Serviceable truths: Science for action in law and policy

Texas Law Review

Volumn 93, Issue 7, 2015, Pages 1723-1749

  Jasanoff, Sheila ^a  

^a HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84938528551     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (137)

1. See generally The Handbook of Science and Technology Studies (Edward J. Hackett et al. eds., 3d ed. 2008) [hereinafter Hackett Handbook] (mapping and analyzing the state of the STS field).
2. Handbook of Science and Technology Studies (Sheila Jasanoff et al. eds., rev. ed. 1995) [hereinafter Jasanoff Handbook] (same).
3. Significant linking works by STS scholars include Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (2001).
4. Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (1995) [hereinafter Jasanoff, Science at the Bar].
5. Michael Lynch et al., Truth Machine: The Contentious History of DNA Fingerprinting (2008).
6. Michael Lynch & Sheila Jasanoff, Contested Identities: Science, Law and Forensic Practice, 28 Soc. Stud. Sci. 675 (1998).
7. See generally Fiona Murray, Patenting Life: How the Oncomouse Patent Changed the Lives of Mice and Men, in Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective 399 (Mario Biagioli et al. eds., 2011) (illustrating how legal studies in the area of intellectual property law bear on STS questions regarding relations between legal and scientific authority).
8. Alain Pottage, Law Machines: Scale Models, Forensic Materiality and the Making of Modern Patent Law, 41 Soc. Stud. Sci. 621 (2011) (same).
9. Kara Swanson, Biotech in Court: A Legal Lesson on the Unity of Science, 37 Soc. Stud. Sci. 357 (2007) (same).
10. Michael Lynch & Sheila Jasanoff, Contested Identities: Science, Law and Forensic Practice, 28 Soc. Stud. Sci. 675 (1998).
11. Sheila Jasanoff, The Fifth Branch: Science Advisers as Policymakers 250 (1990) [hereinafter Jasanoff, The Fifth Branch].
12. Bruno Latour, Science in Action: How to Follow Scientists and Engineers Through Society (1987).
13. From the extensive literature on these issues, one can cite, by way of example, Terry Shinn, The Triple Helix and New Production of Knowledge: Prepackaged Thinking on Science and Technology, 32 Soc. Stud. Sci. 599, 601-03 (2002) (using citation practices as a means to explore the impact, audiences, and geographical spread of two ideas in the sociology of knowledge).
14. Greg Myers, From Discovery to Invention: The Writing and Rewriting of Two Patents, 25 Soc. Stud. Sci. 57, 58-61 (1995) (discussing the role of patent writers).
15. This line of thinking goes by the name of actor-network theory (ANT). For a classic article illustrating the ANT approach, though not by that name, see Michel Callon, Some Elements of a Sociology of Translation: Domestication of the Scallops and the Fishermen of St Brieuc Bay, in Power, Action and Belief: A New Sociology of Knowledge? 196, 211-14 (John Law ed., 1986). In the ANT framework, the heterogeneous human and nonhuman elements of the network are seen as engaged in processes of mutual enrollment, with corresponding dynamics of resistance and negotiation until harmony is achieved at each network node. If irretrievable breakdown occurs anywhere in the network, the entire network fails to cohere, the experiment or demonstration fails, and the facts or artifacts sustained by the network never achieve closure or stability.
16. See also Bruno Latour, On Actor-Network Theory: A Few Clarifications, 47 Soziale Welt 369, 369-70 (1996) (further describing actor-network theory).
17. Many state forensic labs have suffered breakdowns at even this elementary level of compliance. For an especially egregious example entailing large social costs, see Sally Jacobs, Annie Dookhan Pursued Renown Along a Path of Lies, Bos. Globe, Feb. 3, 2013, http://www. bostonglobe. com/metro/2013/02/03/chasing-renown-path-paved-withlies/Axw3AxwmD33lRwXatSvMCL/story. html.
18. archived at http://perma. cc/5J5T-BJVH.
