Imperfect information, combined with regulators and judges with no scientific training and little outside assistance to interpret complex scientific data, are among the biggest challenges to the use of science in the courtroom and regulatory arenas, according to a panel of experts debating the issue at a Roundtable hosted by R Street Institute last week.
Despite these hurdles, all of the panelists — including two of the Center’s board members — agreed there are practical ways to improve how scientific expertise and evidence are used in the legal and regulatory arenas, and in doing so, to improve the quality of decisions in cases where science is under scrutiny.
The event featured two panel presentations, one focusing on the role of science in regulatory decision-making and one on scientific evidence in the courtroom. This post discusses the first, and next week we will explore the second.
Regulatory panelists included:
- Dr. Richard Williams, Center Board Chair, a former Food and Drug Administration official, and senior affiliated scholar with the Mercatus Center
- Dr. Tony Cox, a Center Board member and president of Cox Associates
- Jonathan Wiener, a Duke University School of Law professor
“There are incentives — such as tenure and funding — for scientists to publish only positive results. This leads to biased results. In addition, the sheer volume of scientific literature can overwhelm regulators. Moreover, there seems to be no interest on the part of Congress on oversight of federal regulatory agencies. This creates the perfect storm: an absence of incentives to produce good science and a lack of oversight to deliver meaningful results.” – Richard Williams
“There is a growing reliance on assumption-driven computer simulations rather than truth-producing testing and replication — ‘old fashioned’ science. This leaves us wandering in the desert, even though there have never been more opportunities to perform better science using more effective research tools.” – Tony Cox
Dealing with Uncertainty
“Uncertainty is not necessarily a welcome thing. Regulators want to know if something is safe or unsafe.” – Richard Williams
“We don’t have a sense of what regulatory interventions have done to improve public health. Since 2008, we seem to have replaced ‘Is this what the science says?’ with ‘Is this what our best judgment says?’” – Tony Cox
“We need to be more comfortable with uncertainty. Regulatory agencies need to look at the big picture, assessing the costs and benefits of multiple risks, not just one. A forthright discussion of uncertainty would improve public trust.” – Jonathan Wiener
“Stop using evidence of association as evidence of causality and strop treating untested assumptions as scientific conclusions.” – Tony Cox
“Good science needs to test multiple confounding factors and use statistical tools to close data gaps.” – Jonathan Wiener
Dr. Williams suggested that mitigating incentives to publish only positive findings, developing a framework to determine ‘probability of causation,’ and demanding that congressional leaders exercise their oversight authority on regulatory agencies to deliver meaningful results are the keys to effective use of science in regulation.
“Consider regulation as a learning process. We have to examine the effects and outcomes of regulation, identify data gaps, and adjust the rules as more evidence is developed.” – Jonathan Wiener