Privatization and deregulation have created the conditions for the rise of the regulatory state to replace the dirigiste state of the past. Reliance on regulation – rather than public ownership, planning or centralized administration – characterizes the methods of the regulatory state.
Majone, 1994, The rise of the regulatory state in Europe, West European Politics, p. 77.
One starting idea in my own reading has been (obviously) that regulation was a particular form of policy-making that had distinct impacts on the way the state bureaucracy wielded science, and vice versa. The literature on this topic is, obviously, too vast to appreciate, let alone read and digest. Below I simply keep a note of books and articles I have come across that appear relevant.
I split the notes into three parts. The first concerns a typology of connections between scientific evidence and regulatory decision-making (merely an attempt to help me understand what might be argued in various places – not to be taken too seriously).
In the second part, I take note of some of the work of a handful of well-known scholars writing on this topic from historical, sociological, and legal perspectives. In the final part I take note of writing I have come across concerning the relations between trade and scientific expertise.
There is a section at the end for reading not otherwise categorized. One final point to note is that almost all the material I have read is American, and concerns the American legal system.
Typology of connections between scientific evidence and regulatory decision-making
Cost-benefit analysis
A regulation satisfies cost-benefit analysis (CBA) if it produces benefits (in terms of deaths, injuries, and other losses avoided) greater than the cost of compliance. ‘Defenders argue that CBA produces better regulations, enhances transparency, and brings rigor to the regulatory process. Critics argue that CBA has weak normative foundations and, in practice, forces agencies to ignore real but difficult-to-monetize regulatory benefits, resulting in under-regulation of the environment, the workplace, and other domains.’*
Feasibility analysis
A regulation satisfies feasibility analysis if it reduces a risk of harm to the maximum extent possible without having a major negative impact on the economy such as ‘widespread plant closings’. Agency cannot select a less stringent regulatory standard (among several options) when the more stringent option would not lead to plant shutdowns…feasibility analysis…[has therefore] generally been regarded as favoring strong regulation, in comparison to CBA. [But] what does it mean to say that an agency must reduce a risk to the point at which ‘widespread plant closings’ occur? Can this term be given a precise definition? And why exactly are widespread plant closings to be avoided?*
Technology-based analysis
‘The Environmental Protection Agency creates technology-based standards to control air, water and soil pollution. Only after determining the ability of currently available technologies to meet conventional objectives for a sector will the Agency set its own standards for that sector…this procedure provides a moral imperative for regulated entities to do their best when public health and the environment are at stake.’†
Science charade
Why have past science-based regulatory strategies failed? ‘This Article…confronts this question by positing that these past failures are at least partly attributable to a pervasive “science charade,” where agencies exaggerate the contributions made by science in setting toxic standards in order to avoid accountability for the underlying policy decisions.’††
Precautionary principle
‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’ (‘It can be seen from the wording…that the principle is open-textured and, on its face, incapable of constituting a legal obligation.’)¶
“Commons ignorance” – “agnatology” – Merchants of Doubt
‘[B]iased research and manufactured critiques prepared by those actors who stand to lose if the truth about the harmful effects of their activities comes to light.’§
Bridging the data gap
‘It is widely recognized that quantified risk has become the dominant basis for the regulation of chemical substances…One of the chief consequences of the use of risk…is the creation of a demand for large amounts of scientific information about chemicals, which cannot be satisfied by existing regulatory systems…Most regulatory systems for chemicals seek to fill the data gap by supplying more information. Even with improvements, a filling strategy has serious inherent limitations in its ability to generate sufficient data, however. A better strategy is to bridge the data gap by reducing the demand for data.’||
References:
*Masur and Posner, 2010, Against feasibility analysis, University of Chicago Law Review
†Wagner, 2000, The triumph of technology-based standards, University of Illinois Law Review
††Wagner, 1995, The science charade in toxic risk regulation, Columbia Law Review
§Wagner, 2004, Commons ignorance: the failure of environmental law to produce needed information on health and the environment, Duke Law Journal; Proctor and Londa, 2008, Agnatology; Oreskes and Conway, 2010, Merchants of Doubt
Works of Prof Wendy Wagner (University of Texas School of Law)
One of the most significant problems facing environmental law is the dearth of scientific information available to assess the impact of industrial activities on public health and the environment…existing laws both exacerbate and perpetuate this problem. By failing to require actors to assess the potential harm from their activities, and by penalizing them with additional regulation when they do, existing laws fail to counteract actors’ natural inclination to remain silent about the harms that they might be causing.
