental law runs into special difficulties when regulatory action is directed toward previously unrecognized hazards. In these cases, the regulator often confronts an entity or agent that was either not known at all (such as small particulate matter deemed since the late 1990s to be substantially responsible for urban respiratory disease), or is shown to have unsuspected properties that make it no longer suitable for its original purposes (for example, lead as antiknock agent, ddt as insecticide, thalidomide as anti–morning sickness drug, or atrazine as weed killer). In such cases, questions about the science become interlaced with politics. Huge stakes may hang on whether a product crosses the line from safe to dangerous or, indeed, is recognized at all as a potential regulatory target.
The long-running U.S. debate on climate change illustrates how environmental science is vulnerable to concerted attack when new, scientifically certified objects and phenomena threaten settled lifestyles. The first two decades of the twenty-first century saw repeated reversals in federal policy based on the political alliances of the administration in power, particularly along the dividing line between fossil fuels and renewable energy. For the most part, these conflicts played out at the level of science and regulatory policy at the Environmental Protection Agency (epa), but they spilled into courts in one landmark case, Massachusetts v. EPA, which also serves as a kind of instruction manual on how judges negotiate the competing claims of science and law in rendering the facts of nature tractable for moral adjudication.23
In this case, the majority deferred to science, as the epa also had, in accepting "the existence of a causal connection between man-made greenhouse gas emissions and global warming." But unlike the epa, the Court also concluded that the language of the Clean Air Act was expansive enough to admit new entities like greenhouse gases into the definition of "air pollution": "While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of §202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence."24 Resolving the definitional question also resolved the issue of the epa's authority to act: "Because greenhouse gases fit well within the Clean Air Act's capacious definition of 'air pollutant,' we hold that epa has the statutory authority to regulate the emission of such gases from new motor vehicles."
Justice Antonin Scalia, in a sharply worded dissent, disagreed with the majority's construction of the act and urged a more prosaic reading of the term "air pollutant." He found less certainty in the science than his colleagues did, but just as importantly, he concluded that the epa had rightfully interpreted the words of the Clean Air Act as not requiring the regulation of greenhouse gases. Scalia's turn to common sense took the form of insisting that the language of the law be given its plain meaning:
We need look no further than the dictionary for confirmation that this interpretation of "air pollution" is eminently reasonable. The definition of "pollute," of course, is "[t]o make or render impure or unclean." Webster's New International Dictionary 1910 (2d ed. 1949). And the first three definitions of "air" are as follows: (1) "[t]he invisible, odorless, and tasteless mixture of gases which surrounds the earth"; (2) "[t]he body of the earth's atmosphere; esp., the part of it near the earth, as distinguished from the upper rarefied part"; (3) "[a] portion of air or of the air considered with respect to physical characteristics or as affecting the senses." Id., at 54. epa's conception of "air pollution"–focusing on impurities in the "ambient air" "at ground level or near the surface of the earth"–is perfectly consistent with the natural meaning of that term.25
Faced with the ontological problem of slotting a new physical entity–"greenhouse gases"–into a preexisting statutory framework, the justices divided in their conclusions, but each position rested on the author's own tacit sense of how the law-science relationship should properly work. For the majority, it made sense that science declares the state of how things are, and it is only natural to interpret broad legal language to accommodate changes in our understanding of the world. For Justice Scalia, a strong advocate for the sovereignty of the legal text, it was just as natural (or commonsensical) to insist that words, first of all, be given their ordinary meaning.26 If those "natural" meanings reasonably supported the agency's decision not to recognize a new regulatory object, then no amount of scientific urgency could undermine that judgment. The remedy, if any, would have to come from the legislature that wrote the law, the only body entitled to change the words to permit a new reading.
Intellectual property law. Ontological judgments are the basic stuff of intellectual property decisions, since at the core of most awards or denials of such rights are determinations whether something new (or, in the case of copyright, original) has been created and, if so, whether it is the kind of thing for which the award of such rights was meant. In the case of patents, both judgments reveal tacit judicial understandings of what inventiveness means and where the boundary lies between nature and human artifice, along with beliefs about the right relationship between scientific and legal innovation.
Thus, in Diamond v. Chakrabarty, the landmark 1980 decision in which a divided Supreme Court held that human-made living organisms are no different from nonliving ones for purposes of patenting, Chief Justice Warren Burger's opinion cast the law's role as essentially passive.27 Like the majority opinion in Massachusetts v. EPA almost thirty years later, Chakrabarty construed the governing law as expansive enough to accommodate changes in science. Congress, the Court famously held, "plainly contemplated that the patent laws would be given wide scope," so that patents could be granted for "anything under the sun that is made by man." At the same time, the Court positioned itself as powerless to change the course of scientific or technological progress: "legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides."28 This was a remarkable bit of rhetorical jiujitsu in a decision widely regarded as having enabled the modern biotechnology industry to come into being, and it was justified in part by invoking a trope of demonstration through ordinary empirical witnessing: the king at the shore powerless to hold back the sea from advancing.
