Scientific avoidance: toward more principled judicial review of legislative science

Indiana Law Journal

Volumn 84, Issue 1, 2009, Pages 239-284

  Meazell, Emily Hammond ^a  

^a UNIVERSITY OF OKLAHOMA   (United States)

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EID: 62149145429     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (323)

1. Marshall v. United States, 414 U.S. 417, 427 (1974); see also Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610, 1636 (2007) (citing Marshall, 414 U.S. at 427 with approval).
2. For further discussion, see infra Part II.
3. S. 11(1905).
4. Id. at 30; see also infra text accompanying notes 119-133
5. S.C. § 1531(2006).
6. S. Ct. 1610(2007).
7. Id. at 1624.
8. Id. at 1637-38.
9. Id. at 1638.
10. For further discussion, see infra text accompanying notes 237-258.
11. See Stenberg v. Carhart (Carhart I), 530 U.S. 914, 921-22 (2000) (striking down Nebraska's partial-birth abortion ban); see also infra text accompanying notes 220-258 (analyzing Carhart I and Carhart II).
12. For examples of the types of cases where this practice might legitimately apply, see Dan T. Coenen, Structural Review, Pseudo-Second-Look Decision Making, and the Risk of Diluting Constitutional Liberty, 42 WM. & MARY L. REV. 1881, 1883-84 (2001) (describing statutes upheld following constitutional "remands").
13. Compare, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 391 (1926) (rational relation to "health and safety"), with Carhart II, 127 S. Ct. 1610, 1640 (2007) (Ginsburg, J., dissenting) ("close scrutiny").
14. Compare, e.g., Craig v. Boren, 429 U.S. 190, 197-99 (1976) (applying intermediate scrutiny to a gender-based classification), and Williams v. Rhodes, 393 U.S. 23, 31 (1968) (applying strict scrutiny to a ballot-access provision), and Loving v. Virginia, 388 U.S. 1, 8-9 (1967) (applying strict scrutiny to a race-based classification), with Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) (applying rational basis review to an economic regulation).
15. See generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986) (arguing that courts must apply neutral decisionmaking principles rather than merely decide matters of legislative policy);
16. JOHN H. ELY, DEMOCRACY AND DISTRUST (1980) (arguing for representation-reinforcing judicial review that facilitates representation of minorities). For classic critiques of the tiered system, see generally Gerald Gunther, The Supreme Court 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for Newer Equal Protection, 86 HARV. L. REV. 1 (1972), describing the tiered approach and arguing for rational basis review with "bite," and Hans A. Linde, Due Process of Lawmaking, 55 NEB. L. REV. 197 (1976), critiquing rationality review.
17. See Sheila Jasanoff, Just Evidence: The Limits of Science in the Legal Process, 34 J.L. MED. & ETHICS 328, 328 (2006) (criticizing "modern societies' conviction that science can deliver fail-safe, and therefore just, legal outcomes where the law, acting on its own, might fall short");
18. Howard T. Markey, Jurisprudence or "Juriscience "?, 25 WM. & MARY L. REV. 525, 529-30 (1984) (cautioning against judicial overreliance on science).
19. See generally Wendy E. Wagner, Congress, Science, and Environmental Policy, 1999 U. III. L. REV. 181 (arguing that Congress overrelies on science and shifts the costs of that overreliance to administrative agencies).
20. Brown v. Piper, 91 U.S. 37, 42 (1875); see FED. R. EVID 201(b) (describing kinds of facts that may be judicially noticed);
21. Dauben v. Merrill Dow Pharms., Inc., 509 U.S. 579, 592 n. 11 (1993) ("[T]heories that are so firmly established as to have attained the status of scientific law, such as thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201."); see also Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997) (providing examples of matters ordinarily within judicial notice, including "scientific facts, such as when the sun rises or sets");
22. Fowler v. Tenn. Valley Auth., 321 F.2d 566, 570 (6th Cir. 1963) ("[I]f electrical power line is grounded by [the] conductor, current will flow through the conductor.");
23. Jamieson v. Woodward & Lothrop, 247 F.2d 23, 29 (D.C. Cir. 1957) (noting that the distance and force of recoil of elastic are proportional to the amount of tension placed upon it);
24. Application of Gruskin, 234 F.2d 493, 498 (C.C.P.A. 1956) (basic properties of calcium carbonate);
25. Miller Brewing Co. v. G. Helleman Brewing Co., 427 F. Supp. 1204, 1205 (W.D. Wis. 1977) (taking judicial notice that consuming food results in heat measured as calories). For a criticism of the current rules for judicial notice as applied to science and technology, see generally Christopher Onstott, Judicial Notice and the Law's "Scientific " Search for Truth, 40 AKRON L. REV. 465 (2007).
26. To name but one example, courts routinely admit DNA evidence, even though such evidence is not foolproof. See generally Thomas M. Fleming, Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R. 4TH 313 (1991 & Supp. 2008) (collecting cases and describing criticisms). On the other hand, there is little scholarship assessing the appropriateness of judicial reliance on scientific information when deciding matters of law. For a notable exception, see generally DAVID L. FAIGMAN, LABORATORY OF JUSή CE (2004) (providing detailed account of empirical assumptions underpinning constitutional doctrine).
27. See FAIGMAN, supra note 19, at 120-21; NAT'L ACADEMIES PRESS, RESPONSIBLE SCIENCE VOLUME I: ENSURING THE INTEGRITY OF THE RESEARCHPROCESS 38 (1992) [hereinafter RESPONSIBLE SCIENCE]; cf THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 36-42, 52 (3d ed. 1996) (describing normal science as puzzle-solving, cumulative exercise that ultimately leads to paradigm shifts). But see SUSAN HAACK, DEFENDING SCIENCE-WITHIN REASON 23 (2007) (arguing science is not epistemologically privileged because these are standards by which we judge "all inquirers, detectives, historians, investigative journalists, etc., as well as scientists") (emphasis in original).
28. See KUHN, supra note 20, at 166 ("In its normal state ... a scientific community is an immensely efficient instrument for solving the problems or puzzles that its paradigms define.").
29. RESPONSIBLE SCIENCE, supra note 20.
30. Id.
31. KUHN, supra note 20, at 149 (describing difficulty of reconciling Newtonian physics and its concomitant paradigm of space, with Einstein's general theory of relativity, which introduced the concept of curved space).
32. Any search for the ultimate definition of science is better left to its philosophers, and in any event, is unnecessary for purposes of this Article. Cf. HAACK, supra note 20, at 21 (commenting that many scientists regard philosophy of science as irrelevant-"about as useful to scientists as ornithology is to birds") (internal quotation and citation omitted).
33. Barry P. McDonald, Government Regulation or Other " Abridgments" of Scientific Research: The Proper Scope of Judicial Review Under the First Amendment, 54 EMORY L.J. 979, 1003 (2005); see also id. at 988 ("[M]ost contemporapy experts appear to define science... by the adherence to a certain process or method of deriving knowledge."). Indeed, the Daubert standard attempts to capture many of those principles. See Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993) (setting forth a nonexclusive list of factors for reliability including testability, peer review and publication, the known or potential rate of error, and general acceptance).
