"This is a body-twisting crippler." "Thousands of children maimed." I am quoting from one of our more prestigious and scientific journals, the National Enquirer, which ran this story in late 1979. The subject of the story was a morning sickness drug that had been used by some thirty million women in this country and abroad called Bendectin.

Now, ladies and gentlemen, understand this is how you sell justice in this country. In fact, this is how you get a case before the United States Supreme Court. The US Supreme Court is currently reviewing a Bendectin case and, in due course, perhaps tomorrow morning, or perhaps two or three weeks from now, we will actually get a pronouncement from the Supreme Court as to the meaning of scientific knowledge within the federal Rules of Evidence.

Now, I am not going to talk at length about what those rules hold or what is before the Court and it is far from clear how the Court will come out. What I want to talk about is, indeed, justice for sale. How do you take a scientific or perhaps a non-scientific controversy in this country and turn it into a cause, into a legal crusade, into a mass media event? How do you really take facts or non-facts and inject them into the public debate?

To begin with, let us visit to begin with, with Darlene Norris and Wendy Gatz. This is a true story. You will find it in your law library if you have one. All of my stories today are true, though, some, perhaps, embellished. But, let us visit with Darlene Norris and Wendy Gatz. They are attending a rally of the Blue Knights Motorcycle Club in China Hot Springs, Alaska. I am not a member of this club, but I gather it is a club at which people who own large motorcycles congregate and admire each others machines.

Now, anyway, as they are driving out of the parking lot, Gatz, for reasons not fully explained in the court opinion, is in an Audi 5000. Which is an automobile, not a motorcycle. She, Gatz, in this automobile suddenly accelerates at tremendous speed, swerves wildly through this parking lot, runs over Darlene Norris, who is on her motorcycle. Finally, Gatz hits a mound of dirt and is ultimately stopped only when she collides with a large pile of wood. Darlene Norris has been crushed--though she somewhat to my surprise survives--but the bill for the accident totaled $300,000.

Those of you with scientific or technical backgrounds know what it is that makes a car accelerate suddenly. It is the accelerator. Nevertheless, in her defense, Gatz, the driver of this car, presents the views of William Rosenbluth, who testifies that the driver of the car, Gatz, is blameless. The cause of the accident, in fact, lies in Bavaria, where the Audi was manufactured. Somehow or other, at a crucial instance the accelerator had locked into full-on and simultaneously, for reasons never fully explained, the brakes had failed and that caused the accident.

Granted that after the accident the car was examined and the brakes were in perfect working order. Granted that the brake lights never came on. Nevertheless, the cause of the accident was a flaw in the car. The jury buys this story, beginning to end. Gatz doesn't pay a cent for the injury. Norris, the Plaintiff, is ordered to pay William Rosenbluth's $18,000 expert witness fee.

You may recall that for a period in the late 1980s, these Audi stories became tremendously prominent. The Audi seemed to be possessed by demons. It crashed through apartment walls. It ran into swimming pools. It dived down elevator shafts. And every time--every time--it appeared after the fact that the terrified driver was simply standing on the brakes the whole time, and yet the car was completely unstoppable. One so-called victim, founded, appropriately enough, the "Audi Victims Network."

Clarence Ditlow at the Center for Auto Safety took up the story. They developed several theories as to what was wrong with the car. The one that I liked best and that they liked best, for a while at least, was that there was some electronic glitch in the car's cruise control that was being activated by straying microwave signals. So, you know, somebody puts their popcorn in the microwave oven and an Audi goes through an apartment wall.

Now, I shall return to the Audi stories in a minute. But, before I do, let me say some more general words about junk science. What is it? There is no precise definition. It is through the looking glass science. It is a mirror image of science itself. It is astrology, not astronomy. It is alchemy not chemistry. It is homeopathy not pharmacology. It is chiropractice not physical therapy. It is numerology not mathematics. It is a hodgepodge of fudge tests and concocted correlations and bias data and spurious inference and logical ledger domain and all -- all -- patched together by those who are often, in fact, almost always completely sincere, but whose desire to discover and articulate something very important far outstrips their actual technical and scientific abilities.