Wagner, 2004, Commons ignorance: the failure of environmental law to produce needed information on health and the environment, Duke Law Journal
Prof Wagner is Richard Dale Endowed Chair of Law at the University of Texas School of Law. Her ‘research focuses on the intersection of law and science, with particular attention to environmental policy’ (here). What ideas emerge from her scholarship?
The answer is many interesting and important ones, but I will focus here on a line of argument launched in her 1997 article, Choosing ignorance in the manufacture of toxic products (Cornell Law Review). This article, and her subsequent contributions (citing the 2004 Duke Law Journal quoted above), seem absolutely crucial for my purposes because they make explicit links between R&D, regulation, and scientific expertise. Other legal academics such as Prof Albert Lin, & environmental think-tanks such as the Center for Progressive Reform, have also picked up the torch (the latter with the term ‘chemical data gap’). As such, there appears to be now a quite well-established intellectual tradition examining these issues, at least as far as the US legal system is concerned.
The quality of most air, water, and land in the U.S. is unknown…No one knows when industrial and man-made activities stress ecosystems beyond the breaking point or how to help the ecosystems recover…Scientific knowledge is insufficient to identify, much less test for, a variety of invisible hazards associated with household products, pesticides, food additives, and biotechnology products…This void in scientific knowledge is not inevitable…modest investments in environmental monitoring and basic scientific research can make headway in isolating environmental and health problems that need attention. These significant deficiencies in scientific knowledge result in large part from the failure of the environmental laws to require the production of basic information about the harms caused by polluting activities and hazardous products. Regulated actors, despite creating most of the need for this information, are excused under most environmental laws from providing any more than a partial inventory of their activities and are not required to track the resulting impact on public health and the environment. In fact, in many circumstances, the laws actually deter regulated parties from volunteering information on the adverse effects of their activities. Regulators are more likely to greet such information with fines and increased restrictions than with regulatory rewards and letters of commendation.
Wagner, 2004, Commons ignorance: the failure of environmental law to produce needed information on health and the environment, Duke Law Journal, pp. 1624-1625
This is telling us something very significant about the way we think about regulation and Wagner provides some excellent-sounding remedies, notably: (1) ‘address[ing] features of the existing regulatory program that serve only to exacerbate problems associated with the lack of information and asymmetric control over needed information’ (see paper for exact details); & (2) ‘proactive efforts…to produce more information on the harms caused by dangerous products and polluting activities’ (one might also cite such works as Granjean, et al., 2011, The Matthew effect in environmental science publication).
The latter point in my personal opinion speaks to the (often-stated) need to expand public-sector R&D on these topics, & more specifically, to the common point made on this website about the need to directly connect more of the R&D budgets to regulatory agencies so that regulatory officials might design independent R&D germane to regulatory problems (not an original point, either, but one that merits repeating).
My previous discussion of the EU-ANSA, and their less than successful attempts to influence R&D priorities in the EU Framework Program seems to speak to this issue. In short, regulators ought to have their own substantive R&D budgets which can be expended on a range of near, medium, and long-term (blue skies) problems, delivered via contract with universities, government and private labs, and through their own laboratory capacity.
