The Learned Treatise: An Appeal to Authority… is that misleading?

Scientists and lawyers don’t see eye-to-eye.

That is not much of a surprise.

  • On the one hand, science should be about appeal to data.
  • On the other hand, law is about an appeal to authority (stare decisis).

But what is surprising is the legal framework that addresses the scientific world does not embrace the scientific framework. In fact, it rejects the scientific framework of the appeal to data but instead values  authority over everything else. In law, we allow a straight forward appeal to authority over that of an appeal to data. In law, we call this the “Learned Treatise exception” to hearsay whereby we allow into court as substantive evidence information because it is authored by someone in the scientific community that is considered to be authoritative regardless of the underlying merit of the author’s research. The danger in this approach is that just because something is published, it may not be right. Also, it propagates the myth of the authoritative source as being infallible.

Different states have different versions of the rule. Some states, such as Pennsylvania does not have it at all. But, the general rule is best summed up by example through the Federal incarnation which is F.R.E. 803(18).

(18) Learned treatises.—To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The above is a mechanism that allows into evidence a naked Appeal to Authority. It is a fallacy with the following general form:

  1. Person A is (claimed to be) an authority on subject S.
  2. Person A makes claim C about subject S.
  3. Therefore, C is true.

Whenever I am in court or am in a debate and I hear an appeal to an authority, I always think of this skit from BBC2:

[I]t is not what the man of science believes that distinguishes him, but how and why he believes it. His beliefs are tentative, not dogmatic; they are based on evidence, not on authority or intuition.

Bertrand Russell, A History of Western Philosophy

Another good source for thinking along this line can be found at: “Unlearning The Learned Treatise Exception

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