Reason and Reasonableness in Review of Agency Decisions
Jeffrey A. Pojanowski
Notre Dame Law School
September 8, 2009
Northwestern University Law Review, Vol. 104, 2010 104 Nw. U. L. Rev. 799 (2010)
Virginia Public Law and Legal Theory Research Paper No. 2009-07
Notre Dame Legal Studies Paper No. 04-11
Long after the Erie Railroad v. Tompkins, federal courts still expound general federal common law, albeit through the interpretation of federal statutes that incorporate rules and principles of the common law. Federal agencies also administer statutes containing such embedded common law, and it is unclear how much respect, if any, reviewing courts should give to an agency’s interpretation of the same. This Article examines that problem with the aim of situating deference doctrine in broader debates about the character of legal reasoning. Drawing on both common law theory and institutional analysis, this Article argues that the quandary of agency interpretations of common law touches on a fault line in the judiciary’s thinking about deference and the nature of law. Courts’ doubts about their ability to resolve difficult questions without issuing legislative-like commands often lead them to accept merely reasonable agency interpretations, while the inherited common law notion of law aspiring to reason pretermits courts’ complete retreat from all legal ambiguity. This tension lurks just below the surface of much discussion of administrative law doctrine and scholarship, and is a fundamental source of the oft-noted confusion in deference doctrine. Confronting this tension is a crucial first step for shaping a coherent deference regime, or at least recognizing the limits of any such doctrine’s theoretical purity.
Number of Pages in PDF File: 55
Keywords: Chevron deference, deference, common law, standards of review, institutionalism, administrative lawAccepted Paper Series
Date posted: September 9, 2009 ; Last revised: January 19, 2011
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