Читать книгу Culture Clash - Steven Goldberg H. - Страница 27

Given the absence of a Department of Science or a line item veto, the primary engine of basic science for the present and the foreseeable future is the administrative agency, limited only occasionally by Congress and the president. The question then becomes the role of the courts. In this situation, which arises throughout American life in areas ranging from social welfare to the regulation of health and safety, there is a standard legal approach that defines the nature of judicial control of agencies. The relevant area of the law is called administrative law, and it is familiar to attorneys as one of the most ubiquitous and important branches of our legal system. It is typically here that the cautious process values of the legal profession come into play. Yet as we review the basic ideas of administrative law as they apply to science funding, we will see that such funding receives unusually favorable treatment in the courts.

Pursuant to a variety of statutes, most importantly the Administrative Procedure Act of 1946, agencies must follow certain procedures in making their decisions and must be able rationally to justify the results they reach. To enforce these rules, an agency decision is almost always reviewable in court. Whereas the availability and nature of judicial review is set forth in broad terms by statute, in practice the courts themselves determine in large measure how vigorously they will review agency action. When an agency’s decision is challenged, the court will first decide whether it should reach the merits of the complaining party’s case. That party must satisfy a number of preliminary doctrines, such as standing and ripeness, designed to assure that the case is being brought by a proper person at a proper time.

If the court does reach the merits it will not hold a trial; that is, it will not replicate the fact-finding work of the agency. Instead the court will see if the agency followed proper procedures and if its decision was within reasonable bounds. On the latter point the court will defer to an agency decision even if it might have come out the other way. The court will step in on a substantive matter only when the agency’s decision is so poorly explained or so unpersuasive as to appear irrational. In such cases the court will typically send the case back to the agency with the requirement that the agency either change its decision or provide a better justification for its initial result.⁴⁰

This sort of judicial review is the bread and butter of administrative law. It is entirely consistent with the procedural emphasis that permeates so much of American law. A court does not decide if every agency decision is right or wrong. There are thousands of agency rulings every day, many of which involve technical complexities that would test the resources of any decision maker. A judge, moreover, is a generalist who operates with no staff beyond a secretary and a couple of law clerks right out of law school. Under the circumstances, the preliminary doctrines of administrative law, such as standing, enable the court to select those cases most appropriate for judicial review. If the merits of a complaint are reached, the court focuses on the quality of the process used and the adequacy of the explanation given by the agency—areas where a generalist is the best decision maker.

But it would be a serious mistake to confuse procedurally oriented review with punchless review. Courts have shaped the work of modern federal agencies in areas ranging from ratemaking to communications to energy and the environment precisely by forcing agencies to conform to essentially procedural norms.⁴¹ Of course it would be a myth to suggest that the judges who play this role are utterly neutral on the merits of the agency decisions before them. Being human, they are more likely to look closely at a decision they would have made differently. But those instincts are limited by their professional roles and by their resources. The result has been that courts have become the primary external control over agency behavior. Under the circumstances, we must look to judicial review of agency decisions to fund scientific research in order to understand the relationship between law and basic science.

Potentially, the courts could play an active role in policing science funding decisions. The Supreme Court’s decision in Lincoln v. Vigil, noted earlier, only insulates from review an agency’s decision on allocating resources when neither Congress nor the agency has created standards to be met by applicants for funding. In the science funding area such standards are set forth by the agencies’ own rules and practices as they seek to evaluate the thousands of funding requests they receive. Yet when we look at science funding we do not see the ordinary give and take between courts and agencies that marks American administrative law. We see instead abdication by the courts of any control over agency decisions.

We must look closely at the cases that establish this agency dominance in order to understand how extraordinary it is and to appreciate its implications for the overall relationship between law and science. The most important of these cases concern disappointed applicants for research grants.

The starting point in understanding these decisions is an appreciation of peer review—the dominant approach agencies such as the National Institutes of Health and the National Science Foundation use in deciding who receives grant money.

Peer review involves a grant application being sent to a group of leading scientists in the relevant field. These scientists give their views as to whether the application should be granted. The reviewers typically take into account not only the research proposal itself but the scientific reputation of the person seeking the grant and the quality of the institution with which the applicant is affiliated. Thus a well-known scientist from a major university is treated more favorably than an unknown from a minor school.⁴²

There are many variations in the peer review system. Some agencies utilize outside experts more than others, some utilize more than one layer of review, in some a favorable peer review makes the award of the grant almost certain, whereas in others additional factors, such as conformance with an immediate agency mission, play a bigger role.⁴³ Moreover, peer review is not without its critics. The system has at times failed to detect fraud, and it has hardly been foolproof in terms of locating the most worthwhile projects.⁴⁴ But peer review remains unchallenged as the dominant way in which decisions are made concerning the funding of basic science, just as it is the dominant method for deciding what articles will be published in scientific journals.⁴⁵ Indeed, if anything, the pressure today is to extend peer review even further. Proposals have been made to subject the projects of the national laboratories, such as Los Alamos, to peer review,⁴⁶ and to use peer review more extensively in areas relating to the impact of technology.⁴⁷

From a legal perspective, certain features of peer review are particularly striking. There is no adversary process—no one appears before the panel to press the applicant’s claim or to oppose it. And there is a willingness, even an eagerness, to take into account the personal stature of the applicant—a factor that would be troubling in many settings. But peer review is a perfect fit for the scientific world view; indeed peer review has been called “a mirror of science.”⁴⁸ It is the embodiment of the scientific community governing itself. Scientists say what is good and what is bad science. They are not perfectly objective. They are not perfectly accurate. But they are the ones making the decisions. This consensus-based approach is not workable when the basic norms of science are violated; when, for example, it became necessary to adjudicate claims of fraud, more traditional judicial models came into play at the research agencies.⁴⁹