Daubert and the Proper Role for the Courts in Health, Safety, and Environmental Regulation

American Journal of Public Health, Vol. 95, No. S1, pp. S92-S98, 2005

The Coronado Conference: Scientific Evidence and Public Policy Paper

7 Pages Posted: 29 Nov 2005  

Thomas Owen McGarity

University of Texas at Austin - School of Law

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 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.

Keywords: Environmental law, Judicial Review, Weight of the evidence, Daubert

JEL Classification: G18, K23, K32

Suggested Citation

McGarity, Thomas Owen, Daubert and the Proper Role for the Courts in Health, Safety, and Environmental Regulation. American Journal of Public Health, Vol. 95, No. S1, pp. S92-S98, 2005; The Coronado Conference: Scientific Evidence and Public Policy Paper. Available at SSRN: https://ssrn.com/abstract=849564

Thomas Owen McGarity (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

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