30 Pages Posted: 8 Jan 2009
Date Written: January 7, 2009
In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus?
I argue that voting by expert panels is likely, on average, to be an epistemically superior mechanism for determining facts and causation, and for making predictions, than is the substantive judgment of agency heads in rulemaking or adjudication. Nose-counting of expert panels should generally be an acceptable basis for decision under the arbitrary and capricious or substantial evidence tests. Moreover, agencies should be obliged to follow the (super)majority view of an expert panel, even if the agency's own judgment is to the contrary, unless the agency can give an epistemically valid reason for rejecting the panel majority's view.
Suggested Citation: Suggested Citation
Vermeule, Adrian, The Parliament of the Experts (January 7, 2009). Harvard Public Law Working Paper No. 09-05; Harvard Law School Program on Risk Regulation Research Paper No. 09-1. Available at SSRN: https://ssrn.com/abstract=1324262 or http://dx.doi.org/10.2139/ssrn.1324262
By Ira Robbins