19. For example, the Centers for Disease Control and Prevention (CDC) supports the Clinical Laboratory Improvement Amendments of 1988 (CLIA) regulations, which establish federal standards applicable to all U. S. facilities or sites that perform tests on human specimens. Clinical Laboratory Improvement Amendments (CLIA), Centers for Disease Control & Prevention, http://wwwn. cdc. gov/clia/.
20. archived at http://perma. cc/CV5H-V8V2.
21. 509 U. S. 579, 593 (1993).
22. Gen. Elec. Co. v. Joiner, 522 U. S. 136 (1997) (establishing the standard of appellate review for trial-court applications of the Daubert rule).
23. Kumho Tire Co. v. Carmichael, 526 U. S. 137 (1999) (determining that in the admissibility standard for expert testimony, there is no difference between scientific knowledge and other types of specialized knowledge).
24. By contrast, a study of DNA fingerprinting that is more concerned with science for action is Sheila Jasanoff, The Eye of Everyman: Witnessing DNA in the Simpson Trial, 28 Soc. Stud. Sci. 713 (1998).
25. Many works affirm this position including, importantly, Ludwik Fleck, Genesis and Development of a Scientific Fact 157-63 (1979).
26. See also Bruno Latour, On Actor-Network Theory: A Few Clarifications, 47 Soziale Welt 369, 369-70 (1996) (further describing actor-network theory).
27. Steven Shapin, A Social History of Truth: Civility and Science in SeventeenthCentury England 3 (1994).
28. See also H. M. Collins, Changing Order: Replication and Induction in Scientific Practice 18 (1985) ("Science, like any other cultural activity, rests on a foundation of taken-for-granted reality. Usually scientists spend their time looking at things through the frame of reference that they were given when they were trained. ").
29. 293 F. 1013 (D. C. Cir. 1923).
30. See Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1208 (1980) (discussing the inadequate or inconsistent parameters that courts have considered in applying the general acceptance test).
31. See Daubert v. Merrell Dow Pharm., Inc., 509 U. S. 579, 597 (1993) (announcing the standard for expert testimony under the Federal Rules of Evidence, which superseded Frye).
32. See Lloyd Dixon & Brian Gill, Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the DAUBERT Decision 62 (2001) (finding that "[c]hallenges to expert evidence increasingly resulted in summary judgment after Daubert" as "nearly 90 percent of the summary judgments went against plaintiffs"). Whether or not the trilogy succeeded remains open to debate.
33. See, e. g., Margaret A. Berger, What Has a Decade of Daubert Wrought?, 95 Am. J. Pub. Health S59, S61 (2005) (noting the "numerous problems" that arise when courts apply the Daubert standard in toxic torts cases).
34. David L. Faigman, Where Law and Science (and Religion?) Meet, 93 Texas L. Rev. 1659, 1674 (2015) (concluding that the Court's "methodology-conclusion distinction is. useless").
35. Sheila Jasanoff, Law's Knowledge: Science for Justice in Legal Settings, 95 Am. J. Pub. Health S49, S57 (2005) (characterizing Daubert as "[driving] a wedge between reason and justice").
36. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
37. See, e. g., Thomas O. McGarity & Wendy E. Wagner, Bending Science: How Special Interests Corrupt Public Health Research 2 (2008) (arguing that "the institutions of science are under attack" by special interest groups, who have developed "sophisticated strategies" to "advance their ideological and economically motivated goals").
38. David Michaels, Doubt is Their Product: How Industry's Assault on Science Threatens Your Health, at xi (2008) ("Polluters and manufacturers of dangerous products tout 'sound science, ' but what they are promoting just sounds like science but isn't. ").
39. Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming 7 (2010) (telling the story of how special interest groups used the "Tobacco Strategy" to "attack science and scientists" and to confuse the public about global climate change).
40. Chris Mooney, The Republican War on Science 5 (2005).
41. See also Joel Achenbach, Why Do Many Reasonable People Doubt Science?, Nat'l Geographic, Mar. 2015, http://ngm. nationalgeographic. com/2015/03/science-doubters/achenbach-text.