The importance to courts of the notion of plain, unobstructed seeing shines through in another patent decision overturning years of settled legal practice: the Supreme Court's 2013 decision in the Myriad Genetics case, ruling that human genes are not patentable.29 Here, in a case challenging patents that Myriad held on human breast cancer genes, the Justice Department and the American Civil Liberties Union (aclu) presented the Court with metaphors that would make plain why only one conclusion was reasonable. The genes that Myriad had isolated, petitioners claimed, could be seen by anyone who cared to look; it took no special inventiveness to discern them. To make this argument stick, the Justice Department invented a hypothetical instrument–the "magic microscope"–arguing: "[I]f an imaginary microscope could focus in on the claimed dna molecule as it exists in the human body, the claim covers ineligible subject matter."30 Chris Hansen, lead lawyer for the aclu, opted in oral argument for a still more elemental metaphor: gold, with its connotations of extraction and mining. Finding a method of extracting gold, Hansen said, might entitle one to a patent, as would finding a new use, such as "a new way of using gold to make earrings."31 But the gold itself would not be patentable and neither are genes extracted from the human body.
Unlike the reference to King Canute in Chakrabarty, which echoed an amicus brief by the biotechnology company Genentech, neither the magic microscope nor the gold analogy survived into the Court's gene patenting decision. The moves that aclu attorney Hansen made to classify genes as products of nature did, however, resonate. With the same matter-of-factness conveyed in the aclu's oral argument, the Court ruled that "Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention."32 If nature was the initial inventor, then no amount of brilliance, effort, or innovation could render nature's work patentable. Put differently, the Court concluded: "discovery, by itself, does not render the brca genes 'new … composition[s] of matter,' §101, that are patent eligible."33 And the key to distinguishing between invention and discovery remained the act of seeing: anyone, after all, could see that the "location and order of the nucleotides [in an isolated gene] existed in nature before Myriad found them."34 By contrast, synthetic complementary dna (cdna) could be patented because it is made up of a nucleotide sequence that does not visibly exist within the body.
Constitutional law. In an era in which human lives are ever more intimately entwined with the products of science and technology, ontological judgments have begun to figure with increasing frequency in constitutional decision-making. Back in 1967, in what now feels almost like ancient history, the Supreme Court decided 7 to 1 in Katz v. United States that a warrantless wiretap violates the Fourth Amendment.35 A physical intrusion was not deemed necessary for constitutional purposes; it was sufficient that the defendant had sought to reserve the space as private. It was in this respect, Justice John Harlan concurred, an area where, as in a home but not in a field, "a person has a constitutionally protected reasonable expectation of privacy."36 The telephone booth was transformed, in the eye of the Court, into an enclosed space, similar to a room, whose walls should have provided safeguards against the intrusive, if metaphorical, "presence" of the wiretapping machine.
Developments in many areas of engineering and technology (such as nanotechnology, gene editing, robotics, and artificial intelligence) are further blurring boundaries between taken-for-granted classifications that once provided clear baselines for constitutional jurisprudence. At stake are questions about the division between nature and artifice, life and death, and human and nonhuman. Is a cell line sufficiently continuous with the human body it came from to deserve some degree of special treatment, such as informed consent to being used in research?37 What sorts of personal rights extend to "data subjects," for example, the right to be forgotten?38 What would it mean for robots to be classified as "electronic persons," with explicit rights and obligations? Questions such as these are bound to proliferate in coming decades, focusing renewed attention on the intellectual resources with which courts approach these novel tasks of boundary drawing.
Such issues are already being addressed by U.S. high courts. An instructive example is the Supreme Court's 2014 decision in Riley v. California, holding that the Fourth Amendment protects against warrantless searches of cell phones.39 While this decision can be seen as a principled extension of earlier decisions such as Katz, Chief Justice John Roberts's reasoning displays a more interesting dynamic. Roberts did not rest his opinion so much on a theory of the kinds of spaces in which people should feel secure as on the kinds of subjects we have become in the digital age: in effect, cyborgs. Cell phones, he noted, stand in for many different kinds of recording and storage technologies that register information about private lives: "They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." As such, they are de facto extensions of human selves. Indeed, as the Chief Justice mused, cell phones are "now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."40
It is perhaps not surprising that a judge trained in the common law's style of empirical reasoning imagined a Martian who, like its human counterpart, would focus in the first instance on the visible connections between the cell phone and the human anatomy. Yet the decision turned on a more subtle difference between the cell phone and any other device a person might be carrying. It was the capacity of the phone to provide entry into a person's consciousness–by revealing contacts, photographs, e-mail, telephone data, Internet search records–that was at stake in the ruling. The material object, in other words, makes the normally locked and protected spaces of the human mind visible to prying eyes. To claim a cell phone is "materially indistinguishable" from any other physical object was, Roberts therefore concluded, "like saying a ride on horseback is materially indistinguishable from a flight to the moon."
Looking across the broad terrain of legal encounters with science and technology, it is hard to ignore the extent to which judges in the U.S. legal system have become transmitters of cultural common sense, particularly in their views on the right ways to integrate scientific knowledge and technical expertise into the fabric of the law. Even in those areas where the law explicitly defers to science, as in Daubert's injunction to judges to think like scientists, we find that deference is filtered through preexisting judicial ideas that shape choices at crucial junctures: how the law should accommodate changes in science; who counts as an authoritative expert; and how new objects should be classified for purposes of applying established legal rules.
Despite Daubert's supposedly revolutionary impact on the admissibility of evidence, a close look at Kumho shows how quickly judicial common sense reasserted itself, consolidating even greater power over a wider range of knowledge in the hands of the judge. Deeply enmeshed within that expansion of power was an epistemic tilt toward the credibility of the eyewitness above the abstracted, probabilistic knowledge of the witness who appeals to scientific theory. Under the guise of better science in the courtroom and more rigorous assessment of scientific evidence, the law thus reasserted its ancient sources of authority: case-by-case reasoning and the fundamental role of direct eyewitnessing, nominally guided by the Daubert criteria as a stronger armature for older forms of judicial empiricism.
