^† B.A. (Honors) (Medal), LL.B. (Hons), St. Johns College, University of Cambridge.

^‡ B.A. (Honors), Ph.D., Lecturer, School of Science and Technology Studies, University of Wollongong.

^* Authors listed alphabetically. We would like to thank David Fraser and Colin Phegan, Faculty of Law, University of Sydney, for comments on earlier drafts; David Miller and Evelleen Richards, School of Science and Technology Studies, University of New South Wales; Jill Hunter, Faculty of Law, University of New South Wales; and John Schuster and members of the Programme in the History, Philosophy and Politics of Science, University of Wollongong, for thoughtful discussion and comments on various sections. We would also like to thank three anonymous referees for their suggestions and comments.

¹ See generally David E. Bernstein, Junk Science in the United States and the Commonwealth, 21 YALE J. INT'L L. 123, 124-25 (1996) (summarizing the history of the junk science concept); David E. Bernstein, The Admissibility of Scientific Evidence After Daubert v. Merrell Dow Pharmaceuticals, Inc., 15 CARDOZO L. REV. 2139 (1994); Sophia I. Gatowski et al., The Diffusion of Scientific Evidence: A Comparative Analysis of Admissibility Standards in Australia, Canada, England, and the United States, and Their Impact on Social and Behavioral Sciences, 4 EXP. EVID. 86 (1996); Stephen J. Odgers & James T. Richardson, Keeping Bad Science Out of the Courtroom -- Changes in American and Australian Expert Evidence Law, 18 U. NEW S. WALES L.J. 108, 129 (1995).

² Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

³ See, e.g., Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda-Building, 52 LAW & CONTEMP. PROBS. 269 (1989); Gary Edmond & David Mercer, Scientific Literacy and the Jury: Reconsidering Jury "Competence," 6 PUB. UNDERSTANDING OF SCI. 329 (1997); Ian Freckelton, Expert Evidence and the Role of the Jury, 12 AUSTL. BAR REV. 73 (1994); Neil Vidmar, Are Juries Competent to Decide Liability in Tort Cases Involving Scientific/Medical Issues? Some Data from Medical Malpractice, 43 EMORY L.J. 885 (1994).

⁴ See Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. U.L. REV. 1637, 1705-23 (1993) (detailing Huber's emergence in the late 1980s and early 1990s); see also Dan Quayle, Civil Justice Reform, 41 AM. U.L. REV. 559, 565 (1992) (quoting Huber to argue that junk science is tarnishing the legal process).

⁵ PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991) [hereinafter GALILEO'S REVENGE]; see also PHANTOM RISK: SCIENTIFIC INFERENCE AND THE LAW (Kenneth R. Foster et al. eds., 1993); Foster, Bernstein & Huber, Science and the Toxic Tort, 261 SCIENCE 1509 (1993); Peter W. Huber, Fact Versus Quack, FORBES, July 4, 1994, at 132; Peter W. Huber, Junk Science in the Courtroom, 26 VAL. U. L. REV. 723 (1992); Peter W. Huber, Medical Experts and the Ghost of Galileo, 54 LAW & CONTEMP. PROBS. 119 (1991).

⁶ See GALILEO'S REVENGE, supra note 5, at 181-82, for Huber's description of the litigation explosion. For a history of the alleged phenomenon, see WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT (1991).

⁷ See Eliot Martin Blake, Rumors of Crisis: Considering the Insurance Crisis and Tort Reform in an Information Vacuum, 37 EMORY L.J. 401 (1988); James A. Henderson, Jr. & Theodore Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 UCLA L. REV. 479 (1990); John A. Siliciano, Mass Torts and the Rhetoric of Crisis, 80 CORNELL L. REV. 990 (1995).

⁸ Cf. Robert F. Blomquist, Emerging Themes and Dilemmas in American Toxic Tort Law, 1988-91: A Legal-Historical and Philosophical Exegesis, 18 S. ILL. U. L.J. 1 (1993); Dan L. Burk, When Scientists Act like Lawyers: The Problem of Adversary Science, 33 JURIMETRICS J. 363, 369 (1993); Deborah Maliver, Out of the Fryeing Pan and into Daubert: Trial Judges at the Gate Will Not Spell Relief for Plainitffs, 56 U. PITT. L. REV. 245, 248 (1994) ("In recent years, both courts and commentators have expressed concern that 'junk science' has pervaded civil litigation, particularly litigation involving toxic torts."); Richard L. Marcus, Evidence, Discovery Along the Litigation/Science Interface, 57 BROOK. L. REV. 381 (1991); Deborah Young, The Impact of Science and Technology on the Courts, 43 EMORY L.J. 853, 854 (1994) ("For years courts have struggled with finding the proper balance between admitting novel scientific evidence and excluding 'junk science.'").

⁹ See generally Joseph Sanders, From Science to Evidence: The Testimony on Causation in the Bendectin Cases, 46 STAN. L. REV. 1 (1993). Studies in the public understanding of science show nonetheless that the public still holds a generally positive image of science and expertise, a common feature being ambivalence towards the claims of specific experts rather than the rejection of expertise per se. See, e.g., ALAN IRWIN, CITIZEN SCIENCE: A STUDY OF PEOPLE, EXPERTISE AND SUSTAINABLE DEVELOPMENT (1995); SHEILA JASANOFF, SCIENCE AT THE BAR: LAW, SCIENCE, AND TECHNOLOGY IN AMERICA (1995); Mike Michael, Lay Discourses of Science: Science-in-General, Science-in-Particular, and Self, 17 SCI. TECH. & HUM. VALUES 313 (1992).

¹⁰ Huber's discourse reinforces related themes which appeared in popular discourse on technological risk. See, e.g., MARY DOUGLAS & AARON WILDAVSKY, RISK AND CULTURE: AN ESSAY ON THE SELECTION OF TECHNICAL AND ENVIRONMENTAL DANGERS (1982); William C. Clark, Witches, Floods, and Wonder Drugs: Historical Perspectives on Risk Management, in SOCIETAL RISK ASSESSMENT 287 (Richard C. Schwing & Walter A Albers, Jr. eds., 1980). For critiques of these approaches see LANGDON WINNER, THE WHALE AND THE REACTOR: A SEARCH FOR LIMITS IN AN AGE OF HIGH TECHNOLOGY 138-54 (1986).

¹¹ See, e.g., JOSEPH R. GUSFIELD, THE CULTURE OF PUBLIC PROBLEMS: DRINKING-DRIVING AND THE SYMBOLIC ORDER (1981); Robert M. Hayden, The Cultural Logic of a Political Crisis: Common Sense, Hegemony and the Great American Liability Insurance Famine of 1986, 11 STUD. L. POL. & SOC'Y 95 (1991).

¹² See generally Robert F. Blomquist, Science, Toxic Tort Law, and Expert Evidence: A Reaction to Peter Huber, 44 ARK. L. REV. 629, 653 (1991); Henderson & Eisenberg, supra note 7, at 480 (describing state reaction to the perceived crisis brought on by extending liability).