I recommend, for those of you interested in this subject, a splendid book by Thomas Gilovich, called How We Know What Isn't So. I have also written a book on the subject some years ago.

It turns out, indeed, that the world around us, and I mean, if we, of course, as everybody does, define ourselves as the rational sort of scientific types. At the fringe of this world, at the edges there are always groups of fringe scientists. Junk Scientists. Pathological Scientists. Various definitions have been used and curiously enough, they always have a completely symmetrical pair of theories -- although espoused by different groups -- about what new technologies, new developments can cause.

There will be one group that says this new technology, this new way of doing business is causing a slew of terrible harms and diseases and injuries. There will be another group, usually equally well populated and quite often, equally well publicized, that maintains that the new technology includes miracle cures and will actually solve all of life's afflictions.

I will mention only one story, which I think gives us some perspective. Back in the thirties. No, earlier than that. In the twenties, not long after the discovery of radium and radioactivity generally, there was a theory that if you ingested a little bit of radium every day it would be a wonderful pick-me-up for your body.

People began actually marketing radium-spiked sparkling water. It was called Radiothor. Your government and mine, the FTC, actually enacted standards whereby you had such and such a level of radium in the water if you were to market it without violating truth in labeling laws. If you had too little radium, why you were defrauding the consumer.

People actually drank this stuff, and if you excavate their grave sites, which has been done, they virtually qualify for Superfund treatment. These people, of course, died from this. It was toxic. But, it simply goes to prove that each new technology, whether it's electricity or radioactivity or morning sickness drugs or what have you, seems to attract people at both edges. Some will say it's the best thing ever invented and will cure everything, and others will say it's a terrible terror. Of course sometimes one or the other group is right, but much of the time they are not.

Well, what about the problem of bad science? I think it is safe to say that much of what is proposed in science turns out not to be right. This is the way science works. People float all sorts of theories. It is part of the culture of science that you get to propose almost anything, and then there is a process for dealing with it.

Despite what [Congressman John] Dingell or others may tell you, there is not a terrible problem of junk science among scientists. Scientists have developed protocols and methods and procedures for dealing with bad science, and these are familiar procedures. They are procedures of write it down, publish it, let other people look at what you've done. If your claim is insignificant, it will be ignored, and there's the end of the story. If it's important it will be tested out, and the wheat and the chaff will be separated. Modern science has a wonderfully good track record on this. Lots of untrue things get floated but very few of them have survived any significant length of time.

It is outside the science ethic arena--when the less good scientists become politicians or litigators or social activists--that arena that bad science can have a major impact and, often, quite an adverse one.

In recent years, in my view at least, junk science has made tremendous advances in the arenas where it can truly have an impact. Which is not in the laboratory or in the clinic or the hospital room but rather in the arenas of public policy and the courts.

My focus has been specifically in the courtroom, where, for a period from 1975 until quite recently, the late 1980s, we drifted toward what one federal judge, Patrick Higgenbottom, has dubbed the "let it all in" philosophy of scientific evidence.

For those of you, as I am, who are at an age where you watch rather more of Sesame Street than you used to, you may have heard this jingle. There's somebody on Sesame Street who exhorts my four-year-old in a voice uncannily like Madonna's--I mean, really an amazing imitation--exhorts my four-year-old to eat her cereal by belting out the lines, "I said I'll taste it, I'll give it a whirl because I am a cereal girl".

Now, if you know Madonna and you know Sesame Street, you know of what I talk, if you don't it's of no consequence. But this has become sort of the philosophy in many arenas. That we let the new, the unproven, the speculative, the fanciful in. You give it a whirl in the courtroom or in the scientific agency or the regulatory agency and you see just what happens.