Common sense in its nature is unreflective. In Geertz's terms, it steps in as "what everybody knows" and is readily accepted for that very reason. Judicial common sense is no exception: yet there has been little systematic inquiry into how judges think about science and technology, let alone into the consequences of buying into particular theories of the scientific method or technological change. Common sense ensures a kind of stability in the workings of society, and its role in legal reasoning may, in that respect, serve a valuable function as an affirmation of important communal norms and a safeguard against overly rapid and arbitrary turns of the wheel. Yet when federal judges serve society over many decades, one may ask whether such lack of self-awareness in the law is an unmitigated public good. More than having judges think like scientists, both the judiciary and society would benefit from deeper reflection on what it means–in societies transformed by scientific and technological change–to think like judges about science, evidence, and invention.
This essay draws on research conducted under a grant from the National Science Foundation (Award No. 0850962). I would like to thank Ellen Bales for significant background research on the Supreme Court's evidence decisions and collaboration on a working paper that served as a partial basis for this essay.
Tal Golan, Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (Cambridge, Mass.: Harvard University Press, 2004).
Clifford Geertz, "Common Sense as a Cultural System," The Antioch Review 33 (1) (1975): 788.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
As elaborated in Daubert, the Rules require a trial court to take into account a number of considerations, with special attention to the ones mentioned below, that might affect the reliability of expert scientific evidence.
Sheila Jasanoff, "Law's Knowledge: Science for Justice in Legal Settings," American Journal of Public Health 95 (S1) (2005): S49–S58.
Kumho Tire Company, Ltd., et al. v. Patrick Carmichael et al., 526 U.S. 137 (1999).
See also Sheila Jasanoff, "Science and the Statistical Victim: Modernizing Knowledge in Breast Implant Litigation," Social Studies of Science 32 (1) (2002): 37–69.
Patrick Carmichael et al. v. Samyang Tire, Inc., et al., 131 F.3d 1433, 1435 (11th Cir. 1997).
Berry v. City of Detroit, 25 F.3d 1342 (6th Cir.1994).
Ibid., 1350, quoting Patrick Carmichael et al. v. Samyang Tire, Inc., et al., 131 F.3d, 1435–1436.
Patrick Carmichael et al. v. Samyang Tire, Inc., et al., 131 F.3d 1435 (11th Cir. 1997).
Ibid.
Steven Shapin and Barry Barnes, "Head and Hand: Rhetorical Resources in British Pedagogical Writing, 1770–1850," Oxford Review of Education 2 (3) (1976): 231–254.
Oral Arguments, Kumho Tire Company, Ltd., et al. v. Patrick Carmichael et al., 1998 U.S. Trans. Lexis 80, 42–43.
Author conversation with Jed S. Rakoff, Dædalus Authors' Conference, Science and the Legal System, Cambridge, Massachusetts, July 20–21, 2017. Emphasis added.
Oral Arguments, Kumho Tire Company, Ltd., et al. v. Patrick Carmichael et al., 45 [see note 16]. Emphasis added.
Kumho Tire Company, Ltd., et al. v. Patrick Carmichael et al., 526 U.S., 148 [see note 8].
Jasanoff, "Science and the Statistical Victim," 49 [see note 9].
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).
Ibid., 559–560.
Textualism of the kind Justice Scalia adopted in his dissent is more of a strategy of persuasion than a definitive pinning down of what a legal text really means. The meaning a judge accords to legal language is conditioned in any case by prior cultural and personal understandings of which words to question and what those words can be made to mean in context. The important point here, however, is that in resorting to the dictionary as the definitive, disambiguating authority on the meaning of the Clean Air Act, Justice Scalia sought to sidestep the majority's reliance on scientific consensus as a basis for rereading the law in new, more expansive ways. As long as common-sense dictionary definitions supported a reading that could justify epa's inaction, the right recourse, in Scalia's scheme of things, would have been to return to Congress to clarify the law, focusing in this case not on the arcane details of climate science but on the plain meaning of the word "air."
Diamond v. Chakrabarty, 447 U.S. 303 (1980).
Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013).
Association for Molecular Pathology v. U.S. Patent & Trademark Office, 689 F.3d 1303, 1326 (cafc 2012).
Association for Molecular Pathology v. Myriad Genetics, Inc., oral argument transcript, 5, https://patentlyo.com/media/docs/2013/04/12–398-amc7.pdf (accessed July 2018).
Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 [see note 29]. See also Chris Hansen's opening argument: "Myriad unlocked the secrets of two human genes. These are genes that correlate with an increased risk of breast or ovarian cancer. But the genes themselves, their–where they start and stop, what they do, what they are made of, and what happens when they go wrong are all decisions that were made by nature, not by Myriad. Now, Myriad deserves credit for having unlocked these secrets. Myriad does not deserve a patent for it." Association for Molecular Pathology v. Myriad Genetics, Inc., oral argument transcript, 3, https://patentlyo.com/media/docs/2013/04/12–398-amc7.pdf (accessed July 2018) [see note 31].
Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 [see note 29].
Katz v. United States, 389 U.S. 347 (1967).
Arguably, this is the principle to be extracted from the agreement reached between the National Institutes of Health (nih) and the family of Henrietta Lacks, whose dying body was the source of the HeLa cell line, although the nih declared the arrangement to be sui generis and of no precedential value.
Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos (May 13, 2014).
Riley v. California, 573 U.S. ___ (2014).
Trust in Elections
Networked Trust & the Future of Media
Fifty Years of Declining Confidence & Increasing Polarization in Trust in American Institutions
Specific Sources of Trust in Generals: Individual-Level Trust in the U.S. Military
Improving Judge & Jury Evaluation of Scientific Evidence
Daedalus (October,2018)
Judicializing Environmental Governance? The Case of Transnational Corporate Accountability
Global Environmental Politics (May,2022)
Constraining Bureaucracy Beyond Judicial Review
Daedalus (July,2021)
Scientists as Experts Serving the Court
Each Wild Idea: Writing, Photography, History
Nonmonotonic Reasoning
Rational Action: The Sciences of Policy in Britain and America, 1940-1960
Sound Actions: Conceptualizing Musical Instruments

