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Thomas O. McGarity, JD

The author is with the University of Texas School of Law, Austin. He is also with the Center for Progressive Regulation, Washington, DC.

Correspondence: Requests for reprint should be sent to Thomas McGarity, JD, University of Texas School of Law, 727 East Dean Keeton St., Austin, TX 78705 (e-mail: tmcgarity{at}mail.law.utexas.edu).

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.

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