Making Method Visible: Improving the Quality of Science-Based Regulation

Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve quite the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts – because they appreciate neither the variety of inferential methods nor their epistemic foundations – do not demand this level of visibility from the agencies.

We argue that much progress can be made toward visible, coherent, science-based regulation if courts ask two deceptively simple questions: (1) have the agency’s inferential methods been identified? and (2) does the agency explain how its methods are appropriate to the information on hand and how the methods support the agency’s inferences?