redpajama_set_name: RedPajamaCommonCrawl


text:
Leo is Mou Approved! Oh Happy Day!
By Johonna Dec 27, 2010, 9:41am CET
Share All sharing options for: Leo is Mou Approved! Oh Happy Day!
The headline reads: "Inter, what a change. The Portugese is a fan of the new coach. 'He is a great. Support him like with me.'
And low, Special has spoken. Question is, will the Iteristi listen?
We all know that there was very little love lost between Mourinho and Rafa. When it was announced that Benitez would take over at Inter, Mourinho famously said: "One thing is sure, Benitez will not do better than me." And, as it happens, he didn't. With Leonardo, though, it seems things are slightly different. La Gazzetta dello Sport caught up with Mou while he was on vacation with his family in the US. He was concise and unequivocal with his support for Leonardo:
"Last season Leo was proven to be a coach of considerable potential: a great professional, not a Milanista. He has spent many years at Milan and now he will do the same at Inter. With the same passion. Support him. I ask all the Interisti to welcome and support Leo as they did with me."
Alrighty then. Welcome Leonardo.
Right now, I guess the only staff Leonardo is bringing from AC Milan is Angelo Castellazzi, although there is some speculation that he will offer Paolo Maldini a job on his team (wouldn't that be a kick in the pants?!?). Also, there is some talk of Lele Oriali coming back now that Benitez has taken that bad man away (hooray). Anyway, Leo has already spoken to many of the players (Maicon is apparently going to put off have the insides of his knee cleaned out so that he can be available for the new coach) and has toured La Pinetina. The official presentation will be on December 29th with work to begin shortly thereafter.
Julio Cesar seems to be on board with Leonardo, saying: "He will do very well. Besides being my friend, he has Inter charachteristics. It is also imporating because he know Italian football very well. I think that it will be fine."
But then, he was never someone I thought would have a problem with this. No, the people to watch will be Materazzi, Stankovic, and maybe Cordoba. If Leonardo wins them over, the rest of the squad will follow.
Samuel Eto\'o sets another record: 4-time African Footballer of the Year!
In the world of the players, Inter has more "best of" squad members. First, Eto'o was awarded African Footballer of the Year 2010 for a record fourth time by the African Football Confederation (good work, Eto'o!). Then the Dutch newspaper, the Telegraaf voted Wesley Sneijder as the best Dutch football player (not quite the same as the Ballon D'Or, is it Wes). Deki Stanković was named Serbian Player of the Year for the second time. And finally, Pandev has been voted the Former Yugoslav Republic of Macedonia's foreign-based player of the year for a record fifth time.
So, kudos all around!
Also, if you haven't, go and vote for your UEFA Team of the Year. We need to mobilize the Inter Offside Army to ensure that some Inter players make the final team.
On a personal note, I am going on vacation for a week. I will have a computer with me but I just dont know if I will have the time (or the inclination, really) to put up any posts. You never know, though, it could rain a lot or something. So, just a warning, next week could be a bit dry on the post side of things. Just bear with me for a few days, though, as I will be back to my blogging self in the new year.
How about this until we have something better to talk about:
Inter Milan 2-1 Lazio: Match Recap Spurned on by a heroic defense, Inter took all three points from a tense affair with Inzaghi's ex