42. archived at http://perma. cc/RP44-PR7P ("We live in an age when all manner of scientific knowledge. faces organized and often furious opposition. Empowered by their own sources of information and their own interpretations of research, doubters have declared war on the consensus of experts. ").
43. The Colbert Report: The Word-Truthiness (Comedy Central television broadcast Oct. 17, 2005), available at http://thecolbertreport. cc. com/videos/63ite2/the-word-truthiness.
44. archived at http://perma. cc/E8ZB-Y7K2.
45. American Dialect Society, TRUTHINESS voted 2005 Word of the Year by American Dialect Society 1 (2006), available at http://www. americandialect. org/Words_of_the_Year_2005. pdf.
46. archived at http://perma. cc/W2E3-5G58.
47. See also 2006 Word of the Year, Merriam-Webster, http://www. merriam-webster. com/word-of-the-year/2006-word-ofthe-year. htm.
48. archived at http://perma. cc/492N-QPVP (announcing the 2006 Word of the Year as "truthiness" and citing to the American Dialect Society definition).
49. Dick Meyer, The Truth of Truthiness, CBS News (Dec. 12, 2006, 12: 39 PM), http://www. cbsnews. com/news/the-truth-oftruthiness/.
50. archived at http://perma. cc/H68R-PYQX (describing the popularity and appropriateness of the concept among Americans).
51. Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom 2 (1991).
52. See, e. g., Gen. Elec. Co. v. Joiner, 522 U. S. 136, 149 (1997) (Breyer, J., concurring) ("[J]udges have increasingly found in the Rules of Evidence and Civil Procedure ways to help them overcome the inherent difficulty of making determinations about complicated scientific, or otherwise technical, evidence. ").
53. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
54. Administrative Procedure Act, 5 U. S. C. § 706 (2012).
55. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
56. For a noted statement of this commitment to stability, even on the most contested issues in U. S. politics, see the Supreme Court's opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey: The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed. 505 U. S. 833, 856 (1992) (citations omitted).
57. E. g., Jennifer E. Laurin, Criminal Law's Science Lag: How Criminal Justice Meets Changed Scientific Understanding, 93 Texas L. Rev. 1749, 1751-52 (2015) (explaining that even in the face of new scientific evidence that could exonerate thousands of individuals convicted of arson, it is rare for courts to revisit convictions).
58. See Sheila Jasanoff, Introduction: Rewriting Life, Reframing Rights, in Reframing Rights: Bioconstitutionalism in the Genetic Age 6 (Sheila Jasanoff ed., 2011) (listing the different issues of classification that courts must address when dealing with genetic technologies).
59. 557 U. S. 52 (2009).
60. The Court noted that many states already had enacted laws detailing the circumstances under which defendants could claim access to DNA tests.
61. See generally Elizabeth Loftus et al., Eyewitness Testimony: Civil and Criminal 1-12 (5th ed. 2013) (providing an introduction to the concerns over eyewitness testimony and methods used to come to evaluate and address those concerns).
62. See also Jennifer Mnookin, Constructing Evidence and Educating Juries: The Case for Modular, Made-in-Advance Evidence About Eyewitness Identifications and False Confessions, 93 Texas L. Rev. 1809, 1818-21 (2015).
63. 132 S. Ct. 716 (2012).
64. See also Adam Liptak, Eyewitness Evidence Needs No Special Cautions, Court Says, N. Y. Times, Jan. 11, 2012, available at http://www. nytimes. com/2012/01/12/us/supremecourt-says-witness-evidence-needs-no-special-cautions. html?_r=0.
65. archived at http://perma. cc/P6AU-LHU6.
66. Perry, 132 S. Ct. at 728.
67. Berry v. Chaplin, 169 P. 2d 442, 450-52 (Cal. Dist. Ct. App. 1946).
68. See Michael J. Saks, Accuracy v. Advocacy, Tech. Rev., Aug.-Sept. 1987, at 43, 48.
69. Unif. Parentage Act § 204 (amended 2002), 9B U. L. A. 27 (Supp. 2014).
70. 851 P. 2d 776 (Cal. 1993) (in bank).
