What to Do About Federal Agency Science: Some Doubts About Regulatory Daubert

Abstract

It is tempting to think that because the Daubert/Rule 702 reliability test has improved the quality of expert evidence in toxic tort and other cases, applying that test to federal agency decision making would also improve the quality of scientific evidence relied upon by agencies. As this Article shows, however, that supposition is likely wrong, because (a) there is little reason to think that courts have more institutional competence to deal with scientific issues than do agencies; (b) much of the criticism of agency reliance on science is based on the regulatory standard the agency is using, which is not a “Daubert” issue; and (c) while Rule 702 requires courts to exclude speculative evidence about past events, the regulatory mission of agencies often requires them to engage in speculation about prospective risk. Courts have other mechanisms they can use to nudge agencies toward better scientific decision making, but “regulatory Daubert” should be a non-starter. There is one major exception: because Rule 702 evolved to deal with the specific problem of adversarial bias by expert witnesses, applying Rule 702’s reliability standards is appropriate when considering expert evidence of causation of individual injury in a hearing with adversarial experts, as in claims arising under the Vaccine Act.

Keywords: administrative law, adversarial bias, agency decision making, expert testimony, Federal Rules of Evidence, Rule 702, judicial review, regulatory Daubert, scientific evidence, National Childhood Vaccine Injury Act

JEL Classification: K13, K23, K41