34. Hempel was a philosopher of the logical positivism movement, which was "best known for its efforts to eliminate ideological and metaphysical influences from science and culture, and to develop rigorous standards, based on logic, of scientific validity." KENNETH R. FOSTER & PETER W. HUBER, JUDGING SCIENCE: SCIENTIFIC KNOWLEDGE AND THE FEDERAL COURTS 41 (1997). Professors Foster and Huber note that positivism is so "out of intellectual fashion that sociologists of science now use 'positivist' as a loose epithet." Id. at 48. Nevertheless, testability remains in fashion as a defining mark of good science. See, e.g., Daubert, 509 U.S. at 593.
35. CARL G. HEMPEL, THE PHILOSOPHY OF NATURAL SCIENCE 48 (1966).
36. Id.
37. KARL R. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE 44, 47-48 (Routledge 2002) (1962).
38. For an extended discussion about this topic, see Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 735-46 (M.D. Pa. 2005) (concluding ID is "an interesting theological argument, but that it is not science").
39. Discovery Institute, What is Intelligent Design?, http://www. intelligentdesign.org/ whatisid.php.
40. Indeed, ID's inability to be falsified undergirds the scientific community's failure to accept it as a legitimate scientific theory. See American Association for the Advancement of Science, American Association for the Advancement of Science Board Resolution on Intelligent Design Theory, http://www.aaas.Org/news/releases/2002/l 106id2.shtml (relying in part on ID proponents' inability to propose a scientific means of testing their claims in rejecting ID as a scientific theory for the diversity of species). Note that falsifiability can be understood as a species of testability; Popper contended that genuine tests of theories are attempts to falsify them. POPPER, supra note 30, at 48 ("Every genuine test of a theory is an attempt to falsify it, or to refute it."); see FOSTER & HUBER, supra note 27, at 235 (1999) (describing testability as a "signpost on the road that leads to Frye. Scientific views that are formulated in terms concrete enough to be falsified if in fact they are wrong are views that are likely to become 'generally accepted' over time if in fact they are correct").
41. See Kitzmiller, 400 F. Supp. 2d at 742 ("ID is reliant upon forces acting outside of the natural world, forces that we cannot see, replicate, control or test");
42. FOSTER & HUBER, supra note 27, at 44-46 (describing confirmation bias as the phenomenon of looking for data to confirm a theory, rather than discredit it).
43. See, e.g., Richard A. Kerr, DidDarwin Get It All Right?, 267 Sci. 1421, 1421 (1995) (describing research suggesting punctuated equilibrium is the dominant mode of speciation, rather than Darwin's gradualism); see also John Rennie, 15 Answers to Creationist Nonsense, Sci. AM., July 2002, at 78, available at http://www.sciam.com/article.cfm?articleID=000D4FEC-7D5B- lD078E49809EC588EEDF&pageNumber=2&catID=2 (describing testability of evolution and debates amongst evolutionary biologists).
44. See POPPER, supra note 30, at 47.
45. See FOSTER & HUBER, supra note 27, at 46-48 (describing critiques of Popper's views).
46. Id. at 47-48 (collecting criticisms of Popper's criteria).
47. See Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579, 593 (1993) (citing with approval KARL M. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIENTIFIC KNOWLEDGE 37 (5th ed. 1989)). The concept of falsifiability is not limited to the evidentiary context of the Dauben test. See McLean v. Ark. Bd. of Educ, 529 F. Supp. 1255, 1267 (E.D. Ark. 1982) (including falsifiability in list of essential characteristics of science and concluding creationism is not science);
48. FOSTER & HUBER, supra note 27, at 53-54 (considering whether creation science is falsifíable and describing criticism of McLean list); see also STEVEN GOLDBERG, CULTURE CLASH 10 (1994) (describing various schools of science philosophy and concluding that regardless of philosophical view of science, scientific community "is remarkably adept at defining itself and at adjudicating what is and is not good science from its own professional perspective").
49. KUHN, supra note 20, at 173.
50. IPCC, About IPCC, http://www.ipcc.ch/about/index.htm.
51. IPCC, IPCC Reports, http://www.ipcc.ch/ipccreports/index.htm. 43. IPCC, 16YEARS OF SCIENTFIC ASSESSMENT IN SUPPORT OF THE CLIMATE CONVENTION 4 (2004), available at http://www.ipcc.ch/pdf/10th-anniversary/ anniversary-brochure.pdf.
52. IPCC, supra note 41. The global wanning debate has been the target of informal consensus development as well. See COMM'N ON THE SCI. OF CLIMATE CHANGE, NAT'L ACAD, OF Scis., CLIMATE CHANGE SCIENCE: AN ANALYSIS OF SOME KEY QUESTIONS 3 (2001) ("The IPCC's conclusion that most of the observed warming of the last 50 years is likely to have been due to the increase in greenhouse gas concentrations accurately reflects the current thinking of the scientific community on this issue.");
53. Naomi Oreskes, Beyond the Ivory Tower: The Scientific Consensus on Climate Change, 306 Sci. 1686, 1686 (2004) (describing review of peer-reviewed scientific journals for dissenting opinions, and finding lack thereof).
54. NIH, NIH Consensus Development Program, http://consensus.nih.gov/ ABOUTCDP.htrn.
55. Id.
56. Id.
57. See Donald Ludwig, Ray Hilborn & Carl J. Walters, Uncertainty, Resource Exploitation, and Conservation: Lessons from History, 260 Sci. 17, 17 (1993) ("We propose that we shall never attain scientific consensus concerning the [fisheries] systems that are being exploited"). Indeed, NIH has an analogue to the Consensus Development Conference: a State-of-the-Science Conference, which summarizes evidence and recommends directions for further research. NIH, supra note 45.
58. See generally Alvin M. Weinberg, Science and Trans-Science, 10 MINERVA 209 (1972). This conceptualization has received little attention in the legal commentary, with a notable exception being Professor Wagner's Note, which suggests a burden-shifting approach in scientifically uncertain toxic torts cases. Wendy E. Wagner, Note, Trans-Science in Torts, 96 YALE L.J. 428 (1986).
59. Weinberg, supra note 49, at 209; see also Alvin M. Weinberg, Origins of Science and Trans-Science, CITATION CLASSICS, Aug. 26, 1991, at 18, available at http://garfield.library.upenn.edu/classics1991/A1991GA09900001.pdf; Alvin M. Weinberg, Editorial, Science and Trans-Science, 177 Sci. 211 (1972).
60. See Weinberg, supra note 49, at 210. Weinberg wrote in particular of the trans-scientific questions surrounding the biological effects of low-level radiation exposure. Id.
61. Id.
62. Id. Similarly, the extent and locations of future global temperature changes pose trans-scientific issues. See Carol L. Silva & Hank C. Jenkins-Smith, The Precautionary Principle in Context: U.S. andE. U. Scientists' Prescriptions for Policy in the Face of Uncertainty, 88 Soc. Sci. Q. 640, 642 (2007) (describing uncertainties involving global climate change).
