In this book, Carl Cranor utilizes material from ethics, philosophy of law, epidemiology, tort law, regulatory law, and risk assessment to argue that the evidentiary standards for science used in the law to control toxics ought to be ...

A world awash in little understood chemicals tragically harms adults and children alike. Laws keep health agencies in the dark about toxicants, slow, well motivated research hampers protections, and strenuous vested opposition exacerbates the harm. How science is used in the tort law can facilitate or frustrate redress of harm. This book recommends better approaches.

The relationship between science, law and justice has become a pressing issue with US Supreme Court decisions beginning with Daubert v. Merrell-Dow Pharmaceutical. How courts review scientific testimony and its foundation before trial can substantially affect the possibility of justice for persons wrongfully injured by exposure to toxic substances. If courts do not review scientific testimony, they will deny one of the parties the possibility of justice. Even if courts review evidence well, the fact and perception of greater judicial scrutiny (...) increases litigation costs and attorney screening of clients. Mistaken review of scientific evidence can decrease citizen access to the law, increase unfortunate incentives for firms not to test their products, lower deterrence for wrongful conduct and harmful products, and decrease the possibility of justice for citizens injured by toxic substances. This book introduces these issues, reveals the relationships that pose problems, and shows how justice can be denied. (shrink)

We provide examples of the extent and nature of environmental and human health problems and show why in the United States prevailing scientific and legal burden of proof requirements usually cannot be met because of the pervasiveness of scientific uncertainty. We also provide examples of how may assumptions, judgments, evaluations, and inferences in scientific methods are value-laden and that when this is not recognized results of studies will appear to be more factual and value-neutral than warranted. Further, we show that (...) there is a "tension" between the use of the 95 percent confidence rule as a normative basis to reduce speculation in scientific knowledge and other public policy and moral concerns embodied by the adoption of a precautionary principle. Finally, although there is no precise agreement regarding what a precautionary principle might entail, we make several recommendations regarding the placement of the burden of proof and the standard of proof that ought to be required in environmental and human health matters. (shrink)

The idea of a precautionary principle (or precautionary principles) is beginning to come to the wider attention of the environmental community, governmental agencies, regulatory agencies, and the regulated community. Different precautionary principles have not been specified in detail, and, of course, this is difficult to do. Yet some specification must be done in order to understand it better and, if it is to be used for specific action-guidance, to implement it. Moreover, it is important to understand more about the principle, (...) its background assumptions and its comparison with other principles to which we might subscribe. This paper explores aspects of the PP and its background assumptions and presuppositions, comparing them with those for risk assessment and other statements of the PP. It also briefly indicates how it resembles legal principles in addressing problems of uncertainty. Finally, it recapitulates two possible versions of the PP and suggests an application of it for an emerging threat to the environment and public health. This review suggests the PP has plausible applications and is not the radical principle some have suggested. (shrink)

Environmentalists have advocated the Precautionary Principle (PP) to help guide public and private decisions about the environment. By contrast, industry and its spokesmen have opposed this. There is not one principle, but many that have been recommended for this purpose. Despite the attractiveness of a core idea in all versions of the principle—that decision-makers should take some precautionary steps to ensure that threats of serious and irreversible damage to the environment and public health do not materialize into harm—even one of (...) the most widely endorsed principles needs considerable specification and refinement before it can be used. Moreover, the PP is an approach or guide to utilizing scientific evidence in social or legal decision-making contexts. In this it does not differ in kind from other approaches to using factual information such as in the law. The law provides some models for different strategies to guide decision-making under uncertainty when factual issues cannot be resolved with certainty. These in turn can help guide the formulation of different versions of PP and help clarify some presuppositions of the principle. Once some plausible versions of PP are articulated, I suggest some applications to existing environmental problems. (shrink)

In section i, I sketch the main arguments to date for legal moralism, And show the ways in which they are unpersuasive. In sections ii and iii, I sketch and evaluate a seemingly compelling argument, Dependent on the concept of wrongful conduct, For the weak thesis that the immorality of conduct is a reason, But not a sufficient reason for making it illegal. Despite the apparent persuasiveness of this argument, The particular conclusions of the legal moralist, That various non-Harmful immoralities (...) ought on balance to be criminal, Do not obviously follow. Finally, Once the argument for the weak thesis is understood, Even its initial persuasiveness is undermined by considerations of legal philosophy. (shrink)

