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What Can Really be Done about the Perversion of Science by Politics

One can quickly become depressed by the problems afflicting the science used for regulation of public health and the environment, and CPR bears a substantial share of responsibility for painting a grim picture of a world where politics prevails over science. In a Cambridge-published book, Rescuing Science from Politics, and an accompanying white paper that summarizes the book, along with a second white paper on the problems of scientific secrecy, CPR offers a wide-ranging diagnosis of what ails the science used for regulation. It ultimately concludes that there is far too much manipulation of scientific research by industry; that there are far too few incentives for agencies and even interest groups who are honest about the limits of science and remaining scientific uncertainties; and that many of the processes that purport to support and nourish regulatory science (like peer review; data access; and scientific freedom) are filled with gaps and holes that ultimately make the resulting science and scientists worse, rather than better off.

 
In a third white paper published just this year, CPR takes a self-consciously more constructive role by suggesting ways that some of these problems might be fixed. These proposals were vetted through a group of experts in a day-long conference. Most of the resulting recommendations attempt to readjust rules and processes to discourage the most egregious abuses – suppression of data; conflict of interest; and the corruption of the science advisor processes. CPR provides quite specific recommendations in its white paper, offering in some cases actual draft language for revised regulations or laws.
 
Certainly bloggers are welcome to take aim at these proposals for reform as well as CPR’s underlying diagnoses. If CPR’s research and recommendations are incomplete or off-base, then that is an important area for discussion.
 
But, assuming that CPR’s prior projects are roughly on track, what are the next best steps for redressing the systematic and growing problems in the use of science for regulation? There are at least two parts to this question. The first is substance. Among the many proposals for reform that CPR and others have advanced, which issues deserve the most immediate attention? What might a practical blueprint look like for the next two years to make progress on the issues of greatest importance? In an area such as this where so much is wrong, it is easy to become a purist and demand fixes for all problems at once or instead to simply become overwhelmed. Where should we begin in pressing for substantive reform?
 
Second, assuming that there is no “white knight” in the form of a sympathetic new president or administrator who will happily implement the CPR proposals without hesitation, what are the political mechanism(s) available to get these reforms taken seriously? Is the general public aware of the problems that CPR (and many others) have described? If not, can the public be made aware or “tipped” through certain salient events or other educational efforts? Or perhaps these issues are simply so esoteric and bound up in the bowels of the administrative state that the public hasn’t the time or patience to sort through the charges and, once they’ve done so, has no outlet for participating or engaging in the issues in any event. Of course, if this proves to be true, then it seems that the public’s absence from the scene will create an increasingly permissive legal environment where the rules will continue to be amended to become increasingly tolerant of bad science, the nontransparent use of science, and unaccountable decisions. In this scenario, can the scientific community serve as a kind of substitute source of broad, respected pressure on legislatures and agencies clamoring for some reform? Or are there pitfalls in the role that scientists might play that need to be considered and addressed first?
 

Of course, it could be that one needs to consider the second question first, in order to identify the best candidates for substantive reform (i.e., those that are easiest to move to the political agenda). That is certainly fair too. However you approach these questions, I anxiously await your sage insights.

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Wendy Wagner | August 18, 2008

What Can Really be Done about the Perversion of Science by Politics

One can quickly become depressed by the problems afflicting the science used for regulation of public health and the environment, and CPR bears a substantial share of responsibility for painting a grim picture of a world where politics prevails over science. In a Cambridge-published book, Rescuing Science from Politics, and an accompanying white paper that summarizes […]

William Funk | August 7, 2008

Preemption: The Courts, the Executive, and Congress

There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for […]

Nina Mendelson | July 31, 2008

The Omniscient Agency Myth

There are two issues kicking around in this discussion: (1) Should state tort law be preempted if there is some sort of federal regulation in place?   (2) Which institutions – particularly federal agencies and courts – are legally empowered and/or competent to decide that question? I’d like to chime in on (1), but I hope we’ll […]

Sidney A. Shapiro | July 30, 2008

Why Do the Courts Not Respect Congressional Intent?

I’m glad that we have an opportunity to blog about preemption because, as the previous blogs discussed, the folks pushing preemption are so good at creating myths around this subject. One—elaborated on by Tom McGarity—is that the jury system is not to be trusted. Another—discussed by David Vladeck—is that it is up to the courts to decide whether […]

David Vladeck | July 29, 2008

More than Just Tort Myths; It is Immunity and Constitutional Myths

Tom’s point about the use of myths to drive the tort reform agenda is a powerful one.  But this battle is about more than myths about torts; it is also a battle about myths about constitutional law.       Tort Myths   In most of the tort suits that trigger preemption defenses, there is no […]

Thomas McGarity | July 28, 2008

The Golden Arches Coffee Myth

You are right, Sid, that we hear lots of horror stories about so-called “frivolous litigation” and “runaway juries” from those who want to take away the right of ordinary citizens to hold big companies accountable for the damage caused by negligence and defective products. The stories are very effective in giving the public the impression that […]

Sidney A. Shapiro | July 27, 2008

Getting Started

CPR has published two white papers on “preemption”—a doctrine used by the courts to determine whether federal regulation of some type of corporate behavior bars a state from subjecting the corporation to its own laws. The first, The Truth About Torts: Using Agency Preemption to Undercut Consumer Health and Safety, came out in September, 2007, and […]

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