The European Union has yet to create a fully fledged children's policy. It is, at present, a policy of ‘bits and pieces’ with no cohering theme or approach. Indeed, there has been little reflective thinking about children at all. In this policy vacuum, it is perhaps not surprising that the dominant ideology of the family, and children's roles within ‘the family’, has thoughtlessly shaped Union law and policy. Nonetheless, novel and more progressive ways of thinking about children, and their rights and interests, are beginning to be reflected in Union law. This chapter considers first these newer ways of thinking about children's rights and interests, before going on to examine the Union's laws and policies relating to children. The final section examines how the Union's Charter of Fundamental Rights and a rights-based approach to children's law and policy provide the most appropriate way forward for the Union.

Family ideology and children's rights

The dominant ideology of the family prescribes specific familial roles not just for men and women, but also for children. This is the hierarchical, private family in which the concept of parental autonomy affords parents sole charge over their children. In such a conceptualisation, the Enlightenment view of the child, as ‘becoming’ an adult, rather than simply ‘being’ a child, remains dominant. The paradigmatic child is the dependent child, shielded from the public realm by rightfully protective parents: they are projects for adults to shape.

The law provides the institutional rules within which science will be utilized. Science often provides important content needed to assist in the resolution of legal disputes. However, scientific evidence is arcane, complex, and subtle. In order to better understand the law-science interaction, then, one should understand some of basic toxicity studies that are needed in the law as well as scientific reasoning from them to conclusions about human harm. This chapter reviews these subjects.

Early in this chapter, I provide some basic information about some of the main kinds of studies on which experts rely to make inferences about the potential of toxicants to cause adverse effects in persons. This summary seeks to acquaint readers, who might not be fully familiar with the science, with some of the types of studies and their features. I also review more extensively other kinds of evidence with which courts have had greater difficulties and that are less well understood. However, they are or potentially can be quite important in tort cases.

Later in this chapter I discuss less visible and less well-understood issues: scientific (nondeductive) inferences and some of their implications for scientific testimony. Surprisingly, a number of courts in their written opinions appear not to have understood different scientific studies, some of the reasonable inferences that can be made from them, and some of their limitations.

However, a deeper and broader understanding of the science and its context for the tort law is needed as well.

It is tempting to say that our tort, or personal injury, law is changing before our eyes, except we cannot see it. These modifications are occurring because of Supreme Court decisions that increased the screening of expert (largely scientific) testimony in the law, but it is difficult for all but the best informed to comprehend them. Some who understand them welcome them, some do not, and some will have more mixed assessments of them. However, most citizens cannot even have an opinion on the relevant issues because they are unaware of them and because the topics themselves are not easily accessible. The barriers to understanding this important legal institution are the result of subtleties most of us never think about – issues about scientific evidence and reasoning, and legal procedures that are complex and inaccessible to most of us.

The actual and potential transformations of this part of our legal system are too important, however, to remain hidden and too important for an informed citizenry to be left in the dark about them. Citizens risk having their realistic access to the tort law and the possibility of justice within it reduced and they will not know it. Judges and lawyers are at risk of being manipulated by slogans about “sound science,” not realizing there are more scientifically accurate and legitimate ways to think about science, law, and the interaction between the two.

When scientific evidence is centrally needed to assist legal decisions, the Supreme Court, inter alia, aimed at increasing the chances that legal decisions would more closely follow or at least not be at great odds with the relevant science. This is not as easy a task as it might have seemed. For one thing, generic tensions between the law and science hamper easy pursuit of this goal. In addition, given the complexity, subtlety, and near inscrutability of some scientific evidence, judges understandably, but regrettably often struggle with scientific studies and reasoning. These difficulties increase the more complex and subtle the evidence becomes. Moreover, judges may have disagreements with one another about how scientific evidence should be reviewed, given its complexity. Finally, the chances that admissibility decisions will result in mistaken judgments are even greater given some of the pragmatic problems reviewed in the previous chapter. That is, even when judges review quite good evidence, there are numerous opportunities for errors. When there are myriad pragmatic barriers to obtaining good evidence about the toxicity of substances and less than optimal evidence is available, the potential for stresses and strains increases. Failures to attend successfully to these issues pose threats to the legitimacy of the law as an institution.

The current chapter focuses on some of these issues; the next chapter suggests a partial corrective to them. This chapter first reviews some tensions between science and the law that can affect how well they can function together.

In Daubert, the Supreme Court correctly saw that lower courts had reviewed the admissibility of expert testimony and its foundation on the basis of a principle – the Frye “general acceptance” test – that had been superseded by the more liberal admissibility guidance of the Federal Rules of Evidence. At the same time, when it sought to articulate guidance for this activity, it heightened the gatekeeping duties of judges. However, in doing this, it entered intellectual territory that is not readily accessible to judges with their typical training.

The Supreme Court did not mention and seemingly disregarded its own decision of a decade earlier in Barefoot v. Estelle. This decision had held that cross-examination and jury assessment of witnesses' credibility and reliability were sufficient to protect a criminal defendant in a death penalty case against dubious and unreliable expert testimony that was widely criticized by the expert's own profession. By the time Daubert was decided in 1993, instead of merely rejecting Frye, as Chief Justice Rehnquist argued in dissent, and going beyond the plain language of the Federal Rules of Evidence, it created a “reliability” screen for expert testimony. This contrasted with Barefoot v. Estelle and with much of the previous application of the Frye test. In many jurisdictions, the Frye test only applied to generic tests, studies, technological devices, and scientific procedures that provided the foundation of scientific testimony, not to scientific opinions or the inferences of scientists.