text:
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How to buy Oracle Corporation stock
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Oracle Corporation
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Updated Apr 16, 2021 .
Oracle Corporation is a software-infrastructure business based in the US. Oracle Corporation shares (ORCL) are listed on the NYSE and all prices are listed in US Dollars. Oracle Corporation employs 143,000 staff and has a trailing 12-month revenue of around $46.1 billion.
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June 14: Oracle stock jumped as much as 13% Tuesday after reporting strong-than-expected earnings and revenue for its fiscal 2022 fourth quarter and saying it expects this strong revenue growth to continue in the quarters ahead.
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Valuing Oracle Corporation stock is incredibly difficult, and any metric has to be viewed as part of a bigger picture of Oracle Corporation's overall performance. However, analysts commonly use some key metrics to help gauge the value of a stock.
Oracle Corporation's P/E ratio
Oracle Corporation's current share price divided by its per-share earnings (EPS) over a 12-month period gives a "trailing price/earnings ratio" of roughly 28x. In other words, Oracle Corporation shares trade at around 28x recent earnings.
That's comparable to, say, the trailing 12-month P/E ratio for the NASDAQ 100 at the end of 2019 (27.29).
Oracle Corporation's PEG ratio
Oracle Corporation's "price/earnings-to-growth ratio" can be calculated by dividing its P/E ratio by its growth – to give 1.5173. A low ratio can be interpreted as meaning the shares offer better value, while a higher ratio can be interpreted as meaning the shares offer worse value.
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Oracle Corporation's EBITDA (earnings before interest, taxes, depreciation and amortisation) is $18.4 billion.
The EBITDA is a measure of a Oracle Corporation's overall financial performance and is widely used to measure a its profitability.
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Oracle Corporation's total ESG risk score
Total ESG risk: 17.18
Socially conscious investors use ESG scores to screen how an investment aligns with their worldview, and Oracle Corporation's overall score of 17.18 (as at 12/31/2018) is excellent – landing it in it in the 17th percentile of companies rated in the same sector.
ESG scores are increasingly used to estimate the level of risk a company like Oracle Corporation is exposed to within the areas of "environmental" (carbon footprint, resource use etc.), "social" (health and safety, human rights etc.), and "governance" (anti-corruption, tax transparency etc.).
Oracle Corporation's environmental score
Environmental score: 1.93/100
Oracle Corporation's environmental score of 1.93 puts it squarely in the 3rd percentile of companies rated in the same sector. This could suggest that Oracle Corporation is a leader in its sector terms of its environmental impact, and exposed to a lower level of risk.
Oracle Corporation's social score
Social score: 10.18/100
Oracle Corporation's social score of 10.18 puts it squarely in the 3rd percentile of companies rated in the same sector. This could suggest that Oracle Corporation is a leader in its sector when it comes to taking good care of its workforce and the communities it impacts.
Oracle Corporation's governance score
Governance score: 6.07/100
Oracle Corporation's governance score puts it squarely in the 3rd percentile of companies rated in the same sector. That could suggest that Oracle Corporation is a leader in its sector when it comes to responsible management and strategy, and exposed to a lower level of risk.
Oracle Corporation's controversy score
Controversy score: 3/5
ESG scores also evaluate any incidences of controversy that a company has been involved in. Oracle Corporation scored a 3 out of 5 for controversy – a middle-of-the-table result reflecting that Oracle Corporation hasn't always managed to keep its nose clean.
Environmental, social, and governance (ESG) summary
Oracle Corporation was last rated for ESG on: 2019-01-01.
Total ESG score
Total ESG percentile
Environmental score
Environmental score percentile
Social score percentile
Governance score
Governance score percentile
Level of controversy
Oracle Corporation share dividends
Dividend payout ratio: 26.07% of net profits
Recently Oracle Corporation has paid out, on average, around 26.07% of net profits as dividends. That has enabled analysts to estimate a "forward annual dividend yield" of 1.44% of the current stock value. This means that over a year, based on recent payouts (which are sadly no guarantee of future payouts), Oracle Corporation shareholders could enjoy a 1.44% return on their shares, in the form of dividend payments. In Oracle Corporation's case, that would currently equate to about $1.28 per share.
While Oracle Corporation's payout ratio might seem fairly standard, it's worth remembering that Oracle Corporation may be investing much of the rest of its net profits in future growth.
Oracle Corporation's most recent dividend payout was on 23 January 2023. The latest dividend was paid out to all shareholders who bought their shares by 8 January 2023 (the "ex-dividend date").
Have Oracle Corporation's shares ever split?
Oracle Corporation's shares were split on a 2:1 basis on 12 October 2000. So if you had owned 1 share the day before before the split, the next day you'd have owned 2 shares. This wouldn't directly have changed the overall worth of your Oracle Corporation shares – just the quantity. However, indirectly, the new 50% lower share price could have impacted the market appetite for Oracle Corporation shares which in turn could have impacted Oracle Corporation's share price.
Oracle Corporation share price volatility
Over the last 12 months, Oracle Corporation's shares have ranged in value from as little as $60.2467 up to $90.095. A popular way to gauge a stock's volatility is its "beta".
ORCL.US volatility(beta: 1)Avg. volatility(beta: 1.00)LowHigh
Beta is a measure of a share's volatility in relation to the market. The market (NYSE average) beta is 1, while Oracle Corporation's is 1. This would suggest that Oracle Corporation's shares are a little bit more volatile than the average for this exchange and represent, relatively-speaking, a slightly higher risk (but potentially also market-beating returns).
Oracle Corporation overview
