Wednesday, October 05, 2005

*On Boston Legal and Jurisprudence and blinding obviousness*

Yesterday's episode frame quite a number of issues very nicely. Constitution conflicts, what constitutes (sorry pun not intended) compelling interest of a state when they want to pass a law banning something, the role of a judge in this particular circumstances (effectively both a fact-finding, a duty left to the jury as well as the finder of the law i.e. what law to apply to the case), and how effectively the case can be won by appealing to the judge (or decision maker), something the Realist and Critical Legal Scholars would not doubt agree with.

Anyway, today's post is about the pre-cautionary principle and the extent to which it should be a basis on which law is made. Well, one of the story threads (I counted something like 5 differing threads, of which 3 were continuous) is that of the constitutional conflict I mentioned above. The mayor of this town banned red meat and the argument that the lawyer ran was that this was because of the fear of BSE i.e. Mad Cow Disease. The idea is that this is frankly a disaster waiting to happen and despite the absolute lack of facts to back this assertion up, the circumstantial evidence (that the regulators have been 'caught' by the very interest they were suppose to regulate, that science simply cannot monitor and check and test very person or cow, that the lack of evidence was really a sort of a cover up) was so 'convincing' that one of the main characters thought she was going to lose.

Back to the point, should this be the manner in which politics is decided and laws made? The two clearest examples I can think of in this circumstances are that of firstly, Green groups and secondly, the approach of the FDA equivalant in Europe. Both these groups do not make decisions on a cost benefit analysis, or is they do, they give tremendous weight over intangible harms over the tangible goods. This is a right and decision that they can make but I think it's just absolutely screwy. On this basis, you effectively stop progress in medicine (or more accurately drugs from entering the market), you give up GM food, you can kiss genetic cures goodbye and oh yes, there goes almost every chemical known to mankind because hey, there could cause harm right?



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