University of South Carolina professor David Berube recently published “Regulating Nanoscience: A Proposal and Response to Clarence J. Davies," in Nanotechnology Law & Business, Vol. 3, Issue 4 (Dec. 2006). Professor Berube responds to Mr. Davies’ 2006 Woodrow Wilson article calling for a comprehensive reexamination of current regulatory regimes relevant to nanotechnology. Professor Berube, argues public perception is unlikely to be influenced by regulation, and a comprehensive regulatory scheme “would tend to be self defeating at this juncture.” As an alternative, Professor Berube suggests voluntary regulation of nanoproducts, and then “let market mechanism allocate risk.” Professor Berube’s “liability [plus] regime would involve the insurance industry and would be enforced by the courts in the form of lawsuits." Professor Berube further suggests “the liability regime advocated here avoids the resolution of the new versus existing materials problem for this determination will be removed from the regulatory hearing and conference process to the courtroom; thus, determinations can be resolved on a case-by-case basis.”

While figuring out how and to what extent to regulate nanotechnology is a very complicated issue, abdicating any part of that process to the litigation and/or insurance coverage process is not the answer. First, relying on litigation or even insurance coverage presupposes an alleged loss or injury. Catastrophic punitive damages have been awarded when companies purportedly ignore potential product risks and take the approach of letting their lawyers and insurance companies sort it out. Second, turning important scientific determinations over to the litigation process is unlikely to produce the results advocated by Professor Berube.  Judges and juries are frequently overburdened and are not equipped to analyze complicated scientific questions. Further, even the best scientists sometimes make poor testifying witnesses and may not stand up to cross-examination under the adversarial process. Additionally, there are razor sharp attorneys who can make “white” look “black,” and vice versa – regardless of the actual “scientific truth.” Simply put, nanotechnology decisions are too important to be determined on a “case-by-case” basis in a forum not designed for this process.  Additionally, the old adage that “justice is blind,” does not mean two courts will reach the same decision when presented with the same issue. Inconsistency between jurisdictions is frequently lamented in our profession which would be a further hindrance to this nascent industry.

Given the options, we advocate the reverse – to the extent possible, remove the decision making process from courtrooms (or keep it out) and put it into regulatory hearing and conference rooms. Despite the downsides, the industry is much more likely to get workable and scientifically based results.