The Role of Courts in Risk Assessment

Honorable Bruce S. Jenkins

Judge Jenkins is Chief Judge, U.S. District Court, District of Utah.

Mr. Chairman, distinguished guests, and fellow students of the law: what a delightful place to be. Thank you for inviting me.

I feel very much at home addressing this group. Our values are common, our interests are common, and we speak a common language. In looking at risk, whether as judge or lawyer, court or court officer, the challenges we face are common as well.

There is an old story about a young high school girl from my city, a graduate who came East to school. After the first semester, she wrote to her mother: "Dear Mom, I thought I would let you know that I'm living with a boy. I'm pregnant. I'm about to be evicted from my apartment, and I flunked math. Love, Sue." Then she added: "P.S. I'm not living with a boy, I'm not pregnant, I'm not about to be evicted from my apartment, but I did flunk math. I just wanted to put it in perspective."

In law, as in life,some things are more important than others. We recognize this each day and work hard to keep things in perspective. I have been asked to speak to you today about the role of the courts in risk assessment, in evaluating risk and its legal consequences. I shall try to provide perspective.

My invitation to appear here came as a result of an opinion lodged with the clerk of my court on the 10th of May 1984. The decision is Allen v. U.S.¹ I call Allen my most weighty opinion, because in typescript form it runs 489 pages, weighs six pounds, and uses a full ream of bond paper. My then Chief Judge said to me, "Judge, can you give me an abstract of that opinion, sort of like a Reader's Digest condensation?" I replied, "Chief, those 489 pages are the Reader's Digest condensation." I did not have the nerve to tell him that even West Publishing could not come up with fewer than 94 headnotes.

The case was filed in August 1979 and went to trial in August 1982. The trial took 13 weeks. There were 98 witnesses in all, some of whom were prestigious, gifted, and historic figures — and, I might add, highly opinionated. Testimony ran some 7,000 pages. There were 1,692 documentary exhibits of historic and scientific material, some newly unclassified, amounting to more than 54,000 printed pages. Some texts offered into evidence ran several hundred pages apiece and had about as much emotional appeal as the Internal Revenue Code.

Final arguments were heard in December 1982, and I had the matter under advisement for about 17 months. Some ongoing retrospective scientific studies relating to a segment of the material are calendared to run another five to six years.

I am not going to speak to you about the merits of the case; it is still before me in part, and there are companion cases before me as well. I will, however, talk about the methodology involved in handling the case and in writing the opinion. In doing so, I will comment on the role of the court in risk assessment.

Historically, courts have been concerned with two fundamental ideas. I call the first "r&r," and I do not mean rest and recreation. I mean relationship recognition: recognition of a judicially cognizable relationship between persons or groups of persons, artificial or real. The second idea is that of judicially expected standards of conduct: that is, the socially required and judicially imposed standards that dictate how we ought to treat one another in a given context.

These two ideas are the bedrock of the whole of our legal system. Everybody knows them. But we become absorbed too easily in the convolutions of congressionally created statutes, and in that package of chloroform-in-print we call the Code of Federal Regulations, and in the ever-increasing cascade of decisions handed down by our courts. We become so enmeshed that we habitually forget these two basic ideas: relationship recognition and standards of conduct. That is why I call your attention to that which you already know; it is the construct upon which my remarks are built.

When we speak of a standard of conduct, implicit therein is the legal duty of a person or group with a relationship to another to live up to that standard. In "legalese," we say that these persons have a duty to so conduct themselves to meetthe socially expected standards of conduct or to suffer the consequences in court.

Generally, litigants seek court assistance to enforce a standard of conduct after the informal processes for dispute resolution have broken down. When conversation has ceased and negotiation has soured, three or four grand themes are usually sounded in the courtroom.

A litigant will enter and say, in effect, "Judge, Defendant has diminished me, or what is mine, or has broken his promise to me. Make me whole with money. Tell him he owes me." Or, the litigant may say, "Judge, Defendant is not doing his duty. Make him do it"; or, "Judge, Defendant is doing what he's not supposed to. Make him stop, and teach him a lesson."

In the musical world there are grand themes; Paganini, Bach, and John Lennon created many. There are hundreds, if not millions, of variations on the grand themes of litigation.

In this country, legally imposed standards of conduct originate in legislatures, regulatory agencies with rulemaking powers, and the courts. In noncontractual matters, the standard of conduct expected and the legally imposed duty to live up to such a standard are, to a large extent, functions of foreseeable risk.

