Law and Risk.

• Author: Sandler, Hugh
• Position: Book review

Law Commission of Canada, ed., Law and Risk (Vancouver: UBC Press, 2005). pp. viii, 208

Risk permeates virtually all human activity, including law. Whether in devising sentencing guidelines, influencing legal reasoning, or assigning the burden of proof, concerns about an individual, a group, or a society's exposure to risk are often at the fore. Demystifying the meaning of "risk" and how we measure it is a complicated and layered task. It requires not only a disaggregation of numerous analytic methodologies, but also an intermingling of the worlds of science, mathematics, and social values.

The six essays comprising the book Law and Risk, edited by the Law Commission of Canada, take specific aim at what is meant by risk, how we understand it, and how it is applied in a legal context. The common tenor of the essays is that risk analysis is a function more of social values than of the cold logic of precise calculations. The different authors engage this thesis from varied and provocative vantage points. Some of the essays analyze specific legislation (see Mariana Valverde, Ron Levi & Dawn Moore, "Legal Knowledge of Risk" 86, which discusses Megan's Law--a term used in the United States for statutes that mandate community advisement upon the release of a sex offender who has a moderate to high risk of recidivism). Some deconstruct the reasoning in Supreme Court cases (see Danielle Pinard, "Evidentiary Principles with Respect to Judicial Review of Constitutionality: A Risk Management Perspective" 121, which discusses Gosselin v. Quebec (A.G.) (1) and R. v. Sharpe, (2)) while others look at the role of values in creating risk assessments (see e.g. Duff R. Waring & Trudo Lemmens, "Integrating Values in Risk Analysis of Biomedical Research: The Case for Regulatory Law Reform" 156).

The book, in focusing on the nexus between social values and risk analysis, nearly completely neglects to consider risk from a quantitative basis. At one point, when mathematical calculations are mentioned, it is done for the purpose of undermining the very reliability of scientific data. (3) The authors of the opening essay anecdotally discuss the likelihood of the guilt of a person selected from a population of 500 000 and whose DNA matches that found at a crime scene. While the error rate for the DNA analysis is one in a million, the authors explain that the probability that this person is the culprit is surprisingly only sixty-seven per cent--fax below the standard...