¹³ See GALILEO'S REVENGE, supra note 5, at 214 ("We . . . have no precise definition of 'junk science,' 'pseudoscience,' 'quack,' 'crank,' 'crackpot,' or 'snake oil.'"); see also Blomquist, supra note 12, at 635-37 ("law and sciosophy," "pathological science," "pseudo-scientist," "junk science," "critics, from the fringes of science and beyond," "unorthodox nostrums," "unrecognised techno-terrors," "the well-known Cheshire Cat ph ¹³ See GALILEO'S REVENGE, supra note 5, at 214 ("We . . . have no precise definition of 'junk science,' 'pseudoscience,' 'quack,' 'crank,' 'crackpot,' or 'snake oil.'"); see also Blomquist, supra note 12, at 635-37 ("law and sciosophy," "pathological science," "pseudo-scientist," "junk science," "critics, from the fringes of science and beyond," "unorthodox nostrums," "unrecognised techno-terrors," "the well-known Cheshire Cat phenomenon," "non-science," "bad scientists," "bad doctor," "quack cures," "quackcure movement," "extreme junk scientists," "modern crank," "the eccentric," "the true believers," "the proselytizers," "the missionaries," "reckless expertise," "charlatans," "the Aquarians," "the wanton witness," "the torrid testifier," "the licentious legal side-kick," "professional expert," "talking head," "the entrepreneurial experts," "defrocked professionals," "Darwinian Avenger," "hired gun," "'willows in the wind' consultants," "saxophones," "Mr. Professional Witness, U.S.A.," "farsiders," "typical paint-by-the-numbers presentation," "pseudo-scientific flim-flam," "repeat players," "fad terrors," "scam," "activist faith," and "witch hunters"). Compare this to Peter W. Sperlich, The Liability of Junk and the Junk of Liability: Evidentiary Misdeeds in the Courts, 75 JUDICATURE 273, 273 (1992) (book review) ("Galileo's Revenge: Junk Science in the Courtroom is an important publication. . . . The writing is graceful and free of jargon.").

¹⁴ See, e.g., Scott C. Andre, Weird Science: Problems with the U.S. Supreme Court's New Evidentiary Standard for Expert Scientific Testimony and Oregon Case Law as a Possible Solution, 73 OR. L. REV. 691 (1994); Bernstein, Junk Science in the United States and the Commonwealth, supra note 1, at 179 (referring to "speculative litigation," "speculative lawsuits," and "dubious science"); Bert Black, A Unified Theory of Scientific Evidence, 56 FORDHAM L. REV. 595, 669 (1988) (referring to testimony that is "patently unscientific"); Faigman, Porter & Saks, Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 CARDOZO L. REV. 1799, 1816 (1994) (referring to "shoddy science"); Paul C. Gianelli, Daubert: Interpreting the Federal Rules of Evidence, 15 CARDOZO L. REV. 1999, 2021 (1994) (referring to "specious testimony").

¹⁵ See, e.g., Faigman, supra note 14, at 1803 ("But science -- good, bad, and pseudo -- began long before 1923, as did the testimony of good, bad, and pseudoexperts.").

¹⁶ See, e.g., G. Michael Fenner, Evidence Review: The Past Year in the Eighth Circuit, plus Daubert, 28 CREIGHTON L. REV. 611, 640 (1995) (quoting an Omaha World Herald editorial that defined junk science, in the courtroom context, as "testimony from expert witnesses who operate outside the mainstream of scientific thought"); Andre A. Moenssens, Novel Scientific Evidence in Criminal Cases: Some Words of Caution, 84 J. CRIM. L. & CRIMINOLOGY 1 (1993). For a discussion of the critical role played by "mainstream" science, see JASANOFF, supra note 9.

¹⁷ See, e.g., Maliver, supra note 8, at 248 ("The Frye test was believed by many to guard against infiltration by 'junk science'; Michael Rustad & Thomas Koenig, The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. REV. 1060, 1082 (1994) ("Such evidence is not automatically 'junk science' simply because it may not yet be generally accepted."). Advocates of the Frye test maintained that by requiring that a scientific technique or theory be subjected to peer review before gaining entrance into a courtroom, 'junk' would be weeded out by those who truly understood the science.") (footnote omitted).

¹⁸ See, e.g., Paul R. Rice, Expert Testimony: A Debate Between Logic or Tradition Rather than Between Deference or Education, 87 NW. U. L. REV. 1166, 1168 (1993) ("[E]ducation versus deference is the real substantive issue underlying the structure of expert testimony, the Frye controversy, and related proposals about 'scientific consensus' in novel, or junk, scientific areas."); Young, supra note 8, at 854 ("For years courts have struggled with finding the proper balance between admitting novel scientific evidence and excluding 'junk science.'").

¹⁹ Young, supra note 8, at 858 ("Galileos are apt to depend on novel methodology while junk scientists are likely to draw from valid methodology but reach ill-founded and dubious conclusions.").

²⁰ See, e.g., Bert Black, Francisco J. Ayala & Carol Saffron-Brinks, Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, 761 (1994) ("Some scientists refer to this kind of work as pathological science, characterized by a fixation on effects that are difficult to detect, a readiness to disregard prevailing ideas and theories, and an unwillingness to conduct meaningful experimental testing."); Alan W. Tamarelli, Jr., Daubert v. Merrell Dow Pharmaceuticals: Pushing The Limits of Scientific Reliability -- The Questionable Wisdom of Abandoning the Peer Review Standard for Admitting Expert Testimony, 47 VAND. L. REV. 1175, 1178 n.15 ("'Junk science' is a pejorative term describing novel scientific testimony that has only a weak grounding in established and well-tested principles or methods. It refers to evidence that is held out to the trier of fact as scientific but lacks the element of reliability normally associated with that type of information. Courts and commentators have recognized the danger presented by making this testimony available to juries . . . but junk science nevertheless represents a growing problem in complex, modern litigation.").

²¹ See Clifton T. Hutchinson & Danny S. Ashby, Daubert v. Merrell Dow Pharmaceuticals, Inc.: Redefining the Bases for Admissibility of Expert Scientific Testimony, 15 CARDOZO L. REV. 1875, 1886 (1994); Miller, Rein & Bailey, Daubert and the Need for Judicial Scientific Literacy, 77 JUDICATURE 254, 260 (1994); Sean O'Connor, The Supreme Court's Philosophy of Science: Will the Real Karl Popper Please Stand Up?, 35 JURIMETRICS J. 263, 276 (1995); James T. Richardson et al., The Problems of Applying Daubert to Psychological Syndrome Evidence, 79 JUDICATURE 10, 16 (1995).

²² Lee Loevinger, Science and Legal Rules of Evidence: A Review of Galileo's Revenge: Junk Science in the Courtroom, 32 JURIMETRICS J. 487, 500 (1992) (book review) (italics added).

²³ See Bernstein, Junk Science in the United States and the Commonwealth, supra note 1, at 173 ("[A]re juries able and willing to distinguish junk science from sound scientific evidence?"); Edward V. Di Lello, Note, Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level, 93 COLUM. L. REV. 473 (1993); Steven J. Grossman & Christopher K. Gagne, Science and Scientific Evidence II, 25 CONN. L. REV. 1053, 1065 (1993); James M. Wood & John E. Carne, Daubert's Lamppost: A Guide to the Admissibility of Scientific Evidence, 2 J. PHARMACY & LAW 221, 224 (1993) ("Simultaneously the Court stripped from the junk scientist the ability to opine about the cause of a disease in a way that contradicts good science.").

²⁴ GALILEO'S REVENGE, supra note 5, at 2-3.