63. See NAT'L ACAD, OF Scis., NAT'L ACAD, OF ENG'G & INST, OF MED., ON BEING A SCIENTIST: RESPONSIBLE CONDUCT IN RESEARCH 1-2 (2d ed. 1995) (describing attributes of scientific research).
64. See Troyen A. Brennan, Causal Chains and Statistical Links: The Role of Scientific Uncertainty in Hazardous-Substance Litigation, 73 CORNELL L. REV. 469, 482 (1988) (explaining that scientific hypotheses are often expressed as probabilities); see also Lee Loevinger, Standards of Proof in Science and Law, 32 JURIMETRICS J. 323, 333 (1992) ("[S]cientific standards of proof are expressed numerically, stating degrees of probability or confidence, while legal standards of proof are categorical and are expressed entirely in verbal terms.").
65. Even Weinberg conceded that an issue appearing to be trans-scientific may later be resolvable by more sophisticated science. See Alvin M. Weinberg, Letters, 180 Sci. 1122, 1123 (1973) (stating that the question may be "whether the enormous effort required for such studies is an appropriate allocation of resources").
66. Perhaps as a corollary, it is also frequently observed that science is rapidly changing, while law is a more plodding institution. FAIGMAN, supra note 19, at 8. But see Peter H. Schlick, Multi-Culturalism Redux: Science, Law, and Politics, 11 YALE L. & POL'Y REV. 1, 25 (1993) ("The law is usually in much more of a hurry to decide than science is."). Even so, law can and does change, and the constant testing and revising inherent in the common-law system must certainly have analogies in the scientific method. Cf. GOLDBERG, supra note 39, at 14 ("The law does gradually change .... But the process is slow, uncertain, and controversial; there is nothing in the legal community like the consensus in the scientific community on whether a particular result constitutes progress."). Further, at their best, both systems share many values, including intellectual honesty and creativity.
67. GOLDBERG, supra note 39, at 16; Id. at 18 ("[0]ur legal system stresses the process by which a decision is reached in an attempt to ensure that the decision will be, at the very least, something society can accept."); see also Joëlle A. Moreno, Beyond the Polemic Against Junk Science: Navigating the Oceans that Divide Science and Law with Justice Breyer at the Helm, 81 B.U. L. REV. 1033, 1091 (2001) ("Those trained as advocates must recognize that scientific validity is independent of our legal goals.");
68. Markey, supra note 16, at 528 ("In cases where the law is clear and unchallenged, decisions appropriately may turn on a scientific fact. Such cases must be distinguished, however, from those in which the law, rather than scientific fact, must control.") (citation omitted).
69. Justice Stephen Breyer, The Interdependence of Science and Law, 280 Sci. 537, 538 (1998); see also Harold P. Green, The Law-Science Interface in Public Policy Decisionmaking, 51 OHIO ST. L.J. 375, 388 (1990) ("The law, on the other hand, is more concerned with the optimal resolution of disputes than it is with achieving 'correct' decisions that accord with objective truth. Although the law aspires to decide issues correctly, it is also concerned with reaching decisions that will be acceptable to the public.");
70. Jasanoff, supra note 16, at 329 ("The law has its own institutional needs and constraints, and these are broadly geared toward ensuring that justice is done in each individual case.").
71. See PROSSER & KEETON ON THE LAW OF TORTS § 30 (William L. Prosser et al. eds., 5th ed. 1984).
72. See Schweitzer v. Consol. Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985) ("We believe, however, that subclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiffs interest required to sustain a cause of action under generally applicable principles of tort law.");
73. Parker v. Brush Wellman, Inc., 420 F. Supp. 2d 1355 (N.D. Ga. 2006) (declining to recognize beryllium sensitization as actionable tort injury);
74. Boyd v. Orkin Exterminating Co., 381 S.E.2d 295, 297 (Ga. Ct. App. 1989), overruled on other grounds by Hanna v. McWilliams, 446 S.E.2d 741 (Ga. Ct. App. 1994) (rejecting claims for pesticide exposure where plaintiffs exhibited metabolites but showed no actual disease); see also O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 804 (1980) (Blackmun, J., concurring) ("Recognition of a constitutional right plainly cannot rest on such an inconclusive body of research and opinion.").
75. See generally David M. Herszenhom, After Verbal Fire, Senate Effectively Kills Climate Change Bill, N.Y. TIMES, June 7, 2008, at A12; John M. Broder, Senate Opens Debate on Politically Risky Bill Addressing Global Warming, N.Y. TIMES, June 3, 2008, at A16.
76. Markey, supra note 16, at 530; see also Sheila Jasanoff & Dorothy W. Nelkin, Science, Technology, and the Limits of Judicial Competence, 214 Sci. 1211, 1213 (1981) ("[T]he element of technical and scientific uncertainty often seems to encourage litigants to translate questions of social value into a technical discourse."). Scholars of administrative law have also lodged this criticism convincingly. "When scientific data are limited and legislative value judgments have been made only at the broadest level, political choices necessarily, and legitimately, factor into natural resource decisions. The core of the problem is not the involvement of politics but its concealment behind a cloak of science." Holly D. Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 ECOLOGY L.Q. 249, 253 (2005). Professor Doremus's piece studies the handling of science against the political administrative backdrop. She illustrates that, as in judicial decision making, administrative approaches that emphasize transparency and learning may be more normatively defensible and politically effective over time. Id.
77. See DAVID L. FAIGMAN, DONALD H. KAYE, MICHAEL J. SAKS & JOSEPH SANDERS, SCIENCE IN THE LAW: STANDARDS, STATISTICS, AND RESEARCH ISSUES 116 (2002) ("God does not whisper the answers into the ears of scientists, as though they were members of a modern priesthood.");
78. David S. Caudill & Lewis H. LaRue, Why Judges Applying the Dauben Trilogy Need to Know About the Social, Institutional, and Rhetorical-And Not Just the Methodological-Aspects of Science, 45 B.C. L. REV. 1, 3-4 (2003) (arguing that legal scholarship regarding Daubert often idealizes science at the expense of social, institutional, and rhetorical aspects of science);
79. Jasanoff & Nelkin, supra note 63, at 1215 ("The belief that scientific expertise is inherently removed from value considerations and that scientists are therefore political celibates is an anachronistic and even dangerous one.");
80. Irving M. Klotz, Sci. AM., May 1980, at 168,168 ("Science, like any other area of human endeavor, has had its grand illusions."). But cf. McDonald, supra note 26, at 989 ("It is this emphasis on the empirical reliability and objectivity of scientific knowledge, or the establishment of facts or truths thought to be 'universal' in nature . . . that impel many to make the claim that science produces knowledge that is epistemically superior to more 'subjective' forms of knowledge.").
81. See generally NEIL K. KOMESAR, IMPERFECT ALTERNATIVES (1994) (describing considerations of institutional choice amongst imperfect institutions).
