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APPENDIX B THE PROCEDURAL RULE-OF-REASONING: A Better Way to Resolution of Scientific Public Interest Disputes Milton R. Wessel Two full days of formal and informal presentations to the National Academy of Sciences' Forum on Sweeteners surely served to help identify and sharpen the issues. But they have brought us little closer to the answers. Indeed, by and large, those who came with a permissive point of view remain unconvinced by the opposition; and those who came in favor of restriction remain equally adamant. Quite probably each even believes his initial position has .been confirmed. It is only a very few of the previously uninvolved and therefore uninformed who have come to new judgments. Most of these undoubtedly have done so in .accordance with some earlier predilection, albeit sub- conscious. We all like to believe we are objective, fair, and impar- tial, but those who have heard ten honest witnesses testify to the same automobile accident, all differently, know how much we are the victims of our backgrounds. By and large, there has been little dispute as to facts, including scientific analysis and even some opinion as well as observed data -- so long only as pure scientific conclusion is not considered "fact." If informed scientists cannot agree under such circumstances, what is the layperson to do? By classical definition, a layperson is of course even less competent to evaluate such disputed expert scientific con- clusion than the scientific ingredients of opinion, analysis or data. Yet ultimately, in a democratic society, it must be an essentially lay public that will somehow determine the risks to which it will accept exposure or the benefits that it will be denied. The public needs and is entitled to greater help in its handling of such controversies. It needs and is entitled to assurances as to the credibility and integrity of the process by which decisions are made in scientific disputes involving the public interest. And it needs and is 244
245 entitled to a major by-product of such a process, which is assistance in separating out the lay component of the scientific conclusion for lay evaluation by those who choose to make it. The well-informed lay- person is just as well qualified to judge that component as the most learned scientist. When a scientist says "the risk is acceptable," he is expressing a view made up of scientific observation (data); scientific analysis; scientific opinion -- about which there is often little dispute; and personal judgment derived from general background -- about which under- standably there may be many differences. Usually these two components are confused subconsciously or unwittingly; sometimes, however, they .are confused to buffalo the layperson. In either case it is wrong and must somehow be stopped. The key task at hand, then, is to develop a truly credible procedure for resolving these disputes, which will permit the layperson to under- stand that the scientist states his conclusion partly because he values one set of concerns (e.g., more food) over another (e.g., survival of an endangered species), and thus make it possible for those who wish to do so to arrive at their own independent and informed balancing of these values. It seems we do not yet have such a process. Unfortunately, much of the blame for this failure to furnish credi- bility and to distinguish, must be laid at the bar of our legal profes- sion. It continues almost doggedly devoted to the old adversary "sporting" or "game" theory of litigation and dispute resolution, seemingly unaware of how much the world has changed around us. One would think that the Watergate revelations would have effectively sounded the alert in view of the numbers of once respected lawyers in- volved, on up even to Cabinet ministers and a President. And there have been some changes. But generally it is still very much business as usual in the administrative agencies and the courts, with even the most eminent scientists cross-examined about their fees, motivations, or drinking habits. It is little wonder that science descends into the foray so reluctantly -- and so rarely. We need a new legal approach to the resolution of these scientific, public interest disputes. We need recognition that a burgeoning number of present-day societal controversies are very different than those of a generation ago, and therefore require different treatment. We need recognition that solutions to the major issues are no longer black and white, right and wrong, "did he or didn't he do it?" as they once were. More often these solutions are shades of gray that are difficult to discern and distinguish. More and more, as in this Forum, two profes- sionals of equal qualification, reputation, and integrity will describe essentially the same data and test results, and then come to diametri- cally opposite conclusions: - The discrimination is (is not) justified. (civil rights) - The risk is (is not) acceptable. (environmental)
246 The restraint is (is not) reasonable. (anti-trust) Our traditional adversary decision process is in significant part geared to the determination of contests between two parties through objective proof of disputed fact by eyewitness and document. That part is particularly susceptible to abuse in these modern cases where society is a third and key party, and where yes-no answers simply do not exist to satisfy the uncertain. It can and does lead to decisions based upon ignorance, fear, and prejudice, rather than upon the best avail- able learning and democratically ascertained societal values. It is little wonder that the confidence we seek in the decision process is so sorely lacking. Certainly for at least these new problems, we need a new procedure that permits the resolution of disputes in a way that is credible to the layperson. That way is through application of the rule-of-reason. Rule-of-reason generally, means decision by use of scientific method -- fact, experience, and logic -- in all aspects of the process by which issues are resolved. It seeks to optimize solution of com- plex environmental risk-benefit issues, for example, by balancing all known risks against all known benefits in light of all available data and expertise. It is distinguished from decision based exclusively or largely upon emotion, surmise, or conjecture. Food, raw material and energy shortages, the accelerating inflation of recent years, and the increasing economic and social demands of a burgeoning world population have created a growing awareness of the need to use modern technology to solve modern problems, despite some unavoidable risks. The "no risk" theory of the sixties has been dis- credited among most scientists. As a result, although sometimes honored primarily by lip service, the need for a rule-of-reason approach is today largely acknowledged by scientists for the determination of substantive scientific issues. Credibility in dispute resolution, however, requires application of this scientific method just as much to decision procedure -- the law- yer's bailiwick, as to ultimate scientific substance -- the scientist's. The procedural rule-of-reason is thus in sharp contrast to that part of the traditional adversary legal process that permits and all too often actually encourages use of procedural weapons, such as delay, conceal- ment, or personal abuse, for tactical purpose in an effort to reach a desired result. The old adversary system fails to recognize the enormous changes in social attitudes that have taken place since World War II, especially regarding civil rights and the environment. A corporate board of directors that today sought to apply a similar approach to the treatment of minorities or pollution problems would quickly find itself in deep trouble. But our present legal dispute resolving process seems unaware that insofar as modern societal disputes are concerned, the procedural technique of the traditional adversary process is back in the Middle Ages. In its place we need a "new look" in dispute-solving.