71. This decision may be contrasted, of course, with the landmark New Jersey case In re Baby M, 537 A. 2d 1227 (N. J. 1988), in which the genetic and gestational mother, Mary Beth Whitehead, was denied custody of the baby girl to whom she had given birth based on an analysis of the best interests of the child. Though the facts and rulings were not identical, in both cases it was social values that controlled how each court weighed the competing claims of motherhood.
72. 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998).
73. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
74. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
75. 435 U. S. 519 (1978).
76. 467 U. S. 837 (1984).
77. Chris Walker, Most Cited Supreme Court Administrative Law Decisions, Yale J. on Reg. Blog (Oct. 9, 2014), http://www. yalejreg. com/blog/most-cited-supreme-court-administrativelaw-decisions-by-chris-walker.
78. archived at http://perma. cc/N58D-3BHT.
79. For an empirical analysis of Chevron deference in the Supreme Court's jurisprudence, see generally Connor N. Raso & William N. Eskridge, J., Chevron As a Canon, Not a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases, 110 Colum. L. Rev. 1727 (2010).
80. Chevron, 467 U. S. at 842-43.
81. 549 U. S. 497 (2007).
82. 134 S. Ct. 2427 (2014).
83. Massachusetts v. EPA, 549 U. S. at 532.
84. See also Clean Air Act, 42 U. S. C. §§ 7401-7671 (2012). As defined in 42 U. S. C. § 7602(g), "[t]he term 'air pollutant' means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. ".
85. See Massachusetts v. EPA, 549 U. S. at 533 ("But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. ").
86. Util. Air Regulatory Grp., 134 S. Ct. at 2437.
87. Massachusetts v. EPA, 549 U. S. at 549.
88. Util. Air Regulatory Grp., 134 S. Ct. at 2446.
89. This term was popularized by STS scholar Harry Collins to describe the fact that scientific observations lend themselves to many different interpretations, leading to multiple possible conclusions. H. M. Collins, Stages in the Empirical Programme of Relativism, 11 Soc. Stud. Sci. 3, 4-5 (1981).
90. Util. Air Regulatory Grp., 134 S. Ct. at 2452-53 (Breyer, J., concurring in part and dissenting in part).
91. Abbe R. Gluck, What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation, 83 Fordham L. Rev. 607, 628 (2014).
92. The terms "strong" and "weak" call out for further analysis, but one can see Daubert and its progeny in part as an ongoing effort on the part of the courts to do just that. Besides the Daubert criteria themselves, widely accepted indicators of the strength of scientific claims include replication, repeated review of conclusions (for example, in the case of IPCC reports on climate science), and demonstration through applications to technology. See, e. g., Intergovernmental Panel on Climate Change, Guidance Note for Lead Authors of the IPCC Fifth Assessment Report on Consistent Treatment of Uncertainties 1 (2010) (identifying mechanistic understanding, theory, data, models, and expert judgment as well as degree of agreement as appropriate qualitative metrics for expressing certainty in findings).
93. An earlier, somewhat differently focused version of this argument appeared in Sheila Jasanoff, What Judges Should Know About the Sociology of Science, 32 Jurimetrics J. 345 (1992).
94. Robert K. Merton, The Normative Structure of Science, in The Sociology of Science: Theoretical and Empirical Investigations 267, 267-68 (Norman W. Storer ed., 1973). Merton's article was initially written when European science was under attack from totalitarian political forces of the left and right.
95. See Michael J. Mulkay, Norms and Ideology in Science, 15 Soc. Sci. Info. 637, 640 (1976) (characterizing Merton's work as a "grossly misleading" depiction of how science is practiced).
96. See, e. g., William Broad & Nicholas Wade, Betrayers of the Truth 212-13 (1982) (summarizing the reasons why a scientist might commit fraud).
97. Daniel S. Greenberg, Science, Money, and Politics: Political Triumph and Ethical Erosion 1-3 (2001) (describing the bureaucracy of science as a "clever, well-financed claimant for money" whose values have been "eroded" and explaining the presence and importance of money in the politics of science).