82. Justice Stephen J. Breyer, Speech at the Association for the Advancement of Science Annual Meeting and Science Innovation Exposition: The Interdependence of Science and Law (Feb. 16, 1998), available at http://instructl.cit. cornell.edu/Courses/comm352-fa112000/Labs/breyerspeech.html.
83. See generally PETER W, HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991). One prominent example is Wells v. Ortho Pharm. Corp., 788 F.2d 741,742 (11th Cir. 1986), which upheld a district court's credibility-based determination that spermicidal jelly caused birth defects, even though scientific consensus indicated otherwise. See Federal Judges vs. Science, N.Y. TTMES, Dec. 27, 1986, § 1, at 22 (calling Wells "an intellectual embarrassment"); see also HUBER, supra, at 174 (stating that authors supporting plaintiffs later repudiated their work);
84. William M. Brown, Déjà Vu All over Again: The Exodus from Contraceptives Research and How to Reverse It, 40 BRANDEIS L.J. 1,28 (2001) ("The case is renowned for [the judge's] complete lack of reasoning or analysis of the scientific evidence. Specifically, [the judge] reportedly decided the case based on his evaluation of the trustworthiness of the expert witnesses, rather than their science."). But see Joseph L. Gastworth, The Need for Careful Evaluation of Epidemiological Evidence in Product Liability Cases: A Reexamination o/Wells v. Ortho and Key Pharmaceuticals, 2 LAW, PROBABILITY & RISK 151, 153 (2003) ("While some authors have strongly criticized the Wells decision, this review suggests that both the trial and appellate judges involved did the best they could with the information available to them.");
85. Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 AM. L. REV. 1637, 1668-70 (1993) (emphasizing that not all authors of Wells plaintiffs' studies repudiated their work, a fact which Huber did not disclose).
86. See Brock v. Merrell Dow Pharrns., Inc., 874 F.2d 307 (5th Cir. 1989) (reversing $550,000 jury verdict);
87. Richardson v. Richardson-Merrill, Inc., 857 F.2d 823 (D.C. Cir. 1988) (affirming district court's grant of judgment notwithstanding the over-one-million-dollar verdict); see also Oxendine v. Merrell Dow Pharrns., Inc., No. 82-1245, 1996 WL 680992 (D.C. Super. Oct. 24, 1996) (collecting cases);
88. FOSTER & HUBER, supra note 27, at 7 ("A few statistically significant correlations have been reported in the literature, but taken together the results are overwhelmingly negative.") (footnote omitted);
89. David E. Bernstein, Learning the Wrong Lessons from "An American Tragedy": A Critique of the Berger-Twerski Informed Choice Proposal, 104 MICH. L. REV. 1961, 1966 (2006) ("A review of the relevant medical literature finds a consensus that Bendectin is not a teratogen.").
90. S. 579(1993).
91. Id. at 593-94; see also FED. R. EVID. 702 advisory committee's note (suggesting other useful factors for determining reliability).
92. Dauben, 509 U.S. at 594-95.
93. On Daubert's shortcomings, see, e.g., Lisa Heinzerling, Doubting Daubert, 14 J.L. & POL'Y 65 (2006);
94. Erica Beecher-Monas, Blinded by Science: How Judges Avoid the Science in Scientific Evidence, 71 TEMP. L. REV. 55 (1998) (arguing courts misapply Daubert by continuing to admit certain forms of forensic evidence). For a study ofDaubert's outcomes as compared to the old Frye standard, see generally Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 VA. L. REV. 471 (2005).
95. Cheng & Yoon, supra note 72, at 503.
96. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,152 (1999) (noting trial judge has discretion "to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted ....").
97. For example, Daubert principles are generally not applied injudicial review governed by the Administrative Procedures Act. See, e.g., Sierra Club v. Marita, 46 F.3d 606, 621-22 (7th Cir. 1995) (declining invitation to apply Daubert principles as means of determining appropriate level of agency deference);
98. Stewart v. Potts, 996 F. Supp. 668, 678 n.8 (S.D. Tex. 1998) (noting that Daubert standards do not apply to judicial review of agency action). But see Alan C. Raul & Julie Z. Dwyer, "Regulatory Daubert": A Proposal to Enhance Judicial Review of Agency Science by Incorporating Daubert Principles into Administrative Law, 66 LAW & CONTEMP. PROBS. 7 (2003) (arguing that Daubert standards should apply to judicial review of agency action).
99. This is not to say that Daubert rulings are not outcome-determinative. As Daubert itself showed on remand, excluding plaintiffs' causation expert meant that the plaintiffs could not bear their burden of showing genuine issues of material fact and so the defendants were entitled to summary judgment. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995).
100. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994) (emphasis in original), cited with approval in FED R. EVID. 702 advisory committee's note to the amended rule.
101. See FED. R. EVID. 702 advisory committee's note to the amended rule ("When a trial court, applying this amendment, rules that an expert's testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable.");
102. Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) ("Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance.").
103. See ARIEL PORAT & ALEX STEIN, TORT LIABILITY UNDER UNCERTAINTY 18-22 (2001) (describing how the more-likely-than-not standard functions to evenly allocate the risk of error).
104. FED. R. Civ. P. 56(b)-(c).
105. See supra note 67 (describing reactions to Wells v. Ortho Pharm. Corp., 788 F.2d 741 (11th Cir. 1986)).
106. MARCIAANGELL, SCIENCE ON TRIAL 195-98 (1996); see also David E. Bernstein, The Breast Implant Fiasco, 87 CAL. L. REV. 457, 458 (1999) (reviewing MARCIA ANGELL, SCIENCE ON TRIAL (1996)).
107. See Jeffrey J. Hayward, Comment, The Same Mold Story?: What Toxic Mold Is Teaching Us About Causation in Toxic Tort Litigation, 83 N.C. L. REV. 518, 522-27 (2005) (describing uncertainty regarding link between mold and human health). Compare New Haverford P'ship v. Stroot, 772 A.2d 792 (Del. 2001) (upholding admissibility of scientific evidence under Daubert standard and jury verdict in favor of toxic mold plaintiffs), with Roche v. Lincoln Prop. Co., 278 F. Supp. 2d 744 (E.D. Va. 2003) (holding inadmissible, under Daubert standard, expert testimony regarding toxic mold).
108. Indeed, some scholars have decried the problem of litigation-driven science, to which Daubert itself may be a contributing factor. E.g., William G. Childs, The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, 85 NEB. L. REV. 643, 665-68 (2007);
109. William L. Anderson, Barry M. Parsons & Drummond Rennie, Daubert's Backwash: Litigation-Generated Science, 34 U. MICH. J.L. REFORM 619 (2001). Notably, on remand in Daubert itself, the Ninth Circuit added litigation-driven science as a factor that cut against reliability. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318-19 (9th Cir. 1995).
