Sanne H. Knudsen, Adversarial Science, 100 Iowa L. Rev. 1503 (2015), https://digitalcommons.law.uw.edu/faculty-articles/14
Iowa Law Review
environmental disasters, junk science, litigation science, natural resources damages
Adversarial science—sometimes referred to as "litigation science" or "junk science"—has a bad name. It is often associated with the tobacco industry's relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.
In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like oil spills as part of a process known as natural resource damage assessment ("NRDA"). During this process, lawyers engage scientists to advance advocacy positions, either to support or to defeat claims for natural resource damages. The NRDA process presents an unparalleled opportunity to intensively study the effects of toxic exposure to ecosystems at the very moment those impacts are unfolding. At the same time, the science that emerges is adversarial; it suffers from the same conflicts of interests and perceptions of bias as other result-oriented science.
While scientists and legal scholars have written extensively about the conflicts of interest embedded in other forms of policy-relevant science, surprisingly little scholarly attention has been given to the influence of litigation on NRDA science or the implications of that influence on the broader scientific understanding of ecological harms. This Article casts a bright light on adversarial science, using the scientific literature to expose the influence of litigation on NRDA science. More importantly, this Article—while acknowledging the risks of adversarial science—urges policymakers to embrace it. Ultimately, this Article offers solutions that both release adversarial science from traditional clouds of suspicion and allow adversarial science to inform public policy on the long-term harm from toxic exposure.