Junk science is the mirror image of real science, with much of the same form but none of the same substance. There is the astronomer, on one hand, and the astrologist, on the other. The chemist is paired with the alchemist, the pharmacologist with the homoeopathist. . . . Further out on the surgical fringe are outright charlatans, well documented in the credulous pulp press, who claim to operate with rusty knives but no anesthesia, who prey on cancer patients so desperate they will believe a palmed chicken liver is really a human tumor." Id. at 172.

²⁵ See, e.g., WIEBE E. BIJKER ET AL., THE SOCIAL CONSTRUCTION OF TECHNOLOGICAL SYSTEMS: NEW DIRECTIONS IN THE SOCIOLOGY AND HISTORY OF TECHNOLOGY (1987); COLIN CHANT & JAMES MOORE, Science and Technology: Problems of Interpretation, in SCIENCE, TECHNOLOGY AND EVERYDAY LIFE 1870-1950 40 (Collin Chant ed., 1989); DAVID EDGE, THE SOCIAL SHAPING OF TECHNOLOGY (Working Paper No. 1, 1988); Barry Barnes, The Science-Technology Relationship: A Model and a Query, 12 SOC. STUD. OF SCI. 166 (1982).

²⁶ See, e.g., OTTO MAYR, The Science-Technology Relationship, in SCIENCE IN CONTEXT 155 (Barry Barnes & David Edge eds., 1982); JOHN M. ZIMAN, Which Came First: Science or Technology?, in THE FORCE OF KNOWLEDGE 8 (John M. Ziman ed., 1976).

²⁷ See THOMAS S. KUHN, Energy Conservation as an Example of Simultaneous Discovery, in THE ESSENTIAL TENSION: SELECTED STUDIES IN SCIENTIFIC TRADITION AND CHANGE 66 (Thomas S. Kuhn ed., 1977).

²⁸ See THE CULTURAL CRISIS OF MODERN MEDICINE 12 (John Ehrenreich ed., 1978); Michael Mulkay, Knowledge and Utility: Implications for the Sociology of Knowledge, 9 SOC. STUD. OF SCI. 63 (1979).

McKeown examined the cause of the decline in deaths from a group of diseases whose disappearance as major killers accounts for the bulk of the decline in overall death rate in England since the early nineteenth century (tuberculosis, scarlet fever, typhoid, typhus, cholera, diarrhea and dysentery, and smallpox). He concluded that the reasons for their disappearance as a major cause of death were, in order of importance: first, improvements in the standard of living (e.g., nutrition, housing); second, improvements in control of the environment (e.g., water supply and other sanitary services); and only third, personal medical care. John Powles and A.L. Cochrane have summarized further evidence that the death rates for a number of major noninfectious diseases (e.g., cancer, heart disease) have not responded to modern medical approaches. Echoing the contentions of some feminists who charged that modern medicine had been overrated, these studies suggested that modern medical care was and is, at best, much less effective at reducing morbidity and mortality than the doctors have claimed and most people have believed. Id.

Compare GALILEO'S REVENGE, supra note 5, at 196 ("The story of cholera is the story of how medicine was transformed from black art to science, from a pseudoscience of the individual to a science of groups.").

²⁹ EVELLEEN RICHARDS, VITAMIN C AND CANCER: MEDICINE OR POLITICS? (1991).

³⁰ JEROME RAVETZ, SCIENTIFIC KNOWLEDGE AND ITS SOCIAL PROBLEMS 199 (1973).

³¹ See generally id.

³² Id. at 202.

³³ BRUNO LATOUR, SCIENCE IN ACTION: HOW TO FOLLOW SCIENTISTS AND ENGINEERS THROUGH SOCIETY (1987); Edwin Layton, Conditions of Technological Development, in SCIENCE, TECHNOLOGY AND SOCIETY: A CROSS-DISCIPLINARY PERSPECTIVE 197, 210 (Ina S. Spiegel-Rosing & Derek de Solla Price eds., 1977); see also BIJKER et al., supra note 25; Mulkay, supra note 28;.

³⁴ Stephen Hilgartner, The Dominant View of Popularization: Conceptual Problems, Political Uses, 20 SOC. STUD. OF SCI. 519, 520-531 (1990).

³⁵ THOMAS S. KUHN, THE COPERNICAN REVOLUTION: PLANETARY ASTRONOMY IN THE HISTORY OF WESTERN THOUGHT (1957). Alternative knowledge systems to Western science can, of course, generate practical outcomes. This has been well attested by studies of Micronesian navigation, the pyramids, medieval cathedrals and indigenous pharmacopoeia. See DAVID TURNBULL, MAPPING THE WORLD IN THE MIND: AN INVESTIGATION OF THE UNWRITTEN KNOWLEDGE OF THE MICRONESIAN NAVIGATORS (1991); David Turnbull, The Ad Hoc Collective Work of Building Gothic Cathedrals with Templates, String, and Geometry, 18 SCI. TECH. & HUM. VALUES 315 (1993); Helen Watson-Verran & David Turnbull, Science and Other Indigenous Knowledge Systems, in HANDBOOK OF SCIENCE AND TECHNOLOGY STUDIES 115 (Sheila Jasanoff, Gerald E. Markle, James C. Petersen & Trevor Pinch eds., 1995).

³⁶ Mulkay, supra note 28, at 75; Derek J. de Solla Price, Is Technology Historically Independent of Science?, 6 TECH. & CULTURE 553 (1965).

³⁷ Bernstein, Junk Science in the United States and the Commonwealth, supra note 1, at 181 ("The most effective way the United States could significantly reduce litigation based on junk science would be to restrict the financial incentives to bring such cases . . . ."); GALILEO'S REVENGE, supra note 5, at 3 ("Junk science is impelled through our courts by a mix of opportunity and incentive. 'Let-it-all-in' legal theory creates the opportunity. The incentive is money: the prospect that the Midas-like touch of a credulous jury will now and again transform scientific dust into gold. Ironically, the law's tolerance for pseudoscientific speculation has been rationalized in the name of science itself. The open-minded traditions of science demand that every claim be taken seriously, or at least that's what many judges have reasoned.").

³⁸ Alison Motluk, Millionaires' Row, NEW SCIENTIST, Sept. 14, 1996 at 28 ("'I don't do things that won't make me money'", "'That's all crap,'" he says. 'It's the money that allows it all to happen.'", "'As soon as you become reasonably financially successful, people insist you can't be a good scientist.'" (Dr. Chris Evans), "'In the first week he told me to build a physics department. In the second, he asked me to get on with setting up a business.'" ([Professor] Desmond Smith)). See also JAMES D. WATSON, THE DOUBLE HELIX: A PERSONAL ACCOUNT OF THE DISCOVERY OF THE STRUCTURE OF DNA (1968); Edward Yoxen, Speaking Out About Competition, in EXPOSITORY SCIENCE: FORMS AND FUNCTIONS OF POPULARIZATION 163, 178 (Terry Shinn & Richard Whitley eds., 1985) ("I remarked that some former colleagues say The Double Helix exaggerates the competitiveness of science. Watson's manner changed. He bit the words out sharply. 'I probably understated it - It is the dominant motive (original emphasis) in science. It starts at the beginning; if you push first, you become a professor first; your future depends on some indication that you can do something by yourself. It's that simple. Competitiveness is very, very dominant. The chief emotion in the field. The second is you have to prove to yourself that you can do it - that's the same thing. You've got to keep doing it; you can't just - once.'").

