No one solution to the "new demarcation problem"?: A view from the trenches.

The new demarcation problem asks whether and how we can identify illegitimate values in scientific inquiry. Yet given the multiple contexts and audiences of science advice occurring in practice, a single strategy or set of ex ante criteria may not be the best way to approach this difficult puzzle. This paper offers a mapping of several distinct types of manifestations of the new demarcation problem arising in environmental and health policymaking over the last fifty years and notes their highly divergent features with respect to assessing the illegitimacy of the values in scientific work. The first manifestation of the new demarcation problem involves ensuring that the public and/or their designated representatives are alerted to the embedded values inextricably intertwined in mainstream, communally-held scientific advice that may significantly diverge from the policy audience's preferences in ways that could be considered illegitimate. The second manifestation involves locating ends-oriented or preference biases that sometimes afflict scientific research and advice in the applied world and illegitimately compromise the reliability of that work. Rather than lumping the new demarcation problem into a single set of challenges and evaluating them in isolation from policy context, greater analytical progress could perhaps be made by splitting these challenges into distinct categories and assessing illegitimate values from the standpoint of the differing audiences and policy contexts.

Science, politics and institutional design in regulation.

The politicization of science is a recurring phenomenon in US federal policymaking that is explained in part by the unstructured, collaborative nature of decision-making in most science-intensive US regulatory programs. In this chapter we spotlight some of the most significant worries arising from this longstanding approach to U.S. institutional design for expert agencies and offer recommendations for stronger institutional structures to help guard against the politicization of science.

Legal obstacles to toxic chemical research.

Legislative design impedes study of chemicals in the environment.

Commons ignorance: the failure of environmental law to produce needed information on health and the environment.

One of the most significant problems facing environmental law is the dearth of scientific information available to assess the impact of industrial activities on public health and the environment. After documenting the significant gaps in existing information, this Article argues that existing laws both exacerbate and perpetuate this problem. By failing to require actors to assess the potential harm from their activities, and by penalizing them with additional regulation when they do, existing laws fail to counteract actors' natural inclination to remain silent about the harms that they might be causing. Both theory and practice confirm that when the stakes are high, actors not only will resist producing potentially incriminating information but will invest in discrediting public research that suggests their activities are harmful. The Article concludes with specific recommendations about how these perverse incentives for ignorance can be reversed.