In order to ban a chemical or reduce its use, it seems (as far as I can tell) the realpolitik demands of us that we prove that chemical x causes disease y (the legal meaning of ’causes’ is way beyond my knowledge). Often there is actually little or no peer-reviewed scientific evidence available in the public domain, because investigations have not been conducted, or methods were inadequate to the task, or the few recognized experts available to pronounce on the topic are biased or can be shown to be biased or are otherwise somehow felt suspect. As such, a regulatory official might well believe, perfectly reasonably, that a chemical should be banned, but it seems it is also believed (?) that the official would be unable to defend that reasoning in courts or in other public forums (given the chemical industry will have no shortage of lobbyists, lawyers, journalists, politicians, and ‘friendly’ scientists to call upon &, indeed, the criterion of ‘being the reasonable opinion of a regulator’ would not seem to cut it in court, or among elected officials due to industry lobbying).
[E]ven when the public is willing to subsidize research on the harms that various externalities impose on society, this research may be eclipsed by biased research and manufactured critiques prepared by those actors who stand to lose if the truth about the harmful effects of their activities comes to light. The only appropriate response to this propensity for ignorance is to adjust legal rules in ways that penalize actors when they conceal adverse information or inappropriately attack damaging public research, and reward actors for producing needed information.
Wagner, 2004, Commons ignorance: the failure of environmental law to produce needed information on health and the environment, Duke Law Journal, p. 1745.
Finally, one can I guess make leaps to similar-sounding arguments in the sociological and historical literature (noting, though, that much of Wagner’s analysis predates publication of Proctor and Londa’s Agnatology in 2008 and Oreskes and Conway’s Merchants of Doubt in 2010), but it seems to me a key point about Wagner’s analysis is that it is not for her a major insight that doubt will be manufactured; indeed it is to be expected. The oddity is anyone ever thought otherwise.
Rational choice theory and the large body of laws premised on it understand that those who inflict invisible and costly harms on others are disinclined to document the problems, much less take responsibility for them. Indeed, rational choice theory predicts that if wrongdoers are going to invest in research at all, they will dedicate resources to concealing and contesting incriminating information and producing exculpatory excuses and alibis. The criminal justice system is certainly familiar with this natural reaction to culpability. Yet, for some reason, environmental law has largely failed to come to grips with this inescapable feature of human nature. Instead, environmental law innocently assumes that information linking actors to resulting invisible harms will arise serendipitously, and, even more surprising, that the actors will either volunteer or accept this incriminating information without fuss or fanfare.
Wagner, 2004, Commons ignorance: the failure of environmental law to produce needed information on health and the environment, Duke Law Journal, pp. 1622-1623.
Works of Prof Soraya Boudia (Université de Paris) and Prof Nathalie Jas (INRAE)
Knowledge produced [on hazards] is concentrated on a small number of substances, and is very fragmentary or non-existent for others…schemes (dispositifs) for the evaluation and management of dangerous chemical substances and their deleterious effects thus appear to be both over-invested in a small number of cases and very incomplete for others and, structured as much – if not more – by ignorance than knowledge.
Jas, 2017, Millefeuilles institutionnels et production d’ignorance dans le « gouvernement » des substances chimiques dangereuses, Raison présente
Prof Boudia is a professor of sociology in the Université de Paris who studies health, environmental and technological risk (here). Prof Jas is a CR in the INRAE; she is an historian and sociologist who studies the governance of toxic chemical substances (here). While publishing their own work separately, they have also collaborated, producing overall a large amount of interesting and important studies. Due, frankly, to lack of time and my own ignorance of the topic, below are just a random collection of their work that I read.
Jas, 2017, Millefeuilles institutionnels et production d’ignorance dans le « gouvernement » des substances chimiques dangereuses, Raison présente [Institutional layer cakes and the manufacture of ignorance in the governance of dangerous chemicals].
As discussed before, there seems to be general agreement among the legal scholars cited above that the regulatory system manufactures scientific ignorance about the dangers of chemicals, despite no doubt the best efforts of many officials working within the regulatory bodies, who are motivated by public service and a desire to protect the environment and human health. Jas seems to enumerate how such ignorance is produced along the following lines (apologies for the rough translation and quick paraphrasing which may have inadvertently misrepresented the sense intended by the author).
