The chapter addresses a problem that affects both regulatory and tort law efforts to control exposure to carcinogens. What should be done when a disease may be the result of “joint causation”? That is, there are two or more possible causes, each of which alone would be sufficient to explain the presence of disease. Tort law has developed a solution to this problem which has recently been adopted by some courts considering toxic torts. However, the problem of joint causation and (...) more general issues raised by causation reveal weaknesses in tort law for compensating victims exposed to toxic substances. Because of these and other problems with tort law, administrative institutions at least _in principle_ may better control human exposure to toxic substances. However, such institutions face enough practical problems that they will not always reliably protect people from toxic substances. In the end, the chapter argues, there are several good reasons for preferring administrative agencies to tort law to provide environmental health protection. However, these theoretical advantages should not blind us to some of the political shortcomings of relying on administrative agencies. For that reason such agencies should not replace tort law, which can continue to serve a backup function to the agencies in our legal system. (shrink)

This chapter provides an overview of the topics discussed in the book and likens the assessment of toxic substances to the experience of peering through a glass darkly. The work is divided into five main chapters and these chapters give an exploration of the scientific background necessary for understanding the subject. The book examines the practice of predicting risks from animal bioassays and addresses the normative implications of the scientific uncertainties in risk assessment. In addition, the book examines problems in (...) the statistics of human epidemiological studies and animal bioassay and considers practical evidence-gathering problems, theoretical difficulties, and traditional practices in interpreting epidemiological studies and offers an alternative to traditional practices. (shrink)

This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) suits, are mistaken because these seem to impose a universal standard of evidence for quite different institutions—with the risk of distorting existing reasonable tort law relationships, and erring on the side of exclusion rather than admission of evidence. Since the plaintiff bears the burden of production, requiring that this be (...) met by proof equivalent to the criminal law's “beyond a reasonable doubt,” requirement, as some have argued, this substantially distorts the balance of interests between plaintiff and defendant. The appropriate paradigm is not that for scientific practice but the traditional tort law standard of evidence articulated in _Ferebee v. Chevron Chemical Co._, which said that the appropriate standard is not scientific certainty but “legal sufficiency.” The paradigm of choice in torts is in a sense inclined to retain much of the status quo. (shrink)

This chapter continues the argument of why ideal levels of scientific accuracy should not be applied in torts and administrative law by focusing on two issues. Firstly, the standards of evidence ought to be appropriate to the institutional context. Secondly, justice requires that priority be given to avoiding false negatives and underregulation. One requires justification of the epistemic presupposition, the other, justification of the underlying moral view. The first issue states that the burden of proof that must be satisfied in (...) order to make a particular institutional decision will depend at least in large part upon the kinds of mistakes one seeks to avoid. For example, criminal law stringently protects against convicting innocent people. To avoid this, the equivalent of false positives, the state must overcome a high burden of proof to establish its case. By contrast, in screening patients for life-threatening diseases we might seek very much to avoid missing someone who has the disease, to avoid false negatives. The second issue comes from the premise that in the common law of torts, distributive issues are not decided as a matter of consistent theory but are developed by means of case-by-case adjudication between two parties. Although judges try to produce consistent decisions over time, but they do not always succeed. If the law is not necessarily consistent, it is especially important to have a better view of more fundamental and consistent normative principles to guide epistemology. (shrink)

The chapter discusses some of the risk assessment issues that arise in administrative agencies charged with regulating carcinogens. It is argued that present assessment strategies, as well as some recommended by commentators, both of which are inspired by the paradigm of research science—the use of careful, detailed, science-intensive, substance-by-substance risk assessments—paralyze regulation. The identification, assessment, and regulation of potential carcinogens are all too slow to evaluate adequately the existing universe of 50,000–100,000 chemical substances, and the 1,000–1,500 new ones that are (...) added each year. Thus, for identified carcinogens we need to adopt something like the expedited approximation procedures, which permit faster evaluation of potentially toxic substances. Alternative approaches to regulatory science which acknowledge and use normative considerations to guide assessment procedures and which recognize the importance of the rate of evaluation will expedite risk assessments and reduce regulatory false negatives and underregulation. (shrink)

This chapter provides some scientific background of risk assessment and sets up some of the institutional questions concerning the appropriate evidentiary standards needed within torts and administrative law to establish the requisite harms or risks of harm. The discussion here focuses on animal bioassays and human epidemiological studies, two aspects of carcinogen risk assessment relied upon in regulatory institutions to ascertain risks to human beings. The best evidence that proves that a substance causes cancer to human beings is provided by (...) _well-done_ epidemiological studies with large samples and sufficient follow-up. However, the chapter begins by considering animal studies, which is the evidence much more frequently relied upon by regulatory agencies, although it is less typically used in tort law and some jurisdictions give it little credence. There are uncertainties in animal bioassays which are large enough such that two different researchers using exactly the same data points from an animal study can come to much different conclusions. (shrink)

Écriture sans écriture, critique sans discours : il s’agit de traquer et de faire ressortir l’obsession du « projet » et de son idéologie dans la trame d’un appel à contrats doctoraux. Ctrl+B chaque fois (et elles sont très nombreuses) où le petit mot est réitéré.