³⁹ See RANDAL ALBURY, THE POLITICS OF OBJECTIVITY (1983); Pierre Bourdieu, The Specificity of the Scientific Field and the Social Conditions of the Progress of Reason, SOC. SCI. INFO. Jun. 1975, at 19; Hilgartner, supra note 34.

⁴⁰ See Chesebro, supra note 4, at 1652, 1677.

⁴¹ PAUL BRODEUR, CURRENTS OF DEATH (1989).

⁴² See ROBERT K. MERTON, THE SOCIOLOGY OF SCIENCE (1973) (originally formulated in 1942).

⁴³ See Committee on the Conduct of Science, National Academy of Sciences, On Being a Scientist 1 (1989); GALILEO'S REVENGE, supra note 5, at 196-97, 209; Black, supra note 14; Black et al., supra note 20, at 777, 779; David L. Faigman, Mapping the Labyrinth of Scientific Evidence, 46 HASTINGS L.J. 555, 572 (1995); Hutchinson & Ashby, supra note 21, at 1900, 1904; Peter H. Schuck, Multi-Cultural Redux: Science, Law, and Politics, 11 YALE L. & POL'Y REV. 1, 16, 18, 24, 31, 33 (1993); John F. Baughman, Galileo's Revenge: Junk Science in the Courtroom, 90 MICH. L. REV. 1614, 1615-19 (1992) (book review). There does seem to be some evidence for the recent development of more sophisticated official approaches within the 'scientific community' to the issues of ethics and norms of practice. See discussion in FRANCIS L. MACRINA, SCIENTIFIC INTEGRITY: AN INTRODUCTORY TEXT WITH CASES (1995).

⁴⁴ MICHAEL MULKAY, SCIENCE AND THE SOCIOLOGY OF KNOWLEDGE 64 (1979).

⁴⁵ See IVAN MITROFF, THE SUBJECTIVE SIDE OF SCIENCE: A PHILOSOPHICAL INQUIRY INTO THE PSYCHOLOGY OF THE APOLLO MOON SCIENTISTS 219 (1974). Much of our discussion of Mitroff has been drawn from Mulkay, supra note 44. See also Barry Barnes & Robert Dolby, The Scientific Ethos: A Deviant Viewpoint, 11 ARCHIVES, EUROPEENNES DE SOCIOLOGIE 3 (1970); Michael Mulkay, Norms and Ideology in Science, 15 SOC. SCI. INFO. 637 (1976).

⁴⁶ The theme of the importance of commitment in science is also apparent in scientific biography, for instance the case of Johannes Kepler as outlined in ARTHUR KOESTLER, THE SLEEPWALKERS: A HISTORY OF MAN'S CHANGING VISION OF THE UNIVERSE (1959). This point has also been noted by ALBURY, supra note 39, and in scientific autobiographies such as WATSON, supra note 38.

⁴⁷ Note that these are characteristics which are often seen to be criteria used by a 'scientifically illiterate' jury to come to decisions based on scientific evidence and usually employed to criticize the institution or current organization of the jury. Consider Bernstein, supra note 1, at 174; M. Klein, After Daubert: Going Forward with Lessons from the Past, 15 CARDOZO L. REV. 2219, 2223 (1994). Cf. BRIAN WYNNE, RATIONALITY AND RITUAL: THE WINDSCALE INQUIRY AND NUCLEAR DECISIONS IN BRITAIN 133 (1982).

⁴⁸ See ALBURY, supra note 39.

⁴⁹ MULKAY, supra note 44 at 67, 70-71.

⁵⁰ Id. at 71.

⁵¹ See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ("But, in order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method.") (emphasis added); GALILEO'S REVENGE, supra note 5, at 210 ("All science -- all real science -- contains what Karl Popper called "stopping rules." Statements of scientific fact are statements that could be systematically shown to be false (if they are false) after some finite, circumscribed inquiry."); Brian Stuart Koukoutchos, Solomon Meets Galileo (And Isn't Quite Sure What to Do with Him), 15 CARDOZO L. REV. 2237, 2243 (1994); Arvin Maskin, The Impact of Daubert on the Admissibility of Scientific Evidence: The Supreme Court Catches up with a Decade of Jurisprudence, 15 CARDOZO L. REV. 1929, 1942 (1994).

⁵² Faigman, supra note 43, at 560, 579.

⁵³ This problem has been discussed at some length by STEVEN YEARLEY, THE GREEN CASE: A SOCIOLOGY OF ENVIRONMENTAL ISSUES, ARGUMENTS AND POLITICS (1991).

⁵⁴ KUHN, supra note 35, passim. It is important to note that while Kuhn's work has been extremely significant in re-shaping the way in which many issues in the history and philosophy of science (HPS) and the sociology of scientific knowledge (SSK) are addressed, a number of his more specific ideas such as paradigm and incommensurability have been significantly modified. Kuhn represents an important starting point to a tradition rather than providing all the tools used by practitioners of HPS/SSK. BARRY BARNES, T.S. KUHN AND SOCIAL SCIENCE (1982). "This view is contrary to currently influential belief about advances in scientific thinking and the role of the individual thinker." Id. See also THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1970).

⁵⁵ Examples of case studies include: THE POLITICS AND RHETORIC OF SCIENTIFIC METHOD: HISTORICAL STUDIES (John A. Schuster & Richard R. Yeo eds., 1986); HARRY M. COLLINS & TREVOR PINCH, THE GOLEM: WHAT EVERYONE SHOULD KNOW ABOUT SCIENCE (1993).

⁵⁶ See NIGEL GILBERT & MICHAEL MULKAY, OPENING PANDORA'S BOX (1984); Thomas F. Gieryn, Boundaries of Science, in HANDBOOK OF SCIENCE AND TECHNOLOGY STUDIES 393, 403-04 (Sheila Jasanoff et al. eds., 1995). See also Harry Collins & Trevor Pinch, Construction of the Paranormal: Nothing Unscientific Is Happening, in ON THE MARGINS OF SCIENCE: THE SOCIAL CONSTRUCTION OF REJECTED KNOWLEDGE, 27 SOC. REV. MONOGRAPH 237 (Roy Wallis ed., 1979).

⁵⁷ See generally BARRY BARNES, ABOUT SCIENCE (1985); HARRY M. COLLINS, CHANGING ORDER: REPLICATION AND INDUCTION IN SCIENTIFIC PRACTICE (1985); RAVETZ, supra note 30.

⁵⁸ See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); STEVEN GOLDBERG, CULTURE CLASH: LAW AND SCIENCE IN AMERICA 8 (1994); Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 NW. U. L. REV. 643 (1992); Baughman, supra note 43, at 1616; Klein, supra note 47, at 2230; Schuck, supra note 43, at 4, 16, 18.

⁵⁹ See Gary Edmond & David Mercer, What Judges Should Know About Falsificationism, 5 Exp. Evid. 29 (1997); O'Connor, supra note 21; Adina Schwartz, A "Dogma of Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States, 10 HARV. J.L. & TECH. 149 (1997).

⁶⁰ ALAN CHALMERS, WHAT IS THIS THING CALLED SCIENCE? 60 (1982).

