Judicial Review of Regulatory Expert Models
47 Pages Posted: 20 Aug 2016 Last revised: 22 Aug 2016
Date Written: August 19, 2016
Scientific, statistical, and economic models are crucial inputs to regulatory agencies' decision making. Examples of areas where this is the case include environmental regulation, financial regulation, economic regulation, and antitrust. However, competing models yielding different inferences may represent the same phenomenon. On that basis, interested parties may challenge the regulator’s choice of model in courts making the models subject to judicial review. The standard of review may be more or less intense according to the principle of deference. In this article, principles for judicial review adaptable to various standards of review are discussed. It is argued that the Daubert-criteria, known from US legal procedure, can be applied to reliability check models under the principle of deference. In choosing the level of deference in the review of inferences, and conclusions, it is argued that a court should take into account those elements that justify the principle of deference. The core issue here will be a trade-off as to whether the judicial review by a less precise court overall will produce a better result than a potentially biased regulator.
Keywords: antitrust, judicial review, legal fact-finding, model selection, model-based inference, regulation
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