Document Type

Working Paper

Publication Date

2007

Abstract

The Real World of Arbitrariness Review (q.v.) supplements Professors Miles and Sunsteins' valuable empirical analysis of federal court of appeals Chevron decisions, with a similar analysis of merits review of EPA and NLRB actions they associate with the Court's contemporary decision in State Farm. Their analysis shows political patterns that are perhaps not surprising; one should perhaps celebrate the evidence of effective moderation on mixed panels, although doubting whether measures intended to produce such panels might tend more to legitimize than to cure the politicization of judging. This brief responsive essay begins by setting out a framework for understanding Chevron, State Farm and other recent standard-of-review cases (e.g., Mead Corp.). The whole issue, it argues, is one of allocation: differentiating those issues that courts must decide for themselves, from those their process of decision leads them to conclude have been validly committed to the care of others, subject to residual judicial oversight. The oversight function, and consequently both State Farm and the second step of Chevron analysis, is governed by the statute controlling judicial review of administrative action (5 USC 706) and the constitutional imperatives underlying delegation concerns. Seen in this light, it is suggested, these cases are considerably less troublesome and complicated than commonly appears from the literature. Turning to the Miles-Sunstein data, the paper questions whether it suggests any causal relation from Chevron and/or State Farm, as results like these could presumably be found in NLRB cases (the bulk of their present data set) for the decades prior to the mid-80's decisions in those two cases. NLRB cases, moreover, do not entail State Farm review in the usual sense. One particular concern of this paper is that easing up on State Farm hard look review, an apparent recommendation from their analysis, would further diminish the influence of those within the administration who care about well reasoned and scientifically supported analysis over those who are more disposed to bend science in the interest of politics. Not knowing how reviewing panels will be constituted, agencies facing hard look must prepare for rigorous review of movement in either conservative or liberal directions; free of that prospect, they would lose this incentive and science could be more readily bent. If it is so that politics inevitably has some influence on judging, it hardly follows that relief from judging somewhat distorted by this influence will produce better administrative judgment, rather than more effective acts of political will.

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