Judicial Review and the 'Hard Look' Doctrine

20 Pages Posted: 10 Nov 2007

See all articles by Patrick M. Garry

Patrick M. Garry

University of South Dakota - School of Law

Abstract

"Judicial Review and the 'Hard Look' Doctrine" examines the ways in which judicial review of administrative rulemaking has become more scrutinizing. Specifically, the article analyzes what has become known as the 'hard look' standard of judicial review. To many scholars, this hard look standard goes beyond any requirements imposed on agency rulemaking by the Administrative Procedure Act. Furthermore, this heightened standard of review is often seen as a means by which the courts can implement a certain adversarial view of agency behavior.

The article argues that even if hard look review contradicts the commands of the Administration Procedure act, it is not the result of an overriding judicial suspicion of or antagonism toward administrative agencies. Instead, given the increasing number of administrative law cases coming to the courts, the hard look doctrine is simply a reflection of the courts' view of how an effective and meaningful process of judicial review should be conducted. The article also argues that the hard look doctrine has developed from the courts switching from a legislative model to a judicial model in their review of administrative agency actions.

Keywords: Judicial Review, Hard Look Doctrine, Administrative Law, Capture Theory, APA, Administrative Procedure Act

JEL Classification: K10, K19, K30, K39

Suggested Citation

Garry, Patrick M., Judicial Review and the 'Hard Look' Doctrine. Nevada Law Review, Vol. 7, No. 1, 2006. Available at SSRN: https://ssrn.com/abstract=1028834

Patrick M. Garry (Contact Author)

University of South Dakota - School of Law ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

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