Wednesday, October 18, 2017

Reading list: scientific claims and anti-fraud laws

Shannon Roesler, Evaluating Corporate Speech About Science (forthcoming, Geo. L.J. 2018)

Pull quote: “[C]onsumer protection laws should encourage accurate representations of contemporaneous scientific knowledge, rather than lucky guesses about the state of scientific knowledge in the future.”  Amen.

Abstract: How should courts evaluate the truth or falsity of corporate speech
about science? This question is critical to antifraud actions like the ongoing state
investigations into whether ExxonMobil misrepresented scientific knowledge regarding
global climate change. ExxonMobil claims that these investigations chill scientific
inquiry and burden speech on a matter of public concern in violation of the First
Amendment. Of course, the notion that scientific progress depends on the free exchange
of ideas is uncontroversial. But although the free-market approach to scientific discourse
has firm foundations, this Article suggests that it is a misguided approach to the question
of when corporate speech about science is misleading.
Too often, courts and commentators assume the truth of corporate speech about
science, an assumption that inevitably results in First Amendment scrutiny. The
reluctance to analyze the truth of such speech is understandable given the nature of
scientific knowledge itself. Scientific knowledge is not easily described in terms of truth
or falsity. But corporate speech that uses the inherent uncertainty of scientific inquiry to
mischaracterize scientific knowledge is not participating in scientific discourse.
Moreover, when courts treat such speech as part of a larger scientific debate, they
threaten to undermine the deterrent function of antifraud laws and shift the costs of

misleading speech onto the public.

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