Transparency in public science: Purposes, reasons, limits

Law and Contemporary Problems

Volumn 69, Issue 3, 2006, Pages 21-46

  Jasanoff, Sheila ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 33750067348     PISSN: 00239186     EISSN: 00239186     Source Type: Journal    
DOI: None     Document Type: Article

References (146)

1. For example, the International Council for Science maintains that scientists' ability to participate freely and without discrimination in legitimate scientific activities is an essential element of the Principle of the Universality of Science. International Council for Science, Universality of Science Principle, http://www.icsu.org/ 5_abouticsu/INTRO_UnivSci_1.html (last visited Sept. 28, 2005).
2. See, e.g., David Guston, Between Politics and Science: Assuring the Integrity and Productivity of Research (2000) (analyzing the changing relationship between science and politics);
3. Daniel Kevles, The Baltimore Case: A Trial of Politics, Science, and Character (2000) (recounting the investigation into the efficacy of Nobel-Prize-winner David Baltimore's gene transfer research).
4. See, e.g., Sheila Jasanoff, The Fifth Branch: Science Advisers as Policymakers (1990) [hereinafter Jasanoff, The Fifth Branch] (discussing the current scientific advisory process and the influence of science on our daily lives).
5. Administrative Procedure Act, Pub. L. No. 109-41, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
6. Important legislative expansions of the public's right to know and assess information used by the government include the Freedom of Information Act, 5 U.S.C. § 552 (2000),
7. the Federal Advisory Committee Act, 5 U.S.C. app. §§ 1-15 (2000),
8. and the Data Quality Act, a rider to the Treasury and General Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554, § 515, 114 Stat. 2663 (2000).
9. See Freedom of Information Act, 5 U.S.C. § 552 (requiring federal agencies to disclose certain information when requested by citizens);
10. Federal Advisory Committee Act, 5 U.S.C. app. § 1-15 (authorizing "the establishment of a system of governing the creation and operation of advisory committees in the executive branch of the Federal Government" and requiring that advisory committee meetings be open to the public); Data Quality Act § 515 (requiring the Office of Management and Budget to provide federal agencies with rules that will increase the quality and integrity of information they produce).
11. Federal Advisory Committee Act, 5 U.S.C. app. §§ 1-15.
12. For sociological accounts of scientific practice, see Bruno Latour, Science in Action (1987)
13. and H.M. Collins, Changing Order (1985).
14. See, e.g., Select Committee on Science and Technology, Science and Society Third Report, 1999-2000, H.L. 38-1.1, available at http:// www.parliament.the-stationery-office.co.uk/pa/ld199900/ldselect/ldsctech/ 38/3801.htm [hereinafter Select Committee on Science and Technology ("[T]here has never been a time when the issues involving science were more exciting, the public more interested, or the opportunities more apparent.").
15. The Commission White Paper on Governance Working Group 1b, Democratising Expertise and Establishing European Scientific References (May 2001), available at http://europa.eu.int/comm/governance/areas/group2/ report_en.pdf [hereinafter Democratising Expertise and Establishing European Scientific References], provides an example of the urgency that developing principled approaches to science has assumed within the European community.
16. Robert K. Merton, The Normative Structure of Science, in The Sociology of Science: Theoretical and Empirical Investigations 267 (Robert K. Merton ed., 1973). Merton argues that the unique ethos of science is defined by four norms: (1) communalism, (2) universalism, (3) disinterestedness, and (4) organized skepticism.
17. Id. at 270-78.
18. Id. at 267-68.
19. Id.
20. For a classic elaboration of this argument, see Michael Polanyi, The Republic of Science, 1 Minerva 54, 54-74 (1962), available at http:// www.mwsc.edu/orgs/polanyi/mp-repsc.htm.
21. See id.
22. See also Roy Macleod, Science and Democracy: Historical Reflections on Present Discontents, 35 Minerva 369 (1997).
23. One classic statement of this position may be found in Don K. Price, The Scientific Estate (1965). Price observed that there are four estates involved in the work of government: the scientific, the professional, the administrative, and the political. He maintains that "[t]he most important principle seems to be a twofold one: (1) the closer the estate is to the end of the spectrum that is concerned solely with truth, the more it is entitled to freedom and self-government; and (2) the closer it gets to the exercise of power, the less it is permitted to organize itself as a corporate entity, and the more it is required to submit to the test of political responsibility, in the sense of submitting to the ultimate decision of the electorate."
