This is the last of three posts about Cancel Culture, and the National Association of Scholars (NAS) conference on Fixing Science, held February 7^th and 8^th, in Oakland, California.

In finding my participation in the National Association of Scholars’ conference on Fixing Science, “worrying” and “concerning,” John Mashey takes his cues from the former OSHA Administrator, David Michaels. David Michaels has written much about industry conflicts of interests and efforts to influence scientific debates and discussions. He popularized the notion of “manufacturing doubt,”[1] with his book of that title. I leave it to others to decide whether Mashey’s adverting to Michaels’ work, in finding my writings on silica litigation “concerning” and “worrying,” is itself worrisome. In order to evaluate Mashey’s argument, such as it is, the reader should know something more about David Michaels, and his publications.[2]

As one might guess from its title, The Triumph of Doubt: Dark Money and the Science of Deception, Michaels’ new book s appears to be a continuation of his attack on industry’s efforts to influence regulation. I confess not to have read this new book yet, but I am willing to venture a further guess that the industry Michaels is targeting is manufacturing industry, not the lawsuit industry, for which he has worked on many occasions. There is much irony (and no little hypocrisy) in Michaels’ complaints about dark money and the science of deception. For many years, Michaels ran the now defunct The Project on Scientific Knowledge and Public Policy (SKAPP), which was bankrolled by the plaintiffs’ counsel in the silicone gel breast implant litigation. Whenever SKAPP sponsored a conference, or a publication, the sponsors or authors dutifully gave a disclosure that the meeting or publication was underwritten by “a grant from the Common Benefit Trust, a fund established pursuant to a federal court order in the Silicone Gel Breast Implant Products Liability litigation.”

Non-lawyers might be forgiven for thinking that SKAPP and its propaganda had the imprimatur of the federal court system, but nothing could be further from the truth. A common benefits fund is the pool of money that is available to plaintiffs’ lawyers who serve on the steering committee of a large, multi-district litigation, to develop expert witnesses, analyze available scientific studies, and even commission studies of their own.[3] The source of the money was a “tax” imposed upon all settlements with defendants, which funneled the money into the so-called common benefits fund, controlled by the leadership of the plaintiffs’ counsel. When litigating the silicone gel breast implant cases involving claims of autoimmune disease became untenable due to an overwhelming scientific consensus against their causal claims,[4] the leadership of the plaintiffs’ steering committee gave the remaining money to SKAPP, rather than returning the money to the plaintiffs themselves.  David Michaels and his colleagues at SKAPP then misrepresented the source of the money as coming from a “trust fund” established by the federal court, which sounded rather like a neutral, disinterested source. This fund, however, was “walking around” money for the plaintiffs’ lawyers, which belonged to the settling plaintiffs, and which was diverted into a major propaganda effort against the judicial gatekeeping of expert witness opinion testimony.[5] A disinterested reader might well believe that David Michaels thus has some deep personal experience with “dark money,” and “the science of deception.” Mashey might be well advised to consider the adjacency issues raised by his placing such uncritical trust in what Michaels has published.

Regardless of David Michaels’ rhetoric, doubt is not such a bad thing in the face of uncertain and inconclusive evidence. In my view, we could use more doubt, and open-minded thought. Bertrand Russell is generally credited with having written some years ago:

“The biggest cause of trouble in the world today is that the stupid people are so sure about things and the intelligent folks are so full of doubts.”

What are we to make then of the charge by Dorothy Bishop that the conference would not be about regular scientific debate, but

“about weaponising the reproducibility debate to bolster the message that everything in science is uncertain — which is very convenient for those who wish to promote fringe ideas.”

I attended and presented at the conference because I have a long-standing interest in how scientific validity is assessed in the scientific and in the legal world. I have been litigating such issues in many different contexts for over 35 years, with notable scientific experts occasionally on either side. One phenomenon I have observed repeatedly is that expert witnesses of the greatest skill, experience, and knowledge are prone to cognitive biases, fallacies, and other errors. One of my jobs as a legal advocate is to make sure that my own expert witnesses engage fully with the evidence as well as how my adversaries are interpreting the evidence. In other words, expert witnesses of the highest scientific caliber succumb to biases in interpreting studies and evidence.

