Law and Risk

Vol. 15 No.10 (October 2005), pp.917-919

LAW AND RISK, by the Law Commission of Canada (ed). Vancouver: UBC Press, 2005. 220pp. Hardcover. CDN$85.00/US$85.00. ISBN: 0774811919

Reviewed by Thaddeus Hwong, School of Administrative Studies, Atkinson Faculty of Liberal and Professional Studies, York University. Email: thwong [at] yorku.ca.

Authors outside Canada have written about law and risk in different ways in recent years. Cass Sunstein’s (2002) assessment of the use of cost-benefit analysis along the law and economics line might rattle some who care about more than just rational behavior in a market environment. Sidney Shapiro and Robert Glicksman (2003) call for a philosophical focus on ends and means that might irk some who are wary of difficulty in translating abstract ideas into policy outcomes. Jenny Steel (2004) considers theories about risk that might simply intimidate the less philosophically inclined, like this reviewer. In a nutshell, talking about law and risk is difficult, and it is hard to please everyone in doing so.

LAW AND RISK, like the other books cited above, will not please everyone. Some may find the compendium refreshing as they represent a new outing of Canadian legal researchers into another “law and . . .” territory, where few legal researchers in Canada have gone before. Some may find fault in the wide-ranging yet limiting content of the presentations that originated from a 2003 conference (See the lineup at http://www.acpd-calt.org/english/docs/program_halifax03_e.pdf ). The scope is broad, but the focus of each essay is specific.

The collection starts with a compelling first paragraph in the Preface: “Contracts manage risks of non-performance. Regulations manage perceived risks to the health and safety of citizens. Sentencing principles aim to manage the risks of recidivism or violence. Law is often about managing risk.” From thereon the essays offer informative discussion of the risk assessment of dangerous offenders (Chapter 2), the precautionary principle and the burden of proof (Chapter 3), the knowledge of risk of actors in the legal system (Chapter 4), the constitutional aspects of risk management (Chapter 5), and risk analysis of biomedical research (Chapter 6). Not to do any injustice to the five papers and their associated introduction in the first chapter, I would leave you to sift through the insights offered by the essays. To be sure, the collection is an essential read, if you are looking for current writings on law and risk in Canada.

Instead of trying to summarize the papers, I would like to raise a few broader questions. The book is entitled LAW AND RISK, and I wonder whether the two realms of knowledge receive equal billing. To rephrase, I wonder whether the collection is about risk viewed through the lens of law, or vice versa. My impression is that risk is understood through law. Some of you may think that I am playing trivial word games here, but I am not. In a crude and over-simplistic way, let us assume that law as a discipline relies more on words [*918] as its medium, but risk as a discipline relies more on numbers. I do not see that many numbers cited in the collection of essays, except data related to dangerous offenders (pp.34, 36). That is why I venture to say that risk is viewed through the lens of law in the collection of essays, as I thought there must be more numbers in the essays if the reverse were true. That is analogous to the fact that I cannot foresee an actuary (a prototype or a caricature of a risk professional, depending on your point of view) to give you a thorough risk assessment without numbers.

A more general question then emerges. Should law be viewed through the lens of risk? Or can risk be discussed in comprehensive terms without numbers? Statistics are mentioned in the Chapter 3 in a sub-section, Seizing Statistical Power (pp.63-64), under the section, Exposing Burdens of Proof in Science. One main idea in that part of the chapter is that values come into play even in setting statistical benchmarks such as level of significance. But the value of statistics is mentioned only in passing. Now, some of you may think that you know where I am going. Some of you may think that I am about to mount a pedestrian defense of the use of statistical methods in risk management, and I will say that law is ill-equipped to deal with risk because the ideas will not be articulated clearly. But what I really want to say is something a lot more basic: no matter how important values are in determining a level of risk that is too high or too low, how can we not run through some statistics? Yes, statistics can be value-laden, and so are text, but we need them both in understanding risk.

Assuming that I have cell phones almost surgically attached to my ears because I am a salesman, and I am told “heavy” cell phone usage is “risky.” However, I want to know the probability of risk of getting brain cancer associated with my cell phone use. Do you think I want to know what constitutes “heavy” use? You bet I do. Theorists can argue the proper definition of riskiness or the normative basis of risk management, but we need the essential statistics. Yes, getting to the statistics requires theoretical inquiries, and theory is important in making sense of our world, but I also want the statistics, even if they are value-laden. If you have more than one set of statistics, I will welcome them. If you have more than one set of statistics from more than one perspective, I will embrace them. The statistics might be skewed toward one perspective or another. According to a question raised in Chapter 3 (p.64), “Does it favor the right interests?” Indeed, statistics may suggest confusing or even conflicting empirical findings, but the burden for the analyst is to understand, clarify, and place the statistics into a broader perspective.

Statistics are just by-products. They are often used in illustrating empirical perspectives. Getting to the statistics requires empirical research. I am not saying that all researchers in law and risk must do empirical work. But incorporating an informed empirical perspective is important in understanding law and risk. Propositions offered by law and risk researchers who have not incorporated empirical perspectives into their analyses are incomplete.

The issue of the value of quantitative empirical research in advancing legal [*919] knowledge is very contentious (see Hwong 2004). I am not trying to dismiss the contributions made by the discussions in this collection of essays, but I do believe that the volume could have been a more compelling read. That may be a bit unfair, as I am looking for things that are not there, and perhaps I should have focused on the existing content of the book alone. Despite the fact that one can learn a lot from these essays, the lack of an empirical voice is glaring. I am not suggesting that one must incorporate empirical research when considering law and risk. However, incorporating a perspective gained by an enhanced and more nuanced understanding of empirical research on risk would have added an important dimension and enhanced the discussions of law in this collection.

REFERENCES:

Hwong, Thaddeus. 2004. “A Review of Quantitative Studies of Decision Making in the Supreme Court of Canada.” 30 MANITOBA LAW JOURNAL 353.

Shapiro, Sidney A., and Robert L. Glicksman. 2003. RISK REGULATION AT RISK: RESTORING A PRAGMATIC APPROACH. Stanford, CA: Stanford Law and Politics.

Steele, Jenny. 2004. RISKS AND LEGAL THEORY. Oxford; Portland, OR: Hart.

Sunstein, Cass R. 2002. RISK AND REASON: SAFETY, LAW, AND THE ENVIRONMENT. Cambridge; New York: Cambridge University Press.

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