- The series of international agreements on chemical safety sought the building of global markets; while successful, this focus also brought with it an unwise accommodation to the risks of these chemicals.
- The layer cake organization of international agreements, etc., created a complexity that was hard to understand and that blunted the efforts of environmental campaigners or those trying to hold the system to account.
- Exclusion, in general, of precautionary logic; rather, an emphasis on proven risks.
- ‘Knowledge produced [on hazards] is concentrated on a small number of substances, and is very fragmentary or non-existent for others…schemes (dispositifs) for the evaluation and management of dangerous chemical substances and their deleterious effects thus appear to be both over-invested in a small number of cases and very incomplete for others and, structured as much – if not more – by ignorance than knowledge.’ Jas also notes such factors as: (1) inadequate &/or misdirected R&D leading to general ignorance of hazards; (2) little independent R&D, i.e., most studies conducted by the industry itself, carrying therefore the risk of bias; (3) appraisal processes based on non-scientific considerations, in particular managerial and economic factors; (4) continual re-evaluation focused on a narrow range of substances that are or were felt particularly dangerous or controversial (the bulk of other substances relatively neglected); (5) development and implementation of regulations only partially depends on the results of hazard and risk assessment processes, i.e. political dynamics are also important in constructing particular dangers. As such, chemicals identified as dangerous in one set of circumstances due to political considerations may continue to be used elsewhere where political considerations played out differently; scientific logic is not followed consistently & outright bans are rare.
- Regulation in silos (hypersegmentation), whereby chemicals are assessed by end-use (agricultural, biocide, drugs, etc.) &/or by environment (water, soil, air, food, occupational exposure, etc.); such silos ‘complicate the assessment of dangerous products, but also encourage the invisibility of certain questions and problems,’ according to Jas, because, of course, in reality, pollutants are not experienced in this way.
- The global economy is based on intensifying the use of chemical products. Hence, ‘the bulk of schemes (dispositifs) that govern dangerous chemicals are held back by the impossibility of taking steps that are restrictive for industries or, put another way, by the impossibility of questioning the logic of economic development. Government schemes (dispositifs de gouvernement) are thus today faced with a profound contradiction.’
Boudia & Jas, 2016, Savoir, ignorance et incertitude dans les régulations des problèmes sanitaires et environnementaux, La Lettre de l’InSHS [Knowledge, ignorance & uncertainty in the regulation of health & environmental issues].
This article appears mainly a précis of ‘works related to agnatology’ as the authors refer to them, but it does also contain commentary. Besides the many important and useful points the article makes, it seems to me the most interesting observations as follows (apologies again for the rough translation which may have misrepresented their points).
Furthermore, within the universe of the regulation of health and environmental risks, the terms ‘science’ and ‘scientific’ are extremely ambiguous and a confusion is often maintained between scientific knowledge, and ‘science-based regulatory knowledge’, as if they were strictly of the same nature. Today, the routine work of agencies evaluating risks is in essence based upon standardized methods in ‘the guidelines’ which were formalized in different institutions such as the [US] Environmental Protection Agency or the OECD, from the end of the 1970s and which change very slowly. These tests and procedures are often regarded as obsolete in academic research – & hence are not used [in such research]. Thus, a gap exists sometimes between regulatory knowledge and academic scientific knowledge, as for example with endocrine disruptors. In fact, a large part of the data used by the [regulatory] agencies is produced by the manufacturers themselves, and the agencies have very limited means to replicate or verify the results. Furthermore, shared procedures or ways of working [formes de travail communes et formalisées], often built-up over the long term, may exist between industry and certain teams within the regulatory agencies. Restoring scientific integrity to regulatory systems is paramount but this demands much more than simple transparency over conflicts of interest or denunciation of deviant science, in societies structured by powerful economic interests and important inequalities in terms of resourcing.