24. Id. at 137.
25. See Michael Gibbons et al., The New Production of Knowledge 4 (1994) (arguing that, in the new "Mode 2" of production, "knowledge is intended to be useful to someone whether in industry or government[] or society more generally and this imperative is present from the beginning").
26. Merton, supra note 10, at 275.
27. See Gibbons et al., supra note 16, at 1-16 (thoroughly discussing the intersection, similarities, and differences between Mode 1 and Mode 2 science).
28. Id. at 1-3;
29. see also Helga Nowotny et al., Re-Thinking Science: Knowledge and the Public in an Age of Uncertainty (2001).
30. See Democratising Expertise and Establishing European Scientific References, supra note 9;
31. Select Committee on Science and Technology, supra note 9.
32. See Sheldon Krimsky, Science in the Private Interest: How the Lure of Profits Has Corrupted the Virtue of Biomedical Research 10-24, 82-85 (2003) (describing how ties to pharmaceutical companies have led academic scientists to downplay the evidence of adverse side effects and to respond unfavorably to fellow scientists' requests for information);
33. Eyal Press & Jennifer Washburn, The Kept University, Atlantic Monthly, Mar. 2000, at 39, 41-46 (discussing the secrecy involved in corporate sponsored scientific research).
34. See also discussion infra Part II.A (giving specific examples of harmful concealment).
35. Sissela Bok, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION 9 (1982).
36. Id. at 6.
37. Id. at 9-10.
38. See id at 3-15 (discussing secrecy and its definition from the perspective of the person with the secret).
39. GIBBONS ET AL., supra note 16, at 8.
40. Id.
41. For an absorbing historical account of this development, see STEVEN SHAPIN & SIMON SCHAFFER, LEVIATHAN AND THE AIR-PUMP: HOBBES BOYLE, AND THE EXPERIMENTAL LIFE (1985).
42. Sheila Jasanoff, Technologies of Humility: Citizen Participation in Governing Science, 41 MINERVA 223, 234-35 (2003).
43. The Toxics Release Inventory was established under the Emergency Planning and Community Right-to-Know Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (codified as amended at 42 U.S.C. §§ 11001-11050 (2000)),
44. and expanded by the Pollution Prevention Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388-321 (codified at 42 U.S.C. §§ 13101-13109 (2000)).
45. On December 3, 1984, toxic gas leaked from Union Carbide's pesticide factory in Bhopal, India resulting in weeks of death, panic, and disorganization known as the Bhopal Disaster. See LEARNING FROM DISASTER: RISK MANAGEMENT AFTER BHOPAL (Sheila Jasanoff ed., 1994) [hereinafter LEARNING FROM DISASTER], to learn more about the Bhopal Disaster and its consequences.
46. U.S. Environmental Protection Agency, What is the Toxics Release Inventory (TRI) Program, http://www.epa.gov/tri/whatis.htm (last visited Oct. 6, 2005).
47. Under the Emergency Planning and Community Right-to-Know Act of 1986, businesses are required to report the names of chemicals in their possession to their state and local government, and this information is then made available to the public. 42 U.S.C. § 11022.
48. For more details, see Susan G. Hadden, Citizen Participation in Environmental Policy Making, in LEARNING FROM DISASTER, supra note 31, at 91, 98-99.
49. In the United States, the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, currently known as the Weapons of Mass Destruction Commission, addressed these issues in its Report to the President on March 31, 2005. COMMISSION ON THE INTELLIGENCE CAPABILITIES OF THE U.S. REGARDING WEAPONS OF MASS DESTRUCTION, REPORT TO THE PRESIDENT OF THE UNITED STATES (Mar. 31, 2005), available at http://www.wmd.gov/report/wmd_report.pdf.
50. In Britain, a comparable inquiry was made in the Investigation into the Circumstances Surrounding the Death of Dr. David Kelly, also known as the Hutton Inquiry. LORD HUTTON, REPORT OF THE INQUIRY INTO THE CIRCUMSTANCES SURROUNDING THE DEATH OF DR. DAVID KELLY, C.M.G. (2004), available at http://www.the-hutton-inquiry.org.uk/content/report/ index.htm.
51. David Teather & Sarah Boseley, Glaxo Faces Drug Fraud Lawsuit, The Guardian (London), June 3, 2004, Home Pages, at 1.