⁶¹ See id. at 61; see also ALBURY, supra note 39; DAVID OLDROYD, THE ARCH OF KNOWLEDGE (1986); Imre Lakatos, Falsification and the Methodology of Scientific Research Programmes, in CRITICISM AND THE GROWTH OF KNOWLEDGE (Imre Lakatos & Alan Musgrave eds., 1970).

⁶² See Harry M. Collins, The Seven Sexes: A Study in the Sociology of a Phenomenon, or the Replication of Experiments in Physics, 9 SOC. 205 (1975); YEARLEY, supra note 53; Collins & Pinch, supra note 56.

⁶³ JOHN A. SCHUSTER, AN INTRODUCTION TO THE HISTORY AND SOCIAL STUDIES OF SCIENCE (1995).

⁶⁴ See David W. Mercer, The NIEMR/EMF Controversy: The Social Construction of Scientific Knowledge and Science Policy in the 'Gibbs' Powerline Inquiry 1990/91 (1993) (unpublished Ph.D. dissertation, University of Wollongong (Australia) (on file with author); see also Foster et al., Science and the Toxic Tort, supra note 5; LES DALTON, RADIATION EXPOSURES (1991).

⁶⁵ See W. Ross Adey, The Energy Around Us, THE SCIENCES., Jan.-Feb. 1986, at 52.

⁶⁶ See DALTON, supra note 64, at 8-9.

⁶⁷ See WILLIAM BENNETT, HEALTH AND LOW-FREQUENCY ELECTROMAGNETIC FIELDS 12-16, 136-39 (1994).

⁶⁸ See ELECTRICITY COMMISSION OF NSW (ELCOM), SUBMISSION TO INQUIRY INTO COMMUNITY NEEDS AND HIGH VOLTAGE TRANSMISSION LINE DEVELOPMENT (1990).

⁶⁹ See BRODEUR, supra note 41.

⁷⁰ See IAN MACMILLAN, ELECTROMAGNETIC FIELDS, ELECTRIC POWER AND PUBLIC HEALTH (1987); Science Scope -- EPA: Physicists Unwelcome on EMF Panel, 251 SCI. 863 (David Hamilton ed., 1991).

⁷¹ See Mercer, supra note 64.

⁷² See EDWIN A. BURTT, THE METAPHYSICAL FOUNDATIONS OF MODERN SCIENCE (1932); see also KUHN, supra note 35; ALEXANDER KOYRÉ, METAPHYSICS AND MEASUREMENT: ESSAYS IN THE SCIENTIFIC REVOLUTION (1968).

⁷³ Compare Schuck, supra note 43, at 31 ("Rhetorical strategies that would be professionally unacceptable in science and often in law -- explicit appeals to sentiment, ideology, or interest -- are standard tactics in politics, where the 'mobilization of bias' is both normal and normative.").

⁷⁴ See Gieryn, supra note 56.

⁷⁵ It is important to remember that these labels are flexible, dynamic and open to negotiation.

⁷⁶ Collins, supra note 62, at 45.

⁷⁷ See Michael Mulkay & Nigel Gilbert, Accounting for Error: How Scientists Construct their Social World when they Account for Correct and Incorrect Belief, 16 SOCIOLOGY 165 (1982); Warranting Scientific Belief, 12 SOC. STUD. OF SCI. 383 (1982).

⁷⁸ MICHAEL MULKAY, THE WORLD AND THE WORD 43 (1985).

⁷⁹ Collins & Pinch, supra note 56, at 237-70; MULKAY, supra note 44.

⁸⁰ We are not attempting to make a judgment about what should or should not be regarded as legitimate science. Rather these are social actors' categories.

⁸¹ While still largely rejected there was some evidence that taking on the institutional trappings of science did provide some kind of enhancement of the scientific status, even if not decisive. Note that legal commentators are generally dismissive of what they describe as 'junk' and 'pseudo sciences' without clearly demonstrating faults in their underlying methodologies. See, e.g., Faigman et al., supra note 14, at 1801 ("The Court has served notice that experts should trade in their crystal balls for electron microscopes."); Koukoutchos, supra note 51, at 2244 ("And adherence to the consensus on methods and fundamental principles is all that is required to eliminate risk of confusing science with alchemy, astrology, or creationism.").

⁸² MULKAY, supra note 44, at 113-118.

⁸³ See TREVOR PINCH & HARRY COLLINS, FRAMES OF MEANING: THE SOCIAL CONSTRUCTION OF EXTRAORDINARY SCIENCE (1982); DAVID HESS, SCIENCE IN THE NEW AGE: THE PARANORMAL, ITS DEFENDERS AND DEBUNKERS, AND AMERICAN CULTURE (1993).

⁸⁴ BARNES, supra note 57. This does not discount the contribution to the philosophy of science by eminent scientific figures such as Hiesenberg and Mach. Compare OLDROYD, supra note 61.

⁸⁵ Michael Mulkay & Nigel Gilbert, Putting Philosophy to Work: Karl Popper's Influence on Scientific Practice, 11 PHIL. OF THE SOC. SCI. 389 (1981). See, e.g., PETER MEDAWAR, ADVICE TO A YOUNG SCIENTIST (1979).

⁸⁶ Steven Yearley, Understanding Science from the Perspective of the Sociology of Scientific Knowledge -- An Overview, 3 PUB. UNDERSTANDING OF SCI. 245, 249 (1994). For similar observations see CHALMERS, supra note 60. The popularity of Popper with law students at the London School of Economics was given added support through a discussion with Dr. A. Taylor. It is ironic then that commentators have suggested that "judges must achieve at least a basic level of literacy" when this so-called "literacy" in its philosophical guise is not part of conventional scientific training. See Miller et al., supra note 21, at 254.

⁸⁷ See Part III(D), supra.

⁸⁸ It is worth noting that a relatively small number of elite scientists dominate public discourse on science and possess a disproportionate influence over packaging the images of science presented to the public. See, e.g., STUART BLUME, TOWARDS A POLITICAL SOCIOLOGY OF SCIENCE (1974); RAE GOODELL, THE VISIBLE SCIENTISTS (1977); DOROTHY NELKIN, SELLING SCIENCE: HOW THE PRESS COVERS SCIENCE AND TECHNOLOGY (rev. ed. 1995); Rae Goodell, The Role of the Mass Media in Scientific Controversy, in SCIENTIFIC CONTROVERSIES: CASE STUDIES IN THE RESOLUTION AND CLOSURE OF DISPUTES IN SCIENCE AND TECHNOLOGY 585 (H. Tristram Engelhardt & Arthur L. Caplan eds., 1987).

⁸⁹ See, e.g., GALILEO'S REVENGE, supra note 5, at 2 ("Maverick scientists shunned by their reputable colleagues have been embraced by lawyers."); id. at 3 ("Junk science is impelled through our courts by a mix of opportunity and incentive. 'Let-it-all-in' legal theory creates the opportunity. The incentive is money . . . ."); Marc Galanter, Predators and Parasites: Lawyer-Bashing and Civil Justice, 28 GA. L. REV. 633, 652 (1994).

⁹⁰ See GALILEO'S REVENGE, supra note 5.

⁹¹ See, e.g., CAROL A. G. JONES, EXPERT WITNESSES: SCIENCE, MEDICINE AND THE PRACTICE OF LAW 270 (1994); WYNNE, supra note 47, at 135; Brian Wynne, Establishing the Rules of Laws: Constructing Expert Authority, in EXPERT EVIDENCE: INTERPRETING SCIENCE IN THE LAW 38 (Roger Smith & Brian Wynne, eds., 1989).

