Phantom Risk: Scientific Inference and the Law.

An old children's ditty came to mind as I read this book. The song has this chorus in it: "Same song, second verse, could be better but it's gonna be worse." Phantom Risk sings the same song as Galileo's Revenge, a recent book by Peter Huber (who is listed as an editor of Phantom Risk), but worse. Worse because Phantom Risk is better reasoned and appears more rational, and therefore may be taken more seriously.

In Galileo's Revenge, Huber argued that any scientific opinion, theory, or methodology that has not been accepted by mainstream scientific consensus is "junk science" and should not be presented in a civil trial. Phantom Risk offers nothing new on the legal front. And the argument for taking scientific issues from the jury and allowing judges or panels of establishment experts to decide them has been repeated. However, there are far fewer hyperbolic statements and gross inaccuracies in Phantom Risk, and the tone of this book is more scholarly than that of Galileos Revenge.

Phantom Risk is a collection of scientific articles that discuss occupational or environmental health hazards that have been the focus of tort litigation (for example, dioxin, asbestos, and electromagnetic radiation). With arguments that appear well-reasoned, the authors call for the abolition of tort litigation involving these hazards in all but the most open-and-shut cases of scientifically provable causation.

Despite their reasoned tones, the authors' arguments are flawed. While purporting to present a measured view of the issue of science and the law, the authors ignore the fact that the policies they promote would cost the public too much. For example, where the safety of a product is scientifically uncertain, the authors favor allowing its sale and use. But when the product's users are injured, the authors favor requiring that the victims prove a scientifically certain causal connection to receive compensation for the injuries. This effectively shifts the risk of uncertain science from those who profit from the sale of products and services to the unfortunate injured victims. Most of the authors would have urged Columbus to stay home since no one had yet "proven" that the Earth was round.

Nevertheless, the book is something quite different from the usual polemics. It is not likely to get the instant attention that Galileo's Revenge did, but it is more likely to be taken seriously by scholars. In that regard, it can be both dangerous and useful. Dangerous if no one writes an equally thoughtful book on the other side of the issue. Useful because it may help focus the debate on the issues and away from the catchy but confusing ravings of Huber in Galileo's Revenge.

Frankly, it is difficult for me to understand why this book was written. Of course, the authors may have expected that the U.S. Supreme Court's recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (113 S. Ct. 1286 (1993)) would go the other way and thus this book would simply reinforce the Court's decision.

In the Daubert case, the Court resoundingly rejected the common law Frye rule on admitting scientific evidence and the view that judges should test the general acceptability of experts' opinions. Instead, the Court affirmed that vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." In fight of that decision, the authors' frequent call in Phantom Risk to take scientific issues away from juries has now become moot.

Giving Phantom Risk every benefit of the doubt, and accepting the views expressed in the book by the scientists as sufficiently credible to pass the Daubert test, the book proves nothing more than that the issues on which the scientists have written are two sided.