A quick anecdote, war story, will I hope make the point. A few years ago, I was helping a scientist get ready to testify in a case involving welding fume exposure and Parkinson’s disease. The scientist arrived with some PowerPoint slides, one of which commented that a study relied upon by plaintiffs’ expert witnesses had a fatal design flaw that rendered its conclusions invalid. Another slide embraced a study, sponsored by a co-defendant company, which had a null result but the same design flaw called out in the study used by plaintiff’s witnesses. It was one in the morning, but I gently pointed out the inconsistency, and the scientist immediately saw the problem and modified his slides.

The next day, my adversary noticed the lack of the codefendant’s study in the group of studies this scientist had relied upon. He cross-examined the scientist about why he had left out a study, which the codefendant had actually sponsored. The defense expert witness testified that the omitted study had the same design flaw as seen in the study embraced by plaintiffs’ expert witnesses, and that it had to be consigned to the same fate. The defense won this case, and long after the celibration died down, I received a very angry call from a lawyer for the codefendant. The embrace of bad studies and invalid inferences is not the exclusive province of the plaintiffs’ bar.

My response to Dorothy Bishop is that science ultimately has no political friends, although political actors will try to use criteria of validity selectively to arrive at convenient, and agreeable results. Do liberals ever advance junk science claims? Just say the words: Robert F. Kennedy, Jr. How bizarre and absurd for Kennedy to come out of a meeting with Trump’s organization, to proclaim a new vaccine committee to investigate autism outcomes! Although the issue has been explored in detail in medical journals for the last two decades, apparently there can even be bipartisan junk science. Another “litmus test” for conservatives would be whether they speak out against what are, in my view, unsubstantiated laws in several “Red States,” which mandate that physicians tell women who are seeking abortions that abortions cause breast cancer. There have been, to be sure, some studies that reported increased risks, but they were mostly case-control studies in which recall and reporting biases were uncontrolled. Much better, larger cohort studies done with unbiased information about history of abortions failed to support the association, which no medical organization has taken to be causal. This is actually a good example of irreproducibility that is corrected by the normal evolutionary process of scientific research, with political exploitation of the earlier, less valid studies.

Did presenters at the Fixing Science conference selectively present and challenge studies? It is difficult for me to say, not having a background in climate science. I participated in the conference to talk about how courts deal with problems of unreliable expert witness testimony and reliance upon unreliable studies. But what I heard at the conference were two main speakers argue that climate change and its human cause were real. The thrust of the most data-rich presentation was that many climate models advanced are overstated and not properly calibrated.  Is Bishop really saying that we cannot have a civil conversation about whether some climate change models are poorly done and validated? Assuming that the position I heard is a reasonable interpretation of the data and the models, it establishes a “floor” in opposition to the ceilings asserted by other climate scientists. There are some implications; perhaps the National Association of Scholars should condemn Donald Trump and others who claim that climate change is a hoax. Of course, condemning Trump every time he says something false, stupid, and unsupported would be a full time job. Having staked out an interest climate change, the Association might well consider balancing the negative impression others have of it as “deniers.”

The Science Brief

Back in June 2018, the National Association of Scholars issued a Science Brief, which it described as its official position statement in the area. A link to the brief online was broken, but a copy of the brief was distributed to those who attended the Fixing Science conference in Oakland. The NAS website does contain an open letter from Dr. Peter Wood, the president of the NAS, who described the brief thus:

“the positions we have put forward in these briefs are not settled once and for all. We expect NAS members will critique them. Please read and consider them. Are there essential points we got wrong? Others that we left out? Are there good points that could be made better?

We are not aiming to compile an NAS catechism. Rather, we are asked frequently by members, academics who are weighing whether to join, reporters, and others what NAS ‘thinks’ about various matters. Our 2,600 members (and growing) no doubt think a lot of different things. We prize that intellectual diversity and always welcome voices of dissent on our website, in our conferences, and in our print publications. But it helps if we can present a statement that offers a first-order approximation of how NAS’s general principles apply to particular disciplines or areas of inquiry.

