From Evidentiary Gatekeeping to Constitutional Control: Courts, Agencies, and the Governance of Knowledge at 2026 Southeastern Association of Law Schools (SEALS) Annual Conference
It was a pleasure to present “From Evidentiary Gatekeeping to Constitutional Control: Courts, Agencies, and the Governance of Knowledge” during the Administrative Law Works-in-Progress Workshop at the 2026 Southeastern Association of Law Schools (SEALS) Annual Conference.
The workshop’s format is particularly valuable. My presentation developed the administrative-law dimension of my broader article, “Epistemic Governance.”
The full paper, “Epistemic Governance,” is available on SSRN:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6487038
The project begins from the proposition that law does not merely resolve disputes about knowledge after they arise. Law also structures the institutions, procedures, authority, and resources through which knowledge is produced and becomes authoritative. In this sense, law performs two related but distinct roles. It acts as an arbiter, deciding which evidence is admissible, which methods are sufficiently reliable, and whose testimony counts. But it is also a co-producer of epistemic authority: it establishes institutions, allocates competence, funds research, protects, or weakens, institutional independence, and organizes decision-making under conditions of uncertainty.
I organized the presentation around four questions:
- Validity: Who decides what counts as legally valid knowledge?
- Interpretation: Who resolves statutory ambiguity involving technical or scientific evidence?
- Independence: Which expert institutions are insulated from direct political control?
- Survival: Which fields and scientific communities retain the resources necessary to continue producing knowledge?
These questions reveal how the legal contest over knowledge has gradually moved upstream.
The earlier evidentiary framework associated with Frye and Daubert concentrated on whether already-produced scientific knowledge could enter legal proceedings. Frye anchored admissibility in the general acceptance of the relevant scientific community, while Daubert placed the ultimate determination of reliability in the hands of judges applying Federal Rule of Evidence 702. Both approaches depend on expertise, but they allocate the final authority to validate that expertise differently.
Administrative law extended the inquiry beyond evidentiary admissibility. Decisions such as State Farm, Chevron, and Massachusetts v. EPA developed competing models for the relationship among courts, agencies, statutory interpretation, and scientific uncertainty. More recently, West Virginia v. EPA and Loper Bright have intensified judicial control over questions previously associated with administrative expertise and delegated authority.
The institutional dimension has now become increasingly important. Removal doctrine, including Trump v. Slaughter, raises questions about the relationship between presidential control and the independence of expert bodies. Control over personnel can influence which evidence is collected, which forms of expertise are credited, and how technical knowledge is translated into regulatory policy.
At the same time, litigation involving federal research funding, including disputes concerning NSF and NIH funding, indirect-cost caps, grant terminations, and restrictions affecting particular fields of research, demonstrates that funding decisions are not merely matters of budgetary administration. They help constitute the architecture within which knowledge is produced. These disputes converge across administrative law, Congress’s appropriations authority, executive control, constitutional equality, jurisdiction, and remedies.
The shift is therefore temporal as well as institutional. Traditional evidentiary doctrine operates largely ex post: it asks whether existing expert knowledge may enter a courtroom or legal proceeding. Administrative, constitutional, and funding law increasingly operate ex ante: they shape whether particular forms of expertise will be generated, maintained, financed, and institutionally authorized in the first place.
This development also illuminates what I describe as institutional neutralization. Institutional autonomy can be weakened without an overt prohibition on ideas or inquiry. Funding conditions, compliance requirements, accreditation mechanisms, governance redesign, executive supervision, and procedural marginalization may appear formally neutral while increasing costs, redirecting research priorities, excluding particular fields or communities, and weakening professional autonomy.
Comparative analysis can help identify these recurring mechanisms, but it must be conducted carefully. The existence of common techniques, defunding, restructuring, credential control, executive supervision, or the procedural normalization of political choices, does not make different political and legal systems equivalent. They may differ profoundly in scale, coercion, contestability, institutional resilience, and the availability of judicial and political remedies.
The normative question is not whether expertise should be insulated from all democratic oversight. It is how epistemic authority should be distributed so that scientific autonomy can coexist with democratic accountability. A legal framework informed by Science and Technology Studies should protect peer review, research agendas, and professional norms while also requiring reasoned decision-making, transparency, judicial review, legislative oversight, and meaningful public participation.
The presentation therefore concluded with a question that extends well beyond any single administrative-law doctrine:
Who controls the conditions of knowledge production?
I am especially grateful to Professor Ericka Kelsaw of Texas Southern University’s Thurgood Marshall School of Law for moderating the workshop. I also thank my fellow participants—Elissa Gentry of Arizona State University Sandra Day O’Connor College of Law; Nicholas Georgakopoulos and Margaret Tarkington of Indiana University Robert H. McKinney School of Law; Akira Mizobuchi of Kagawa University Faculty of Law; and Rodger Citron of Touro University Jacob D. Fuchsberg Law Center—for their careful engagement, constructive criticism, and thoughtful suggestions.
The full paper, “Epistemic Governance,” is available on SSRN:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6487038
Paolo Farah, Paolo Davide Farah