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  • Print publication year: 2016
  • Online publication date: May 2016

1 - The Veil of Science over Tort Law Policy



The tort or personal injury law is the main area of the law that provides redress for injuries suffered, whether caused by car accidents, defective products or toxic molecules. However, a significant, unseen revolution in the tort law has been in progress since 1993. It is hidden from the public, except for those litigating tort law issues and well-informed researchers. The legal changes are difficult to discern because they are veiled behind a fabric of scientific complexity and detail, as well as arcane legal procedures that are not well known and are difficult to penetrate. Yet this veil should be lifted, the scientific and legal issues understood and put into perspective in order to appreciate the policy modifications in our legal system that can substantially affect the safety of ordinary citizens, both plaintiff and defense bars, corporate behavior, and fundamental legal relationships between citizens. This revolution involves science, law, and the possibility of justice for those who have been injured by the actions or products of others. What is the relationship among science, law, and the possibility of justice that it poses a problem?

Typically, we might think that science has little or nothing to do with justice. It does provide one of the most reliable means for investigating empirical claims and producing comparatively objective evidence about them. Scientific research has resulted in considerable accumulation of knowledge about the world, in a substantial track record of predicting observable events, and in “huge advances in human understanding [of the natural world and forces in it]…over the ages.” This research substantially informs our understanding of human and animal biology, our environment and the larger world around us. Knowledge and understanding are the dominant virtues of scientific inquiry. Some scientific fields – epidemiology, toxicology, and clinical medicine, among others – are centrally needed to assist courts about whether and to what extent exposure to a product might have contributed to someone's injuries and these are especially pertinent to our inquiry.

Justice, in contrast, provides norms for guiding citizens’ behavior and for judging our institutions, our laws, and our relations to one another. It assists the design of laws or institutions when it is necessary to create new ones. It is the “first virtue of social institutions” and the preeminent virtue of the law.