Well, risk of what? Why, risk of harm. Risk of harm to whom? Risk of harm to a person with whom you have a legally recognized relationship. This relationship arises from a multitude of sources: legislative, executive, and judicial. Often, it arises simply from who you are, what you do, where you do it, and how you do it.

In 1882, a New York court, paraphrasing an old 1852 New York case, put it well: "… liability was held to rest, not upon any contract or direct privity between him and the party injured, but upon the duty which the law imposes on everyone to avoid acts in their nature dangerous to the lives of others."² Another version, written centuries earlier, reads: "Do not do to others what you would not have them do to you."

Civilized societies work hard to reduce, indeed to minimize, life-diminishing risks. Do not misunderstand me. [16 ELR 10188] When I speak in general of danger to the lives of others, I do not mean to negate in any way the seriousness of the risks that threaten our specific Constitutional rights, for instance our rights to freedom of speech, freedom of religion, and due process of law. In these areas, courts have long been adept at standing guard on the watchtower of freedom.

I am speaking now only of the role of the court in evaluating risk of harm to the person or to the populace as a whole. The courts have been very good at dealing with risks ex post facto, particularly those risks arising in the simpler age of industrialization and mechanization. Courts do less well in regulating future risk.

Today, issues of scale and complexity have raised some questions as to the capacity of the courts to perform satisfactory risk assessment in areas requiring particular expertise. Some suggest that such tasks be farmed out to experts or to specialized tribunals. In court, however, particularly in trial court, the whole world often drops in to say hello. Courts are peculiarly equipped to call upon those who profess expertise to educate the court.

The judicial decision involves more than mere arbitration of two or more conflicting views of the physical world. A judge is called upon to resolve disputes; he must evaluate what is, what was, and what ought to be in any given context with its infinity of variables. The variables include not only historic and scientific truths, but social values as well.

The court must also evaluate the propriety — the social rightness — of conduct itself. In doing so, the court vindicates both physical and social values and leaves its moral fingerprints on everything it touches.

To give you a feeling of what this Court faced in the Allen decision, and what other courts will certainly face when confronted with similar problems in the future, let me quote from the introductory paragraphs of the opinion:

In a sense this case began in the mind of a thoughtful resident of Greece named Democritus some twenty-five hundred years ago. In response to the question put two centuries earlier by a compatriot, Thales, concerning the fundamental nature of matter, Democritus suggested the idea of atoms. This case is concerned with atoms, with government, with people, with legal relationships, and with social values.

This case is concerned with what reasonable men in positions of decision-making in the United States government between 1951 and 1963 knew or should have known about the fundamental nature of matter.

It is concerned with the duty, if any, that the United States government had to tell its people, particularly those in proximity to the experiment site, what it knew or should have known about the dangers to them from the government's experiments with nuclear fission conducted above ground in the brushlands of Nevada during those critical years.

This case is concerned with the perception and the apprehension of its political leaders of international dangers threatening the United States from 1951 to 1963. It is concerned with high level determinations as to what to do about them and whether such determinations legally excuse the United States from being answerable to a comparatively few members of its population for injuries allegedly resulting from open air nuclear experiments conducted in response to such perceived dangers.

It is concerned with the method and quantum of proof of the cause in fact of claimed biological injuries. It is concerned with the passage of time, the attendant diminishment of memory, the availability of contemporary information about open air atomic testing and the application of a statute of repose.

It is concerned with what plaintiffs — laymen, not experts — knew or should have known about the biological consequences that could result from open air nuclear tests and when each plaintiff knew or should have known such consequences.

It is ultimately concerned with who in fairness should bear the cost in dollars of injury to those persons whose injury is demonstrated to have been caused more likely than not by nation-state conducted open air nuclear events.

The complaint in this action alleges that each plaintiff, or his predecessor, has suffered injury or death as a proximate result of exposure to radioactive fallout that drifted away from the Nevada Test Site and settled upon communities and isolated populations in southern Utah, northern Arizona and southeastern Nevada. Each of the plaintiffs or their decedents resided in that area. Each claims serious loss due to radiation-caused cancer or leukemia. Each asserts that the injury suffered resulted from the negligence of the United States in conducting open-air nuclear testing, in monitoring testing results, in failing to inform persons at hazard of attendant dangers from such testing, and in failing to inform such persons how to avoid or minimize or mitigate such dangers.³

The fallout case is a consolidation of the individual claims of 1,192 plaintiffs. It was not a class action. Pursuant to a suggestion of the Court, 24 claims were selected in the entirety by agreement among counsel, as what we call bellwether cases. The intent was to provide a legal and factual pattern against which all pending cases could subsequently be matched.

