The Value of Information
Reading Wendy’s rather gloomy assessment of the abuse of science in regulatory decisionmaking – which is to say, in political decisions – and Rena’s more upbeat reply, I find myself asking why we are so tied to science in the first place. If the science is so subject to bias and abuse, why are we relying on it as the basis for policy? Shouldn’t we find alternative, rational grounds for action?
The short answer, of course, is that science discovered the environmental problems in the first place. Science revealed the carcinogenic effects of pesticides and chemicals, and we rely on new, cutting-edge science to tell us whether pesticides and chemicals are endocrine disrupters and whether to worry about nanotechnology. And since science was fundamental to the founding of the field, it made of sense to follow the science as it told us more and more about the nature, extent, degree, and relative certainty of the harm. Thus the relatively simple measures of harm, such as “causes cancer in man or animal” in the 1958 Delaney Clause, have been replaced by more subtle measures, such as “unreasonable risk” or “reasonable certainty of no harm,” which require a far more complex …
I think Wendy paints far too black a picture of the current state of affairs, and that rays of sunshine are beginning to poke through this particularly cloudy sky. I rest my case for more optimism on the increasingly aggressive role that scientific advisory boards are playing when political appointees at the Environmental Protection Agency play fast and loose with the science.
One can quickly become depressed by the problems afflicting the science used for regulation of public health and the environment, and CPR bears a substantial share of responsibility for painting a grim picture of a world where politics prevails over science. In a Cambridge-published book, Rescuing Science from Politics, and an accompanying white paper that summarizes the book, along with a second white paper on the problems of scientific secrecy, CPR offers a wide-ranging diagnosis of what ails the science used for regulation. It ultimately concludes that there is far too much manipulation of scientific research by industry; that there are far too few incentives for agencies and even interest groups who are honest about the limits of science and remaining scientific uncertainties; and that many of the processes that purport to support and nourish regulatory science (like peer review; data access; and scientific freedom) are filled …
There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for expert testimony, substantive due process limitations on punitive damages, and preemption of state tort law are three of the ways the Supreme Court is attempting to handcuff plaintiffs in tort actions. The present administration, despite its continuance in effect of Executive Order 13132 that attempts to limit preemption, has adopted a policy of having agencies assert preemption claims as amici in courts as well as in preambles to new regulations. Congress, the actor with the most power in this play, has been incapacitated by the lack of a filibuster-proof majority in the …
There are two issues kicking around in this discussion: (1) Should state tort law be preempted if there is some sort of federal regulation in place? (2) Which institutions - particularly federal agencies and courts – are legally empowered and/or competent to decide that question? I’d like to chime in on (1), but I hope we’ll delve more deeply into (2) soon.
The effort to preempt state tort law depends in part on myths critiquing the tort system, which Tom McGarity has discussed. Pro-preemption arguments also depend on another myth – that tort lawsuits are unnecessary because we have super-effective federal agencies that can regulate to prevent accidents or injuries from drugs, medical devices, and consumer products. This myth in part motivated the Supreme Court’s recent opinion in Riegel v. Medtronic, where it concluded that some tort litigation over medical devices was preempted by FDA regulation …
I’m glad that we have an opportunity to blog about preemption because, as the previous blogs discussed, the folks pushing preemption are so good at creating myths around this subject. One—elaborated on by Tom McGarity—is that the jury system is not to be trusted. Another—discussed by David Vladeck—is that it is up to the courts to decide whether state law is preempted. Both myths share one thing in common: they were created and marketed by those who would like to avoid being held accountable under state common law liability standards for actions that harm people.
Anyone interested in why the first myth—the civil justice system cannot be trusted—is so powerful might want to take a look at a book by William Hamilton and Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis. The authors demonstrate how, although the …
Tom's point about the use of myths to drive the tort reform agenda is a powerful one. But this battle is about more than myths about torts; it is also a battle about myths about constitutional law.
Tort Myths
In most of the tort suits that trigger preemption defenses, there is no plaintiff whose story is susceptible to ridicule. Tort cases are almost invariably brought by people who jurors, once they hear the plaintiffs' stories, sympathize with --- which is why defendants are so leery of letting tort cases get to juries in the first place.
That is why preemption isn't just the defense du jour --- a fad that will soon pass. It is a door-closing device that shuts the courthouse door to injured parties, ends the case before plaintiffs and their lawyers can engage in discovery, and spares the defendant both the costs of defending …
You are right, Sid, that we hear lots of horror stories about so-called “frivolous litigation” and “runaway juries” from those who want to take away the right of ordinary citizens to hold big companies accountable for the damage caused by negligence and defective products. The stories are very effective in giving the public the impression that the system is badly broken and in dire need of fixing. The problem is that most of them are myths.
Take the notorious McDonald’s case that you mention. The anti-lawsuit pundits have characterized this case as a situation in which a careless woman drove up to a McDonald’s, ordered coffee, drove off, stuck the coffee between her legs and spilled the coffee in her lap when she tried to remove the lid while she was hurrying off to her next destination. Rather than take personal responsibility for her carelessness …
CPR has published two white papers on “preemption”—a doctrine used by the courts to determine whether federal regulation of some type of corporate behavior bars a state from subjecting the corporation to its own laws. The first, The Truth About Torts: Using Agency Preemption to Undercut Consumer Health and Safety, came out in September, 2007, and the second, The Truth About Torts: Regulatory Preemption at the National Highway Traffic Safety Administration, just came out. The issue is complicated, but important, and I hope that we might discuss why consumers should be concerned about what appears to be a very arcane subject.
Preemption can affect two aspects of state law: state “positive” law (i.e., state laws and regulations) and state common law (i.e., tort law). The two CPR White Papers address preemption of state tort law, although they also discuss the preemption of positive law …
