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What Process is Due?

What Process is Due?: Courts and Science-Policy Disputes

David M. O’Brien
Copyright Date: 1987
Published by: Russell Sage Foundation
Pages: 264
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  • Book Info
    What Process is Due?
    Book Description:

    Are judges competent to decide complex scientific disputes over toxic chemicals and hazardous wastes? Have courts gone too far in awarding damages to victims? Does the judiciary unreasonably constrain free market forces and usurp power from democratically elected branches of government? What constitutes judicial "due process" in the regulation of health-safety and environmental risks?

    David O'Brien addresses these and other key questions in a comprehensive survey of the role of courts in resolving science-policy disputes. He theorizes that such disputes, with their burden of scientific uncertainty and intense value conflict, become judicialized in the United States because they pose an uncomfortable trilemma for policy makers: how to accommodate competing demands for scientific certainty, political compromise, and procedural fairness in the regulation of risks. When policy negotiations break down, courts are called on not to settle scientific controversies per se, but in their traditional role as independent tribunals for settling value conflicts and imposing norms in a pluralistic society.

    This interpretation is enhanced by a unique set of case studies, including DES and asbestos litigation and the ban on Tris (a carcinogenic flame-retardent). O'Brien's analytical framework and his detailed examples illuminate the extent, the implications, and the underlying causes of the judicialization of risk regulation.

    eISBN: 978-1-61044-429-3
    Subjects: Law, Sociology

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Preface
    (pp. vii-xiv)
  3. Acknowledgments
    (pp. xv-xvi)
    David M. O’Brien
  4. Table of Contents
    (pp. xvii-xviii)
  5. List of Figures
    (pp. xix-xx)
  6. CHAPTER 1 Science, Law, and American Politics
    (pp. 1-36)

    Perceptions of and responses to risk vary among societies and, as sociologist Mary Douglas and political scientist Aaron Wildavsky argue, reflect basic cultural values and choices.¹ In America, three competing ideals or cultures underlie responses to disputes over the health-safety and environmental risks. They are science, law, and democratic politics. Each prescribes different methods for dispute resolution. But together they create a trilemma for policymakers—whether legislators, administrators, or judges—in resolving science-policy disputes over the regulation of risk.

    My argument is that, because of these competing cultures, science-policy disputes almost uniformly pose a trilemma in the regulation of risk...

  7. CHAPTER 2 Courts and Toxic Torts
    (pp. 37-70)

    Science-policy litigation is not new to courts. Some disputes arise over age-old problems, like that of a farmer who builds a dam to facilitate the irrigation of his land, which leads to flooding of his neighbor’s pasture. Did the dam’s diversion of the river cause the flooded pasture? Others arise because new technologies bring unforeseen consequences, such as when a chemical plant’s deposits of waste in a company-owned lake spills over, or leaches, to a neighboring farmer’s land, contaminating the water, soil, and grazing cattle. Did the chemical plant’s deposits cause the contamination? Both of these cases raise similar questions...

  8. CHAPTER 3 Beleaguered and Embattled Judges?
    (pp. 71-106)

    Litigation has historically brought science-policy disputes to the courts and, as we saw in the last chapter, will continue to do so. Because judicial resolution of these disputes is often less than perfect and the impact of judicial rulings may be exceedingly broad, controversy over whether courts have gone too far or not far enough will undoubtedly continue as well. But that is not all there is to the controversy over courts and science-policy disputes.

    Many lawyers, judges, and social scientists argue that judges are less competent to settle complex science-policy disputes than other subjects under dispute. They also frequently...

  9. CHAPTER 4 The Allure of a Judicial/Administrative Partnership
    (pp. 107-152)

    “Scientific and technological developments,” Judge David Bazelon observes, “outstripped the common law and thrust [the judiciary] into a new role.”¹ In the last two chapters we saw how state and federal trial courts have dealt with science-policy disputes and responded to the pressures of private law litigation. Here, we turn to the role of federal appellate courts in the administrative law and politics of managing health-safety and environmental risks. The federal judiciary has a larger role in the regulatory politics of managing risks due to unprecedented congressional legislation and a surge of litigation over health-safety and environmental regulation. Underlying these...

  10. CHAPTER 5 An Elusive Senior Partner
    (pp. 153-186)

    When considering the trends toward greater judicialization of regulatory politics in earlier chapters, I gave particular attention to the role of state and federal district courts. Here, we will focus on the role of federal appellate courts in reviewing lower court decisions and federal agencies’ regulations of health-safety and environmental risks.

    The reason for doing so is that the problems that science-policy disputes pose for appellate courts are different from those facing trial courts, whether in the state or in the federal judiciary. Trial court judges such as Judge Miles Lord, as we saw in Chapter 3, sit and decide...

  11. EPILOGUE: Reconsidering Courts and Science-Policy Litigation
    (pp. 187-191)

    Controversy over courts and science-policy disputes is often misdirected. Courts and the judicial process have an important role in resolving disputes over the regulation of health-safety and environmental risks. Such disputes are not new to courts, though their nature changes with technological advances and social forces. Like other kinds of social conflict, science-policy disputes tend to come to the courts because of expectations about conflict resolution that are deeply rooted in our cultures of science, law, and democratic politics.

    Science cannot dictate responses to the perceived risks of industrial society. Indeed, science is often part of the problem. Uncertainties, and...

  12. Appendix A. Chronology of Major Federal Laws Relating to Environmental Quality and Health
    (pp. 192-199)
  13. Appendix B. Bases for Health, Safety, and Environmental Regulation
    (pp. 200-203)
  14. Appendix C. Substances Regulated as Carcinogens Under Federal Legislation
    (pp. 204-208)
  15. Selected Bibliography
    (pp. 209-224)
  16. List of Cases
    (pp. 225-230)
  17. General Index
    (pp. 231-242)