110. quot;Judges and lawyers usually react to science with all the enthusiasm of a child about to get a tetanus shot." Bert Black, Francisco J. Ayala & Carol Saffran-Brinks, Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 TEX. L. REV. 715, 716 (1994); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 600-01 (1993) (Rehnquist, J., concurring in part and dissenting in part) ("I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role.");
111. Marconi Wireless Tel. Co. v. United States, 320 U.S. 1, 60-61 (1943) (Frankfurter, J., dissenting in part) ("It is an old observation that the training of Anglo-American judges ill fits them to discharge the duties cast upon them by patent legislation.");
112. Lawrence M. Sung, Echoes of Scientific Truth in the Halls of Justice: The Standards of Review Applied by the United States Court of Appeals for the Federal Circuit in Patent-Related Matters, 48 AM. U. L. REV. 1233,1241 (1999) (noting criticisms of patent system and Federal Circuit "may be based solely upon an asserted lack of ability of the legal arbiter to determine scientific truth or merit");
113. Markey, supra note 16, at 538 (regarding preparatory education, "[a]n interdisciplinary approach is needed in which those planning a career in law would learn about science and scientists, and in which science students would learn about law and lawyers"). Some studies suggest that judges make many of the same mistakes attributed to jurors when processing scientific information. See, e.g., Neil Vidmar & Shari S. Diamond, Juries and Expert Evidence, 66 BROOK. L. REV. 1121, 1170-73 (2001) (collecting studies and noting that in one example, only four percent of judges could provide an explanation of falsifiability that revealed a clear understanding of that attribute). See generally Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777 (2001) (presenting results of empirical study suggesting judges use heuristics that can produce systematic errors in judgment).
114. See, e.g., FED. R. EVID. 706 (authorizing appointment of expert witnesses).
115. See generally Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 DUKE L.J. 1263 (2007) (arguing for independent judicial research as a more effective alternative).
116. Id. at 1271-72.
117. See, e.g., S. 3036, 110th Cong. § 3(1) (as introduced May 20, 2008) (statingpurpose of establishing program to reduce greenhouse gas emissions).
118. See Green, supra note 59 at 391 ("Whereas science can duck issues of [particular difficulty] by asserting that the evidence is inconclusive, a court does not have this luxury. When a lawsuit is filed, the case must be decided in a binary manner: liability or no liability.").
119. Watkins v. United States, 354 U.S. 178, 187 (1957) ("The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad."); see also Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 544 (1963) ("[T]here can be no question that the State has power adequately to inform itself-through legislative investigation, if it so desires....");
120. Barenblatt v. United States, 360 U.S. 109, 111 (1959) ("The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.").
121. See Gen. Motors Corp. v. Tracy, 519 U.S. 278,309 (1997) ("Congress has the capacity to investigate and analyze facts beyond anything the Judiciary could match."); Turner Broad.
122. Sys. v. FCC, 512 U.S. 622, 672 n.4 (1994) (Stevens, J., concurring in part and dissenting in part) (noting the "deference this Court should accord to the factfinding abilities of the nation's legislature") (quoting Turner Broad. Sys. v. FCC, 819 F. Supp. 32,46 (D.D.C. 1993)). But see United States v. Morrison, 529 U.S. 598 (2000) (striking down Violence Against Women Act where Congress made insufficient showing connecting violence to interstate commerce);
123. United States v. Lopez, 514 U.S. 549 (1995) (making a similar finding with respect to guns in school zones). For a recent article criticizing these cases, see Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80, 83 (2001) ("[T]he Court has undermined Congress's ability to decide for itself how and whether to create a record in support of pending legislation.").
124. See FAIGMAN, supra note 19, at 8 (stating that this premise is likely inaccurate, and in any event, is unsound as a matter of constitutional principle).
125. quot;[T]he National Academy shall..., whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art, the actual expense of such investigations, examinations, experiments, and reports, to be paid from appropriations which may be made for the purpose . ..." An Act to Incorporate the National Academy of Sciences, ch. 111, § 1,12 Stat. 806 (1863); see also About the National Academies, http://www.nationalacademies.org/about/.
126. Food and Drug Administration Amendments Act of 2007, Pub. L. No. 110-85, 121 Stat. 823 (2007).
127. Id. § 505B(1)(1), 121 Stat, at 874.
128. Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479, § 212, 120 Stat. 3618 (2007).
129. Id. § 701, 120 Stat, at 3649.
130. Office of National Drug Control Policy Reauthorization Act of 2006, Pub. L. No. 109-469, § 1106, 120 Stat. 3541 (2006).
131. CONGRESSIONAL RESEARCH SERVICE, ANNUAL REPORT FISCAL YEAR 2006, at 26, available at http://www.loc.gov/crsinfo/CRS06-AnnRpt.pdf. Much of CRS's work is unavailable to the general public. See BRUCE A. BN MBER, THE POLITICS OF EXPERTISE IN CONGRESS: THE RISE AND FALL OF THE OFFICE OF TECHNOLOGY ASSESSMENT 79 (1996) ("CRS is officially forbidden from publicly distributing most of its documents.").
132. BIMBER, supra note 100, at 82. Even so, CRS prepares reports in support of particular legislation by adopting the legislator's viewpoint and labeling its product "directed writing," which is not officially traceable to the agency. Id. at 82-83.
133. See U.S. Government Accountability Office, About GAO, http://www.gao.gov/about/. For examples of its policy analysis, see U.S. GOVERNMENT ACCOUNTABILITY OFFICE, CLIMATE CHANGE RESEARCH: AGENCIES HAVE DATA-SHARING POLICIES BUT COULD DO MORE TO ENHANCE THE AVAILABILITY OF DATA FROM FEDERALLY FUNDED RESEARCH (2007), available at http://www.gao.gov/new.items/d071172.pdf; U.S. GOVERNMENT ACCOUNTABILITY OFFICE, GLOBAL HEALTH: U.S. AGENCIES SUPPORT PROGRAMS TO BUILD OVERSEAS CAPACITY FOR INFECTIOUS DISEASE SURVEILLANCE (2007), available at http://www.gao.gov/new.items/d071186.pdf. Until 1995, there was also a Congressional Office of Technology Assessment, which provided members and committees analyses of scientific and technological subjects. Topics ranged from the cost-effectiveness of colorectal screening in average-risk adults to biologically based technologies for pest control. See Princeton University, OTA Publications by Year: 1995, http://www.princeton.edu/̃ota/ ns20/year-f.html.
134. See State v. Kantner, 493 P.2d 306, 310 n.5 (Haw. 1976) ("We know of nothing that compels the Legislature to thoroughly investigate the available scientific and medical evidence when enacting a law.") (emphasis in original) (quoting Commonwealth v. Leis, 243 N.E.2d 898, 901-02 (Mass. 1969)).
135. CONGRESS AND THE CONSTITUTION 225 (Neal Devins & Keith E. Whittington eds., 2005).
136. See id. (noting potential impact of lobbyists and special interest groups); see also KOMESAR, supra note 65, at 54-58 (describing interest group theory of politics).
137. See Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 190-91 (1989);
138. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165,166 (1984).
