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Abstract:
It is the prevailing wisdom among both the legal academy and the general public that the regulatory system is better able to ensure the safety of risky products than the tort system. In this article I argue that this is not always the case. Contrary to sharp criticisms of regulation by litigation propounded by leading academics such as Richard Epstein, Richard Reich, and Peter Schuck, tort litigation is sometimes the only way to encourage product safety, at least in settings where manufacturers conceal key information needed to evaluate product safety. Without this litigation, we might still be using products that we know now are exceedingly dangerous.

torts, regulation, institutions, toxic products, environment, health

Abstract:
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. After documenting the significant gaps in existing information, this Article argues that 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. Both theory and practice confirm that when the stakes are high, actors not only will resist producing potentially incriminating information but will invest in discrediting public research that suggests their activities are harmful. The Article concludes with specific recommendations about how these perverse incentives for ignorance can be reversed.

information, environmental law, regulation, science, asymmetric information, uncertainty

Abstract:
The Toxic Substances Control Act (TSCA) creates an adverse selection problem with regard to the manufacture of chemicals since neither the testing of chemicals nor the production of safer chemicals is generally required or rewarded by the regulatory system. As a result, better tested and safer chemicals enjoy few, if any competitive benefits in the marketplace. At the same time, the adverse selection created by existing regulation is locked into place by a strong political block of manufacturers who enjoy the benefits of under-regulation and the lower chance of penalties in the market and through tort litigation.

To address this intransigent problem, I propose a competition-based mechanism for generating incentives for testing and chemical safety through an adjudication process by which manufacturers can petition EPA to have their chemicals certified as superior to inferior chemicals or chemical mixtures. If a competitor establishes there are measurable and significant differences between their product and a competitor product with regard to health or environmental consequences, EPA may not only certify this environmental superiority relative to the inferior chemical through its labeling authorities, but in some cases might restrict the use of the inferior chemical or even ban it entirely.

After considering how a competition-based approach to toxic substances regulation could work under TSCA, I conclude by considering how this approach applies to other problematic areas of toxics regulation, including the regulation of pesticides, nanotechnology, drug, and other pollution control problems.

toxic substance, regulation, competition, market-based, adverse selection

Abstract:
Recently, there has been a trend in both civil litigation and regulatory law to circumvent the scientific community's collective judgment on the scientific quality of individual studies with an adversarial process of evaluating scientific quality using interest groups. The Supreme Court's Daubert v. Merrell Dow Pharmaceuticals, Inc. opinion and two recent "good science" laws passed by Congress adopt an adversarial process informed by affected parties for reviewing and screening scientific quality. These developments are unwise. Both theory and experience instruct that an adversarial, interest group dominated approach to evaluating scientific quality will lead to the unproductive deconstruction of science, further blur the distinction between policy and scientific judgments, and result in poor decisions because the courts and agencies that preside over these "good science" contests sometimes lack the scientific competency needed to make sound decisions.

Scientific evidence, Regulatory policy, Environmental Law, Daubert

Abstract:
Rescuing Science from Politics debuts fourteen chapters by the nation's leading academics in law, science, and philosophy who explore the ways that special interests can abuse the law to intrude on the way that scientists conduct research. The high stakes and adversarial features of regulation create the worst possible climate for the production and use of honest science, especially by those who will ultimately bear the cost of the resulting regulatory standards. Yet the academic or popular literature has paid scant attention to efforts by dominant interest groups to distort the available science in support of their positions. The book begins by establishing what should be noncontroversial principles of good scientific practice. These principles serve as the benchmark against which each chapter's author explains how science is misused in specific regulatory settings and isolates problems in the integration of science by the regulatory process. Dr. Donald Kenney, editor of Science, writes the prologue for the book.

regulation, environment, science, health, industry