Law and Engineering: In Search of the Law-Science Problem

I INTRODUCTION Law is not unitary. Neither is science. Law pursues a host of divergent purposes: facilitating welfare-enhancing transactions, corrective justice (compensation for harms), preventing injury and disease, punishing crime, protecting our natural and cultural heritage, coordinating collective action, and promoting useful work in the arts and sciences. Law's multiple purposes are developed and pursued in different institutional domains: by courts, legislatures, administrative agencies, and private actors. Even when their purposes are similar, lawmakers in these different categories employ radically diverging processes. Given law's multiple purposes, domains, and processes, could the "law-science problem" possibly be a general one? Scientific activity is similarly fragmented. Scientists are separated by their interests and techniques--theoretical, experimental, or applied. Scientists organize themselves into different disciplines--physics, biology, psychology, botany, chemistry, and so on. Science, like law, is pursued in differing fora: universities, free-standing institutes, commercial enterprises, and professional consulting firms. Much science is pursued independently of the interests of lawyers and legal institutions, but some is forensic in its basic orientation. The problems for the field have been set by the law's demands for peculiar sorts of knowledge. Could the problems of integrating science and scientists into law and legal processes possibly be the same across all these distinct scientific activities and interests? When framed this way, the answers to these two questions seem obviously to be "no." Progress toward understanding and managing the law-science problem seems to require disaggregating the questions. If we look carefully at what kind of "science" and what kind of "law," then perhaps we can get some analytic leverage. If we cut the general problem into little pieces, we can at least ask more precisely what is problematic at which particular law-science interface. Lawyers and scientists have at least this much in common: Both harbor the intellectual conceit that a well-defined problem is not only a necessary, but almost a sufficient, condition for a successful solution. The purpose of this Article, therefore, is to look at a particular applied science, engineering, in a particular context, health and safety regulation. Indeed, I will look at the law-science interface in the context of an agency that I have studied before, the National Highway Traffic Safety Administration ("NHTSA"). (1) My beginning intuition is that engineers, as applied scientists, operate differently and have a different mindset than do theoretical or experimental scientists, and my initial hypothesis is that a regulatory process highly dependent on engineers and engineering data will generate different law-science interactions and problems than those encountered by Congress when assessing models of climate change, or by a court looking at DNA evidence, or even by the Food and Drug Administration ("FDA") when grappling with biological and chemical data. The ambition is to demonstrate that a disaggregated approach can yield progress. One agency dealing with one scientific community might not be able to solve all of its law-science problems, but it should be able to manage them successfully. If it cannot, why not? II ENGINEERS AND ENGINEERING A. Why Engineers? The choice to rethink the law-science problem in the context of NHTSA in some sense dictates a focus on engineers and engineering. Making cars safer is an engineering problem, as is the design and construction of roadways. In June 2001, NHTSA employed 120 engineers. (2) It employed only six other scientists of any type. Engineering is not everything, of course. Drivers still matter. But it was precisely the purpose of the Motor Vehicle Safety Act of 1966 to move beyond the law's historic focus on regulating drivers--a technique that many viewed as a failed strategy--to regulate the motor vehicle itself. …