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January 28, 2022
EVIDENCE FOR POLICY-MAKERSA Guide to Making Tough Calls on Complex Matters

(This article first appeared in the American Spectator at

Start with a simple empirical proposition: It is rare that one has all the evidence at hand one would like to have when facing important decisions. This holds true for countless big personal choices—marriage, divorce, buying/selling a home, moving to a new location, choosing the best school, embarking on a career, etc. Such decisions involve the uncertainty endemic to life on our planet.

The same uncertainty equally pervades the weighing of policy options, whether to support or oppose, let alone, decide to act. We are constantly calculating odds, assessing trade-offs, estimating plausible outcomes. We also assess their probable impact on allies, neutrals and adversaries—and, in politics as ever, on potential election outcomes. Technology tells us what is or may become possible; markets factor in what consumers and producers see as currently plausible; multi-tiered regulation ultimately dictates what is legally permissible. Many policy arguments feature advocates purporting to apply scientific standards of proof; other arguments center around legal proof standards. And, naturally, many arguments have advocates combining the two.

Standards of Legal Proof: Legal Standards Judicially Applied. One thing that separates executive and legislative branches from judicial branches is that judicial bodies are obligated by law to follow certain rules considering whether evidence suffices to cross the legal threshold of proof and thus decide the case. (For simplicity, I am skipping administrative agencies, which often combine quasi-legislative with quasi-judicial functions.) Unfortunately, decision-makers often clash over what constitutes proof; complicating this is that is it easier to place the onus of proof on one’s opponents, than it is to prove one’s own case.

Imposing high standards of proof can lead to protracted paralysis, making one prisoner of events as they unfold, leaving the initiative to other actors. Conversely, lax standards of proof often carry a greater risk of making catastrophic blunders.

Standards of legal proof aim to match the severity of liability facing defendants. The lowest standard is a mere preponderance of the credible evidence; the highest, famously applied in criminal cases, where defendants face deprivation of liberty—or, in capital cases, life—is beyond a reasonable doubt. (Certain classes of civil cases, were wrongdoing is easily alleged and inherently difficult to rebut, carry an intermediate standard of proof, “clear and convincing”—highly probable or reasonably certain—between the two main standards of proof.) These standards work in legal proceedings, but have little usefulness in guiding empirical policy. The inability to compel production of evidence from many bad actors on the world stage renders all these standards hard to apply in deciding policy matters.

Standards of Scientific Proof: A Key Metric. In a Jan. 24, 2022 article in Tablet Magazine, The Dissidents, author Clayton Fox interviewed many leading scientists, from which he writes: “one quote stood out”:

There is no scientific truth, only replicable science. Then it becomes theory, but not law. And not truth. There are fundamental laws of physics that have been overturned. Law is not truth, law is law, and in science, law can be overturned.

Fox continues:

Somehow in the madness, confusion, and paranoia of our two-year sojourn through Covid-19, that basic definition of scientific truth—that it is ever evolving, and inimical to dogmatism—has been largely mocked, denigrated and ignored, if not met with slogans like “believe science.”

Thus, he writes, does Anthony Fauci aver that “attacks on me are attacks on science”; Pfizer’s single clinical trial of its own antiviral pill induces health policymakers to discount and defame hundreds of clinical trials produced by other firms. Fox blames a coterie of “authoritarian bureaucrats and tech platforms that increasingly function as private arms of the state.”

In October 2020, three leading medical scientists, from, respectively, Stanford, Harvard and Oxford (the GBD3), issued the Great Barrington Declaration. They recommended “Focused Protection” of the most vulnerable, instead of blanket protection that includes many people at near-zero risk to catch Covid. The latter are unlikely to be hospitalized, let alone, die, if they catch it; for them, early therapeutic treatment can be very effective. The GBD has been signed by over 60,000 medical professionals, and has gathered over 920,000 signatures in total. In the entire history of epidemiology, the GBD3 stated, no disease in history has ever been eradicated by lockdowns. While much scientific evidence was slighted or ignored outright, eventually facts came to light that, along with public attitudes, may make them decisive in altering current policies. One key reason that these facts were not widely known sooner is that many mass and social media platforms actively suppressed contrary views as allegedly “misinformation.” I recently came across a Big Word, ultracrepidarian, an adjective that denotes “the habit of giving opinions or advice on matters that lie outside of one’s knowledge and competence.” Its leading practitioners in America today are today’s politically correct mass and social media outlets; with the pandemic they outdid themselves.

Standards of Policy Proof: No Authoritative Arbiter. Disputes over public policy are not governed formally by any standard of proof. Intuitively, one would ask for higher standards of proof for the most serious matters—such as going to war. Yet adversaries with whom we might go to war often have largely opaque societies, with limited information available without necessary cooperation that will rarely be forthcoming.

There is also the human tendency to favor one’s own side, by placing burden of proof on others. In more than half a century of policy disputation, I can’t recall a single instance where someone said to me: “The burden of proof rests on my side, and I hereby accept it.” Thus, no one can divorce oneself from self-interest, in making the other side’s case harder to establish.

From this flow two propositions which in tandem come as close to genuine neutrality as I can propose:

(1) As there may be many problems where neither side can meet even the lowest standard of courtroom proof: Each of us has the burden of making the best case we can for our side.

(2) As none of us can impartially justify deciding standards of proof for others: Each of us may determine what standard we wish to apply.

These are fine in the abstract, but a real-life problem is that people in positions of power routinely impose their preferences on those with less power. Bosses tell subordinates what to do, including, when deemed necessary, what burden of proof applies. Ditto parents, presidents, etc.

Yet pressing issues call for arriving at some realistic mid-point. Two major controversies serve as case studies in the pros and cons of how empirical evidence has been used in support of or opposition to major public policy choices: (a) Covid-19’s origin and consequent policy responses; (b) the potential effectiveness of economic sanctions to deter or punish aggressive behavior by foreign adversaries—Russia, China and Iran—as well as conduct by our allies that may undermine such policies.

Covid-19. What evidence should we require before finding China guilty of hiding Covid-19 to protect itself from being held responsible for unleashing a global pandemic? How should we weigh hazardous research carelessly conducted and thus not contained? How much evidence—qualitative and/or qualitative—should suffice for lifting lockdown and mask restrictions, and targeting discrete population segments for vaccination and treatment?

One avenue of inquiry is determining culpability. State of mind is at the root of these questions. What may have been done intentionally? What activities may show reckless disregard for the safety of others? What acts were grossly negligent, or merely negligent? And what honest misjudgments were made in good faith, and hence not culpable?

A second avenue of inquiry is whether policies were reasonable in light of the perceived threat. What adjustments, if any, were made as more was learned about the virus? What options, if any, were foreclosed? Were any efforts made to suppress qualified medical authorities who disagreed with decisions made?

For two years now, the public health establishment has ignored or denigrated critics, demonstrating that bureaucratic attitudes and perceived imperatives can triumph over even a vast storehouse of contrary empirical evidence. The Covid-19 scorecard was in many respects a dismal one. Virtually worldwide, the authorities chose total lockdowns; mandated vaccines and wearing of masks; dismissed opposing views; demonized dissenters; and revoked emergency authorization for monoclonal antibody treatment despite awareness of successes with it, enraging Florida Gov. Ron DeSantis, who said at a Jan. 25 presser:

Without a shred of clinical data to support this action [President Joe] Biden has forced trained medical professi