That is absolutely right. I am sufficiently confused by the facts that are already on the table – two of them in particular. One (the dog that I thought was barking in that interesting first chart Don Elliott put up, on which he did not remark), is that the first two periods of judicial review he showed us had 337 and 294 cases of judicial review each; for the third period, for the same length of time, the figure is about 800. Something is going on there. The other is just a square conflict that our moderator is much better positioned than I am to tell us about. He recently published a fascinating study in the Duke Law Journal that purports to show that the affirmance rate for administrative agencies in the D.C. Circuit, which gets about 60% of administrative appeals these days, is only 30%. His figures are from 1987, not 1984 or 1985, but I doubt court performance has changed so sharply in such a very short period of time. These facts warrant some further exploration.
Peter L. Strauss,
Considering Political Alternatives to "Hard Look" Review,
Duke L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/434