Herman Melville’s Billy Budd presents a classic example of a legal official legally required to enforce a law he believes or knows to be unjust. Although there has been considerable discussion of a citizen’s moral duty to obey unjust laws, there has been little consideration of a legalofficial’s duty to enforce unjust laws.In this paper I take the central moral dilemma of the novel -- a legal official’s moral duty to enforce a valid law of a legal system vs. his (...) moral duty not to do or to contribute to injustice -- and discuss various moral considerations that would bear on this dilemma. By doing this I hope to contribute both to the moral issues involved as weIl as, to some extent, the literary criticism with regard to Billy Budd. (shrink)

The aim of this paper is to evaluate the respect-for- persons theory implicit in John Rawls's A Theory of Justice. It merits evaluation not only as a contemporary contribution to the respect-for-persons literature, but because it provides an essential premise in one of his arguments from publicity for his principles of justice.In sections I and II I discuss the meaning and justification of his respect principle. As it stands it seems unjustifiable. In section III I argue that since it is (...) unjustifiable, it renders one argument from publicity unsound. More generally, it seems that Rawls has misconceived the relationships between justice, respect, and self-respect. Perhaps respect and self-respect should be defined in terms of justice, not conversely. (shrink)

Herman Melville’s Billy Budd presents a classic example of a legal official legally required to enforce a law he believes or knows to be unjust. Although there has been considerable discussion of a citizen’s moral duty to obey unjust laws, there has been little consideration of a legalofficial’s duty to enforce unjust laws.In this paper I take the central moral dilemma of the novel -- a legal official’s moral duty to enforce a valid law of a legal system vs. his (...) moral duty not to do or to contribute to injustice -- and discuss various moral considerations that would bear on this dilemma. By doing this I hope to contribute both to the moral issues involved as weIl as, to some extent, the literary criticism with regard to Billy Budd. (shrink)

The aim of this paper is to try to clarify the nature and justification of respect for the law. In section I, I try to clarify the nature of respect for a legal system and distinguish it from related concepts. In the next section, I consider problems justifying the attitude of respect toward a legal system. In section III, I discuss the extent to which one has duties to behave respectfully toward and to try to adopt an attitude of respect (...) toward a reasonably just legal system. One consequence is that it is difficult to show that one has a duty to obey the law because it is respect-worthy. In the last section, I sketch further consequences of preceding sections and suggest that respect for the law properly understood is neither the boon of oppression nor the bane of conscientious moral agents. (shrink)

Many legal disputes turn on scientific, especially statistical, evidence. Traditionally scientists have accepted only that statistical evidence which satisfies a 95 percent (or 99 percent) rule — that is, only evidence which has less than five percent (or one percent) probability of resulting from chance.The rationale for this rule is the reluctance of scientists to accept anything less than the best-supported new knowledge. The rule reflects the internal needs of scientific practice. However, when uncritically adopted as a rule for admitting (...) legal evidence, the seemingly innocuous 95 percent rule distorts the balance of interests historically protected by the legal system. In particular, plaintiffs in toxic tort and employment discrimination suits are effectively held to a heavier burden of proof in showing that their injuries were more probably than not caused by the defendant's actions. The result is that too many victims of toxic torts or employment discrimination cannot win legal redress for their injuries. (shrink)

Many environmental harms are produced by the consequences of too many people doing acts which taken together have collective bad consequences, e.g. overuse of an underground aquifer or acid rain 'killing' a lake. If such acts are wrong, what should a conscientious moral agent do in such circumstances? Examples of such harms have the general feature that they are produced by individual acts, which taken by themselves may be innocent and morally permissible, but which have disastrous consequences when too many (...) people perform them. Philosophers once thought that the generalisation argument, "If the consequences of everyone's doing acts of kind a are undesirable, then no one ought to do a," was the appropriate principle to guide a conscientious moral agent in such circumstances. However, there has been considerable literature discussing the shortcomings of this principle. Nevertheless, a proper understanding of the GA suggests that whole groups of people have collective duties to prevent such harms, which duties then provide clues to individual duties to protect the environment. In this paper I consider some major deficiencies of the generalisation argument, the collective duty which follows from the salvageable part of the argument, and the distribution of individual duties a conscientious moral agent has with regard to such environmental harms as a consequence. These duties turn out to be peculiarly political in nature with the result that conscientious moral agents may have a number of political duties to protect the environment heretofore unrealised. (shrink)

Government agencies and private risk assessors use (quasi) scientific risk assessment procedures to try to estimate or predict risk to human health or the environment that might result from exposure to toxic substances in order to take steps to prevent such risks from arising or to eliminate the risks if they already exist. In this paper I discuss several ways in which the "science" of carcinogen risk assessment differs from ordinary scientific enterprises. I also consider several ways in which normative (...) policy considerations infect this regulatory science. Scientists, philosophers of science, moral philosophers and policy makers should address these issues forthrightly in order to serve better the aims of science and regulation. (shrink)