139. See Gammoh v. City of La Jabra, 395 F.3d 1114, 1127 (9th Cir. 2005);
140. G.M. Enters., Inc. v. Town of St. Joseph, 350 F.3d 631, 640 (7th Cir. 2003);
141. UFO Chuting of Haw., Inc. v. Young, 380 F. Supp. 2d 1160,1163 (D. Haw. 2005).
142. But see Gonzales v. Carhart, 127 S. Ct. 1610, 1638 (2007).
143. See Wendy E. Wagner, Congress, Science, and Environmental Policy, 1999 U. ILL. L. REV. 181, 198-99 (noting that perhaps some environmental legislation is so technical that scholars avoid it or are unprepared to critique it).
144. Id.
145. Id. at 221.
146. See, e.g., KOMESAR, supra note 65, at 53-97 (describing theories of majoritarian influence and minority bias).
147. Ashwander v. Tenn. Valley Auth., 297 U.S. 288,347 (1936) (Brandeis, J., concurring). See generally Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 CAL. L. REV. 397, 399-401 (2005) (emphasizing prominence, but describing criticism, of Justice Brandeis's statement of the canon of constitutional avoidance). For a comprehensive look at constitutional avoidance and its structural, democracy-forcing function, see Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. & MARY L. REV. 1575, 1604-16 (2001).
148. Ashwander, 297 U.S. at 347 (citation omitted).
149. Coenen, supra note 113, at 1608 ("By reserving constitutional intervention to instances of the most pressing urgency, the Court minimizes potentially power-sapping confrontations with coordinate branches, portrays itself as temperate in character, conserves judicial capital, and, through all this, solidifies its claim to exercise the power of judicial review."); see also Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 469 (1989) (phrasing purposes of avoidance in terms of separation of powers values).
150. Coenen, supra note, 113 at 1607.
151. These categories loosely reflect, but are not limited to, the two-tier structure the Court employs in substantive due process and equal protection analyses. However, for purposes of the typology, I do not distinguish between highly deferential rational basis review, as in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911), and rational basis review with bite, as in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). In addition, I put cases involving scrutiny higher than reasonableness, such as for gender as in United States v. Virginia, 518 U.S. 515 (1996), in the heightened category, even if they would not qualify for strict scrutiny, as in Loving v. Virginia, 388 U.S. 1 (1967).
152. Although many of the examples involve U.S. Supreme Court review of federal or state legislative acts, there is no reason the framework should not apply to state supreme court review of state legislative acts.
153. S. 11(1905).
154. Id.at 26.
155. Id. at 24-25.
156. Mat25.
157. Id. at 28.
158. Id.at 28-29.
159. Id. at 30 (emphasis added).
160. Id. at 31n.l.
161. Id.. at 32 n.l.
162. Id. at 34 (quoting Viemeister v. White, 72 N.E. 97, 99 (1904)).
163. Id. at 35 (quoting Viemeister v. White, 72 N.E. 97, 99 (1904)) (emphasis added); see also id. ("While we do not decide and cannot decide that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the State, and with this fact as a foundation we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.").
164. Id. at 31.
165. Id. at 38.
166. Id. at 30-31. Notably, the Court left open the possibility that the statute might be unconstitutional in an as-applied challenge where an adult could show in his particular case that the vaccine would cause serious bodily harm. Id. at 39. This possibility is similarly noted in Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610, 1638 (2007) ("[T]hese facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge."), discussed infra text accompanying notes 239-255.
167. See Vance v. Bradley, 440 U.S. 93, 97 (1979) ("The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.");
168. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913) ("The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific").
169. E.g., Coshow v. City of Escondido, 34 Cal. Rptr. 3d 19, 33 (Cal. Ct. App. 2005) (upholding city's plan to fluoridate drinking water; plaintiffs reliance on potential harmful effects associated with fluoride compound insufficient to overcome rational health-and-safety basis for plan);
170. Quiles v. City of Boynton Beach, 802 So. 2d 397 (Fla. Dist. Ct. App. 2001) (similar);
171. Kraus v. City of Cleveland, 127 N.E.2d 609 (Ohio 1955) (similar);
172. Chapman v. City of Shreveport, 74 So. 2d 142 (La. 1954) (rejecting challenge to fluoridation of public drinking water where plaintiffs relied on possible adverse consequences associated with exposure to fluoride but other scientific evidence supported legislature's decision).
173. E.g., NYC C.L.A.S.H., Inc. v. City of New York, 315 F. Supp. 2d 461, 495 (S.D.N.Y. 2004) ("[D]ue process does not require a legislative body to await concrete proof of reasonable but unproven assumptions before acting to safeguard the health of its citizens.") (emphasis omitted) (citation omitted);
174. Fagan v. Axelrod, 550 N.Y.S.2d 552,557-58 (N.Y. Sup. Ct. 1990) ("Even if scientific evidence demonstrating the deleterious effect of environmental tobacco smoke were not so overwhelming as it is, it would not be the prerogative of this Court to contest the wisdom of the Legislature in choosing what evidence to credit.").
175. E.g., UFO Chuting of Haw., Inc. v. Young, 380 F. Supp. 2d 1160 (D. Haw. 2005) (upholding statute banning seasonal parasailing in certain navigable waters for purpose of protecting humpback whales in face of challenge to quality of science used by legislature).
176. E.g., Price v. Illinois, 238 U.S. 446, 452 (1915) (upholding prohibition on sale of food preservatives containing boric acid; debatable danger to public health viewed as strong reason for deference to legislature);
177. Laurel Hill Cemetery v. City and County of San Francisco, 216 U.S. 358 (1910) (upholding ordinance forbidding burial of dead within city and county limits, while acknowledging differences in opinion regarding burial-related safety issues);
178. Cal. Reduction Co. v. Sanitary Reduction Works of San Francisco, 199 U.S. 306, 320-21 (1905) (upholding ordinance specifying particular disposal methods for municipal waste, while acknowledging scientific uncertainty as to best disposal methods).
179. See, e.g., State v. Kantner, 493 P.2d 306, 308 (Haw. 1972) (suggesting state legislature's power to define terms might be subject to certain state-constitutional procedural constraints, such as one-title, one-subject rule).
180. S. 288,294(1912).
181. Id.
182. According to the American Academy of Osteopathy, "[o]steopathic medicine is a complete system of medical care. The philosophy is to treat the whole person, not just the symptoms. It emphasizes the interrelationships of structure and function, and the appreciation of the body's ability to heal itself." American Academy of Osteopathy, What is Osteopathy?, http://academyofosteopathy.org/whatis.cfm.
183. Collins, 223 U.S. at 296-97. The statute provided that any person who "shall treat or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof, and charge therefor, directly or indirectly, money or other compensation" would be regarded as practicing medicine. Id. at 295.
184. Id. at 296.
185. Id. at 296-97.
186. Id. at 297-98. Regulation of healthcare practitioners is a traditional area for this principle's application. See Williamson v. Lee Optical, Inc., 348 U.S. 483, 487 (1955) ("[I]t is for the legislature, not the courts, to balance the advantages and disadvantages of [a new statute dealing with regulation of visual care].").
187. quot;An 'eo nomine' designation is one which describes a commodity by [a] specific name, usually one well known to commerce." BLACK'S LAW DICTIONARY 535 (6th ed. 1990).
