Public risks are precisely the risks that have recently captured the attention of the legal community and the world at large, in no small part because they give rise to such novel problems for lawyers and such grave apprehensions among lay people. Public risks have moved the legal system to relax doctrines--regarding, for example, standards of causation and culpability, burdens of proof, sharing of liability--that were designed to deal with the private risks that once dominated the landscape. And public risks have moved lay people to intensify their demands for risk control measures. These developments suggest that public risks are subject to especially harsh treatment, yet such treatment might often be contrary to minimizing the sum of all risk-related costs. If some public risks, whatever their dangers, are in fact safer or otherwise more beneficial than the risks they would displace, then cost minimization requires open-minded efforts to encourage many of the very technological threats that current legal and popular opinion would instead deter. As a consequence, the question of what to do about public risk has become a subject of considerable (and sometimes heated) debate. That debate is our concern throughout all that follows. We begin in Part I with a summary of the contending views in the ongoing argument about public risk, giving particular attention to two important points of contention. The first of these has to do with attitudes. The general public, and to some degree the legal system as well, have a particular aversion to public risk. Is this justified? The second point of contention, intimately related to the first, has to do with institutions, and especially with judicial versus administrative rule. At present, the courts are playing an important part in shaping the legal response to public risk. Is this sensible? According to one powerfully stated outlook--an outlook that runs directly against the grain of prevailing sentiments--the answer to each of the foregoing questions is a firm "no." Our actions increase, rather than minimize, risk costs. We worry too much about public risks and not enough about private ones. We control public risks with a haphazard mix of market, judicial, administrative, and legislative measures that too often proceed in the wrong direction, without coordination, and with too little reliance on agencies and too much on courts. The courts especially are said to pander to uninformed and irrational risk attitudes; their decisions show a myopic bias against new technology and in favor of its victims. New or complex technologies are subjected to a degree of scrutiny that riskier but established (often private) risk sources never underwent and could not survive. As a result, we have too much private risk and too little public risk, not more safety but less. Some of the critics advancing this line call for a reduction of the judicial role in risk assessment and management, and for more reliance on administrative agencies. Agencies, they argue, have more expertise, are more objective and rational, can be more attentive to the net effects of technological advance. Courts, they conclude, should defer to them. This is the set of views that we call into question here. After sketching the lines of debate in Part I, we turn in Part II to a prefatory discussion about why risk has to be regulated at all, and under what circumstances. Part III and much of Part IV then address the debate about institutions, taking up courts and agencies in turn. In Part III, we model the litigation process in a way that suggests how courts might well be managing risk much more productively than one would at first suppose. In Part IV, we pursue a similar model to show why agencies might fall far short of what is claimed on their behalf, were the courts to be more deferential. A significant portion of the agency discussion is devoted to attitudes about risk. The question of attitudes has been begged in the legal debate about public risk, yet the topic is of fundamental importance: attitudes about risk--about the meanings of risk--have much to do with choosing or devising the right management institutions. The comparative analysis of courts and agencies in Parts III and IV leads us to conclude that ambitious proposals to increase the scope of agency authority at the expense of judicial scrutiny are remarkably premature. We stop short of saying that the present institutional arrangements are, however imperfect, the best we can hope for given current understanding. We insist, though, that those critics who would alter existing arrangements through sweeping delegations to experts and bureaucrats have utterly failed to carry a reasonable burden of proof. A careful comparative assessment simply raises too many doubts about the wisdom of wholesale abdication to technocratic rule. Part V underscores this conclusion with some speculation about the larger implications of technocracy in a democratic system. Our concerns in this respect lead us to consider an alternative and currently popular view that public risk should be managed through one or another version of participatory democracy. We end up being as skeptical here as we are about technocracy. Obviously, then, we think that much ground has still to be covered before anyone can confidently come forth with ambitious programs for risk assessment and management. As we see it, the public risk debate presently rests at the inside edge of a vast and expanding universe, an unsurprising thing given that risk has only recently been highlighted on social and legal agendas. The entire topic--its attitudinal, institutional, and scientific aspects--is still so shrouded with uncertainty that it is difficult to be confident about anything other than the need for more information and more argument. What we hope to do is move matters forward by bringing into view some considerations that must (but thus far do not) figure in the ongoing debate.
Krier, James E. "Risk, Courts, and Agencies." C. P. Gillette, co-author. U. Pa. L. Rev. 138 (1990): 1027-109.