The trial was conducted so as to develop a full and complete record of the legal, historic, and scientific matters common to all 1,192 plaintiffs with the idea of avoiding future duplication of effort. The Court endeavored to formulate an ordered theory of decision. It also emphasized that its central concern was the judicial resolution of the questions raised by the case.

No matter how complex the factual footing might be, the judicial determination of facts in a complex case is indistinguishable from fact-finding in other cases. Thus, the fallout opinion speaks in terms of common concepts — of natural and probable consequences, of substantial factors, and of things more likely to occur than not.

We are not required, nor are we able, to find beyond a reasonable doubt. Rather, it is the judicial resolution of disputes with which we are concerned. In the pragmatic world of "fact," the court passes judgment on the probable. Dispute resolution demands rational decisionmaking, not [16 ELR 10189] perfect knowledge. Perfect knowledge does not require judgment, only description.

Scientists, particularly physical scientists, try to describe accurately the world and how it works; or, at least, they try to describe that portion of the world in which they specialize. They are vitally interested in cause and effect, and process or means particularly with respect to the phenomenal world, scientists assume order and regularity. The physical scientist can be particularly helpful to the court in explaining what happened and why and the probabilities of it happening again. Because of the scientist's concentration of energy and attention, he or she can assist the court in looking beyond the surface of things.

Thoreau once said, "We … live this mean life we do because our vision does not penetrate the surface of things…. Let us settle ourselves and work and wedge our feet downward through the mud and slush of opinion, and prejudice, and tradition … till we come to a hard bottom … which we can call reality…. Most [people] have not delved six feet beneath the surface, … yet we esteem ourselves wise …."⁴ The scientist can assist in revealing the reality beneath the surface of the apparent. He can sum up years of experience, observation, and replication in a few pithy abstractions. Yet many scientists, because of their concentration in a narrow and limited area, are useful only in a narrow and limited way. It has been said of the scientist that he knows more and more about less and less, until he knows everything about nothing. While the scientist may be very good at describing the makeup of a grain of sand, and may do so very accurately, often he neither sees nor understands the function of the beach. He is less effective in describing the significance of a grain of sand than is the poet, who sees the whole world in a grain of sand and heaven in a wild flower.

With that said, I would like to make four brief observations about the role of the court in risk assessment. In doing so, I must of necessity talk about the role of the attorney as well. Modern-day litigation has become increasingly a cooperative affair. Litigants come to court, because the court is a steward of power, and they need power to vindicate their position. Remember, however - and this is very important - before a judge may appropriately say, "in my opinion" or "in my judgment," he or she must first be able to say, "I understand." It is the task of the courtroom lawyer to bring about judicial understanding. An advocate is, at his or her best, an educator, and the judge is the pupil.

My first observation is that lawyers and courts alike must, particularly in complex litigation, retreat from the metaphor of battle. A lawsuit is not a war; it is not a battle; and it is not a game. I find encouragement for this point of view in the relatively new amendments to the Federal Rules of Civil Procedure 7, 11, 16 and 26, which provide that the attorney's signature certifies he has good grounds legally and factually for doing and saying as he does. Such rules emphasize that the attorney is not simply a hired gun but an officer of the court with a loyalty to the judicial process and to the truth. This loyalty is monumentally important in complex litigation footed on subtle facts of nature.

While the court must be a willing pupil, the advocate must be a competent teacher. Before lawyers can educate others, they must first educate themselves. At the very least, this means that in complex litigation involving elusive and perhaps contested phenomena of nature, the advocate and the judge must transcend the traditional jargon of the law and become conversant in the language of risk assessment current in modern science, math, physics, chemistry, physiology, epidemiology, and statistics. This knowledge is particularly important when dealing with matters of physical sophistication or issues on a grand scale. Both the lawyer and the judge must make greater use of the information base available, whether through personal research in the library or through the help of experts.

Let me issue a word of caution about being spoon-fed by experts: this can be a risky business, dangerous to all concerned. We have been reared on the myth of the objective scientist, who is interested only in the truth and who is always willing to change his point of view. One of the shocks of growing up, whether at 15 or at 50, is to discover how human scientists can be; they can be opinionated and downright quarrelsome, and can cling tenaciously to ideas in which they have a vested interest. Let me add quickly that not all scientists fit this description.

How equally shocking it is to discover that the expert may not be talking fact at all, but rather articulating the opinion of a school of thought or even just making an educated guess. One of the functions of the court, it seems to me, is to force the scientific experts, who profess objectivity and who worship at the altar of replication, to define with exquisite precision those aspects of science pertinent to the case upon which they agree and to define with equal precision those aspects upon which they disagree. In addition, one needs to strip some experts of the pretense that they know something that, in fact, is not known at all.