Boudia and Jas, 2016, Savoir, ignorance et incertitude dans les régulations des problèmes sanitaires et environnementaux, La Lettre de l’InSHS, p. 34.
Jas & Boudia, 2014, Powerless Science? Science and Politics in a Toxic World (crucial introductory chapter entitled ‘The greatness & misery of science in a toxic world’).
Works of Prof Sheila Jasanoff (Harvard Kennedy School)
Prof Jasanoff is Pforzheimer Professor of Science and Technology Studies in the Harvard Kennedy School. Her ‘research centers on the interactions of law, science, and politics in democratic societies’ (here). Her work is vast and I have not sought to capture its outputs. Instead, anyone can read her website that highlights key arguments. The following précis sections of that website are particularly relevant:
- Key points on the topic of risk and regulation are that ‘different political cultures mobilize different persuasive resources in order to rationalize decisions based on incomplete and contested knowledge’. In addition, ‘unexamined social and cultural preferences, including principles of delegation, are incorporated into policy analytic methods… [which] thereby become invisible, apolitical, and taken for granted.
- Key points in regard to expertise and regulatory science is her concept of ‘regulatory science as a distinct domain of scientific production, accountable to epistemic as well as normative demands in ways that help explain why it is vulnerable to challenge from both science and politics’. Furthermore, she argues that ‘the boundary between science and policy is not predetermined but rather is constituted through the very processes of advice-giving’. Her ‘work on expertise in the public sphere displays how political institutions and cultures authorize, and thereby condition, the production, reception, and uptake of expert knowledge’.
Below is a table of official reports relevant to regulation where Jasanoff made contributions (by membership of the expert group), as listed on her website. Note that reports were all commissioned by funders of R&D (not regulatory bodies).
| Year | Report | Commissioning organization | Example recommendation(s) |
|---|---|---|---|
| 2012 | Using Science as Evidence in Public Policy* | NSF (USA) | Improvements to curricula in Master’s level policy programs in American universities with the goal of better preparing civil servants ‘to promote the use of science in policy-making settings’ (p. 6). |
| 2007 | Taking European Knowledge Society Seriously | DG RTD (European Commission) | Seemingly STS-dominated†. Made the point that scientific research, and the scientific knowledge used to support decisions (e.g. regulation), are part of the same continuum (but did not really seem to pursue thought in terms of recommendations?). Overall, recommendations (pp. 84-87) appear to me rather impenetrable without detailed study, with notable exception of: (1) a proposal to create a ‘Community Research Council’ that would undertake R&D on matters of public concern (perhaps it was felt the existing EU structures such as Framework Programs were not actually doing this?); & (2) greater diversity in staffing of bureaucratic structures (presumably referring to gender, ethnic equity, etc.). |
| 1996 | Understanding Risk | NRC (USA) | Risk characterization should be a decision-driven activity, i.e., knowledge created should be genuinely useful for making decisions (the first of several ‘principles for risk characterization’ formulated in the report, p. 155.). |
| 1994 | Science and Judgment in Risk Assessment | NRC (USA) | ‘The conduct of risk assessment reveals major scientific uncertainties in a highly systematic way, so it is an excellent guide to the development of research programs to improve knowledge of risk. EPA should, therefore, not abandon risk assessments when data are inadequate, but should seek to explore the implications for research…improved cooperation between EPA’s Office of Air Quality Planning and Standards (OAQPS) and its Office of Research and Development (ORD) through such actions as joint publication of a research agenda on hazardous air pollutants would be most helpful..’ (p. 268). |
Works of Prof Fleur Johns (University of New South Wales) and Prof Karen Yeung (University of Birmingham)
Prof Fleur Johns is Professor of Law at the University of New South Wales; her recent work has focused on the role of automation and digital technology in global legal relations, especially in development, humanitarian aid and disaster relief (here). Prof Karen Yeung is an Interdisciplinary Professorial Fellow in Law, Ethics and Informatics at Birmingham Law School; one of her key research interests is the governance of AI (here).
