Uncertainty About Uncertainty: The Impact of Judicial Decisions on Assessing Scientific Uncertainty
University of Wisconsin Law School
September 8, 2008
University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 671
Univ. of Wisconsin Legal Studies Research Paper No. 1064
As groundbreaking scientific research develops more information regarding societal risks, legislatures and agencies more frequently face choices in the face of that scientific uncertainty. When disputes arise regarding the scientific support behind these actions, courts must struggle to determine either the science relevant to the resolution of the dispute, or the appropriate institution to make that scientific determination. These judicial resolutions may therefore involve laying out rules for further judicial inquiry or rules for deference, or some hybrid of the two. But in certain instances the Supreme Court has suggested that should scientific certainty be reached, the Court's default inquiry might change. For example, in a recent abortion case of Gonzales v. Carhart (Carhart II), the majority deferred to Congress on the grounds that legislatures should have especially broad discretion when acting in areas of medical and scientific uncertainty, as the majority concluded existed, given medical disagreement about whether the prohibited abortion method would cause serious health risks to women.
This article examines how the presence of scientific uncertainty shapes the judicial review of governmental decisionmaker's actions, looking primarily through the lens of Carhart II. In doing so, I examine debates regarding the appropriateness of legislative deference to resolve scientific uncertainties. I also argue that the use of dual judicial review modes - one in the presence of scientific certainty, another in the absence of scientific certainty - masks a less explicit, but nevertheless underlying, inquiry: the question of whether the science is "certain" or "uncertain." This is not as easy a question to answer as it might seem, given that the determination of certainty involves both having a certain level of scientific understanding and making normative judgments about the nature of science. Nevertheless, because the answer to this question may act as a gateway between areas of more government deference and areas of less government deference, I will suggest that courts should pay more attention to how they answer this question. I suggest that regardless of whether deference to legislative choices in the face of scientific uncertainty is always, or even sometimes appropriate, allowing a court to find scientific uncertainty even where the legislature expressly claimed to be acting in an area of certainty is troublesome for the accountability of public decisionmaking, the consistency of judicial decisions, and for the openness of scientific research.
I conclude by examining some cases from the administrative law context where the Supreme Court has addressed matters of scientific uncertainty and administrative deference. I argue that the Court can draw from its own approach in Massachusetts v. EPA, the recent climate-change case, to resolve some of the difficulties raised in Carhart II. In particular, I suggest that future courts should require a legislature that desires to receive deference for its actions to at least articulate that it was acting in an area of scientific or medical uncertainty regarding the support for its actions. Doing so would address some of the transparency problems raised by the Carhart II decisions and reach a principled balance between action and inaction, as well as enhance the dialogue between courts, legislatures, the public, and the scientific community.
Number of Pages in PDF File: 59
Keywords: basic areas of law, regulation and business law, general, regulated industry and administrative law, environmental, health, and safety law, criteria for decision-making under risk and uncertainty
JEL Classification: K1, K2, K10, K23, K32, D81Accepted Paper Series
Date posted: September 11, 2008 ; Last revised: April 24, 2010
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