188. Swan v. Arthur, 103 U.S. 597, 598 (1881) ("While tariff acts are generally to be construed according to the commercial understanding of the terms employed, language will be presumed to have the same meaning in commerce that it has in ordinary use, unless the contrary is shown.").
189. Alexandria Int'l, Inc. v. United States, 13 Ct. Int'l Trade 689, 692 (Ct. Int'l Trade 1989).
190. Two Hundred Chests of Tea, 22 U.S. (9 Wheat.) 430, 438-39 (1824). Occasionally this principle has resulted in commercial classifications wholly at odds with positive science. See Dalquest v. United States, 53 Cust. Ct. 99, 109 (Cust. Ct. 1964) (classifying sea lion carcasses as fish not fit for human consumption);
191. Cent. Commercial Co. v. United States, 11 Ct. Cust. 131, 133 (Ct. Cust. App. 1921) ("We are regretfully forced to the conclusion that judges, legislators, and people in general have classified the whale as a fish, and as the popular acceptation of tariff terms having no different commercial meaning must prevail as against their scientific signification, we must hold that the whale is a fish and that its flesh is fish "); see also infra text accompanying note 256 (discussing how to address binary holdings counter to science in scientific avoidance context).
192. t. Int'l Trade 192 (Ct. Int'l Trade 1981).
193. Id. at 193. Alkaloids are naturally occurring chemical compounds containing basic nitrogen. Examples include morphine and nicotine. See WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY 54 (1996).
194. Aldrich Chemical, 2 Ct. Int'l Trade at 195. The court examined "usage in the scientific community" to determine whether the compound was an alkaloid. Id. Although the court did not discuss the point, the usage upon which it settled was presumably that accepted in commerce as well as in some scientific circles, while a more nuanced view of the (unsettled) science might have provided a different definition.
195. Id. at 196-97 (citation omitted) (emphasis added).
196. See United States v. Brookins, 383 F. Supp. 1212, 1215-16 (D.N.J. 1974), aff'd, 524 F.2d 1404 (3d Cir. 1979) (upholding classification of non-narcotic cocaine as narcotic for legal purposes);
197. State v. Kantner, 493 P.2d 306, 308 (Haw. 1972) ("The legislature has broad power to define terms for a particular legislative purpose, and the courts ... are bound to follow legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific definitions."); see also Commonwealth v. Leis, 243 N.E.2d 898, 901-02 (Mass. 1969) ("We know nothing that compels the Legislature to thoroughly investigate the available scientific and medical evidence when enacting a law." (emphasis in original)).
198. S.C. §§ 801-971 (2006).
199. Brookins, 383 F. Supp, at 1213-14. The defendant contended that this classification as applied violated substantive due process and equal protection. Id.
200. Id. at 1215.
201. Id. at 1215-16.
202. Id. The court noted, in addition, that Congress was aware of discrepancies between the legal and pharmacological classiñcations of cocaine at the time of the hearings preceding the Act, but made the policy decision to retain cocaine's classification because of its established capacity as a dangerous drug. Id. at 1216.
203. Gonzales v. Carhart (Carhart II), 127 S. Ct. 1610, 1636 (2007);
204. Stenberg v. Carhart (Carhart I), 530 U.S. 914, 970 (2000) (Kennedy, J., dissenting).
205. S. 545 (1924).
206. Act Supplemental to the National Prohibition Act, 42 Stat. 222 (1921). This provision banned beer, ale, porter, and other malt liquor containing one-half of one percent of alcohol by volume and that was fit for beverage purposes. Everard's Breweries, 265 U.S. at 555 n.l.
207. Everard's Breweries, 265 U.S. at 556-57. Given the Court's analysis, it seems most likely that the challengers also brought substantive due process or equal protection challenges. Cf. Peil Bros. v. Day, 278 F. 223, 224 (D.N.Y. 1922) ajfd, 281 F. 1022 (2d Cir. 1922) (setting forth liberty challenges to section two).
208. Everard's Breweries, 265 U.S. at 561.
209. Id. at 562.
210. Id. at 562-63. Presumably, there was a greater consensus in the medical community that spirituous and vinous liquors had medicinal properties.
211. S. 581(1926).
212. Id. at 588.
213. Id.
214. Id. at 597.
215. See supra text accompanying notes 137-59.
216. S. 417 (1974).
217. Id. at 418-19.
218. Narcotic Addict Rehabilitation Act of 1966, Pub. L. No. 89-793, 80 Stat. 1438 (codified in scattered sections of 18, 28, & 42 U.S.C.).
219. Marshall, 414 U.S. at 418.
220. Id. at 423.
221. Id. at 424-25.
222. Id. at 426.
223. Id. at 427-28 (citing Jefferson v. Hackney, 406 U.S. 535 (1972);
224. Dandridge v. Williams, 397 U.S. 471 (1970);
225. McGowan v. Maryland, 366 U.S. 420 (1961);
226. Williams v. Lee Optical, Inc., 348 U.S. 483 (1955)).
227. Id. at 427; see also Traynor v. Turnage, 485 U.S. 535, 552 (1988) (upholding regulation categorizing alcoholism as willful against Rehabilitation Act challenge stating: "This litigation does not require the Court to decide whether alcoholism is a disease whose course its victims cannot control. It is not our role to resolve this medical issue on which the authorities remain sharply divided.");
228. N.Y. Transit Auth. v. Beazer, 440 U.S. 568, 590-92 (1979) (upholding employer's policy of excluding therapeutic methadone users from employment, and reasoning that more precise policies were not required given uncertainties associated with heroin addiction and treatment, classification was rational).
229. Marshall, 414 U.S. at 431, 433 (Marshall, J., dissenting) ("[T]he Equal Protection Clause has been all but emasculated .... If deferential scrutiny under the equal protection guarantee is to mean more than total deference and no scrutiny, surely it must reach the statutory exclusion involved in this case.").
230. Id. at 436.
231. Id.
232. Id. at 438.
233. This was a common theme in the fluoridation cases. See supra note 134; see also City Comm'n of City of Fort Pierce v. State ex rel. Altenhoff, 143 So. 2d 879, 891 (Fla. Dist. Ct. App. 1962) (rejecting contention that fluoridation unconstitutionally constitutes experimentation);
234. Kraus v. City of Cleveland, 127 N.E.2d 609, 613 (Ohio 1955) (same).
235. Marshall, 414 U.S. at 438 n.11 (Marshall, J., dissenting).
236. S. 354 (1983).
237. Id. at 359-60.
238. Id. at 360.
239. Id.
240. Addington v. Texas, 441 U.S. 418, 426-27, 432-33 (1979); see Kansas v. Hendricks, 521 U.S. 346, 357-60 (1997) (elaborating on mental illness requirement);
241. Jones v. United States, 463 U.S. 354, 362 (1983) (describing standard as requiring demonstration, by clear and convincing evidence, that individual is mentally ill and dangerous); see also infra text accompanying notes 200-17 (describing Hendricks).
