Columbia Law School
Several persistent problems afflict risk decisionmaking. In the regulatory context, agencies confront the problems of how to prioritize risks for best use of their limited resources and how to determine "how safe is safe enough," or a risk limit, when action is to be taken on a particular risk.
In the trial courts hearing toxic tort actions, the jury must often determine whether an activity is "unreasonably dangerous" or a product is "defective" because of its risk attributes.
To resolve these problems, many have proposed the use of risk comparisons. Now that we can quantify risks, why not compare them when regulatory priorities and risk limit issues are raised in the agencies and courts, in order to facilitate decisionmaking?
This Article discusses these proposals, reviews cases in which risk comparisons have been offered or relied on to deal with the problems and evaluates this experience from a legal and policy analysis perspective. Several issues are identified which obstruct wider acceptance of risk comparisons, and recommendations are presented for resolving these issues.
Use of Comparative Risk Methods in Regulatory and Common Law
Columbia Journal of Environmental Law
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1732