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4 J. Energy L. & Pol'y 81 (1983)
The Courts and Science-Policy Disputes: A Review and Commentary on the Role of Judiciary in Regulatory Politics

handle is hein.journals/lrel4 and id is 87 raw text is: THE COURTS AND SCIENCE-POLICY
DISPUTES: A REVIEW AND COMMENTARY ON
THE ROLE OF THE JUDICIARY IN
REGULATORY POLITICS
David M. O'Brien*
I. INTRODUCTION: THE JUDICIARY AS A PUBLIC POLICY-MAKING
FORUM
Courts have historically, and especially since the late nineteenth
century, adjudicated disputes arising from industrialization and tech-
nological developments. Indeed, as the senior circuit judge for the
District of Columbia Court of Appeals observed, Long before regula-
tory agencies, our system of private lawsuits served to control risk-
taking. Consciously or unconsciously, society used that system to en-
courage some activities and discourage others.' After more than
three decades on the federal bench, Judge David Bazelon surmised,
courts, in deciding private lawsuits, have responded creatively to
harms that modern science has either produced or uncovered.2
Whether courts have indeed creatively responded to science-policy
disputes, whether and to what extent they may legitimately do so,
and whether courts are institutionally equipped and capable of aus-
piciously responding, remains problematic.
David M. O'Brien received his B.A. (1973), M.A. (1974), and Ph.D. (1977) from the Univer-
sity of California, and is an Associate Professor in the Woodrow Wilson Department of Govern-
ment and Foreign Affairs at the University of Virginia. During 1981-1982 he was a Visiting
Postdoctoral Fellow at the Russell Sage Foundation in New York, New York. He expresses his
appreciation to the Russell Sage Foundation and the Institute for Educational Affairs for their
support of his research project, What Process is Due? The Politics of Judicial Intervention in
Science-Policy Disputes, of which this article is a preliminary, partial showing.
Address by David Bazelon, The Courts and the Public: Policy Decisions about High Tech-
nology and Risk, delivered at the University of Pennsylvania (April 4, 1981). The author ex-
presses his appreciation to Judge Bazelon for making a copy of his speech available. (Copy on
file with the author).
I Id. See also Bazelon, Coping With Technology through the Legal Process, 62 CORNELL L.
REV. 817 (1977). Cf. Friendly, The Courts and Social Policy, Substance & Procedure, 33 U.
MiAMI L. Rxv. 21 (1978); Leventhal, Environmental Decisionmaking and the Role of the
Courts, 122 U. PA. L. Rxv. 509 (1974); McGowan, Congress, Court, and Control of Delegated
Power, 77 COLUM. L. Rzv. 1119 (1977); Wright, New Judicial Requisites for Informal Rulemak-
ing: Implications for the Environmental Impact Statement, 29 AD. L. REv. 59 (1977).

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