Johns, 2019, From Planning to Prototypes: New Ways of Seeing Like a State (see also this lecture at LSE, by Prof Fleur Johns, posted 14 Feb 2017)
Could it be that an approach of ‘step-by-step “muddling through”’ more or less of the kind that Scott championed as key to resisting and generating alternatives to ‘imperial knowledge’ in development and policy-making (and countering the propensity of such knowledge to fail its intended beneficiaries) is now, to some extent, the preferred mode for exercising the agency of state power (both directly and via international institutions or public-private partnerships), albeit not in the mode that Scott envisioned…So seeing like a state is not…what it once was. In seeking to make use of unstructured, digital data in immense volumes, from a diversity of sources, passed through a range of proprietary filters and metrics, the state no longer aspires to make its own maps, or direct its own monocular gaze from on high. Heroic simplification and rational ordering no longer seem like the end goals (if they ever truly were – again, this article does not attempt to evaluate or affirm the historical accuracy of Scott’s account). Rather, a succession of rapid-fire snapshots resulting from automated dives into vast and shifting oceans of data: this seems to be what the state and many international institutions seek, to sate their appetite for contact with the Real…Modes of analysis too have changed. No longer are comprehensive evaluations, fully developed costings, sophisticated models, or far-reaching forecasts regarded as preconditions for action alongside planning, states and international institutions experimenting with data science are inclined to generate testable policy mock-ups informed by provisional hypotheses, and to seek rapid user evaluation of these mock-ups.
Johns, 2019, From Planning to Prototypes: New Ways of Seeing Like a State, pp. 11-26.
The origins of Bitcoin, which established proof of the blockchain concept, i.e that blockchain technology could be used to enable direct peer-to-peer interactions between strangers without a third-party intermediary, began an ideological project in the early 1990s by a group known as Cypherpunks. Their political vision was, in essence, an anarchic one: they advocated an extreme form of libertarianism in which all forms of commerce existed beyond state control, enabled by advances in cryptographic software that could provide users with complete anonymity made possible via a decentralized currency, which Bitcoin was intended to fulfil. This political vision assumed that reliance on cryptographic algorithms to enable trustworthy peer-to-peer interaction between strangers, and the distributed nature of the underlying computing network would make conventional law both unnecessary and incapable of reaching into the activities taking place upon or arising out of the network’s operation. This paper has subjected these assumptions to critical scrutiny, arguing that the belief that blockchain systems will operate outside of, and independently from, conventional law, rests on two assumptions: firstly, that the conventional state legal system is rendered redundant because the blockchain provides an alternative governance framework, including guarantees of security, of equal or greater effectiveness and efficiency than those currently provided by conventional law, and secondly, that the state will not intervene in these networks, because it either has no significant legitimate interests that are threatened by particular blockchain networks or applications, or, even if the state has legitimate interests that it might plausibly seek to protect, it nevertheless lacks the practical capacity to take effective remedial action to forestall or mitigate these threats. I have argued it is highly implausible to expect that these assumptions will be borne out in practice.
Yeung, 2019, Regulation by Blockchain: The Emerging Battle for Supremacy between the Code of Law and Code as Law, p. 29
International trade and science
Is climate change occurring? What will happen if I eat beef that has been fattened with estradiol 17ß? Does Thalidomide cause birth defects? We count on our governments to know a plethora of things in order to act on our behalf. Crucially, however, not every democratically elected government comes to know things in the same ways…The diversity of ways that nations validate knowledge claims for public decision making gives rise to an underappreciated challenge for international adjudicators: when nations with diverse ways of grappling with science in decision making agree that the resolution of disputes will be based on science, how should international adjudicators separate the scientific from the non-scientific?