We also hope that these issue briefs will make NAS more visible and that they will assist scholars who are finding their way in the maze of contemporary academic life.

As a preface to an attempt to address general principles, Peter Wood’s language struck me as liberal, in the best sense of open-minded and generous in spirit to the possibility of reasoned disagreement.

So what are the NAS principles when it comes to science? Because the Science Brief seems not to be online at the moment, I will quote it here at length:

OVERVIEW

The National Association of Scholars (NAS) supports the proper teaching and practice of science: the systematic exercise of reason, observation, hypothesis, and experiment aimed at understanding and making reliable predictions about the material world. We work to keep science as a mode of inquiry engaged in the disinterested pursuit of truth rather than a collection of ‘settled’ conclusions. We also work to integrate course requirements in the unique history of Western science into undergraduate core curricula and distribution requirements. The NAS promotes scientific freedom and transparency.

We support researchers’ freedom to formulate and test any scientific hypothesis, unconstrained by political inhibitions. We support researchers’ freedom to pursue any scientific experiment, within ethical research guidelines. We support transparent scientific research, to foster the scientific community’s collective search for truth.

The NAS supports course requirements on the history and the nature of the Western scientific tradition.

All students should learn a coherent general narrative of the history of science that tells how the scientific disciplines interrelate. We work to restore core curricula that include both the unique history of Western science and an introduction to the distinctive mode of Western scientific reasoning. We also work to add new requirements in statistics and experimental design for majors and graduate students in the sciences and social sciences.

The NAS works to reform the practice of modern science so that it generates reproducible results. Modern science and social science are crippled by a crisis of reproducibility. This crisis springs from a combination of misused statistics, slipshod research techniques, and political groupthink. We aim to eliminate the crisis of reproducibility by grounding scientific practice in the meticulous traditions of Western scientific thought and rigorous reproducibility standards.

The NAS works to eliminate the politicization of undergraduate science education.

Our priority is to dismantle advocacy-based science, which discards the exercise of rational skepticism in pursuit of truth when it explicitly declares that scientific inquiry should serve policy advocacy. We therefore work to remove advocacy-based science from the classroom and from university bureaucracies. We also criticize student movements that demand the replacement of disinterested scientific inquiry with advocacy-based science. We focus our critiques on disciplines such as climate science that are mostly engaged in policy advocacy.

The NAS tracks scientific controversies that affect public policy, studies the remedies that scientists propose, and criticizes laws, regulations, and proposed policies based upon advocacy-based science.

We do this to prevent a vicious cycle in which advocacy-based science justifies the misuse of government – and private funding to support yet more advocacy-based science. We also work to reform the administration of government science funding so as to prevent its capture by advocacy-scientists.  The NAS’s scientific reports draw on the expertise of its member scholars and staff, as well as independent scholars. Our aim is to provide professionally credible critiques of America’s science education and science-based public policy.

John Mashey in his critique of the NAS snarkily comments that folks at the NAS lack the expertise to make the assessments they call for. Considering that Mashey is a computer scientist, without training in the climate or life sciences, his comments fall short of their mark. Still, if he were to have something worthwhile to say, and he supported his statements by sufficient evidence and reasoning, I believe we should take it seriously.

Nonetheless, the NAS statement of principles and concerns about how science and statistics is taught are unexceptional. I suspect that neither Mashey nor anyone else is against scientific freedom, methodological rigor,  and ethical, transparent research.

The scientific, mathematical, and statistical literacy of most judges and lawyers, is poor indeed. The Law School Admission Test (LSAT) does not ask any questions about statistical reasoning. A jury trial is not a fair, adequate opportunity to teach jurors the intricacies of statistical and scientific methods. Most medical schools still do not teach a course in experimental design and statistical analysis. Until recently, the Medical College Acceptance Test (MCAT) did not ask any questions of a statistical nature, and the test still does not require applicants to have taken a full course in statistics. I do not believe any reasonable person could be against the NAS’s call for better statistical education for scientists, and I would add for policy makers. Certainly, Mashey offers no arguments or insights on this topic.