247 The procedural rule-of-reason recognizes that laymen are incapable of fully understanding all the complex issues, especially when even qualified professionals disagree. Yet laymen are persuaded to place their trust in the brain or open-heart surgery, which they cannot fully understand and over which they have no control once on the operating table. In similar fashion, lay society must decide how to deal with even the most technical disputes. The procedural rule-of-reason seeks primarily to assure laymen of the credibility of the decision process, so that they may rely on the intregrity of the ultimate substantive evaluation. It seeks also to assure them that conclusions based upon moral, ethical, economic, and social values will not be traded off as esoteric science, so that they may participate in the decision process to the maximum possible extent. The procedural rule-of-reason emphasizes total credibility in all aspects of the decision process. It anticipates that a lay public will place confidence in the credibility of qualified opinion in areas it cannot comprehend if furnished assurances of such credibility in areas it can understand. Thus, to take examples out of our recent past, the public may not be able to evaluate all the considerations incident to judging the safety of a product; it can evaluate the merits (or lack thereof) of a party's attempt to defend against a charge of product defect by reference to the "peculiar" sex life of the complaining indi- vidual. The public may not be able to understand all the conceptual economic considerations involved in determining whether manufacturing and marketing conduct is anticompetitive; it can draw conclusions adverse to a defense of fair competition where there has been willful destruction of the means to recapture relevant data regarding such activ- ity. The public may not be able to determine the extent to which profits are needed to finance the search for additional raw materials; it can draw an inference contrary to the proponent of need when funds claimed to be necessary for such a purpose are later diverted to an unrelated effort. The procedural rule-of-reason is "non-adversarial" in the sense that it recognizes that one's opponent is not usually "bad" in the moral or ethical sense, but simply sees things differently because of his total environment. But the rule is in fact the ultimate in adversarial weap- ons in the sense that it seeks to maximize success over one's opponent for the view proposed. In this sense it is only another step forward in the common law development of the adversary process, which has served us so well for the last thousand years and more, retaining what is good of the old but rejecting the bad that has led to its Watergates. Credibility derives from many things, such as professional qualifica- tion and reputation. But one of its primary ingredients is consistency. Unless properly explained, procedural obstruction may be viewed as inconsistent with asserted confidence in a result determined on the merits. The procedural rule-of-reason condemns such obstruction. Similarly, even unauthorized or inadequately considered internal confi- dential statements may be viewed as more expressive of true opinion and attitude than public utterances and positions. The procedural rule-of- reason condemns secret inconsistency of motive.