Bushey, 2013, Building an International Administrative Law of Expertise: Law and Science in the International Regulation of Trade, Health, and the Environment, PhD thesis, University of California, Berkeley, p. 8
References:
Wirth, 1994, The role of science in the Uruguay Round and NAFTA Trade Disciplines, Cornell International Law Journal (available here under the same title as a UNEP report)
Echols, 2001, Food safety and the WTO: the interplay of culture, science and technology
Swinehart, 2017, Reliability of Expert Evidence in International Disputes, Michigan Journal of International Law. The paper offers a valuable history of expert evidence in international disputes (p. 290-306). The author is billed as a ‘legal advisor for trade and investment agreement negotiations at the United States Department of the Treasury’. He argues that ‘parties to international disputes routinely put forward expert evidence to support their arguments, and courts and tribunals often appoint their own experts to bridge the gap between law and other fields. Economists and accountants opine on the amount of damages owed to aggrieved investors; scientists evaluate the basis of environmental and health regulations; historians and anthropologists testify on the social, political, and historical contexts of armed conflict and violence; and engineers explain the development of intellectual property and technologies. Many international tribunals and courts have failed to confront this reality. Most do not ask whether the expert evidence before them even meets a minimum threshold of reliability. And when they do ask, the assessment routinely lacks rigor and transparency. This neglect can lead to reliance on unreliable expert evidence, unfair rejection of evidence that is reliable, or opaque and confused attempts to resolve conflicting expert views’ (p. 288).
Guzman, 2005, Food Fears: Health and Safety at the WTO, UC Berkeley Working Papers
Other reading
Gold and Wagner, 2020, Filling gaps in science exposes gaps in chemical regulation, in: Science
Johns & Grolman, 2019, Big Data and International law
Yeung & Lodge, 2019, Algorithmic Regulation
Abraham & Lewis, 2000, Regulating medicines in Europe: competition, expertise and public health
Majone, 1994, The rise of the regulatory state in Europe, West European Politics
Bennett, 1991, What Is Policy Convergence and What Causes It? British Journal of Political Science
Zito, 1999, Creating Environmental Policy in the European Union
Zwanenburg & Millstone, 2005, BSE: risk, science, and governance
Irwin, et al., 1997, Regulatory science – towards a sociological framework, Futures
McGarity &Wagner, 2010, Bending science: How special interests corrupt public health research
Faigman, 2006, Modern scientific evidence: The law and science of expert testimony
Wood, 2013, Nature’s trust: Environmental law for a new ecological age
Emily Hammond Meazell, 2011, Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science, Michigan Law Review. This paper is very enlightening on the issue of how US courts deal with science. ‘When courts review agencies’ scientific and technical determinations, they often emphasize that the specialized subject matter requires them to be at their most deferential. This “super-deference” principle seems appealing because it is supported by basic notions of institutional competence and accommodates a natural judicial tendency to avoid deep encounters with science. But it stands in stark tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. And it fails to further the legitimizing function of incorporating the best possible science into institutional decision making’ (p. 733). & ‘This Article hypothesizes that generalist courts act as translators, providing a bridge between the technical generators of agency science and the lay consumers of it. This account sees the courts’ generalist perspective as an asset, because it enables the courts to provide accessible descriptions of even the most technical agency science. In turn, courts reinforce administrative-law values by educating Congress, judicial watchdogs, and the public about science in the regulatory state’ (p. 784).
Coglianese & Marchant, 2003, Shifting sands: the limits of science in setting risk standards, University of Pennsylvania Law Review
Alemanno, 2008, EU Risk Regulation and Science: The Role of Experts in Decision-Making and Judicial Review, European Risk Governance
McGarity, 2003, Our Science is Sound Science and Their Science is Junk Science: Science-Based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities, Kansas Law Review
Keller, 2009, Science in environmental policy: the politics of objective advice
Applegate, 2008, Synthesizing TSCA and REACH: Practical Principles for Chemical Regulation Reform, Maurer School of Law, Indiana University. Good coverage of REACH and equivalent US system.
