Judge Frank could have added that not only is the practice of science ahead of the philosophy of science but both are in advance of the practice and philosophy of law. The social sciences, such as law, have invariably tended to lag behind the physical sciences and, today, there is little doubt that scientific technology has come of age. Due to scientific technology, industry is growing at a tremendous pace especially in the aviation, pharmaceutical, electronic, computer, automotive and television fields. With the United States Government, in 1967, appropriating $16-17 billion for further research and development, primarily for the atomic energy program, the effect can not only be an acceleration of additional scientific progress but, also, further disruption of the status quo in our society. Moreover, this type of research and development only serves to widen the gap between scientific technology and the legal process which seeks to protect a member's rights in our society. This writer estimates that the time span from an invention of a gadget to its regulation by a legislative body is approximately 30 years. The normal cycle usually includes: discovery of the invention; exploitation of the technology; emergence of the personal injuries; establishment of proximate causation; commencement of court litigation; courts groping for the applicable legal principles; legislative intervention if necessary, to prohibit certain conduct; and further court interpretation once the statute is passed. If the invention creates a social problem, the legal system must respond accordingly. It is well to remember that the courts will operate retrospectively after the social problem has been initially created. On the other hand, the legislatures can deal with the social problem prospectively, even barring the item from the market place completely, as they have with some narcotics, or restricting its use, such as transportation of explosives, under certain conditions. The scientific technological benefits of explosives, radioactive materials, etiological agents, and other dangerous articles are obvious but so are their dangers. How should these dangerous articles be handled and controlled? This question has partially been answered by the Congressional enactment of the "Transportation of Explosives Act"' on September 6, 1960. The Act made it a federal crime for any person to knowingly transport, carry or convey within the United States any dangerous explosives.' This article attempts to examine: the purposes of the Act; analyze the provisions of the act; judicial decisions interpreting the Act; and inferentially, the manner in which safety determinations are made to solve a vexing problem in democracy-regulatory or police power versus individual freedom.
Walter A. Rafalko,
Transportation of Explosives Act: The Legislative Gap,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol6/iss2/6