52 U. Kan. L. Rev. 897 (2003-2004)
Our Science Is Sound Science and Their Science Is Junk Science: Science-Based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities

handle is hein.journals/ukalr52 and id is 911 raw text is: Our Science is Sound Science and Their Science is
Junk Science: Science-Based Strategies for Avoiding
Accountability and Responsibility for Risk-Producing
Products and Activities
Thomas 0. McGarity*
I.  INTRODUCTION
When officials discovered the first mad cow in Washington State
last December, U.S. consumer groups urged the United States
Department of Agriculture (USDA) to expand its mad cow testing
program radically from the paltry 20,000 downer cattle tested out of 35
million slaughtered annually.'      In response, USDA      Secretary Ann
Veneman announced that the Department would double the testing
program to 40,000 downer cattle, but it would not expand the program
beyond that. Concerned that a much larger testing program would
discover additional mad cows, the cattle industry applauded this
decision.
Testing cattle for mad cow disease is not inexpensive. Testing a
half-million cows (both downers and uppers) would cost tens of
millions of dollars, and that cost would ultimately be borne either by
consumers of red meat or by taxpayers.           Testing  100 percent of
slaughtered cattle, as demanded by some consumer groups and Japanese
importers, could be prohibitively expensive. Yet Secretary Veneman's
explanation for refusing demands that USDA acquire more information
on the health of U.S. cattle did not even mention cost. She dismissed
* W. James Kronzer Chair in Trial and Appellate Advocacy, University of Texas School of
Law; President, Center for Progressive Regulation. This Article represents a small part of the
thinking behind a larger project that the author and Professor Wendy E. Wagner are engaged in to
document, analyze and offer solutions for the problems that regulatory agencies encounter in using
scientific information in the decisionmaking process. The author would like to thank the Order of
the Coif for providing the opportunity to present a version of this Article as the 2004 Coif Lecture.
1. Marian Burros & Donald G. McNeil, Jr., U.S. Inspections for Disease Lag Behind Those
Abroad, N.Y. TIMES, Dec. 24, 2003, at A19.

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