Oracle Corporation offers products and services that address enterprise information technology environments worldwide. Its Oracle cloud software as a service offering include various cloud software applications, including Oracle Fusion cloud enterprise resource planning (ERP), Oracle Fusion cloud enterprise performance management, Oracle Fusion cloud supply chain and manufacturing management, Oracle Fusion cloud human capital management, Oracle Advertising, and NetSuite applications suite, as well as Oracle Fusion Sales, Service, and Marketing. The company also offers cloud-based industry solutions for various industries; Oracle application licenses; and Oracle license support services. In addition, it provides cloud and license business' infrastructure technologies, such as the Oracle Database, an enterprise database; Java, a software development language; and middleware, including development tools and others. The company's cloud and license business' infrastructure technologies also comprise cloud-based compute, storage, and networking capabilities; and Oracle autonomous database, MySQL HeatWave, Internet-of-Things, digital assistant, and blockchain. Further, it provides hardware products and other hardware-related software offerings, including Oracle engineered systems, enterprise servers, storage solutions, industry-specific hardware, virtualization software, operating systems, management software, and related hardware services; and consulting and customer services. The company markets and sells its cloud, license, hardware, support, and services offerings directly to businesses in various industries, government agencies, and educational institutions, as well as through indirect channels.
Oracle Corporation in the news
Oracle (ORCL) Dips More Than Broader Markets: What You Should Know
Oracle Corp. expands lease at interim downtown office to 100,000 square feet
Have $3,000? These 3 Stocks Could Be Bargain Buys for 2023 and Beyond
Technical analysis graphic from TradingView
Stock prices and other date from EOD Historical Data
What percentage of Oracle Corporation is owned by insiders or institutions?
Currently 42.77% of Oracle Corporation shares are held by insiders and 42.82% by institutions.
How many people work for Oracle Corporation?
Latest data suggests 143,000 work at Oracle Corporation.
When does the fiscal year end for Oracle Corporation?
Oracle Corporation's fiscal year ends in May.
Where is Oracle Corporation based?
Oracle Corporation's address is: 2300 Oracle Way, Austin, TX, United States, 78741
What is Oracle Corporation's ISIN number?
Oracle Corporation's international securities identification number is: US68389X1054
What is Oracle Corporation's CUSIP number?
Oracle Corporation's Committee on Uniform Securities Identification Procedures number is: 68389X105
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CAPE CANAVERAL, Fla. — For the first time, astronomers have discovered what could be an exomoon, a moon outside our solar system.
The so-called exomoon, which is estimated to be the size of Neptune, was found in orbit around a gigantic gas planet 8,000 light-years from Earth.
Although moons are common in our solar system, which has nearly 200 natural satellites, the long search for interstellar moons has been an empty one.
Astronomers have had success locating exoplanets around stars outside our solar system, but exomoons are harder to pinpoint because of their smaller size.
"This would be the first case of detecting a moon outside our solar system," said David Kipping, an assistant professor of astronomy at Columbia University and one of the discoverers of the potential exomoon.
But the scientists behind this discovery are hesitant to confirm that the new find is an exomoon because of some of its peculiarities and the fact that more observation is needed. Their results were published Wednesday in the journal Science Advances.
However, the finding is both promising and intriguing.
The moon, which orbits a giant exoplanet called Kepler-1625b, is incredibly large, comparable to the size of the gas giant Neptune in our solar system.
There's no analog for such a large moon in our own system. In our sky, it would appear two times bigger than Earth's moon, the researchers said.
But that size is why it was easier to find, the researchers said.
It's comparable to so-called hot Jupiters, gas giant exoplanets that are closer to their stars than Jupiter is to its own, and warmer.
These were common discoveries during the early days of exoplanet hunting because they were easy to find, but they represent only about 1 percent of known exoplanets now.
It was discovered when Columbia astronomers Kipping and Alex Teachey used NASA's Hubble Space Telescope to follow up on an intriguing find from data in the Kepler Space Telescope's exoplanet catalog.
This catalog included 284 planets found by Kepler with wide orbits around their host stars. Kepler-1625b stood out.
The researchers were awarded with 40 hours of observation time using Hubble, and the data they gathered were four times more precise than what Kepler had captured.
During a transit period, in which the planet passed in front of its star, Hubble detected a second decrease in the star's brightness after the planet.
"A companion moon is the simplest and most natural explanation for the second dip in the light curve and the orbit-timing deviation," Teachey said.
They estimate the surface temperature of both to be 176 degrees.
The star was probably cooler in the past, so this heat could be a reason for the size of the moon, inflating the gas giant as the temperature rises. But until they have more data, this is only speculation, Kipping said.
How did this moon form in the first place? There are three primary theories about how moons form.
One is when planets impact larger bodies and the blasted-off material becomes a moon.
Another is capture, when objects are captured and pulled into orbit around a large planet — like Neptune's moon Triton, which is believed to be a captured Kuiper Belt object.
And the third is moons forming from the disc materials that created the planets in the early days of the solar system.
Teachey and Kipping are submitting proposals for more time on Hubble to observe this planet and its moon during another transit.
If they are able to observe a full transit, representative of a "clean moonlike event, then I think we're done," Kipping said.
That would confirm that the find is an exomoon.
But for now, the researchers welcome comment and criticism of their hypothesis from other astronomers as part of the scientific process.
In the Kepler exoplanet catalog, there are only a few Jupiter-size planets that are farther from their star than Earth is from the sun — good candidates for moons because of the distance.
Once the James Webb Space Telescope launches in 2021, the search for exomoons may be full of possibilities. "We can expect to see really tiny moons," Kipping said.


