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Document Type

Article

Publication Date

Winter 2009

Publication Citation

84 Indiana Law Journal 239 (2009)

Abstract

Courts increasingly confront legislative enactments made in light of scientific uncertainty. Even so, the degree of deference appropriate to this type of judicial review is a moving target, seemingly determined on an ad hoc, unprincipled basis. On one hand, the decision of how to legislate in light of scientific uncertainty is quintessentially one of policy, suggesting that the highest degree of deference is appropriate. But certain classes of cases, and certain types of scientific questions, seem singularly inappropriate for extreme judicial deference. While significant scholarly attention has focused on the comparative institutional competence of courts and legislatures with respect to substantive areas of law, analogous concerns related to science have been overlooked. This Article attempts to fill part of that gap by evaluating the courts' and legislatures' capabilities with respect to science from a comparative perspective. This analysis leads to a critical examination of courts' traditional deference to statutes enacted in light of scientific uncertainty, and to the conclusion that a more principled framework is needed Finally, the Article proposes such a framework to account for both positive law and comparative scientific institutional competence

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