Regulatory Science in Rulemaking and Tort: Unifying the Weight of the Evidence Approach

41 Pages Posted: 28 Feb 2013 Last revised: 27 May 2014

Thomas Owen McGarity

University of Texas at Austin - School of Law

Sidney A. Shapiro

Wake Forest University School of Law

Abstract

This article explores how a regulatory agency decides whether scientific evidence is sufficient to meet a risk trigger – the evidentiary burden that is a prerequisite to regulating a toxic substance, and how a court decides whether there is sufficient evidence to allow a jury to consider the issue of general causation in a toxic tort case. We argue both agencies and courts should apply a weight of the evidence approach because there is no meaningful distinction between the regulatory and tort contexts concerning these issues. The courts, however, have tended to use a corpuscular approach in which scientific evidence is evaluated study by study, rather than evaluating the totality of the evidence, which is the methodology of regulatory agencies. Given the nature of available scientific evidence, a corpuscular approach turns Daubert into a policy decision against compensating people who become ill from exposure to toxic chemicals.

Suggested Citation

McGarity, Thomas Owen and Shapiro, Sidney A., Regulatory Science in Rulemaking and Tort: Unifying the Weight of the Evidence Approach. 3 Wake Forest J. L.& Pub. Pol. 101 (2013); U of Texas Law, Law and Econ Research Paper No. 404; Energy Center Research Paper No. 2013-07. Available at SSRN: https://ssrn.com/abstract=2225914

Thomas Owen McGarity

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

Sidney A. Shapiro (Contact Author)

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)

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