Monday, December 5, 2005
Daubert and the Proper Role for the Courts in Health, Safety, and Environmental Regulation
THOMAS OWEN MCGARITY
University of Texas at Austin - School of Law
95 Am. J.Pub. Health S92 (2005)
The Coronado Conference: Scientific Evidence and Public Policy Paper
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 decisionmaking 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 decisionmaking will have a predictable impact on regulatory policy that runs directly counter to the precautionary policies that animate most health, safety and environmental statutes.
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