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Publication Title

Washington University Law Review

Abstract

Largely overlooked, but pertinent to the question of what role peer review could play, is the potential that agencies might misuse perfectly credible science, or so-called “good science,” by overstating the extent to which it supports their policy and regulatory decisions. No study has ever demonstrated whether use of regulatory peer review would have detected other instances, like the Klamath, in which the concern is that the agency has stretched credible science too far in an effort to justify its policy decision, or whether the benefits of detecting those instances would have justified the costs of the peer review programs, or whether it would have even mattered from the standpoint of reaching sound policy decisions. This Article addresses these questions directly, grounding the debate over the use of regulatory peer review in agency decision making and charting a productive route forward. Part II of the Article describes scientific peer review and its practical application in journal publication, grant-award, and agency settings, illustrating the distinction between those applications and regulatory peer review. The next two sections of the Article address the current debate over regulatory peer review, setting out the arguments in favor of its use in Part III and their critiques in Part IV. In Part V of the Article we step back from the intensity of the debate to reassess the role of peer review in the regulatory process, suggesting a different way to think about its potential costs, benefits, and appropriate applications.

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