52. Id.
53. Id.
54. Press Release, Glaxo SmithKline, Glaxo SmithKline Settles Lawsuit with New York Attorney General's Office (Aug. 26, 2004), http://www.gsk.com/ ControllerServlet?appId=4&pageId=402&newsId=301.
55. Gina Kolata, Merck and Vioxx: The Overview; A Widely Used Arthritis Drug is Withdrawn, N.Y. Times, OCt. 1, 2004, at A1.
56. Merck Officials Explain Internal Documents Related to Safety Risks of Vioxx, California Healthline, Nov. 15, 2004, available at http:// californiahealthline.org/index.cfm?Action=dspItem&itemID=107443.
57. FDA Study Estimates More than 27,000 Heart Attacks Linked to Vioxx, California Healthline, Nov. 3, 2004, available at http:// www.californiahealthline.org/index.cfm?Action=dspItem&itemID=107194.
58. Aaron Smith, Merck's Vioxx Bill Could Hit $50 Billion, CNN Money, Aug. 22, 2005, http://money.cnn.com/2005/08/22/news/fortune500/merck/.
59. Policy on Enhancing Public Access to Archived Publications Resulting from NIH-Funded Research, NOT-OD-05-022, NIH Guide for Grants and Contracts (Feb. 4, 2005), available at http://grants.nih.gov/grants/ guide/notice-files/NOT-OD-05-022.html.
60. Shankar Vedantam, Journals Insist Drug Manufacturers Register All Trials, Wash. Post, Sept. 9, 2004, at A2.
61. Gardiner Harris, Merck Says It Will Post the Results of All Drug Trials, N.Y. Times, Sept. 6, 2004, at C4.
62. Data Quality Act, Pub. L. No. 106-554, § 515, 114 Stat. 2663 (2000).
63. See Rick Weiss, Data Quality Law Is Nemesis of Regulation, Wash. Post, Aug. 16, 2004, at A1 (discussing, in part, the origin of the Data Quality Act).
64. Data Quality Act § 515 (a).
65. Weiss, supra note 47.
66. Id.
67. Id.
68. Id.
69. Id.
70. Id.
71. Researchers working with animal and human subjects, for example, must maintain records that satisfy legal obligations for animal welfare and informed consent. Testing laboratories must satisfy legally mandated standards for good laboratory practices and maintain the records needed to make their operations transparent to inspectors.
72. See generally Jasanoff, The Fifth Branch, supra note 3 (providing an analysis of the interaction between advisory committees and the scientific process).
73. See discussion supra Part II.A.
74. In August 2000, for example, Bridgestone-Firestone announced the recall of tires because of tread separations that were alleged to have caused dozens of fatal accidents. Although Ford Motor Company had recalled similar tires on vehicles sold outside the United States, those recalls were not reported to the U.S. National Highway Traffic Safety Administration. Tamara Audi & Jennifer Dixon, Documents Show Ford Was Warned About Tire Tread; Automaker Says It Acted Quickly Once It Received Hard Data, Detoit Free Press, Oct. 6, 2000, at 1A.
75. See, e.g., Paul Brodeur, Outrageous Misconduct: The Asbestos Industry On Trial (1985) (relating how companies such as Johns-Manville and W.R. Grace & Company systematically concealed medical information about the nature and extent of asbestos-induced diseases among their workers).
76. See Diane Vaughan, The Challenger Launch Decision: Risky Technology, Culture, and Deviance at NASA 238-77 (1996) for a discussion of the defects in reporting and communication that led to the loss of the space shuttle Challenger.
77. Krimsky, supra note 21, at 27-52 (describing how corporate and industrial funding at major universities, including Harvard and the University of California at Berkeley, has led to unethical research, inappropriate conflicts of interest, and biased hiring and firing decisions).
78. See, e.g., Ryan Ricks, Science and Security in the Post-9/11 Environment, AAAS Science and Policy Programs (July 2004), http:// www.aaas.org/spp/post911/publishing/ (discussing how concerns of national security have been used to restrict the availability of scientific data since the terrorist attacks on September 11, 2001).
79. See discussion on this point infra Part IV.
80. See discussion supra Part II.A.
81. Vaughan, supra note 60, at xi-xiii, 238-77.
82. Columbia Accident Investigation Board, Final Report On Columbia Space Shuttle Accident 122-92 (vol. 1 2003), available at http:// anon.nasa-global.speedera.net/anon.nasa-global/CAIB/CAIB_lowres_full.pdf.
