Scientific Avoidance: Toward More Principled Judicial Review of Legislative Science
46 Pages Posted: 15 Jul 2010
Date Written: Winter 2009
Courts increasingly confront legislative enactments made in light of scientific uncertainty. Even so, the degree of deference appropriate to this type of judicial review is a moving target, seemingly determined on an ad hoc, unprincipled basis. On one hand, the decision of how to legislate in light of scientific uncertainty is quintessentially one of policy, suggesting that the highest degree of deference is appropriate. But certain classes of cases, and certain types of scientific questions, seem singularly inappropriate for extreme judicial deference. While significant scholarly attention has focused on the comparative institutional competence of courts and legislatures with respect to substantive areas of law, analogous concerns related to science have been overlooked. This Article attempts to fill part of that gap by evaluating the courts’ and legislatures’ capabilities with respect to science from a comparative perspective. This analysis leads to a critical examination of courts’ traditional deference to statutes enacted in light of scientific uncertainty, and to the conclusion that a more principled framework is needed. Finally, the Article proposes such a framework to account for both positive law and comparative scientific institutional competence.
Keywords: law and science, judicial review, deference, legislatures
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