It is clear that these fringe sciences, these unsubstantiated proto-scientific or nonscientific claims do not always prevail. In fact, much of the time, they are rejected. But there seems to be a very high volatility, an extremely high instability in our social institutions. You never quite know when one of these very fringe scientific claims is going to stick, and, the next thing you know, there are ten thousand farmers in Chile who have suddenly gone out of business because their grape industry has been shut down. Or, we shut down our apple industry.

It is certainly beyond dispute today, that if you go into any major law library, you can pull off the shelf case records that affirm claims of causality. Claims of this led to that, led to that, led to that, that are simply not believed by anybody in the world except groups of American lawyers and jurists.

An impact with a car's steering wheel causes lung cancer in a rear-end collision. Breast cancer is triggered by a slip and fall from a street car. Bendectin, to mention the case now before the Supreme Court, is blamed for thousands of birth defects, which according to all of the major and well documented epidemiological studies that have been published, Bendectin did not, in fact, cause.

We have developed a huge, a truly huge litigation industry revolving around an indiscipline of science called clinical ecology, which, forgive my language, is a body of farcical, pathetic ignorance which maintains that environmental chemicals, and I don't mean living inside a major chemical factory, but colognes, carpet, furniture, you name it, that these things are causing what is a wonderfully named disease, chemically induced AIDS. The PR is fantastic. I mean, if you think of how you appeal to the sort of morbid fears of a generation whose fears have been framed on the one hand by Rachel Carson and on the other hand by the bathhouses of San Francisco, you could not come up with anything better than chemically induced AIDS. Well, they have come up with it, and, scientifically speaking, these stories are all worthy of the National Enquirer, where, in fact, some of them were first published.

Yet they are announced not in smudgy, badly typed cult newsletters but in calf-bound, legal case reports. They are endorsed not by starry-robed astrologers but by black robed judges. They are subscribed to not only by quacks, ones that stir up the authorities, but in some instances, by the authorities themselves.

Junk science has become a truly powerful sociological instrument. Why, I'm truly not sure. One reason is surely that junk science often tells us things that we would like to believe, that are convenient to believe, that are easier to believe than more painful truths. It is not really all that fun to be told, look, the main things that afflict you in your life are, 1) you smoke, 2) you drink too much, 3) you eat too much, 4) you never do up your seat belts.

You know, go home and clean up your own house and you will be a healthier and better person. It is not pleasant to be told if you've just had a child that has a birth defect--as occurs in fact in between 2 and 4 per cent of all births, it's a large number--it is not comfortable to be told, either, look you engaged in a lot of recreational drugs you shouldn't have taken or, more likely, we just do not know what causes these things. It seems to be part of the variability of human reproduction. We don't have a good handle on it.

It is far more attractive in those circumstances to be told, yes, there was a simple, easily identified cause of this. An obstetrician who failed to perform a caesarean section. A drug company that didn't alert you to the hazards of Bendectin. It is much more pleasant, often, to be told those things. And because it is pleasant, because it is convenient, it is often believed.

A little post-mortem on the Audi story, which I think really puts this into perspective and just shows how susceptible we have become to these things. What, in fact, does good science tell us about the Audi? It tells us, beyond all serious dispute, that what was causing sudden acceleration in the Audi was people's foot on the accelerator. No more. No less.

There was nothing wrong with the Audi's electronics. The brakes never failed. The crisis was a pure creation of lawyers and the mass media. Why was it unique to the Audi? (And this is really part of the lesson.) How come it was the Audi that landed in all those elevator shafts and swimming pools? The answer is, it wasn't the Audi. It was the Audi that landed on "60 Minutes" one Sunday evening, and Ed Bradley told the whole world that the Audi was possessed.

