文章基本信息

标题：Placing and Displacing Science: Science and the Gates of Judicial Power in Environmental Cases
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作者：Heather McLeod-Kilmurray
期刊名称：University of Ottawa Law and Technology Journal
印刷版ISSN：1710-6028
电子版ISSN：1715-006X
出版年度：2009
卷号：6
期号：1-2
页码：25-52
出版社：University of Ottawa
摘要：Science and law are two dimensions of power that have a significant impact on people and places. Science and law often meet in cases brought before the courts, yet how courts react to scientific issues varies. In some instances, law seems to displace science, when courts treat cases as primarily legal disputes in which science plays a small role. In others, courts seem to allow science to displace judicial power, citing the complexity of science and the institutional incapacity or inappropriateness of courts to deal with these issues as a reason to decline to exercise judicial power. Why the differences? Are judges using scientific complexity or uncertainty as a tool for judicial gatekeeping? When courts define a particular issue as primarily scientific as opposed to primarily legal, what does this tell us about how courts understand the nature of different types of problems, and their own role in their resolution? What impact does this have on access to justice, and more particularly on access to the domain of legal power for those seeking to challenge, or obtain protection from, the dimension of scientific power? This paper contrasts judicial approaches to science in two legal contexts: the public law context of judicial review of environmental assessment decisions, and the private law context of toxic tort litigation. It also proposes examples of current innovations in overcoming these scientific barriers, and asks what these innovations reveal about evolving judicial attitudes toward the relative place of science and law in resolving environmental problems.