Legal scholarship has looked at problems of uncertainty- "unknown unknowns"-in a variety of contexts, from financial regulation to national security. This Article, however, focuses on uncertain risk in what may be its most challenging arena: experimental scientific research. Notably, this context imposes a key conceptual hurdle. In other arenas, law and regulation can work to lessen uncertainty. But with science-experiment risk, uncertainty cannot be sidestepped, since going beyond the current state of human knowledge is the whole point of experimental research. Moreover, scienceexperiment risk involves the highest possible stakes, since future experiments could plausibly lead to global catastrophe, even human extinction. As a case study, this Article explores an extreme science-gone-wrong scenario: a part icle-collider-spawned black hole that grows to devour our planet. No credible source considers such a disaster likely, but scientific uncertainty has made the possibility of such a mishap frustratingly difficult to exclude. Thus, the black hole case provides a sharp example of how the classical mode of quantitative risk assessment breaks down under the weight of unknown unknowns. Proceeding from this example, this Article attempts to answer questions such as: How can the courts make good decisions about the reasonableness of risk where safety depends on understanding laws of nature the experiment itself is designed to uncover? And how can the courts keep the masses safe from science while keeping science safe from the masses? The answers revolve around the insight that courts can conduct a qualitative meta-analysis, looking at such factors as the existence of conflicts of interest, the influence of institutional pressures, and the extent to which safety rationales rely on untested assumptions. With this test suite, courts can guard the rule of law while leaving the scientific frontier open for exploration.
Eric E. Johnson,
Uncertain Risk, Science Experiments, and the Courts,
48 Fla. St. U. L. Rev.