Now, every morning you have about one hundred million Americans have their cup of coffee, climb out of their houses, step into their cars, put one arm over the arm rest, look over their shoulder and stick a foot down on the pedal. Ninety-nine million nine hundred thousand and X number get their foot on the right pedal, whether they're driving an Audi or any other car. But 10 of them or maybe it's 22, I don't know, a certain number of them, put their foot on the wrong pedal. It happens, okay. Of those 10 or 20, eighteen say my goodness, I just put my foot on the wrong pedal. They lift it up and they put it on the other pedal. But 2, every day, reliably, or it may be 6 or it may be 4, say, "My goodness me, I'm standing on the brake and my car is going faster and faster!"

Of course it's funny, but once you've told yourself that and you push even harder on that "brake," your car does go into swimming pools. Now, in the ordinary course of things, after the accident, people, if they survive the accident, which they sometimes do, say, "boy, was I stupid, I put my foot on the wrong pedal" and, "gee, that was a really stupid thing to do." But, once Ed Bradley and "60 Minutes" have told you no, it is the microwave oven in your neighbor's house that caused the car to do that, the temptation to believe it is almost overwhelming. That is what caused the Audi epidemic. Nothing more.

If you want one final little piece of evidence on that, the Canadians, for whom I have great affection having been born in Canada myself, are quite a bit like us, but like to be a bit different. For obvious cultural reasons, several of their news stations, when they heard about the sudden acceleration disease, did investigative stories as well, but fingered the Honda Accord instead of the Audi. And exactly the same thing happened--they had an epidemic of reports on the Honda Accord.

I could go and on on about this. One has to understand the financial dynamics of junk science. Apart from the possibility of gaining fame and recognition by discovering something new like the Audi--and you certainly can gain a lot of that--the allure of money can be quite, quite substantial here.

The great epidemic of so called traumatic cancer in this country. The theory that sudden impacts in a car accident or a slip and fall, that these sorts of things could cause cancer. They do not, in fact, cause cancer. But this theory gained great credence, first in Europe and then in the United States, between 1878 and the 1930s. What happened during that period? What was it that suddenly caused an epidemic of traumatic cancer? Particularly, since there is no such thing as traumatic cancer, what was driving it?

What was driving it was the enactment of Workers' Compensation Laws. You could almost track the increase in these incidents, these claims, at various dates, beginning in Germany and Europe and then moving across the ocean into this country--enacted compensation systems, that claims just followed. It was as day follows night.

The role of the mass media has become tremendously important. A "60 Minutes" or a National Enquirer has the power to create a reality of its own. The Bendectin case before the Supreme Court today was created by the National Enquirer. It's as simple as that. There was no story there. There was no notice until it was on the front page of the National Enquirer. Within a matter of years they had fourteen hundred claims consolidated in one federal courtroom in Cincinnati.

Merrill-Dow Pharmaceuticals, facing the potential for staggering losses should they actually pay this off, offered at one point $120 million to buy their way out of this. The plaintiffs foolishly torpedoed that offer thinking they could get more. That case actually went to trial and the defense won it hands down. But more cases came and more cases and this war of attrition has now continued for ten years. Merrill-Dow overwhelmingly has won these cases, before juries, Appellate judges, and, in one way or another, will win this last case as well. Whatever the Supreme Court articulates. It will go back down, and Merrill-Dow will then win. It is going to happen. But the instability is dramatic.

On opposite sides of the same street in this city, one in the federal courthouse and on the other side of the street in the local D.C. courts, essentially identical Bendectin trials go to juries. On the federal side both juries vote for the plaintiffs, but on the judges throw out the verdict on the grounds that the expert testimony was not qualified. On the D.C. side, the expert testimony is allowed to stand. The upshot on one side of the street is a $750,000 verdict; on the other side of the street, no verdict at all.

