Regulating Toxic Substances Through a Glass Darkly: Using Science Without Distorting the Law
Toxic substances have been of public concern at least since Rachel Carson's The Silent Spring. Yet in many ways we are far short of coping adequately with the problems posed by these invisible, silent, harmful intruders: we are forced to address them “through a glass darkly.” The research described in this paper, reflecting broadly humanistic themes, represents more than a decade's work directed at some of the philosophic, scientific, regulatory and legal problems encountered in trying to assess and ultimately control toxicants in our lives.
The vanishingly small size of toxicants makes them difficult to address. They are difficult to detect, identify, and understand whether they pose problems for humans. Each new substance often poses a different detective problem. In turn these difficulties are exacerbated by traditional scientific burdens of proof and legal contexts in which the problems must be considered. However, the legal regulation of toxic substances by the tort (or personal injury) or regulatory law can be addressed by sensitively designing scientific and legal burdens of proof for the legal and public health problem in question. In sections (V) and (VI) of this paper, I describe some approaches to ameliorating some of the proof and institutional design problems that currently preclude more expeditious prevention of public health problems from toxic substances. Some of this research has been incorporated into California legal procedures and aspects of it have been argued for in legal journals.
Beyond the specifics of the particular research, this long-term project also manifests some features typical of humanistic research. It addresses aspects of a problem to which C. P. Snow called attention in "Two Cultures and the Scientific Revolution" (1959). He was concerned that the loss of "even the pretense of a common [intellectual scientific and humanistic] culture" was serious for our "creative, intellectual and . . .our normal life" and "dangerous in the most practical terms." Inter alia, we would not be confronting major social problems with the best knowledge we had for solving them. Thirty years later intellectual fields in contemporary universities, especially scientific and humanistic fields, may be even more isolated than when he wrote. The described research had to bring disparate fields together to address problems posed by toxicants.
This research had to be both empirically and institutionally rich, informed by the fields of toxicology and epidemiology as well as the law in order to contribute to the subject and to provide appropriate background for it. Detailed scientific and institutional research helps to reveal hidden philosophic issues and to suggest solutions to some of the problems.
In order to address problems with multidisciplinary or interdisciplinary features, we also need to re-organize how we think, change our "organization of knowledge.” Broadly speaking, there are at least two different approaches. One is to work with teams of people to address a problem, bringing toxicologists, epidemiologists, biologists, policy experts and philosophers together to ensure that there is appropriate expertise to speak to different technical issues in law and science, and to provide a sound basis for philosophizing, which I did for some of the research papers. The other integrates the relevant knowledge in individuals to speak to the issues. Both enrich intellectual resources: the first to some extent broadens the culture and expertise of all who participate in the project; the second broadens the intellectual resources of the individuals who integrate the knowledge.
Finally, the research is quintessentially philosophic and humanistic. Finding defensible approaches for utilizing science in the regulatory and tort law to protect humans from toxicants are meta-scientific and meta-legal issues about the desirability and defensibility of different relationships between science and the law. They also involve both microscopic and macroscopic philosophic accounts and interpretations of law and science. At the macro-level the main aim has been to provide appropriate understanding for utilizing scientific evidence in environmental health and in toxic tort law. At a more micro-level the research focused on how we interpret scientific evidence about particular suspected toxicants when it was fraught with considerable uncertainty and laden with normative considerations. How should we regulate toxic substances “through a glass darkly?”