56 Pages Posted: 15 May 2014 Last revised: 28 May 2015
Date Written: May 13, 2014
Adversarial science — sometimes referred to as “litigation science” or “junk science” — has a bad name. It is often associated with the tobacco industry’s relentless use of science to manufacture uncertainty and avoid liability. This article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.
In the ecological context, adversarial science is vital to understanding ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like oil spills as part of a process known as natural resource damage assessment (“NRDA”). During this process, lawyers engage scientists to advance advocacy positions, either to support or to defeat claims for natural resource damages. The NRDA process presents an unparalleled opportunity to intensively study the effects of toxic exposure to ecosystems at the very moment those impacts are unfolding. At the same time, the science that emerges is adversarial; it suffers from the same conflicts of interests and perceptions of bias as other result-oriented science.
While science and law scholars have written extensively about the conflicts of interest embedded in other forms of policy-relevant science, surprisingly little scholarly attention has been given to the influences of litigation on NRDA science or the implications of that influence on broader scientific understanding of ecological harms. This Article casts a bright light on adversarial science, using the scientific literature to expose the influence of litigation on NRDA science. More importantly, this article — while acknowledging the risks of adversarial science — urges its embrace. Ultimately, the article offers solutions that release adversarial science from traditional clouds of suspicion and allow adversarial science to inform public policy on long-term harm from toxic exposure.
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