248 The procedural rule-of-reason cannot be reduced to catechism. It calls for different application in different situations. Thus, rule- of-reason does not mean that all data must always be disclosed. Some data may be proprietary, or not yet properly evaluated, or so sensa- tional or otherwise prejudicial as to be harmful if published at large. Disclosure under such circumstances could be anticompetitive, dangerous, or even unlawful. But rule-of-reason does mean that there will be a reason for nondisclosure -- even if strictly an internal one -- and that such reason will be a proper one and not adopted for the sole purpose of avoiding an undesired result. Rule-of-reason accordingly means that even the most confidential internal discussions and decisions will not prove embarrassing if pub- licly disclosed. Private conversations can, of course, be more frank, open, and free than those in public, but the substance of statements made and actions taken will be the same whether on "center stage" or in the intimacy of a small office. Without in any respect compromising proprietary rights or management responsibility, the procedural rule- of-reason assures the public that the decision proposed is based upon integrity. The procedural rule-of-reason is not "image" building or "public" and "press" relations. It gains specific content and detail with ex- perience and application, especially in those cases where it requires that the other cheek be turned and that hostility and improper tactics be countered with continued adherence to scientific method. In summary, rule-of-reason requires that: Tactics - Data will not be withheld because it is "negative" or "unhelpful." - Concealment will not be practiced for concealment's sake. Dis- closure as the policy, with concealment the exception, will be re- flected throughout. Delay will not be employed as a tactic to avoid an undesired result, even where convinced that the result sought is the right one. The end cannot justify the means. - Disclosure will not be postponed for the purpose of "sandbagging" so as to "spring" new evidence on an unsuspecting adversary at the propitious time when unprepared - - even if the adversary is engaging in such tactics. - Complex concepts will be simplified so as to achieve maximum possible communication and lay understanding. Unfair "tricks" designed to mislead will not be employed to win a struggle. - Borderline ethical disingenuity will not be practiced. - Motivation of adversaries will not unnecessarily or lightly be impugned, nor "overkill" employed. - An opponent's personal habits and characteristics will not be questioned unless relevant.
249 - Wherever possible, opportunity will be left for an opponent's orderly retreat and "exit with honor." Extremism will be countered forcefully but will not be fought or matched with extremism. Dogmatism will be avoided. - Credibility and integrity will be given first priority. Scientific Method - Effort will be made to identify and isolate subjective considera- tions involved in reaching a conclusion. A substantive rule-of-reason, acceptable to professionals and technicians, will be applied fairly and uniformly in evaluating such considerations. - Relevant data will be disclosed when ready for analysis and peer review -- even to an extremist opposition or where there is no substan- tive legal obligation to disclose. Hypothesis, uncertainty, and inadequate knowledge will be stated affirmatively -- not conceded only reluctantly or under pressure. Unjustified assumptions and off-the-cuff comments will be avoided, especially regarding such unknowns as organizational intent and purpose. Interest in an outcome, relationship to a proponent, and bias, prejudice and proclivity of any kind will be disclosed voluntarily and as a matter of course. Research and investigation will be conducted, appropriate to the problem involved. Although the precise extent of that effort may vary with the nature of the problem, the number of organizations involved, the effect on other priorities and similar considerations, it will be consistent with stated overall responsibility to solution of the problem. Certainly science has not yet realized its proper place in the soci- etal decision process, particularly within the executive branch of the federal government. But at least it has begun to recognize its need to do so. It is enhancing its opportunities by applying the rule-of- reason to its substantive scientific efforts. Regrettably, however, all too many of those involved in the decision process itself, including members of the legal profession, do not ap- preciate that their failure to apply the rule-of-reason to their own conduct threatens the integrity of the process by which disputes are resolved and thereby jeopardizes their roles and harms society. Some of my colleagues at the Bar contend that the rule-of-reason approach is utopian, idealistic, and unrealistic, and that it won't work. They are dead wrong. Not only does it meet the challenge of our modern society, but where tested it has worked -- magnificently. The controversy regarding use of certain compounds containing tetrachloro- dibenzoparadioxin (TCDD) is an excellent current example. For over three years the adversary legal system produced little but antagonism, calumny, bitterness, attacks on scientists, procedural prehearing con- ferences and appeals unrelated to scientific substance, and intolerable wastes of money, manpower, time, and other precious resources. A few
250 of the parties dedicated to the procedural rule-of-reason kept plugging away at a more sensible approach -- even going so far as to disclose their evidence voluntarily at a major conference of scientists attended by their adversaries that was held far in advance of the legal hearing. As a result, the antagonistic legal approach was formally suspended, and has now been replaced by a cooperative working effort between govern- ment, industry, and even citizen groups, conducting joint scientific research and sharing data and methodology in the best scientific tradi- tion. Certainly perfection has not been achieved, and there remain some suspicions and doubts, especially among the onlooking legal advocates. But surely this is a beginning to a better way. To my doubting legal colleagues I therefore say, "Try it -- you'll like it." All segments of society, including government, private industry, civil rights, environmental and political organizations, and individ- uals, have much to contribute to the process by which major societal issues are resolved. Each should participate in formulating the final decision. Where public credibility is impaired, the opportunities both to contribute and to participate are endangered and society is disserved. Each interested party can help achieve public credibility by apply- ing the rule-of-reason to its total participation in the decision process. To the extent that it does so, it will also enlarge its opportunities to participate in formulating the ultimate decisions, as well as contribute to the development of a process of resolving sci- entific public interest disputes that is geared to the issues of the twentieth century instead of the Dark Ages. It may not abdicate this important responsibility if society is to arrive at optimum decisions.