⁹² See, e.g., ALBURY, supra note 39; MULKAY, supra note 44, at 113-118.

⁹³ See, e.g., YEARLEY, supra note 53; Gieryn, supra note 56.

⁹⁴ WYNNE, supra note 47, at 120-137; Wynne, supra note 91.

⁹⁵ Sheila Jasanoff, What Judges Should Know About the Sociology of Science, 32 JURIMETRICS J. 345 (1992); JASANOFF, supra note 9.

⁹⁶ YEARLEY, supra note 53, at 140-143.

⁹⁷ JONES, supra note 91, at 270.

⁹⁸ J.S. OTERI, M.G. WEINBERG & M.S. PINALES, Cross Examination of Chemists, in DRUGS CASES, IN SCIENCE IN CONTEXT: READINGS IN THE HISTORY AND PHILOSOPHY OF SCIENCE 250 (Barry Barnes & David Edge eds., 1982).

⁹⁹ Id. at 251.

¹⁰⁰ Id. at 253.

¹⁰¹ See, e.g., MARK ARONSON & JILL HUNTER, LITIGATION: EVIDENCE & PROCEDURE 971 (1995) ("[w]orking with hearsay is one of the hallmarks of most areas of expertise."). See alsoJONES , supra note 91, at 106-10;WYNNE , supra note 47, at 132 ("scientific knowledge is diffused by social transmission via established authority patterns rather than by independent testing.").

¹⁰² WYNNE, supra note 47, at 129.

¹⁰³ This image has been open to criticism from the time of the American Realists and openly explored in the writings by more contemporary critical scholars. A sample includes: Alan D. Freeman, Truth and Mystification in Legal Scholarship, 90 YALE L.J. 1229 (1981); Robert Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 125 (1984); Mark G. Kelman, Trashing, 36 STAN. L. REV. 293 (1984); Vicki Quade, Are Lawyers Really Necessary?: Barrister Interview with Duncan Kennedy, BARRISTER, Fall, 1987, at 10; Joseph Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984); Jeffrey A. Standen, Critical Legal Studies as an Anti-Positivist Phenomenon, 72 VA. L. REV. 983 (1986); Mark Tushnet, Legal Scholarship: Its Causes and Cures, 90 YALE L.J. 1205 (1981).

¹⁰⁴ See Gieryn, supra note 56; see also Jasanoff, supra note 95. See generally Shana M. Solomon & Edward J. Hacket, Setting Boundaries Between Science and Law: Lessons from Daubert v. Merrell Dow Pharmaceuticals, Inc., 21 SCI. TECH. & HUM. VALUES 131 (1996) (using the Daubert case to illustrate how courts determine judicial validity).

¹⁰⁵ See, e.g., JONES, supra note 91, at 194-223 (examining the work of forensic pathologists and forensic scientists to show how they influence and are influenced by the conviction process). See generally LAW AND SCIENCE IN COLLABORATION: RESOLVING REGULATORY ISSUES OF SCIENCE AND TECHNOLOGY (J. D. Nyhart & Milton M. Carrow eds., 1983) (presenting case studies designed to suggest a regulatory framework for practical scientific and technological decision making); Sanders, supra note 9, at 3 (describing tractability in terms of "translation").

¹⁰⁶ See Barry Caspar & Paul Wellstone, Science Court on Trial in Minnesota, in SCIENCE IN CONTEXT 282-83 (Barry Barnes & David Edge eds., 1982); see also Arthur Kantrowitz, Democracy and Technology, in SCIENCE, TECHNOLOGY AND THE HUMAN PROSPECT 199 (Chauncy Starr & Philip C. Ritterbush eds., 1979) (explaining his proposal of a science court, its procedures, and grounds for its implementation); Roger D. Masters & Arthur R. Kantrowitz, Scientific Adversary Procedures: The SDI Experiments at Dartmouth, in TECHNOLOGY AND POLITICS (Michael E. Kraft & Norman J. Vig eds., 1988) (evaluating the concept of Scientific Adversary Procedures, an alternative to the original proposal of a science court, as applied to the debate over the Strategic Defense Initiative ("Star Wars")).

¹⁰⁷ See ALLAN MAZUR, THE DYNAMICS OF TECHNICAL CONTROVERSY 34-42 (1981); Allan Mazur, Andrew A. Marino & Robert O. Becker, Separating Factual Disputes from Value Disputes in Controversies over Technology, 1 TECH. IN SOC. 229, 233-34 (1979).

¹⁰⁸ See MAZUR, supra note 107, at 41-42. In a similar vein science court proposals have received criticism for assuming that the use of court-like procedures would be able to separate scientific facts from social preconceptions. One problem is that for a scientist to gain sufficient scientific authority to pronounce in an authoritative way on a matter of scientific controversy, such a scientist is normally already a participant in the controversy in question. Selecting "scientist-judges" or "experts" who possess scientific authority but are not simultaneously embroiled in the proceedings is difficult. Further, selection of scientist-judges without prior involvement may well lead to inconclusive, non-authoritative conclusions. See Mercer, supra note 64, at 295-312, 361-369. Alternatively a "decisive" but not scientifically authoritative conclusion may appear to be a technocratic imposition. See K. GUILD NICHOLS, ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, TECHNOLOGY ON TRIAL: PUBLIC PARTICIPATION IN DECISION-MAKING RELATED TO SCIENCE AND TECHNOLOGY 98 (1979); see also David Mercer, Understanding Scientific/Technical Controversy, Science and Technology Policy Research Group, Occasional Paper No. 1 (November, 1996).

¹⁰⁹ JASANOFF, supra note 9, at 206, 208, 211; Jasanoff, supra note 95, at 349-53. For a discussion of the limits of Jasanoff's account of civic education, see Gary Edmond & David Mercer, Manifest Destiny: Law and Science in America, 10 METASCIENCE 40, 52-57 (1996).

¹¹⁰ See generally JASANOFF, supra note 9; Jasanoff, supra note 95.

¹¹¹ See Part III(H), infra.

¹¹² GALILEO'S REVENGE, supra note 5, at 19 ("You get a professor who earns $60,000 a year and give him the opportunity to make a couple of hundred dollars in his spare time and he will jump at the chance . . . . They are like a bunch of hookers in June.") (quoting Dennis Roberts).

¹¹³ See, e.g., JASANOFF, supra note 9, at 1-24, 50-52 (providing background on the intersection of law and science and the increasing trend of law in inspiring innovative scientific studies and techniques); Alberto Cambrosio, Peter Keating & Michael MacKenzie, Scientific Practice in the Courtroom: The Construction of Sociotechnical Identities in a Biochemical Patent Dispute, 37 SOC. PROBS. 275 (1990) (analyzing expert testimony from patent litigation to show the interplay of social, economic and philosophical concerns with science in the courtroom); Roger Smith, Forensic Pathology, Scientific Expertise, and the Criminal Law, in Expert Evidence: INTERPRETING SCIENCE IN THE LAW 56 (Roger Smith & Brian Wynne, eds., 1989) ("[F]orensic experts form distinct occupational groups by virtue of combining scientific expertise with expertise in satisfying the requirements of legal or administrative settings.") (footnote omitted). Cf. Christopher Arup, Introduction, 10(2) LAW IN CONTEXT 5 (1992) ("[W]e run the risk of reifying both law and science if we predicate a direct relationship between the two. . . . [L]aw and science only interact as part of the processes of the society at large and therefore in conjunction with such other social phenomena as gender and economy.").