When we speak of knowledge, we speak of a panorama with infinite variations. So often, we fail to distinguish those things we experience directly through the senses from those things we simply infer. Although each is a form of knowledge, we must be aware constantly of the nature of what we say we know.

When listening to testimony — particularly to the testimony of experts — we should always ask ourselves two basic questions: what does the expert mean, and what is the source of his or her knowledge? For example, we know that atoms and gamma rays exist. Although we have never seen them, we infer their existence. The atom is an abstract model created by the human mind, which provides a convenient, coherent and consistent explanation of an immense collection of perceived effects. It is a model fashioned by many minds after a meticulous sifting of observations, but it is a model nonetheless. We remain uncertain even of our scientific certainties.

Scientific evidence must be examined with the same skepticism as any other evidence. The court must know enough or learn enough to bring to dispute resolution the critical eye and the element of objectivity so often absent from competing scientific viewpoints.

My second observation on the role of the court in risk assessment is that we must all be aware of the limitations of our own language. We use words, and words use us. In matters of complexity, we absolutely must demand precision in defining the issue or issues of fact, law, value or policy at hand.

Let me try to illustrate my point graphically. Imagine that I hold in my hand a piece of ordinary craft paper. I ask, "What is the color?" You answer, "Why Judge, that color is blue." I show you another piece of paper, and you say, "Why Judge, that color is blue." I show you yet another, and you say, "Judge, that color is also blue." When I show you all three together, you note the variations in shading. Similarly, you [16 ELR 10190] must note the variations among different types of cancers and chemicals.

We use language, and language uses us. As Leon Green pointed out a long time ago, some have attempted (and attempt still) to make language do the service of judging itself. There can be no such substitution. Words are the machinery that propels the power of thought, and if no such power is put into words, the words are lifeless. Phrases can state the issue upon which judgment must be passed, but they cannot pass judgment. In my opinion, the best argument in law, as in life, is simply a good explanation.

The third point I want to make is that life is process, not stasis. Things change. Risks change. The pictures in our heads change. Euclid and Einstein and Newton and Oppenheimer knew different worlds. One rule of the court in risk assessment is to keep up with new developments. In doing so, however, we must be aware of our own limitations. We can never really know everything about anything. Judicial decision is often today's knowledge passing judgment on that of yesterday. We do not have the luxury of being able to wait upon the knowledge of tomorrow.

My fourth point is that one learns by having the humility to ask questions, be one lawyer or judge, teacher or pupil. Asking questions may in itself be dangerous, but it is also revealing. Let me give you an example. Two clergymen are vitally interested in smoking and prayer. They argue. To settle the matter, each seeks an answer from the Holy See. One writes to the Holy See, "Tell me, Father, is it all right to smoke while praying?" "Certainly not," the answer comes back, "What a sacrilege." The other writes, "Holy Father, is it all right to pray while smoking?" He receives the answer, "Certainly. It's all right to pray at any time." The very formulation of the question may determine the answer.

In the field of risk assessment, one must always ask certain fundamental questions. Is there a risk? What is the risk? Whose risk is it? What should the court do about it? How should the court do it? And why should the court do it? The challenges of uncertainty and complexity in dispute resolution can best be met, within the traditional framework of the court system, by formulating questions with infinite care. Remember, when a judge defines duty, he is not simply a judicial actuary or a mechanical mathematician. In the courtroom, risk is far more than a question of physical process or mathematical probability. One must add people and values and social consequences to the equation. Moreover, the court is concerned not only with the specific persons seeking help, but also with the harm to society and to social values in general. It is risk in this broad sense that defines duty, the breach of which foretells a judicial consequence.

Even when the lawyer has taught well, and the judge has learned well and has comprehended the physical facts of the case, the judge cannot yet say, "in my opinion" or "in my judgment." The process of decisionmaking is broader; it encompasses more than a mere choice between conflicting views of the physical world. The factors involved are more numerous, and the social consequences are more momentous.

Before the judge can say, "in my judgment," he must measure the case against the yardstick of social values. Only then can he say legitimately, "in my judgment," because only then can he also say, "I understand."

1. 588 F. Supp. 247 (D. Utah 1984).

2. Devlin v. Smith, 89 N.Y. 470, 477: 42 Am. Rep. 311 (1882); see also Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455 (1852).

3. 588 F. Supp. at 257-258.

4. Found at Frontpiece, SYDNEY J. HARRIS, LEAVING THE SURFACE (1968).