Programme

(T161)
The Best Way to Control Toxic Actants: Litigation or Regulation?
Location M213
Date and Start Time 03 September, 2016 at 14:00
Sessions 2

Convenors

  • Doogab Yi (Seoul National University) email
  • Paul Jobin (Academia Sinica) email

Mail All Convenors

Chair Michael Fisher (STS/MIT, 1); Tal Golan (UCSD, 2)
Discussant Michael Fisher (STS/MIT)

Short Abstract

By exploring litigation and regulation on toxic actants in East Asian countries, this panel examines following questions: What are the effects of the class actions on state regulations? What other forms of social mobilization can create more appropriate and efficient regulation?

Long Abstract

State regulation is supposed to control industrial toxicants at the national level while the Basel Convention is meant to regulate their transfer at the international level. These regulations however bear many loopholes that litigation can redress or challenge. From a STS perspective, Sheila Jasanoff's Science at the Bar has offered a stimulating theoretical frame to think of the role of experts in toxic torts. Jasanoff has further argued that asbestos litigation in the United States have relied heavily on litigation to find remedies, that lawsuits have forced the US court system to perform the redistributive functions of a welfare state, only at a higher cost. This assertion needs to be discussed in particular from different legal contexts like Europe or East Asia. In Japan, South Korea and Taiwan, and in China, the victims of industrial toxicants and their supporters have developed their own culture of seeking justice through class action. But like in Western Europe and the US, those legal battles face considerable obstacles to prove causality between exposure to these toxicants and the occurrence—after a long latency—of measurable effects like cancers. To complicate the matter further, the polluting firms spend millions in the "production of ignorance." If class actions bring hope to the victims, what are the effects of these class actions on the long haul and on a larger scale, at an institutional level, in other words, on regulation? If not, what other forms of social mobilization can create more appropriate and efficient regulation?

SESSIONS: 3/3

This track is closed to new paper proposals.

Papers

Statistics and the Politics of causality in late modernity

Author: Tal Golan (University of California, San Diego)  email

Short Abstract

My talk will discuss the intertwining scientific and legal quests for true causes in late-modernity, when true causes are hard to find, no single explanatory factor is sufficient, and neither the scientific expert nor the lay jury are trusted to decide the facts.

Long Abstract

Until the 1970s, epidemiological evidence could hardly be found in American courts of law. A decade later, in the 1980s, it was announced "the best (if not the sole) available evidence in mass exposure cases." A decade later, in the 1990, it revolutionized the law of evidence, first in the US and subsequently in other countries as well. In my talk will discuss the causes and stations of this brilliant career of epidemiology in courts of law. I will argue that it represent a new stage in the relations between science and law in late-modernity, when true causes are hard to find, no single explanatory factor is sufficient, and neither the scientific expert nor the lay citizen could be trusted to decide the facts by themselves.

Right to Know; No Right to Sue?

Author: Yoonjung Lee  email

Short Abstract

This paper examines efforts by workers who seek to address their illnesses outside the confines of workers’ compensation— a key example of modern institutions aimed at managing risks arising from industrial production. It explores what new conceptions of responsibility emerge from their struggles.

Long Abstract

Workers' compensation is a key example of modern institutions aimed at managing risks that arise from industrial production. Developed as an alternative to the court system in Europe and North America in the nineteenth century (and now widely adopted in many other countries), the compensation system is an insurance program based on the conceptual separation between issues of causality and those of responsibility. While conventional explanations of the system emphasize its beneficial aspects (e.g., reduced burden of proof on the part of employees), this paper examines efforts by workers who find the compensation system troubling and seek to address their illnesses (e.g., systemic chemical poisoning) outside its confines. My focus will be on cancer lawsuits filed by a group of US electronics workers against their former employer—a prominent computer company. In explaining why they could not or did not take advantage of workers' compensation, I discuss 1) where the compensation system begins to fail in containing conflict surrounding hazards in the work environment and 2) what new conceptions of risk and responsibility emerge from the workers' struggles.

Time in Toxic Tort in the Taiwan RCA Litigation

Author: Hsin-Hsing Chen (Shih-Hsin University)  email

Short Abstract

Time poses a particular problem in controversies about long-term, low-dosage exposure of unfamiliar hazards, as science and legal actions usually go in tandem in them. District court in the Taiwan RCA case tackles this by a novel interpretation of the existing statute of limitation.

Long Abstract

Time is always in typical toxic-tort litigations featuring long-term, low-dosage exposure to previously little-know hazardous factors. Not only do health outcomes of the exposure take time to become discernable, so do scientific research of the outcome, public awareness of the hazard, and the victims' mobilizing and organizing into groups seeking redress of the damage. Legal actions in such cases often goes in tandem with knowledge productions in fields such as epidemiology and toxicology as well as developments in technology such as method and equipment for chemical analysis, and social-technical infrastructure such as chemical lists used for various regulatory purposes. All these are likely spurred by rising social controversy regarding the hazard, and, in turn, shape the controversy itself.