¹¹⁴ Yaron Ezrahi, The Authority of Science in Politics, in SCIENCE AND VALUES: PATTERNS OF TRADITION AND CHANGE (Arnold Thackray & Everett Mendelsohn, eds., 1974).

¹¹⁵ See EXPERT EVIDENCE: INTERPRETING SCIENCE IN THE LAW 2 (Roger Smith & Brian Wynne eds., 1989); see also Sheila Jasanoff, Beyond Epistemology: Relativism and Engagement in the Politics of Science, 26 SOC. STUD. OF SCI. 393, 397 (1996) (employing the term "co-production" to capture the intricacies involved with knowledge construction and compatible situated social orders: "A full-blown political analysis of science and technology seeks to illuminate the 'co-production' of scientific and social order -- that is, the production of mutually supporting forms of knowledge and forms of life -- with all the details and specificity that such a project entails.").

¹¹⁶ See Jasanoff, supra note 115, at 403-09 (exploring how the Daubert court resolved controversies over the admissibility of scientific evidence at trial).

¹¹⁷ EXPERT EVIDENCE: INTERPRETING SCIENCE IN THE LAW, supra note 115, at 15.

¹¹⁸ Bendectin is an anti-nausea medication that was given to pregnant women during the 1960s. Plaintiffs in several law suits alleged that it caused serious birth defects. See generally Green, supra note 58.

¹¹⁹ 509 U.S. 579 (1993).

¹²⁰ Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). See also Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1131 n.3 (9th Cir. 1991) (arguing that scientific studies prepared in anticipation of litigation are not subject to the standard peer review process that scientific studies normally go through and are therefore less reliable), vacated, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

¹²¹ This was duly noted by the Ninth Circuit Court of Appeals,

There are, of course, exceptions. Fingerprint analysis, voice recognition, DNA fingerprinting and a variety of other scientific endeavors closely tied to law enforcement may indeed have the courtroom as a principal theatre of operations. . . . As to such disciplines, the fact that the expert has developed an expertise principally for the purposes of litigation will obviously not be a substantial consideration.

43 F.3d 1311, 1317 n.5 (citation omitted).

¹²² In fact, much of the "history" relied upon are popular myths with no basis in historical scholarship, as we shall see in the case of Peter Huber's use of Galileo's "martyrdom" for science.

¹²³ For example, Huber argues that the rise of refereed medical journals in 19th Century England was instrumental in moving the practice of medicine away from "bedside secrets" towards the investigation of statistical regularity, and then observes that "all modern science has similar origins." Huber, Junk Science, supra note 5, at 739.

¹²⁴ Whig history was an approach to "history" captured succinctly by historian Herbert Butterfield as a study of:

[t]he past with reference to the present . . . . [T]hrough this system of immediate reference to the present day, historical personages can easily and irresistibly be classed into men who furthered progress and men who tried to hinder it . . . . [T]he whig historian stands on the summit of the twentieth century and organises his scheme of history from the point of view of his own day.

A. Rupert Hall, On Whiggism, 21 HIST. SCI. 45, 46 (1983), citing HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY 11-13 (1931).

¹²⁵ Chesebro, supra note 4, at 1663.

¹²⁶ Examples of history of science with "Whiggish" overtones include: Black et al., supra note 20, at 779-80 ("His [Galileo's] problem, however, was not with other scientists, and his treatment argues not for abandoning scientific standards but for separating the scientific process from both church and state control."); Alan W. Tamarelli, Daubert v. Merrell Dow Pharmaceuticals: Pushing the Limits of Scientific Reliability -- The Questionable Wisdom of Abandoning the Peer Review Standard for Admitting Expert Testimony, 47 VAND. L. REV. 1175, 1202 (1994) ("After all, some have argued that even the views of Einstein and Galileo were not immediately accepted, and that Copernicus was adjudged a heretic."). Yet Copernicus' major work, de Revolutionibus was not placed on the Catholic Index of prohibited books until 1616, 73 years after his death in 1543. See generally Owen Gingrich, From Copernicus to Kepler: Heliocentrism as Model and as Reality, 177 PROC. AM. PHIL. SOC'Y 513 (1973) (discussing Copernicanism). See also COLLINS & PINCH, supra note 55, at 27 (discussing relativity).

¹²⁷ "Natural philosopher" is the term for those who practiced one of the areas, along with medicine and mathematics, that might be considered the precursor of modern science. See David C. Lindberg, Science and the Early Church, in GOD AND NATURE: HISTORICAL ESSAYS ON THE ENCOUNTER BETWEEN CHRISTIANITY AND SCIENCE 19, 21 (David C. Lindberg & Ronald L. Numbers eds., 1986).

¹²⁸ Embodied in the "mainstream" contemporaneous work of fellow natural philosopher, Tycho Brahe, these included observations of the parallaxes of Mars and the sun inconsistent with Copernican systems (though later, Brahe appears to have contradicted his own studies on this point) and imperfect predictions of planetary movements based on the then-current Copernican models. A. Blair, Tycho Brahe's Critique of Copernicus and the Copernican System, 51 J. HIST. IDEAS 355, 365-368 (1990).

¹²⁹ Huber emphasizes that junk science often depends on experiments at the threshold of detectability, with claims emerging from data that are selectively incomplete because wishful researchers unconsciously discard enough "bad" data to "find" a pattern in the remaining data. GALILEO'S REVENGE, supra note 5, at 27. See generally CHALMERS, supra note 60; I. BERNARD COHEN, THE BIRTH OF THE NEW PHYSICS (1961); BRIAN EASLEA, WITCH-HUNTING, MAGIC AND THE NEW PHILOSOPHY: AN INTRODUCTION TO DEBATES OF THE SCIENTIFIC REVOLUTION 1450-1750 (1980); PAUL FEYERABEND, AGAINST METHOD (1975); KOESTLER, supra note 46; THE POLITICS AND RHETORIC OF SCIENTIFIC METHOD: HISTORICAL STUDIES, supra note 55.

¹³⁰ FEYERABEND, supra note 129, at 141.

¹³¹ GALILEO'S REVENGE, supra note 5, at 33, citing Ellis, Clinical Ecology: Myth and Reality, BUFFALO PHYSICIAN, Feb. 1986, at 28. See also Jean Dietz Moss, The Rhetoric of Proof in Galileo's Writings on the Copernican System, in THE GALILEO AFFAIR: A MEETING OF FAITH AND SCIENCE 41 (G.V. Coyne et al. eds., 1985) (demonstrating Galileo's extensive use of rhetorical artifice in his formal and informal defenses of Copernican theory).

¹³² GALILEO'S REVENGE, supra note 5, at 209. Huber's critic Chesebro, supra note 4, at 1726, makes similar misuse of the Galileo historiography ("Galileo would attribute the prominence of the book and its author to clever public relations, not merit, and would denigrate it as junk scholarship in search of "junk science.").