83. 9/11 Commision, Final Report of The National Commission on Terrorist Attacks Upon The U.S. 254-77 (2004) (referring to frequent, but neglected, threats of terror attacks throughout 2001).
84. See William Broad & Nicholas Wade, Betrayers of the Truth 161-80 (1982) (discussing the "club" atmosphere of scientific communities).
85. In the mid-1990s, former athlete O.J. Simpson was accused of and tried for the murder of his wife and her friend. For more details of this legal controversy, see Sheila Jasanoff, The Eye of Everyman: Witnessing DNA in the Simpson Trial, 28 Soc. Stud. Sci. 713 (1998).
86. Id at 724-25.
87. Id at 725.
88. Id. at 726.
89. The study is published in Douglas W. Dockery et al., An Association Between Air Pollution and Mortality in Six U.S. Cities, 329 New Eng. J. Med. 1753 (1993).
90. The Shelby Amendment was passed as a rider to the Omnibus Appropriations Act for Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat. 2681-495 (1998).
91. Sociologist of science Donald MacKenzie argues that there is a "credibility trough" that operates in relation to scientific claims: in general, those closest to the production of knowledge (the primary research community) and those most distant from it (laypeople, for instance) tend to be most skeptical of claims; other users and consumers of knowledge are more trusting, or credulous. In the context of public science, regulatory agencies and their expert reviewers arguably fall within that intermediate zone of lowered skepticism. Donald MacKenzie, Inventing Accuracy: A Historical Sociology of Nuclear Missile Guidance 370-72 (1990).
92. For a hard-hitting investigation of the failure to achieve balance in science during the George W. Bush administration, see Chris Mooney, The Republican War on Science (2005).
93. See generally Jasanoff, The Fifth Branch, supra note 3.
94. On the recurrent problems of scientific advice to government, see id.
95. Merton, supra note 10, at 277.
96. This commitment is reflected in the International Council for Science's adherence to the Principle of the Universality of Science, which stresses the need for free flow of scientists and scientific information across political borders. See supra note 1 and accompanying text.
97. See Daniel S. Greenberg, Science, Money, and Politics: Political Triumph and Ethical Erosion (2001) (discussing the politics of and financing of science in the last half century);
98. Krimsky, supra note 21, at 177-95 (criticizing the decline of public-interest science done in universities).
99. See, e.g., Latour, supra note 8, at 2-3, 81-82;
100. The Social Construction of Technological Systems: New Directions in the Sociology and History of Technology 21-22 (Wiebe Bijker et al. eds., 1987) [hereinafter Social Construction].
101. See Social Construction, supra note 82 (discussing the concept of the black box in technological systems).
102. See Latour, supra note 8, at 179-257;
103. Michel Callon, Some Elements of Sociology of Translation: Domestication of the Scallops and Fishermen of St. Brieuc Bay, in Power, Action, and Belief: A New Sociology of Knowledge? 196 (John Law ed., 1986).
104. Latour, supra note 8, at 218.
105. On the black-boxing of technology, See Social Construction, supra note 82.
106. See Latour, supra note 8, at 80-83 (describing how robust scientific claims get tied to too many black boxes for a would-be dissenter to be able to untie them all).
107. Both scientists and lawyers speak about replication as the ultimate test of validity of a claimed scientific fact. In practice, however, studies and experiments are seldom replicated. Even if they were replicated, the conditions of replication would never be identical, and skeptics could keep questioning the results through a process termed "experimenters' regress." See Collins, supra note 8, at 2, 84 (defining the principle of experimenter's regress).
108. David Michaels, an epidemiologist at George Washington University, uses the term "manufactured uncertainty" to refer to the practice of corporations challenging scientific findings in order to delay government action based on those findings. Jeff Nesmith, New Product for U.S. Industry: "Manufactured Doubt," Austin Am-Statesman, June 26, 2005, http://www.statesman.com/search/content/insight/stories/06/ 26doubt.html.
109. For historical accounts, see Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (1995) [hereinafter Jasanoff, Science at the Bar]
110. and Tal Golan, Law's of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (2004).
111. 545 N.Y.S.2d 985 (Sup. Ct. 1989).
112. 447 N.W.2d 422 (Minn. 1989).
113. On the standardization of DNA tests, see National Research Council, The Evaluation of Forensic DNA Evidence (1996)
114. and Eric S. Lander & Bruce Budowle, DNA. Fingerprinting Dispute Laid to Rest, 371 Nature 735, 735-38 (1994).