Under these circumstances, statute of limitation (prescription) of tort law made in the context of pre-industrial society often impedes the victims' seeking of judicial redress. Lawsuits filed too early lack evidence; lawsuits filed after evidences become clear may have past the limitation period. The district court verdict in the Taiwan RCA litigation tackles this problem by formulating a novel interpretation of the law and taking into account the process of scientific knowledge production. This interpretation may shed light on how to address the problem of time in future toxic tort controversies.

Constructed ignorance in a tobacco litigation in Japan

Author: Kaori Iida (SOKENDAI)  email

Short Abstract

I will analyze how ignorance intentionally produced by the tobacco industry has been treated in recent litigations in Japan. It is critical for judges and lawyers to have broader understanding of science to deal with ignorance. I will particularly focus on dealings of conflicts of interest at court.

Long Abstract

Updating a previous publication (Iida and Proctor, Lancet 2004), I will analyze in this paper how ignorance intentionally produced by the tobacco industry has been treated by the Japanese judges in a recent litigation. In September 2015, the Tokyo High Court decided that there was no scientific consensus about harms of passive smoking, based on studies that have been supported by foreign tobacco manufactures. This case might be seen as a warning sign for future litigations calling for scientific information to resolve plaintiffs' health claims. With the growth of large global industries, aggressive production of ignorance is expected to be more to come. If Court is the key place to prevent and compensate damage caused by industrial toxicants or consumer products, then judges and lawyers as well as media reports should have a much proper way to deal with such voluntary produced unknowns. Understanding and discussing science in an old rigid sense without paying attention to its making of would end up considering all scientific evidence equally at court. It is however unrealistic to ask judges to evaluate the quality of each scientific study. The problem might be rather: how could they appreciate a cohort of studies which are intended to jam information that should be useful to answer a specific risk. My analysis will therefore focus on how courts dealt with conflicts of interest, in recent tobacco litigations.

Risk and Glocal Rationality in Litigation? Tobacco and Air Pollution Litigation in Korea

Author: Doogab Yi (Seoul National University)  email

Short Abstract

This paper examines the history of tobacco and air pollution litigation in Korea from a comparative perspective. It pays attention to the role of statistical models and epidemiology, and shows how different conceptions of risk and causality in late modernity led to divergent legal decisions.

Long Abstract

In a global world where toxic materials and harmful products are produced and circulated by transnational corporations, those who suffered often entrusted the local/national court with a responsibility to translate science into justice. In this paper I will examine the history of tobacco and air pollution litigation in Korea from a comparative perspective, illuminating the global dynamics in science and law. I in particular aim to explore the role of scientific uncertainty in the fate of air pollution and tobacco litigation in contemporary Korea. It was, however, difficult to establish causal connection between exposure and the alleged harms in the Korean environmental and product liability cases under the framework of tort law conception of causation and responsibility. Science and law was called upon to resolve such 'late modern' legal cases. This paper will situate these Korean environmental and product liability cases in the rise of epidemiology in mass toxic tort litigation in the US, and examine 1) the diverging fate of tobacco litigation in the United States and Korea, and 2) the different fate of air pollution litigation in Japan and Korea. The paper in particular pays attention to the role of statistics and epidemiology in both tobacco and air pollution litigation, and show in what ways different conceptions of risk and causality in late modernity led to divergent legal decisions in each country.

The neoliberal governmentality of air pollutants: Informational Regulation of Particulate Matter in Korea

Author: JooHui Kim (Seoul National University)  email

Short Abstract

This paper examines the shift in Korean regulation on particulate matter, from total quantity control to information disclosure. It will draw attention to how “neoliberal effects” brought by the regulatory shift ultimately make issues of responsibility and scientific uncertainty unproblematic.

Long Abstract

This paper examines the controversies over the particulate matter (PM) regulation in Korea, analyzing a shift in regulatory approach from total quantity control to information disclosure. In 2002, the Korean Ministry of Environment initially intended to impose the regulation on total emission of PM. The original plan, however, failed amid mounting criticisms: private industries claimed that the government's attempt to regulate PM was unrealistic due to the lack of systematic measure for it. The Korean government instead introduced an "environmental information disclosure system" in order to address a multitude of uncertainties in controlling air pollution. Since 2010, the total amount of PM emitted by each regulated entity has been publicly announced as a part of the disclosure system. As I show, this informational turn brought into what can be characterized as "neoliberal effects" on the epistemic, moral, and political dimensions of environmental governance. I will ask the following questions: how does the critical issues of scientific uncertainty become obsolete? How does informational regulation reconstitute individuals and industries as the free agents of making "informed" and "responsible" choices for environment? How does informational regulation exercise its regulatory power through neoliberal governance? By analyzing these aspects, this paper shows how the problem of responsibility and uncertainty becomes unproblematic under the framework of information disclosure.

This track is closed to new paper proposals.