We have developed in these junk science areas a sort of a brand-new version of epidemiology. Stanley Chasley, one very effective mass injury lawyer, calls it people power, which, if you think about it, is a nice sort of quasi-medical jargon. Instead of actually studying and double-blind tests, correlations and causality and so on, if you can accumulate a thousand claimants who believe that Bendectin or Cheerios or Doublemint Gum cause cancer--if you can actually consolidate a thousand such claims in a federal courtroom or a state courtroom--you are talking serious leverage. I mean, when a single plaintiff and a single plaintiff's lawyer can park one person on Larry King [Live] and the next day the cellular telephone industry goes into a nose-dive on the theory that cellular telephones cause cancer--that kind of leverage in this kind of sociological environment is really quite powerful.

Where are the stopping points in this? That is a much more difficult question than describing the problems in the system. Clearly, we have to amplify the voices of sanity here.

The scientific community, the mainstream scientific community, the people who actually publish their papers, are willing to have them peer-reviewed, who go through the disciplines of science, clearly have to speak out more willingly and be amplified by what I, in my unbiased way, call the voices of sanity.

Somehow, one has to have counter voices to people like William Rosenbluth and Ed Bradley. So, clearly, the scientific community, up to a point, has been derelict here. The delivery of babies in this country--and the medical procedures we use--has been defined by the worst of our obstetricians in this country. We perform way too many caesarean sections. We use gadgets and knives in glorious gory excess in delivering babies because the mainstream medical community has been too silent and the fringes of that community have peddled too successfully and too often the notion that obstetricians can prevent things like cerebral palsy if they only intervene more aggressively. The mainstream has got to be amplified here.

I don't know whether it will ever prevail, but there has to be some way to turn the mass media around here. You cannot compete against the National Enquirer and "60 Minutes" without using comparable tools. It just will not do to publish only in the New England Journal of Medicine. Ed Bradley just trumps them every time.

Of course there are many smaller and incremental solutions. The case before the Supreme Court today is a modest case. It involves two arcane federal rules which go to the qualification of expert witnesses. In 1975 those rules were put into effect. They, at least if you just read the text, seem to adopt this "let it all in" philosophy of scientific evidence. Where was the mainstream scientific community when these rules were written? These rules are currently now up for revision. Of course, the Supreme Court is looking at them as well. It is at that level, I think, that many of the reforms have to occur.

I would like to end with a little story. Not a story but a kind of a sermon, I guess. In the end, our tolerance for junk science is not simply an economic issue. It's not simply measured by, say the inconvenience of women in this country who have no access to a morning sickness drug. It is not measured in those simple terms. It really ultimately goes to our conception of ourselves and our own sense of morality.

Marvin Harris makes this point wonderfully well in his classic book, Cows, Pigs, Wars and Witches. A marvelous book, if you haven't read it. Marvin Harris writes, "It is quite impossible to subvert objective knowledge without subverting the basis of moral judgment. If we cannot know with reasonable certainty who did what, when, and where, we can scarcely hope to render a moral account of ourselves. We have to make up our minds about certain events. If we really have no confidence in our ability to determine facts, we must either advocate the total suspension of moral judgments or adopt the inquisitorial position and hold people responsible for what they do in each others dreams."

Dreams. Yes, indeed. Let us never forget what your ancestors and mine did in Europe and up to a point in America in the several centuries between the Renaissance and the Reformation.

I will cite only one example: on December 21st, 1601, Elsie Gwinner, the baker's wife, is burned to death in Offenberg, Germany for having had intercourse with the devil. Between the Renaissance and the Reformation, some 500,000 women were put to death in that way. But I am, nevertheless, fairly sure that Elsie Gwinner did not, in fact, have intercourse with the devil. As Harris reminds us, that is not an uninteresting or uncertain conclusion considering the fact that she was carbonized for having done so.

In the end, I think, our ability, our collective societal ability to find out and recognize and affirm the difference between true factual claims and false ones, really goes to our entire conception of what we are and how we organize our affairs.

In the end, reliable procedures for distinguishing between true scientific claims and false ones--procedures that can be relied on not only in the hermetic scientific community, but also in our courts, our regulatory agencies and in our larger social and political decision making arena--reliable procedures in the end, are all that stand between you and me and Elsie Gwinner and the bonfire.