The theoretical tools available to assist scientists in discovering the adverse effects of toxicants in humans are one thing. Their actual use with what is not known about substances, practical difficulties in using them, the time it takes to conduct studies, the rareness of background diseases at issue, and the adventitious exposure circumstances of torts are quite another. These and other limitations need to be appreciated in order to better understand how the utilization of science in the tort law affects the institution.

The courts in the Daubert litigation might not have had a realistic understanding of the kinds and quality of evidence that could be available in toxic tort litigation. The evidence in the original Daubert decision was particularly good and the Bendectin litigation in general had an unusual amount of high quality, readily available direct human evidence about the product. Indeed, it may be one of the “best studied substances” ever.

Such excellent evidence, however, can result in bad law. How could this be, since the common aphorism is that “bad evidence can make bad law”? Moreover, in cases subsequent to Daubert courts might mistakenly believe that nearly ideal evidence is always available or easily obtainable. If they do, they are likely to demand it in other cases. Suppose litigants lack similarly good evidence in other cases. Will courts think that the lawyers who file the case or the scientists who are prepared to testify in it have not done their homework?

Courts need to become more sophisticated about the scientific issues in toxic torts along the lines suggested in Chapter 7 to better ensure that verdicts comport with the science needed in a case, that there are fair admissibility reviews, and that there is the possibility of justice for injured parties. However, even a sensitive review of scientific evidence within existing federal law may fall short in bringing the science of our technological society into the law to guide social decisions. It also may not be sufficient to ensure matters have been “set right” as corrective justice requires for citizens wrongfully harmed by others. Further analysis suggests that the Daubert trilogy has probably had a number of counterproductive, although perhaps unintended, consequences on this point. There are three structural issues that raise concerns: (1) Admissibility changes wrought by Daubert, whether conducted poorly or well, almost certainly decrease citizens' access to the legal system. In turn, this puts justice for injured parties at risk and reduces further tort law deterrence of harmful conduct or products. (2) In some respects, Daubert increases the acceptability of legal decisions that utilize scientific evidence. In others, it threatens their acceptability, creates counterproductive tendencies concerning the science, or has other untoward consequences. (3) Beyond these two more specific problems, Daubert admissibility screening, ignorance about the universe of substances, too little product testing and monitoring, and the causal requirement of torts together undermine protections of public health and the environment where toxic substances are concerned.

INTRODUCTION

A significant, unseen revolution in the tort (personal injury) law is in progress. It is hidden from the public, except for those litigating toxic tort issues and well-informed researchers. These legal changes are difficult to discern because they are veiled behind a fabric of scientific complexity and detail, as well as arcane legal procedures that are not well known and are difficult to penetrate. Yet this veil must be lifted, the scientific and legal issues understood and put into perspective in order to appreciate the policy modifications in our legal system that can substantially affect the safety of ordinary citizens, both plaintiff and defense bars, corporate behavior, and fundamental legal relationships between citizens. This revolution involves science, law, and the possibility of justice for those who have been injured by the actions or products of others. What is the relationship among science, law, and the possibility of justice that it poses a problem?

Ordinarily, science has nothing to do with justice. Science provides one of the most reliable means for investigating empirical claims and producing comparatively objective evidence about them. Scientific research has resulted in considerable accumulation of knowledge about the world, in a substantial track record of predicting observable events, and as a consequence in “huge advances in human understanding [of the natural world and forces in it] … over the ages.” Scientific research greatly informs our understanding of human and animal biology, our environment and the larger world around us.

If some courts have been using unduly constrained, idealized, or overly simple heuristics for reviewing scientific testimony on causation, how might they conduct this task differently? How can they better address complex patterns of evidence? Can their admissibility decisions better serve the aims of both law and science?

Addressing these questions is the subject of the current chapter. I briefly consider the use of court-appointed experts, and then discuss an alternative, building on suggestions made by the Supreme Court in Kumho Tire and the Third Circuit Court of Appeals. After discussing this proposal, I consider some more nuanced patterns of evidence from consensus scientific committees to illustrate some complex patterns of evidence that courts might face, should be able to recognize and review favorably. I then present some decisions in which judges have recognized the subtlety of issues they faced or in which they addressed well the shortcomings of studies or reasoning against which they needed to guard. Toward the end of the chapter, I revisit some decisions discussed in Chapter 1 to suggest more specifically some of the problems they raise.

Courts have choices in how they implement Daubert and its progeny. They can unduly restrict scientific testimony, or fail to recognize more subtle scientific mistakes that can affect litigants. By contrast, they could review admissibility decisions on expert testimony to assess whether they fall within a “zone where reasonable scientists would disagree” (adopting a guiding heuristic from the Court in Kumho Tire).

INTRODUCTION

The law is one of the complex institutions that must be understood in order to identify the science-law issues, to see why they are so critical to the functioning of the legal system and to understand why mistaken decisions about the admission of expert testimony can be of wider social concern. Moreover, for both historical and ongoing disputes, it is important to understand why some of the legal changes have occurred.

This chapter first provides some institutional background about the tort law, including some specific steps in civil procedure, in order to identify the stage at which courts consider the admissibility of evidence. This reveals why admissibility decisions at this point in the timeline leading to a trial can be so crucial to the litigants (mainly the plaintiffs), to the law, and to society more generally. Second, it sketches the context in which the U.S. Supreme Court decided to take the legal admissibility of scientific evidence. Finally, it considers three recent U.S. Supreme Court cases and how these have modified the admissibility of expert testimony and its scientific basis, and some recent amendments to the Federal Rules of Evidence subsequent to the Court cases.

THE TORT LAW

The legal actions that are of concern arise in the tort or personal injury law. Tort law is that