Courts as Academies: Balancing of Scientific Arguments in Regulation of Uncertainties
2012 Law&Science Young Scholars Informal Symposium (proceedings)
26 Pages Posted: 23 Jul 2015
Date Written: May 14, 2012
Abstract
Regulation of new technologies involves high uncertainty which allows broad epistemic discretion to usually unelected regulators. The common response to this challenge is the turn to “science-based regulation” however this approach in practice makes authorities defer to the advice of obscure and even less legitimate scientific bodies. Worse still, the courts are considered incompetent to review the scientific basis of such decisions and they fail in their duties in their own turn. This paper interprets the well- known Pfizer case of the General Court of the EU as a way out of the problem. On this reading, the Court reviewed the validity (but not the soundness) of the reasoning of the EU institutions in order to determine whether they could reasonable stray away from the received expert advice. This rigorous review gave the authorities the flexibility necessary in cases of uncertainty yet it held them to a very strict standard of reasoning not to allow them to act arbitrary. Beyond the particular issue, the case shows that the traditional duty to give reasons, if taken seriously, can constrain epistemic discretion and on the other hand can allow the courts to review complex scientific issues without second-guessing the political authorities.
Keywords: precautionary principle; Pfizer; non-arbitrariness; regulation; reasoning; argumentation
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