98. Sheldon Krimsky, Science in the Private Interest: Has the Lure of Profits Corrupted Biomedical Research? 179 (2003) (characterizing the trend in academic science as moving toward "trade secrecy, intellectual property,. conflict of interest. [and] erosion of public trust").
99. The National Science Foundation, the principal funder of basic scientific research in the United States, requires all grant applicants to address two criteria in their proposals: intellectual merit and broader impacts. Nat'l Sci. Found., Proposal and Award Policies and Procedures: Part I-Grant Proposal Guide, at II-9 (2014).
100. See, e. g., Michael Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies 30-31 (1994) (summarizing the shift in knowledge production toward a new framework with transdisciplinary contexts).
101. See Gary Edmond, Merton and the Hot Tub: Scientific Conventions and Expert Evidence in Australian Civil Procedure, Law & Contemp. Probs., Winter 2009, at 159, 170 (2009) ("Norms such as. 'organized skepticism' encounter more fundamental difficulties when considered in the context of changes to the organization and funding of scientific and biomedical research in the post-war era. ").
102. See generally Sheila Jasanoff, Judgment Under Siege: The Three-Body Problem of Expert Legitimacy, in Democratization of Expertise?: Exploring Novel Forms of Scientific Advice in Political Decision-Making 209, 211 (Sabine Maasen & Peter Weingart eds., 2005) (describing the "three bodies that are relevant to the effective integration of science and politics").
103. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
104. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
105. Sheila Jasanoff, The Practices of Objectivity in Regulatory Science, in Social Knowledge in the Making 307 (Charles Camic et al. eds., 2011) (summarizing how knowledge created to serve policy needs differs from other forms of knowledge).
106. Intergovernmental Panel on Climate Change, Fifth Assessment Report (2014), available at http://www. ipcc. ch/report/ar5/.
107. archived at http://perma. cc/R7QA-8AAZ.
108. Organization, Intergovernmental Panel on Climate Change, http://www. ipcc. ch/organization/organization. shtml.
109. archived at http://perma. cc/Y7SJ-M8H8.
110. See, e. g., Naomi Oreskes, Beyond the Ivory Tower: The Scientific Consensus on Climate Change, 306 Science 1686, 1686 (2004) (insisting on the immediate policy relevance of the consensus position on climate change, despite many details of climate dynamics not being well understood).
111. Former Vice President Al Gore's Nobel Prize-winning 2006 documentary on climate change was named An Inconvenient Truth, implicitly calling attention to the political implications of the emerging climate consensus. An Inconvenient Truth (Paramount Classics 2006).
112. See, e. g., Erica Etelson, Move to Limit and Tax Soda is the New Tobacco Fight, S. F. Examiner, Sept. 30, 2014, http://www. sfexaminer. com/sanfrancisco/move-to-limit-and-tax-sodais-the-new-tobacco-fight/Content?oid=2907697.
113. archived at http://perma. cc/6K59-9D4E (noting how tobacco science was distorted by the tobacco industry for years to the point of being known as junk science).
114. Bruce Bimber, The Politics of Expertise in Congress: The Rise and Fall of the Office of Technology Assessment 69 (1996).
115. Nat'l Research Council of the Nat'l Acads., Analysis of Global Change Assessments: Lessons Learned 90 (2007).
116. See, e. g., Stephen Hilgartner, Science on Stage: Expert Advice as Public Drama 51-54 (2000) (describing how the National Academy of Sciences tries in its authoritative reports to use an "impartial tone" with regard to "sensitive policy issues" and how such reports are carefully crafted behind the scenes to present an "impression of objectivity, unity, and credibility" despite differing opinions).
117. See, e. g., Nat'l Research Council, Understanding Risk: Informing Decisions in a Democratic Society 103-04 (Paul C. Stern & Harvey V. Fineberg eds., 1996) (describing how analytic techniques to reduce risk "necessarily embed value choices").
118. Principle 15 states, "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. " United Nations Conference on Environment and Development, Rio de Janeiro, Braz., June 3-14, 1992, Rio Declaration on Environment and Development, princ. 15, U. N. Doc. A/CONF. 151/26/Rev. 1 (Vol. I), Annex I (Aug. 12, 1992).
