Litigation Update: Biestek v. Berryhill

In Biestek v. Berryhill, the Supreme Court held that agencies can rely on an expert witness’s opinion even when that witness refuses to provide the underlying data for her opinion. On one hand, the Court’s holding that an agency’s decision can be supported by “substantial evidence” without the underlying data’s disclosure in some, but not all, cases seems to recognize the inherent difficulty in stating categorical rules for a broad standard of review that applies to varied agency adjudications. On the other hand, the Supreme Court outlawed the same practice in judicial proceedings in Daubert v. Merrell Dow Pharmaceuticals, a decision widely credited with ending the use of "junk science" in judicial proceedings. Does the Court’s opinion in Biestek legitimate, and even to invite, the use of “junk science” in agency proceedings? The panel will discuss the Court’s decision in Biestek and its implications for agency adjudication and judicial review.
Featuring:
Prof. Kent Barnett, J. Alton Hosch Associate Professor of Law, University of Georgia School of Law
Prof. Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The George Washington University Law School
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