Noah, 2000, Scientific Republicanism: Expert Peer Review and the Quest for Regulatory Deliberation, Emory Law Journal
Babich, 2003, Too much science in environmental law, Columbia Journal of Environmental Law
Wagner, 2000, The Triumph of Technology-Based Standards, University of Illinois Law Review. c.f. Masur & Posner, 2010, Against Feasibility Analysis, University of Chicago Law Review.
Ruhl & Salzman, 2006, IN DEFENSE OF REGULATORY PEER REVIEW, Washington University Law Review
Geistfeld, 2001, Scientific Uncertainty and Causation in Tort Law, Vanderbilt Law Review
Cranor, 2013, LEGALLY POISONED: HOW THE LAW PUTS US AT RISK FROM TOXICANTS
Lahav, 2020, The Knowledge Remedy, Texas Law Review
Heinzlering, 2005, Doubting Daubert, Journal of Law & Policy. Contains useful discussion of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), whereby the US Supreme Court ordered federal trial courts ‘to guard against admission of unreliable expert scientific evidence in cases before them’.
Jasanoff, 1985, Controlling Chemicals: The Politics of Regulation in Europe and the United States
Jasanoff, 1990, The Fifth Branch: Science advisers as policymakers (chapter one available online here)
Jasanoff, 2011, Designs on nature: Science and democracy in Europe and the United States
Jasanoff, 1992, Science, Politics, and the Renegotiation of Expertise at EPA, Osiris
Discussion here of Beck’s Risikogesellschaft.
Kim, 2007, Piercing the Veil of Toxic Ignorance: Judicial Creation of Scientific Research, NYU Environmental Law Journal
Bier & Lin, 2013, Should the model for risk‐informed regulation be game theory rather than decision theory? Risk Analysis: An International Journal
Avgerinopoulou, 2019, Science-Based Lawmaking: How to Effectively Integrate Science in International Environmental Law
Katrina Fischer Kuh, 2014, An Unnatural Divide: How Law Obscures Individual Environmental Harms
ELIZABETH MAGILL & ADRIAN VERMEULE, 2011, Allocating Power Within Agencies, Yale Law Journal. Note of p. 1053.
Symposium, 2008, Missing Information: The Scientific Data Gap in Conservation and Chemical Regulation, Indiana University School of Law (here)
Oppenheimer, et al., 2019, Discerning Experts: The Practices of Scientific Assessment for Environmental Policy
Busi, et al., 2017, Weed resistance to synthetic auxin herbicides, in: Pest Management Science. Contains rare (but obviously unverified) data from the manufacturers on herbicide use that are emblematic of scale. “SAHs rank third (366×106ha) behind ALS inhibitor (508×106ha) and EPSP synthase-inhibitor (477×106ha) herbicides in the area treated globally (Dow AgroSciences proprietary sources, 2014). The herbicide, 2,4-D, is used on 161.7×106ha globally and is the most broadly used SAH, followed by dicamba (50.0×106ha) and 2-methyl-4-chlorophenoxyaceticacid (MCPA) (31.3×106ha).”
Minerva Special Issue: Expertise, Regulatory Science and the Evaluation of Technology and Risk (2017). See, notably, the literature review, Demortain, 2017, Expertise, Regulatory Science and the Evaluation of Technology and Risk: Introduction to the Special Issue
Downer, 2017, The Aviation Paradox: Why We Can ‘Know’ Jetliners But Not Reactors, in: Minerva
Collingridge, 1980, The Social Control of Technology
Dayé, 2020, Experts, Social Scientists, and Techniques of Prognosis in Cold War America
Turner, 2001, What Is the Problem with Experts? in: Social Studies of Science
Turner, 2014, The Politics of Expertise
Turner, 2003, Liberal Democracy 3.0: Civil Society in an Age of Experts
Science Think Tank 