Daubert and the proper role for the courts in health, safety, and environmental regulation.
Assigning a Daubert-like gatekeeper role to courts engaged in judicial review of risk assessments prepared by federal agencies is a profoundly bad idea.I describe the role of courts in reviewing regulatory agency decision-making and explore the potential impact of incorporating Daubert principles into administrative law. A Daubert form of judicial review will prevent agencies from employing a "weight of the evidence" approach, forcing them to adopt a "corpuscular" approach that rewards efforts by regulatees to find and exaggerate flaws in individual scientific studies. Consequently, applying Daubert to federal agency decision-making will have a predictable impact on regulatory policy that runs directly counter to the precautionary policies that animate most health, safety, and environmental statutes.
McGarity
Thomas O
TO
University of Texas School of Law, 727 East Dean Keeton St., Austin, TX 78705, USA. tmcgarity@mail.law.utexas.edu
D004781:Environmental Exposure / Q000331:legislation & jurisprudence; D005104:Expert Testimony / Q000331:legislation & jurisprudence*; D033161:Government Regulation; D006801:Humans; D033222:Judicial Role; D011634:Public Health / Q000331:legislation & jurisprudence*; D011640:Public Policy; D018570:Risk Assessment; D012586:Science / Q000331:legislation & jurisprudence* / Q000379:methods; D035521:Supreme Court Decisions; D014481:United States