242. Jones, 463 U.S. at 364-65.
243. Id..at 364n.13.
244. Id.
245. Id. at 364-65, 364 n.13.
246. Id. at 355.
247. Id. at 364 n. 13.
248. Id.
249. See id. at 377 (Brennan, J., dissenting). Justice Brennan was joined by Justices Marshall and Blackmun. Id. at 371. In a short separate dissent, Justice Stevens emphasized his opinion that if the petitioner was to be confined longer than he would have been incarcerated, the state must bear the burden of showing by clear and convincing evidence that the additional confinement is warranted. Id. at 387 (Stevens, J., dissenting).
250. Id. at 378-79.
251. Id. at 381.
252. S. 346 (1997).
253. Id. at 350.
254. KAN. STAT. ANN. §§ 59-29a01 to 59-29a22 (2005); Hendricks, 521 U.S. at 350-52.
255. Hendricks, 521 U.S. at 352 (quoting KAN. STAT. ANN. § 59-29a02(b) (2005)).
256. In re Hendricks, 912 P.2d 129, 137 (Kan. 1996), rev 'd sub nom. Kansasv. Hendricks, 521 U.S. 346 (1997); see e.g., Jones v. United States, 463 U.S. 354, 363 (1983) (using term "mental illness" with respect to meaning of verdict of not guilty by reason of insanity);
257. Addington v. Texas, 441 U.S. 418, 429 (1979) (using term "mentally ill").
258. In re Hendricks, 912 P.2d at 138.
259. Hendricks, 521 U.S. at 358-59.
260. Id. at 359.
261. See id.
262. Id. at 360 n.3. Thus, the reasoning of the Hendricks Court is similar to that of the classification cases. See supra text accompanying notes 138-59.
263. Justices Stevens and Souter joined Justice Breyer's dissent on this point; Justice Ginsburg joined the remaining portions of the dissent, but she did not write separately concerning the substantive due process claim. See Hendricks, 521 U.S. at 373.
264. See id. at 375 (Breyer, J., dissenting).
265. Hendricks, 521 U.S. at 375 (Breyer, J., dissenting).
266. Id.
267. Id. at 356.
268. See ln re Hendricks, 912 P.2d 129, 131-32 (Kan. 1996) (describing legislative history), rev'd sub nom. Kansas v. Hendricks, 521 U.S. 346 (1997).
269. Hendricks, 521 U.S. at 375 (Breyer, J., dissenting) (citation omitted).
270. Id. at 355 n.2 (majority opinion) (describing testimony regarding Hendricks's diagnosis); see also In re Hendricks, 912 P.2d at 130-31. Nor did Hendricks dispute that he was a pedophile. Id. at 143 (Larson, J., dissenting) (noting there was no objection to testimony that Hendricks was a sexually violent predator as defined by the statute).
271. S. 914 (2000).
272. I use this term with some hesitation, knowing there is deep disagreement over its meaning and proper usage. As described by the cases themselves, it is generally thought to include the abortion procedures known as intact dilation and evacuation ("intact D&E"), and dilation and extraction ("D&X"). See Carhart I, 530 U.S. at 928 (noting technical differences but using terms interchangeably); id. at 999 (Thomas, J., dissenting) ("Legislatures, in fact, sometimes use medical terms in ways that conflict with their clinical definitions,... a practice that is unremarkable so long as the legal term is adequately defined." (citation omitted)).
273. S.C. § 1531(2006).
274. Ct. 1610(2007).
275. See id. at 931-33.
276. See id. at 932, 936.
277. Id. at 934.
278. Id. at 938.
279. See Stenberg v. Carhart (Carhart I), 530 U.S. 914, 972 (2000) (Kennedy, J., dissenting).
280. Id. at 968 (Kennedy, J., dissenting).
281. S. 346 (1997).
282. S. 288 (1912).
283. S. 581(1926).
284. S. 417 (1974). Justice Kennedy also included United States v. Rutherford, 442 U.S. 544 (1979), in support of this proposition. Rutherford is inapposite because it involved judicial deference to an agency's interpretation of its statutory mandate. Id. at 553-54 (affording deference to Food and Drug Administration's interpretation regarding whether unapproved drugs may be used by terminally ill patients).
285. Carhart I, 530 U.S. at 970 (Kennedy, J., dissenting).
286. See id. at 971-72 (Kennedy, J., dissenting).
287. Justice Thomas came closest in his dissent, where he argued that the majority had expanded the health exception jurisprudence by mandating the availability of a particular procedure, rather than abortion generally. Under this approach, he argued, there could be no regulation of abortion procedures because there would always be some support for any given procedure. Id. at 1012 (Thomas, J., dissenting). In other words, because there is always the potential for some scientific uncertainty as to medical procedures, Justice Thomas was concerned that particular procedures could never be banned under the majority's approach.
288. S.C. § 1531(2006).
289. Partial-Birth Abortion Ban Act of 2003, Pub. L. 108-105, § 2(1), 117 Stat. 1201,1201 (2003) (emphasis added).
290. See id. §§ 2(3)-(8)
291. See id. §§ 14(A}-(G)
292. See Carhart II, 127 S.Ct, at 1627.
293. See id. at 1628.
294. See id. at 1627-35 (describing statute's features).
295. Id. at 1636.
296. Id.
297. Id. at 1637.
298. Id.
299. Id.
300. Id. at 1637-38.
301. Id. at 1638.
302. Id.
303. See id. at 1643-44 (Ginsburg, J., dissenting).
304. Id. at 1644.
305. Id. at 1646.
306. See id. at 1650.
307. Cf. Wagner, supra note 17, at 199 ("[I]t appears that Congress may actually be doing a good job at finding and using positive scientific knowledge when that knowledge is available.").
308. See Carhart II, 127 S. Ct. at 1637-38 ("[S]ome recitations in the Act are factually incorrect."); id. at 1643 (Ginsburg, J., dissenting) ("Many of the Act's recitations are incorrect.").
309. Carhart II, 127 S. Ct. at 1644 (Ginsburg, J., dissenting).
310. See Jacobson v. Massachusetts, 197 U.S. 11 (1905).
311. See Collins v. Texas, 223 U.S. 288 (1912).
312. See Aldrich Chem. Co. v. United States, 2 Ct. Int'l Trade 192 (Ct. Int'l Trade 1981).
313. See Lambert v. Yellowley, 272 U.S. 581 (1926);
314. Everard's Breweries v. Day, 265 U.S. 545 (1924).
315. See Marshall v. United States, 414 U.S. 417 (1974).
316. See Kansas v. Hendricks, 521 U.S. 346 (1997).
317. See generally BICKEL, supra note 15.
318. See supra text accompanying note 90 (describing this superior institutional capability).
319. See Carhart II, 127 S. Ct. 1610,1644-46 (2007) (Ginsburg, J., dissenting).
320. Id. at 1638.
321. See supra text accompanying notes 66-88 (describing weaknesses).
322. See Coenen, supra note 12, at 1755-72 (providing exhaustive description of such "remands");
323. Mark V. Tushnet, Legal Realism, Structural Review, and Prophecy, 8 U. DAYTON L. REV. 809, 816 (1983) (describing this "structural review" as "paying attention to the decisionmaker rather than to the decision").