¹³³ See BURTT, supra note 72, at 207; EASLEA, supra note 129, at 171; Brian P. Copenhaver, Natural Magic, Hermeticism, and Occultism in Early Modern Science, in REAPPRAISALS OF THE SCIENTIFIC REVOLUTION 261 (David C. Lindberg & Robert S. Westman eds., 1990); Alan Gabbey, Newton and Natural Philosophy, in COMPANION TO THE HISTORY OF MODERN SCIENCE 243 (Robert C. Olby & Geoffrey Cantor eds. 1990); Marie Boas Hall, Newton's Voyage in the Strange Seas of Alchemy, in REASON, EXPERIMENT, AND MYSTICISM IN THE SCIENTIFIC REVOLUTION 239 (M.L. Righini Bonelli & William R. Shea eds., 1975); Gary Hatfield, Metaphysics and the New Science, in REAPPRAISALS OF THE SCIENTIFIC REVOLUTION 93 (David C. Lindberg & Robert S. Westman eds., 1990); Simon Schaffer, Newtonianism, in COMPANION TO THE HISTORY OF MODERN SCIENCE 610 (Robert C. Olby & Geoffrey Cantor eds., 1990); Richard S. Westfall, The Role of Alchemy in Newton's Career, in REASON, EXPERIMENT, AND MYSTICISM IN THE SCIENTIFIC REVOLUTION 189, 189-232 (M.L. Righini Bonelli & William R. Shea eds., 1975).

¹³⁴ "I do not frame [make] hypotheses."

¹³⁵ Such as the behavior of light or the action at a distance of planetary bodies.

¹³⁶ Other figures from the history of science chosen by Huber as examples of "junk science" also have more complex contextual histories. See, for instance, more sophisticated discussions of "failed science" such as Blondlot in DAVID BLOOR, KNOWLEDGE AND SOCIAL IMAGERY 20-39 (1976), and Thomas F. Gieryn, The Ballad of Pons and Fleischman: Experiment and Narrative in the (Un)making of Cold Fusion, in THE SOCIAL DIMENSIONS OF SCIENCE 217 (Ernan McMullin, ed., 1992); see also COLLINS & PINCH, supra note 55, at 57-78; Bruce V. Lewenstein, Cold Fusion and Hot History, 7 (2nd Series) OSIRIS 135 (1992).

¹³⁷ GALILEO'S REVENGE, supra note 5, at 172.

¹³⁸ See NICHOLAS HILDYARD, COVER UP: THE FACTS THEY DON'T WANT YOU TO KNOW 177-190 (1981); JOCK MCCULLOCK, ASBESTOS: ITS HUMAN COST 36-69 (1986).

¹³⁹ See, e.g., GALILEO'S REVENGE, supra note 5, at 9, 24, 194, 217 (discussing the European witchcraze, Blondlot, Darwin, Mendel/Lysenko); Francisco J. Ayala & Bert Black, Science and the Courts, 81 AM. SCI. 230, 234-38 (1993) (employing historical examples such as Kekule, Mendel, Lysenko, Koch, Watson & Crick); Black et al., supra note 20, at 766 ("Countless examples from the history of science demonstrate how the model of science we have sketched out actually works in practice."); Edward J. Imwinkelried, The Next Step after Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 CARDOZO L. REV. 2271, 2275-2276 (1994) (tracing common law restrictions on opinion testimony to Lockean epistemology); Koukoutchos, supra note 51, at 2251 ("The remedy for Lamarckism is Mendelian genetics; the answer to Velikovsky is Newton (and Charles Lyell)."); Richardson et al., supra note 21, at 12-13 (using bloodletting and Freudian theory as historical examples of the efficacy of falsification). Compare Parascandola, Philosophy in the Laboratory: The Debate Over Evidence of E.J. Steele's Lamarckian Hypothesis, 26 STUD. HIST. PHIL. SCI. 469 (1995). See also BARRY BARNES, DAVID BLOOR & JOHN HENRY, SCIENTIFIC KNOWLEDGE: A SOCIOLOGICAL ANALYSIS 94-102 (1996).

¹⁴⁰ See Black et al., supra note 20, at 774, 780 (citing such sources as the Cambridge Encyclopedia of Human Evolution and the Dictionary of Scientific Biography); Imwinkelried, supra note 139, at 2276-77 ("However, Newton systematized the experimental technique and helped standardize the use of such terminology as 'hypothesis.' His work became 'the model of scientific' research. Lockean epistemology and Newtonian Science supplied the template for the Daubert decision.").

¹⁴¹ HUBER, Junk Science, supra note 5, at 754 ("Junk science's one very real power is to stir up fear."). See also GALILEO'S REVENGE, supra note 5, at 139 ("In due course, chemical toxins, electromagnetic fields, microwaves, and trace contaminants in foods would all be elevated to new legal respectability by similar appeals to fear rather than facts."); id. at 134 ("Groundless fears, in short, would be controlled by the courts if shared by the teeming masses. The fear is irrational, granted. At war with science, if you insist. But 'reasonable' nonetheless. How can this be? Only if science does not have the last word on reason. Which is to say, only if views of 'the people generally,' with all their prejudices, superstitions, and inchoate dreads, count even more."); Burk, supra note 8, at 374 ("Many of the problems of the current system, especially that of 'junk' science, arise from the inability of a scientifically illiterate judiciary to screen out opinions that are unaccepted by the scientific community."); Faigman et al., supra note 14, at 1811; Gregg L. Spyridon, Scientific Evidence vs. "Junk Science" -- Proof of Medical Causation in Toxic Tort Litigation: The Fifth Circuit "Fryes" a New Test (Christophersen v. Allied-Signal Corp.), 61 MISS. L.J. 287 (1991); Klein, supra note 47, at 2222; Lee Loevinger, Science and Legal Rules of Evidence, A Review of Galileo's Revenge: Junk Science in the Courtroom, 32 JURIMETRICS J. 487, 501 (1992) (book review) ("Ultimately, the most practical and effective method of dealing with the problem of junk science in the courts, as well as in other branches and agencies of government, is to undertake the scientific education of all citizens. . . .").

¹⁴² GALILEO'S REVENGE, supra note 5, at 146. Compare Spyridon, supra note 141, at 311 ("Nor can we hold the defendant hostage to 'junk science' theories which prey on the public hysteria generated by the media's portrayal of the 'toxic age' in which we live.").

¹⁴³ See DOROTHY NELKIN & MICHAEL BROWN, WORKERS AT RISK: VOICES FROM THE WORKPLACE (1984); CHARLES PERROW, NORMAL ACCIDENTS: LIVING WITH HIGH-RISK TECHNOLOGIES (1984); Brian Wynne, Knowledges in Context, 16 SCI. TECH. & HUM. VALUES 111 (1991). See also Schuck, supra note 43, at 3 ("[T]hese conflicts are not only inevitable but socially desirable in a democratic-liberal-technocratic-polity. . . .").

¹⁴⁴ PERROW, supra note 143, at 306-24; THE SOCIAL AND CULTURAL CONSTRUCTION OF RISK: ESSAYS ON RISK SELECTION AND PERCEPTION (Branden B. Johnson & Vincent T. Covello eds., 1987); KRISTIN SHRADER-FRECHETTE, RISK AND RATIONALITY: PHILOSOPHICAL FOUNDATIONS FOR POPULIST REFORMS (1991); Brian Wynne, Public Understanding of Science, in HANDBOOK OF SCIENCE AND TECHNOLOGY STUDIES 361, 381-82 (Sheila Jasanoff, Gerald E. Markle, James C. Petersen & Trevor Pinch eds., 1995).