119. The Wingspread Statement emerged from a 1998 conference on the precautionary principle and its formulation has been widely cited by advocates for the environment and public health: "When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. " Wingspread Statement on the Precautionary Principle, Sci. & Envtl. Health Network, Jan. 1998, http://www. sehn. org/state. html#w.
120. archived at http://perma. cc/7Y4H-XB3Z.
121. Treaty on European Union art. 130r(2), Feb. 7, 1992, 1992 O. J. (C 191) 28.
122. Communication from the Commission on the Precautionary Principle, at 10, COM (2000) 1 final (Feb. 2, 2000).
123. 42 U. S. C. § 4332(2)(C) (2012).
124. E. g., Jonathan Adler, The Problems with Precaution: A Principle without Principle, Am. Enterprise Inst. (May 25, 2011), http://www. aei. org/publication/the-problems-with-precautiona-principle-without-principle/.
125. archived at http://perma. cc/U3EK-YDL8.
126. Jonathan B. Wiener, The Rhetoric of Precaution, in The Reality of Precaution: Comparing Risk Regulation in the United States and Europe 3, 28 (Jonathan B. Wiener et al. eds., 2011).
127. Sheila Jasanoff, Technologies of Humility: Citizen Participation in Governing Science, 41 Minerva 223 (2003).
128. Exec. Order No. 12, 898, 59 Fed. Reg. 7629 (Feb. 11, 1994).
129. See Rhett Allain, Is Light a Wave or a Particle?, Wired, July 11, 2013, http://www. wired. com/2013/07/is-light-a-wave-or-a-particle.
130. archived at http://perma. cc/CUV6-FE6P (discussing the key concepts and main differences of the light and particle theories). Note that American creationists have raised just this kind of claim in demanding that schools be allowed to teach both evolution and creationism of intelligent design.
131. See, e. g., Edwards v. Aguillard, 482 U. S. 578, 581 (1987) (considering the constitutionality of a Louisiana statute, passed on a theory of academic freedom, that mandated the teaching of both creation science and evolution where either was to be taught). Similarly, parents wishing to protect children against vaccines they consider dangerous have in effect raised issues of epistemic subsidiarity.
132. See, e. g., James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L. J. 831, 844-49 (2002) (noting how vaccination opponents express valid scientific objections about their effectiveness and other harmful effects). Critiquing these kinds of claims is beyond the purposes of this Article, but it should be emphasized that they do not meet the threshold test laid out above for making epistemic subsidiarity claims-namely, that strong and tested science consensus does not exist on relevant issues or the science is so deeply contested as to provide no common ground for reasoning.
133. Sheila Jasanoff, Epistemic Subsidiarity-Coexistence, Cosmopolitanism, Constitutionalism, 2013 Eur. J. Risk Reg. 133, 136.
134. See Genetic Engineering, Plants, and Food: The European Regulatory System, GMO Compass (June 2, 2006), http://www. gmo-compass. org/eng/regulation/regulatory_process/156. european_regulatory_system_genetic_engineering. html.
135. archived at http://perma. cc/VSX7-RKWK (discussing European regulations that allow for freedom of choice, but that require "[g]enetically modified plants must be grown and handled in such a way that prevents uncontrolled mixing with conventional products").
136. A controversy in the world of celebrity fashion and art in early 2015 illustrates a lack of such ethical cosmopolitanism. Isla Binnie, Elton John Slams Dolce & Gabbana Over "Synthetic Baby" Comments, Reuters, Mar. 15, 2015, available at http://www. reuters. com/article/2015/03/15/us-people-eltonjohn-d-g-idUSKBN0MB0VV20150315.
137. archived at http://perma. cc/X4Y9-Z2VM. The designer team Dolce and Gabbana and the singer-songwriter Elton John called for a boycott of each other's artistic creations when the former referred to IVF children as "chemical" and "synthetic, " eliciting angry reactions from John, the father of two such children.