Perhaps Mashey is wary of the position that we should be skeptical of advocacy-based science, for fear that climate-change science will come in for unwelcomed attention. If the science is sound, the data accurate, and the models valid, then this science does not need to be privileged and protected from criticism. Whether Mashey cares to acknowledge the phenomenon or not, scientists do become personally invested in their hypotheses.

The NAS statement of principles in its Science Brief thus seems worthy of everyone’s support. Whether the NAS is scrupulous in applying its own principles to positions it takes will require investigation and cautious vigilance. Still, I think Mashey should not judge anyone harshly lest he be so judged. We are a country of great principles, but a long history of indifferent and sometimes poor implementation. To take just a few obvious examples, despite the stirring words in the Declaration of Independence about the equality of all men, native people, women, and African slaves were treated in distinctly unequal and deplorable ways. Although our Constitution was amended after the Civil War to enfranchise former slaves, our federal government, after an all-too-short period of Reconstruction, failed to enforce the letter or the spirit of the Civil War amendments for 100 years, and then some. Less than seven years after our Constitution was amended to include freedom from governmental interference with speech or publication, a Federalist Congress passed the Alien and Sedition Acts, which President Adams signed into law in 1798. It would take over 100 years before the United States Supreme Court would make a political reality of the full promise of the First Amendment.

In these sad, historical events, one thing is clear. The promise and hope of clearly stated principles did prevail. To me, the lesson is not to belittle the principles or the people, but to hold the latter to the former.  If Mashey believes that the NAS is inconsistent or hypocritical about its embrace of what otherwise seems like worthwhile first principles, he should say. For my part, I think the NAS will find it difficult to avoid a charge of selectivity if it were to criticize climate change science, and not cast a wider net.

Finally, I can say that the event sponsored by the Independent Institute and the NAS featured speakers with diverse, disparate opinions. Some speakers denied that there was a “crisis,” and some saw the crisis as overwhelming and destructive of sound science. I heard some casual opinions of climate change skepticism, but from the most serious, sustained look at the actual data and models, an affirmation of anthropogenic climate change. In the area of health effects, the scientific study more relevant to what I do, I heard a fairly wide consensus about the need to infuse greater rigor into methodology and to reduce investigators’ freedom to cherry pick data and hypotheses after data collection is finished. Even so, there were speakers with stark disagreement over methods. The conference was an important airing and exchanging of many ideas. I believe that those who attended and who participated went away with less orthodoxy and much to contemplate. The Independent Institute and the NAS deserve praise for having organized and sponsored the event. The intellectual courage of the sponsors in inviting such an intellectually diverse group of speakers undermines the charge by Mashey, Teytelman, and Bishop that the groups are simply shilling for Big Oil.

[1]        David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (2008).

[2]        David Michaels, The Triumph of Doubt: Dark Money and the Science of Deception (2020).

[3]        See, e.g., William Rubenstein, “On What a ‘Common Benefit Fee’ Is, Is Not, and Should Be,” Class Action Attorney Fee Digest 87, 89 (March 2009).

[4]        In 1999, after much deliberation, the Institute of Medicine issued a report that found the scientific claims in the silicone litigation to be without scientific support. Stuart Bondurant, et al., Safety of Silicone Breast Implants (I.O.M. 1999).

[5]        I have written about the lack of transparency and outright deception in SKAPP’s disclosures before; see “SKAPP A LOT” (April 30, 2010); “Manufacturing Certainty” (Oct. 25, 2011); “The Capture of the Public Health Community by the Litigation Industry” (Feb. 10, 2014); “Daubert’s Silver Anniversary – Retrospective View of Its Friends and Enemies” (Oct. 21, 2018); “David Michaels’ Public Relations Problem” (Dec. 2, 2011)