115. Steven Epstein, Impure Science: Aids, Activism, and the Politics of Knowledge 208-64(1996).
116. Understanding Risk: Informing Decisions in a Democratic Society 118-32 (Paul C. Stern & Harvey V. Fineberg eds., 1996) [hereinafter Understanding Risk].
117. Id. at 3-4.
118. See Jasanoff, The Fifth Branch, supra note 3, at 61-83 (analyzing peer review and its relationship to the scientific process).
119. See generally Precaution: Environmental Science and Preventive Public Policy (Joel A. Tickner ed., 2003).
120. See discussion infra Part IV.
121. See H.M. Collins & Robert Evans, The Third Wave of Science Studies: Studies of Expertise and Experience, 32 Soc. Stud. Sci. 235, 235-39 (2004) (suggesting that expertise should be the measure of a critic's credibility).
122. Id. at 254-56.
123. One dissident scientist is MIT professor and atmospheric physicist Richard S. Lindzen who is known for vocal opposition to generally accepted beliefs about global warming. Richard S. Lindzen, Global Warming: The Origin and Nature of the Alleged Scientific Consensus, Regulation, Spring 1992, available at http://www.cato.org/pubs/ regulation/reg15n2g.html.
124. Understanding Risk, supra note 95, at 84-85.
125. See infra Part V.
126. According to the Federal Rules of Civil Procedure, parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Fed. R. Civ. P. 26(b)(1). Similarly, all relevant evidence - evidence tending to make more or less probable any fact of consequence to the case - is admissible unless otherwise prohibited. Fed. R. Evid. 401-402.
127. Jasanoff, Science At The Bar, supra note 90, at 20.
128. Littlejohn v. Bic Corp., 851 F.2d 673 (3d Cir. 1988).
129. See, e.g., Harvey v. Horan, 278 F.3d 370, 373 (4th Cir. 2002) (denying a prisoner's claim for postconviction DNA testing on the ground that legal finality cannot be sacrificed to changes in technology).
130. Health effects, in particular, may take longer to manifest themselves than the time to settlement, especially if they affect succeeding generations, as in the case of "DES daughters" born to pregnant women treated with diethylstilbestrol (DES), or induce long-latency diseases like cancer or neurological damage, as in the cases of Vietnam veterans exposed to Agent Orange or Bhopal victims exposed to gaseous methyl isocyanate.
131. Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
132. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999);
133. Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).
134. In Daubert, the Supreme Court rejected general acceptance as the test for whether science is good or not good. 509 U.S. at 589.
135. The Court chose, instead, to adopt a more stringent rule, which considers, among other things, whether the science "has been subjected to peer review." Id. at 593.
136. After General Electric Co., parties seeking to introduce science also must establish that the conclusions reached, as opposed to just the methods used, by science are relevant and established. 522 U.S. at 144, 147.
137. The Supreme Court extended these stringent rules to technological testimony, as well, in Kumho Tire Co. 526 U.S. at 148-52.
138. See discussion supra Part III.
139. Sheila Jasanoff, Law's Knowledge: Science for Justice in Legal Settings, 95 Am. J. Pub. Health S49, S49-S50, S53 (2005).
140. For additional critical perspectives on Daubert, see Jasanoff, Science At The Bar, supra note 90, at 62-67
141. and John H. Mansfield, Scientific Evidence Under Daubert, 28 St. Mary's L.J. 1 (1996).
142. In the case of silicone gel breast implant litigation, for example, this defensive strategy led to the production of considerable amounts of epidemiological data tending to disprove claims of immune system disorders caused by the implants. Some commentators took this as evidence of the legal system's reliance on bad science, overlooking the law's pivotal role in prompting study of the issue in the first place. See, e.g., Marcia Angell, Science On Trial: The Clash of Medical Evidence and The Law In The Breast Implant Case (1996).
143. In re Quinlan, 355 A.2d 647, 668 (N.J. 1976) (noting that most hospital ethics committees are comprised of members who are not doctors).
144. The doctrine of stare decisis requires courts "to follow earlier judicial decisions when the same points arise again in litigation." Black's Law Dictionary 1414 (7th ed. 1999).
145. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (holding that an agency's permissible construction of the statute it administers is entitled to deference if Congress has not directly spoken to the precise question at issue);
146. Baltimore Gas and Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983) (holding that the court's only task on review is to determine whether the agency has considered the relevant factors and articulated a rational connection between the facts it found and the choice it made).