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Now Reading: Ted Cruz, Manchurian Candidate
Ted Cruz, Manchurian Candidate
How the junior senator from Texas helped precipitate a milestone in the growth of the Chinese state.
Ted Cruz receives rapturous applause at a conference put on by Americans For Prosperity in Dallas, August 2014. Christopher Hooks
Christopher Hooks Mar 30, 2015, 4:34 pm CST
Yes, Ted Cruz hails from a foreign land, as late-night comedians and the nation's hackiest political commentators have been happy to inform you. But the headline is about something else. Something that you wouldn't normally read about in the Observer: The games great powers play in Asia. In March, we've seen some important milestones in the gradual expansion of Chinese state power—events that our state's junior senator had a small but significant role in bringing about.
If that sounds like a stretch, let's go back a bit. Over the last few weeks, we've witnessed the growth of the Asian Infrastructure Investment Bank, an international financial institution first proposed by the Chinese government in late 2013 that really got going in the second half of last year. The AIIB is intended to be China's answer to other financial institutions such as the World Bank, the International Monetary Fund and the Asian Development Bank, banks in which the United States, Europe and Japan have outsized influence.
The AIIB's stated goal is to raise and distribute capital for the development of major infrastructure projects in Asia, for countries that can't afford them on their own. Whatever you think of financial institutions like the IMF and ADB—they have plenty of detractors—the creation of a rival institution through which China can build influence in Asia is clearly suboptimal from the perspective of American power.
The primary reason China wanted the AIIB in the first place is that it has been getting cut out of the decision-making process at the international banks—it was growing wary of the ADB, in which its rival Japan is the biggest stakeholder. And despite putting more and more money into the World Bank and IMF, it didn't have voting power in the organizations commensurate with its new financial power. This seriously irked China, and there's good reason to believe that talk of the AIIB might have begun as nothing more than a threat intended to force change.
In all things, Cruz and his friends don't want the branches of American power to bend.
The thing is, almost everybody was willing to give China more votes. There was a plan worked out years ago to increase the voting power that emerging economies get in the banks—one which barely altered America's power in the organizations. The IMF leadership endorsed it heartily. It was backed by all of its members, including the U.S. The Obama administration happily backed the deal, but it fell to Congress to confirm the new plan.
Congress being Congress, it went for years without doing so. But then, last spring, it finally looked as if it might act. Senate leadership attached the badly overdue IMF reforms to an aid package to the faltering Ukrainian government, which would be getting assistance through the bank. Cruz played a critical role in killing it. Here's what the Observer wrote in April about how things went down:
Cruz released an open letter to Senate Majority Leader Harry Reid announcing his intention "to object to any floor consideration of Ukraine aid legislation that contains these IMF provisions." It's been reported that Cruz asked all Senate Republicans to co-sign the letter. In the end, only five did (stalwart Cruz ally Mike Lee and the idiosyncratic Rand Paul among them.) The letter is full of blank lines for signatures that were not provided. Nevertheless, the bill started to have problems.
House Republicans began announcing their intent to oppose the Senate language. A growing number of GOP Senators began to express disquiet. That left longtime Cruz nemesis John McCain sputtering with fury. Those who were hoping to slow or strip the bill were "on a fool's errand," just like the government shutdown. They had left him "embarrassed" by his party.
But the opposition to the bill grew. The aid bill slipped into the next week—then the next. What had begun as an uncontroversial provision had become a poison pill. Marco Rubio joined the crusade, though he didn't go as far as Cruz. (He'd previously characterized the reforms as "Russian-backed.") It became apparent that many were willing to kill the Ukraine aid bill rather than accept the IMF reforms. Early last week, Reid conceded defeat—he'd strip the bill.
It was the closest Congress had come to ratifying the IMF reform package, and its failure left congressional Republicans more unified in opposition to the reform measures. The fiasco seemed, to many observers, evidence that Congress would never let China and other emerging economies have more voting power.
And so the Chinese search for an alternative accelerated. A few months later, it unveiled grand plans for its new bank, and observers told the Financial Times the proposal was directly tied to the death of IMF reform:
"China feels it can't get anything done in the World Bank or the IMF so it wants to set up its own World Bank that it can control itself," said one person directly involved in discussions to establish the AIIB.
Now, Cruz's quixotic killing of IMF reform wasn't the only time Uncle Sam shot itself in the foot over the AIIB: As Dan Drezner writes in the Washington Post, the Obama administration's hopeless bungling of the issue now means U.S. allies are becoming founding members of the bank against American wishes, while the U.S. is out in the cold—where the smart thing to do might just have been to join the bank, too.
But Congress—and Cruz specifically—bears a significant amount of blame. Plenty of Republicans were happy to vote for IMF reform until it was made a litmus-test issue. Some Republicans now acknowledge stalling on the IMF package was a mistake: Alabama Senator Jeff Sessions, no hippie squish, told a policy forum in Brussels recently that the policy fumble was "an unfortunate event and it might be bigger than we understand today."
Would the Chinese have launched the bank anyway if IMF reforms had been passed? Maybe so—but that's a question historians might debate someday as they chart the rise of Chinese influence in Asia.
It's a crummy way to manage a superpower whose influence is in relative, though not absolute, decline. It's one of the few things Cruz has done in Congress that has had real consequences. Now, of course, he's asking for control of American foreign policy.
In all things, Cruz and his friends don't want the branches of American power to bend. They use words like "muscular" to define their approach to the world: They see compromise as a sin. Branches that don't bend break, of course. But there's a danger, too, that our friends will just go find another tree.
Read More: China, foreign policy, International Monetary Fund, Ted Cruz


