Abstract

http://ssrn.com/abstract=1797729
 


 



Politicized Judicial Review in Administrative Law: Three Improbable Responses


Sidney A. Shapiro


Wake Forest University School of Law

Richard W. Murphy


Texas Tech University School of Law

March 28, 2011

Wake Forest Univ. Legal Studies Paper No. 1797729

Abstract:     
In administrative law, as elsewhere, empirical studies confirm that ideology affects judicial review of agency action to an alarming degree. After summarizing and analyzing empirical studies of judicial review in administrative law, this article proposes four models of judicial behavior that can explain the politicization of judging. While all four models are based on the literature, the article uniquely compares and contrasts them. Based on the models, the article then explores three improbable possibilities for ameliorating politicized judging. The first and least promising contemplates making administrative law clearer and more determinate, thereby depriving judges of the discretion necessary for political preferences to affect their decision-making. The second requires judges to discuss openly their political and policy preferences when explaining their administrative law decisions. The third possibility is the most plausible, least ambitious, and simplest: Require five-judge panels for a well-defined set of significant agency actions - e.g., legislative rules with significant economic effects promulgated through notice-and-comment.

Number of Pages in PDF File: 41

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Date posted: March 29, 2011  

Suggested Citation

Shapiro, Sidney A. and Murphy, Richard W., Politicized Judicial Review in Administrative Law: Three Improbable Responses (March 28, 2011). Wake Forest Univ. Legal Studies Paper No. 1797729. Available at SSRN: http://ssrn.com/abstract=1797729 or http://dx.doi.org/10.2139/ssrn.1797729

Contact Information

Sidney A. Shapiro (Contact Author)
Wake Forest University School of Law ( email )
P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)
Richard Wyman Murphy
Texas Tech University School of Law ( email )
1802 Hartford
Lubbock, TX 79409
United States
806-742-3990 ex.320 (Phone)
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