Daubert and the proper role for the courts in health, safety, and environmental regulation.

Abstract

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.