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STOCKHOLM, April 18 (Reuters) - Sweden's Financial Supervisory Authority (FSA) has withdrawn the operating licence of corporate finance firm Remium Nordic AB after breaches in internal controls and risk management, the watchdog said on Wednesday.
Remium was warned and fined 3.5 million Swedish crowns ($415,000) by the FSA last year over similar issues.
The FSA said that flaws in risk management and internal controls meant that Remium "had not made the impairment tests required and consequently had not made sufficient writedowns in its credit portfolio".
The authority also said there were concerns about Remium's ownership structure.
"The ownership situation and the company's ties with other companies are hard to clarify both for the FSA and for external parties and furthermore hamper the FSA's oversight," the FSA said in a statement.
Remium, which provides a range of services including equity research, corporate finance and asset management focused on small and medium-sized companies, said it intended to appeal against the decision.
"Remium does not share the opinion of the FSA that the company has had flaws in either internal management or control," the company said in a statement.
It said that the risk level in its credit portfolio was correctly reported in terms of writedowns, adding that the FSA's decision did not affect those operations not subject to licensing.
"Remium's operations will continue as before," the company added.
The FSA said that Remium managed roughly 420 million crowns in deposits and had provided liquidity guarantees for about 50 corporate clients.


When I'm not making art I am a writer.
I studied for my BA and MA in Literature at the University of Essex and I did an MA in Screenwriting at the University of East Anglia.
I am currently writing speculative screenplays and a novel.


text:
Streptomyces coelicolor ist ein grampositives Bakterium, das im Boden vorkommt. Der Artname bedeutet "himmelsfarbig".

S. coelicolor ist ein Modellorganismus für die Actinomycetales. Folgende Merkmale sind für Streptomyceten typisch:
 Sie wachsen als fadenförmige, oft verzweigte Hyphen, die einem Pilz-Mycel ähneln. Zuerst entsteht das Substratmycel, welches sich auf einem festen Untergrund bildet. Auf diesem entwickelt sich das Luftmycel.
 Am Ende der Luftmycelfilamente bilden sich Exosporen, die aber nicht die Widerstandsfähigkeit der Endosporen besitzen.
 Streptomyceten sind Antibiotikaproduzenten.
 Sie besitzen lineare statt circuläre Chromosomen.

Das Genom von S. coelicolor wurde 2002 sequenziert.

Für die praktische Arbeit mit S. coelicolor, insbesondere für genetische Arbeiten, sind spezielle Arbeitstechniken notwendig.

Literatur

Weblinks
 S. coelicolor genome homepage (Sanger Institute)
 SIB: Filamentous bacteria: one membrane (Gram+): Morphology typical of Streptomyces coelicolor – Zelle von Streptomyces coelicolor mit Spore, Interaktive Graphik von SwissBioPics

Streptomycineae (Unterordnung)
Streptomycineae
Modellorganismus
Bakterium mit sequenziertem Genom

redpajama_set_name: RedPajamaWikipedia


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They began by building furniture and cabinetry, like our RH Lavega Chair in their mother's home in 2001, apprenticing under an experienced craftsman named Floyd Miller and producing a line of five different chair styles. As their business and expertise grew they expanded into a slightly larger facility and now have a 20,000-square foot state-of-the-art facility on Richard's property, which is the home of R.H. Yoder Woodworking today. They began by building furniture and cabinetry in their mother's home in 2001, apprenticing under an experienced craftsman named Floyd Miller and producing a line of five different chair styles. As their business and expertise grew they expanded into a slightly larger facility and now have a 20,000-square foot state-of-the-art facility on Richard's property, which is the home of R.H. Yoder Woodworking today.