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151 U. Pa. L. Rev. 1003 (2002-2003)
Beyond the Precautionary Principle

handle is hein.journals/pnlr151 and id is 1017 raw text is: BEYOND THE PRECAUTIONARY PRINCIPLE CASS R. SUNSTEIN' The precautionary principle has been highly influential in legal systems all over the world. In its strongest and most distinctive forms, the principle im- poses a burden of proof on those who create potential risks, and it requires regu- lation of activities even if it cannot be shown that those activities are likely to produce significant harms. Taken in this strong form, the precautionary prin- ciple should be rejected, not because it leads in bad directions, but because it leads in no direction at all. The principle is literally paralyzing-forbidding inaction, stringent regulation, and everything in between. The reason is that in the relevant cases, every step, including inaction, creates a risk to health, the environment, or both. This point raises a further puzzle: Why is the precau- tionary principle widely seen to offer real guidance? The answer lies in identi- fiable cognitive mechanisms emphasized by behavioral economists. In many cases, loss aversion plays a large role, accompanied by a false belief that nature is benign. Sometimes the availability heuristic is at work. Probability neglect plays a role as well. Most often, those who use the precautionary principle fall victim to what might be called system neglect, which involves a failure to at- tend to the systemic effects of regulation. Examples are given from numerous areas, involving arsenic regulation, global warming and the Kyoto Protocol, nuclear power, pharmaceutical regulation, cloning, pesticide regulation, and genetic modification of food. The salutary moral and political goals of the pre- cautionary principle should be promoted through other, more effective methods. INTRODUCTION All over the world, there is increasing interest in a simple idea for the regulation of risk: In case of doubt, follow the precautionary princi- ple.' Avoid steps that will create a risk of harm. Until safety is estab- Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago. I am grateful for valuable comments from Peter Dorman, Leeka Kheifets, Jack Knetsch, Saul Levmore, Eric Pos- ner, Indra Spiecker, Adrian Vermeule, Jonathan Wiener, and the participants in the Midwest Faculty Seminar. I am also grateful to Martha Nussbaum for helpful discus- sions. For general discussions of the precautionary principle, see INTERPRETING THE PRECAUTIONARY PRINCIPLE (Timothy O'Riordan & James Cameron eds., 1994); PROTECTING PUBLIC HEALTH & THE ENVIRONMENT: IMPLEMENTING THE (1003)

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